author: Foti, J.

text:
    Robert J. Stankiewicz et al. v. Zoning Board of Appeals of the Town of Montville et al.
    (6174)
    Dupont, C. J., Stoughton and Foti, Js.
    Argued May 16—
    decision released August 30, 1988

      Stanley Maxim Lucas, for the appellants (plaintiffs).

      James J. Devine, for the appellee (named defendant).

      Harry B. Heller, for the appellees (defendant Joseph Fisher et al.).
   Foti, J.

The plaintiffs appeal from the judgment of the Superior Court dismissing their appeal from a decision of the board of zoning appeals of the town of Mont-ville which granted six variances from the bulk area requirements and a variance permitting the use of an undersized lot for an accessory building. We find no error.

The facts relevant to this appeal are not in dispute. On March 19, 1981, Joseph and Marjorie Fisher purchased the lot that is the subject of this appeal. The lot, which is 97 feet by 87 feet (8439 square feet), is located on the northwest side of Lake Drive in Mont-ville, directly opposite another parcel owned by the Fishers which is improved by a single-family dwelling. On October 15,1970, the town enacted zoning regulations. On that date the Fishers’ predecessor in interest owned the lot in its present configuration. In 1985, the Fishers applied for variances from the bulk area regulation and the setback requirements so that they could build a garage on the subject lot. After a hearing, the board granted the following variances: (1) 111,561 square feet from the 120,000 square feet bulk area requirement; (2) 35 feet from the front yard setback requirement; (3) 21 feet from the rear yard setback requirement; (4) 14 feet from the side yard requirement; (5) 9 feet from the side yard total width requirement; (6) 112 feet from the road frontage requirement; and (7) a variance permitting the construction of a garage on a preexisting small lot with no principal dwelling on it.

These seven variances were granted with the condition that the three-car garage proposed for the lot be limited in size to 22 feet by 36 feet. The board granted the variances after concluding that the “conditions and circumstances associated with the request are not the result of actions of the applicant taken subsequent to the adoption of the zoning regulations,” and that the “conditions on the site are unique to the applicant’s land.” The plaintiffs appealed that decision of the board to the Superior Court. After reviewing the record, the court rejected the board’s conclusion that the hardship was unique as there were numerous undersize lots affected by the 1970 regulations. The court found, however, that the variances were properly granted because the regulations, as applied to the Fishers’ parcel, were confiscatory and that the variances would not substantially affect the comprehensive plan. This appeal followed the court’s judgment dismissing the plaintiffs’ appeal.

On appeal, the plaintiffs claim that the court erred (1) in upholding the decision of the board after concluding that there was insufficient evidence to support the board’s finding that the hardship was unique, (2) in substituting its own conclusion for those reached by the board, (3) in upholding the board’s variances permitting the use of the lot for an accessory building, and (4) in finding that the zoning regulation had a confiscatory effect when applied to the parcel.

We first consider the plaintiffs’ claim that the court erred in substituting its own findings for those of the board. It is well settled that courts are not to substitute their judgment for that of the board, and that the decisions of local boards will not be disturbed as long as honest judgment has been reasonably and fairly made after a full hearing; Spectrum of Connecticut, Inc. v. Planning & Zoning Commission, 13 Conn. App. 159, 163, 535 A.2d 382 (1988); as the credibility of witnesses and the determination of factual issues are matters within the province of the administrative agency. Feinson v. Conservation Commission, 180 Conn. 421, 425, 429 A.2d 910 (1980).

The plaintiffs argue that because the court found no basis in the record for the board’s conclusion that the hardship was unique, it was then obligated to sustain the appeal without further review of the record. We do not agree. Although it is desirable for a zoning authority to state the grounds for granting a variance and the failure to do so renders the court’s review more cumbersome, it does not preclude the court from upholding the board’s decision. If the board fails to give the reasons for its actions, or if its reasons are inadequate, the trial court must search the record to determine whether a basis exists for the action taken. Parks v. Planning & Zoning Commission, 178 Conn. 657, 661-62, 425 A.2d 100 (1979); A.P. & W. Holding Corporation v. Planning & Zoning Board, 167 Conn. 182, 186-87, 355 A.2d 91 (1974); Morningside Assn. v. Planning & Zoning Board, 162 Conn. 154, 156, 292 A.2d 893 (1972); but see Torsiello v. Zoning Board of Appeals, 3 Conn. App. 47, 50, 484 A.2d 483 (1984) (court erred in concluding that there was insufficient evidence for the reasons given by the board for denying a special permit and, in effect, substituted its judgment for that of the zoning board).

A zoning board is comprised of laymen whose responsibility is to protect the interest of the individual property owner by granting a variance when the zoning regulations impose a hardship on the property owner of the nature described by the General Statutes. Adolphson v. Zoning Board of Appeals, 205 Conn. 703, 715, 535 A.2d 799 (1988). In searching the record, the trial court may rely on any reason culled from the record which demonstrates a real or reasonable relationship with the general welfare of the community in concluding that the board’s decision should be upheld. Parks v. Planning & Zoning Commission, supra, 662. Here, the court did not substitute its findings for those of the board, but reviewed the record that was before the board. In reviewing that record, the court did not err in concluding that board’s decision should be upheld.

We next consider the plaintiffs’ claim that there was insufficient evidence to support the court’s conclusion that application of the zoning regulations to the subject lot was confiscatory.

We note at the outset that the plaintiffs do not challenge the court’s conclusion that the hardship resulting from the application of the zoning regulations to the lot was not self inflicted. See Spencer v. Board of Zoning Appeals, 15 Conn. App. 387, 544 A.2d 676 (1988). The court correctly concluded that because the property existed in its present configuration prior to the enactment of the zoning regulations, the present hardship, resulting from the nonconformity of the lot, is not attributable to the present owners or their predecessors in title. The sole question raised by this claim, therefore, is whether there was sufficient evidence in the record to support the court’s conclusion that the zoning regulations, as applied, were confiscatory.

A confiscatory effect results when a “zoning regulation practically destroys or greatly decreases the value of a specific piece of property.” Culinary Institute of America, Inc. v. Board of Zoning Appeals, 143 Conn. 257, 262, 121 A.2d 637 (1956); see also Chevron Oil Co. v. Zoning Board of Appeals, 170 Conn. 146, 151-54, 365 A.2d 387 (1976). When such an effect results, a variance may be granted provided that the variance does not materially impair the effectiveness of the zoning regulations as a whole and that the action promotes substantial justice. Culinary Institute of America, Inc. v. Board of Zoning Appeals, supra, 262; Plumb v. Board of Zoning Appeals, 141 Conn. 595, 601, 108 A.2d 899 (1954).

In Culinary Institute of America, Inc., the court upheld the granting of a variance which permitted the use of a parcel with a single-family dwelling on it for the erection of a fifty-four unit apartment building. The court concluded that the variance was properly granted because the changing character of the area had rendered the property valueless as it existed, and that the continued enforcement of the zoning regulations as to that property was, in effect, confiscatory.

The court reached a similar conclusion in Chevron Oil Co. v. Zoning Board of Appeals, supra. In Chevron, the applicant sought a variance from the zoning district’s setback regulation in order to use the site for a gasoline service station because the site was unsuitable for residential use. In concluding that the variance should be granted, the court noted that the application of the setback regulation would appropriate 85 percent of the parcel for public welfare without compensation. It refused to upset the conclusion of the trial court that such an application was confiscatory. Id., 152.

In this case, the court’s review of the record disclosed that the application of the bulk area requirements and the setback regulations to the subject property would prohibit the owner’s use of the lot for either a principal structure or an accessory building. The court noted that applying the setback and side yard requirements to the lot would result in those limits overlapping. The court further noted that even if § 5.21 of the zoning regulations, which reduces the requirements for preexisting undersized lots, was applied to the subject parcel it is too small to meet the state health code regulation for installation of an onsite sanitary facility.

On the basis of these facts, culled from the record, the court concluded that the zoning regulations had a confiscatory effect as the application of these regulations prohibited any reasonable permitted use of the subject lot. We find no error in the court’s conclusion drawn from facts clearly present in the record.

The plaintiffs next claim that the court erred in upholding the board’s decision to grant a variance permitting the principal use of the lot for an acccessory building. In support of this argument, the plaintiffs rely on Adley v. Paier, 148 Conn. 84, 167 A.2d 449 (1961). We find the facts and the reasoning of Adley distinguishable.

In Adley, the owners of an art school purchased the lot adjoining the parcel where the school was located and immediately began using the lot as a parking area for the school. An abutting landowner obtained an injunction which prohibited the use of the subject lot for parking. On appeal, the owners of the lot argued that using the lot for parking was a permissible accessory use within the zoning regulations. The court rejected this argument determining that if such parking was a permissible accessory use under the regulation, it could only be such if it was conducted on the same lot as the principal use. The court concluded that parking on the adjacent but originally separate lot was not a permissible accessory use under the regulations. Here, the plaintiffs argue that § 1.2 of the Montville zoning regulations, like the regulation in Adley, require accessory buildings be located on the same lot as the principal structure. Even if we were to agree that the relevant language of the regulation in Adley is identical to that of § 1.2 of the Montville zoning regulations, the facts of this case are inapposite. In this case, the Fishers’ petition for the seven variances implicitly acknowledged that the use of the subject lot for a garage was not permissible under the town’s zoning regulations. They did not, as in Adley, begin using the parcel as a parking area and then claim that they could use the lot as a matter of right under the zoning regulations. To the contrary, the Fishers obtained the necessary variances so that they could use the lot for an accessory building which, otherwise, would have been a violation of the town’s regulations.

Finally, we consider the plaintiffs' claim that the court erred in concluding that there was sufficient evidence for the board’s conclusion that the variance would not substantially impair the comprehensive zoning plan.

The zoning authority must derive the comprehensive plan from the scheme of the zoning regulations themselves. Adolphson v. Zoning Board of Appeals, supra, 713. “ ‘We have said on many occasions that courts cannot substitute their judgment for the wide and liberal discretion vested in local zoning authorities when they have acted within their prescribed legislative powers. Courts must not disturb the decision of a zoning commission unless the party aggrieved by that decision establishes that the commission acted arbitrarily or illegally. First Hartford Realty Corporation v. Plan & Zoning Commission, 165 Conn. 533, 540-41, 338 A.2d 490 (1973).’ Burnham v. Planning & Zoning Commission, [189 Conn. 261, 266, 455 A.2d 339 (1983)].” Central Bank for Savings v. Planning & Zoning Commission, 13 Conn. App. 448, 459, 537 A.2d 510 (1988).

It is undisputed that General Statutes § 8-6 vests the board with the authority to grant a variance. The question thus becomes whether the decision of the board to grant the seven variances substantially impaired the comprehensive plan. The plaintiffs argue that because § 5.21 of the town’s regulation reduces the bulk area requirements for preexisting undersized lots, the variances were contrary to the comprehensive plan. We do not agree.

Section 5.21 of the regulations permit the building of a principal dwelling on an undersized lot provided the lot meets bulk area requirements which are less stringent than those imposed by the regulations enacted in 1970. Section 1.2 of the regulations provides that accessory buildings be incidental to a principal structure and that these structures be located on the same lot. Even with the reduced requirements listed in § 5.21, the subject lot remains too small for use as a building lot for a single-family detached residence. Nor is the lot capable of being integrated with the lot where the Fishers’ residence is located so that it may conform to § 1.2 of the town’s regulations for an accessory use. Thus, in order for the lot to have some permitted use a variance was needed.

In reviewing the record, the court concluded that the proposed garage would “relieve parking congestion” without placing any “added burdens” on the sanitation requirements in the area. We cannot say that these factors were insufficient to support the court’s conclusion that the variances would not impair the harmony of the comprehensive plan.

There is no error.

In this opinion the other judges concurred.

       The plaintiffs, Robert and Cheryl Stankiewicz, own property abutting the subject lot. They have brought this action pursuant to General Statutes § 8-8.

       The subject lot is located in an RA-120 district. Section 3.12 of the town’s zoning regulations limits the use of such a lot to either single-family detached home or limited agricultural uses. The regulations also established the following requirements for such a lot if it is used for a single-family detached home: (1) 120,000 square feet bulk area; (2) a lot width of 200 feet; (2) a front yard setback of 50 feet; (4) a side yard setback of 25 feet; and (5) a rear yard setback of 50 feet.

       Section 5.21 of the town’s regulations makes the following provision for preexisting undersized lots:
      “Small Lots for Single-Family Detached Residences. A lot either owned individually and separately and separated from any adjoining tract of land on the effective date of these Regulations or located in and part of a subdivision plan which has been given final approval by the Zoning and Planning Commission prior to such date, which has a total area or lot frontage less than the minimum required in the Bulk Table, may be used for a single-family detached residence, provided such lot shall conform to the Use Regulations and all other Bulk Regulations applicable to a particular lot size as stated in Section 3.12 or the Table below:
      FRONTAGE MINIMUM SIDE YARD WIDTH
      Less than 55 feet 5 feet, but the sum of both yards not less than 35% of lot width
      55 feet and over, but less than 65 feet 8 feet, but the sum of both yards not less than 33.5% of lot width
      65 feet and over, but less than 75 feet 10 feet, but the sum of both yards not less than 33.5% of lot width.
      Lots subject to the provisions of Section 5.21 which have an in between dimension as their lot frontage, shall comply with the appropriate standard prescribed for the nearest applicable listed standard in Section 3.12. Lots subject to the provisions of Section 5.21 shall not be built upon unless the Health Officer shall certify in writing to the Zoning Agency as to the adequacy and safety of the sewer disposal system and water supply.”

       Section 1.2 of the town’s zoning regulations defines accessory as follows: “Accessory. The term applied to a building or use which is clearly incidental or subordinate to, and customary in connection with, the principal building or use and located on the same lot with such principal building or use. Any accessory building attached to a principal building is deemed to be part of such principal building in applying the Bulk Regulations to such building.”


source: Caselaw Access Project

author: O’Connell, J.

license: Public Domain

text:
    City of Stamford v. Administrator, Unemployment Compensation Act, et al.
    (6031)
    Daly, O’Connell and Foti, Js.

      Argued April 14—
    decision released August 30, 1988

      James V. Minor, assistant corporation counsel, with whom, on the brief, were Mary E. Sommer, corporation counsel, and Eric L. Reinken, for the appellant (plaintiff).

      Taka Iwashita, assistant attorney general, with whom, on the brief, were Joseph I. Lieberman, attorney general, Charles A. Overend, assistant attorney general, and Joanne Vonasek, legal intern, for the appellee (named defendant).
   O’Connell, J.

The plaintiff city appeals from the judgment rendered by the trial court, upholding the eligibility of a former employee of the city to collect unemployment compensation. The plaintiff claims the trial court erred (1) in failing to adopt the finding of the state employment security board of review (hereafter board of review) that the claimant occupied a policy-making or advisory position, and in holding such a position was exempt from unemployment compensation eligibility, (2) in making a finding that was not supported by the subordinate facts and the evidence, and (3) in concluding that the board of review neither acted arbitrarily or capriciously, nor denied the plaintiff due process, in ruling that the claimant was eligible for compensation on grounds other than those expressly raised by the parties. We find no error.

The following facts, found by the employment security appeals referee, adopted by the board of review, and certified to the trial court, are relevant to the resolution of this appeal. The claimant, Patrick G. Marra, was employed by the plaintiff city of Stamford from February, 1982, until November 30,1983, as that city’s commissioner of finance. He was appointed by the mayor of Stamford, and became unemployed upon the mayor’s defeat in a reelection bid. The claimant’s position with the city as commissioner of finance, as described by the appeals referee, “was for the most part concerned with administering the Department of Finance which includes responsibility to direct activities of the Bureau of Accounts and Records and Bureau of Purchases.” The period of unemployment at issue before the referee ran from December 4,1983, to January 15,1984. The plaintiff city was notified of its potential liability for the charges arising in conjunction with the claimant’s unemployment insurance benefits on December 16, 1983, and filed a timely appeal.

The plaintiff’s appeal was heard by an appeals referee who issued a decision dismissing the appeal. The plaintiff appealed that decision to the board of review, which affirmed the decision of the appeals referee, again dismissing the plaintiffs appeal. The plaintiff then brought its appeal to the Superior Court, where it was also dismissed. This appeal followed.

The plaintiff first claims that the trial court erred in failing to adopt the board of review’s finding that the claimant’s position was that of a policy maker or advisor pursuant to General Statutes § 31-222 (a) (1) (E) (iii) (V) (i). This section of the General Statutes provides in pertinent part: “[T]he term ‘employment’ does not apply to service performed ... in the employ of a governmental entity ... if such service is performed by an individual in the exercise of duties ... in a position which, under or pursuant to the laws of this state, is designated as . . . a major nontenured policy-making or advisory position . . . .” Pursuant to this statute, persons holding such policy-making or advisory positions are not entitled to collect unemployment compensation. General Statutes § 31-222.

The plaintiffs claim arises from the fact that although the Superior Court affirmed the board of review’s conclusion regarding eligibility, it did so without adopting the rationale upon which the board based its decision. Although the board of review found that the claimant held “an advisory or policy-making position,” it also found that the position had not been so designated “under or pursuant to the laws of this state,” and dismissed the plaintiff’s appeal on those grounds. In determining that the claimant held an advisory or policy-making position, the board of review directly contradicted the finding of the appeals referee, who, like the trial court, concluded that the position was not of an advisory or policy-making nature. The plaintiff claims that the trial court erred in failing to adopt the board of review’s finding that the position was that of an advisor or policy maker. We disagree.

Our analysis of the plaintiffs claims begins with a review of the findings made by the appeals referee, and their relationship to-the review afforded by the Superior Court. In determining appeals arising under Connecticut’s unemployment compensation legislation, the Superior Court acts as an appellate level tribunal, limited in its review to the record certified by the board of review below it. Finkenstein v. Administrator, 192 Conn. 104, 112, 470 A.2d 1196 (1984); Burnham v. Administrator, 184 Conn. 317, 321, 439 A.2d 1008 (1981). Where, as here, the board of review has adopted the findings and has affirmed the decision of the appeals referee, “[t]he [Superior Court] ‘is bound by the findings of subordinate facts and reasonable factual conclusions made by the appeals referee. . . .’’’(Emphasis added.) Burnham v. Administrator, supra, 321, quoting DaSilva v. Administrator, 175 Conn. 562, 564, 402 A.2d 755 (1978).

In the present case, the board of review expressly stated in its decision not only that it “adopt[ed] the referee’s findings of fact as its own,” but also that “[t]he decision of the referee is affirmed." (Emphasis in original.) The trial court was therefore accordingly limited in its review to the findings of subordinate facts and reasonable factual conclusions of the appeals referee. Burnham v. Administrator, supra; DaSilva v. Administrator, supra. The Superior Court expressly upheld the findings of the referee in stating: “This court agrees with the decision of the referee that the claimant’s position was not a major nontenured policy making or advisory position. The record amply supports this conclusion since it was found that ‘the claimant’s position with the city as Finance Director was for the most part concerned with administering the Department of Finance which includes responsibility to direct activities of the Bureau of Accounts and Bureau of Purchases.’ (Emphasis added.) Decision of Appeals Referee, Findings of Fact, No. 6. The referee also specifically found that the ‘Board of Finance determines the fiscal policies of Stamford.’ Decision of Appeals Referee, Findings of Fact, No. 7.”

We agree with the trial court’s affirmation of the referee’s finding, and further uphold its conclusion that because the ultimate decision to grant the claimant benefits was not unreasonable, arbitrary or illegal, it “should not be judicially overturned.” Because the trial court’s determination fully comported with the appeals referee’s findings of subordinate facts and reasonable factual conclusions, and because the ultimate decision reached by both the appeals referee and the trial court (as well as the board of review) was not arbitrary, capricious or illegal, we conclude that the trial court’s actions were proper. It is of no consequence that the trial court was not in agreement with the rationale espoused by the board of review in reaching the identical conclusion, as a reviewing court may uphold a correct decision rendered below when the decision is rendered on incorrect grounds, provided proper grounds may be found in the record to sustain it. Johnny Cake, Inc. v. Zoning Board of Appeals, 180 Conn. 296, 301, 429 A.2d 883 (1980); Royce v. Freedom of Information Commission, 177 Conn. 584, 588, 418 A.2d 939 (1979).

In its final claim of error, the plaintiff claims that the trial court erred in failing to find that the board of review acted arbitrarily or capriciously and violated the plaintiff’s due process rights by failing to apprise the plaintiff adequately of the potential issues “to be determined or reviewed” in its appeal. This contention merits only minimal discussion.

The plaintiff itself determined the scope of issues to be reviewed when it invoked the express language of General Statutes § 31-222 (a) (1) (E) (iii) (V) (i) in its request for an appeal to the board of review. As set forth earlier in this decision, the express language contained in that statute is the language upon which the board of review relied in its determination. In paragraph 2 of its request, the plaintiff stated that it referred to “section 31-222 (E)” of the General Statutes, and quoted the language at issue. The board of review relied upon the language of that statutory section which exempts from unemployment compensation, parties employed “in a position which, under or pursuant to the laws of this state, is designated as . . . a major nontenured policy-making or advisory position.” (Emphasis added.)

We once again quote the trial court’s decision with approval in stating that “[t]he board of review did not act improperly, arbitrarily or illegally in considering the language of the statute which the employer itself raised as a basis for appeal.”

There is no error.

In this opinion the other judges concurred.

       The defendant administrator refers to the plaintiff’s position with the city as that of “Finance Director”; however, the position as titled in the city’s charter is “Commissioner of Finance.” For the purposes of this appeal, both titles are deemed to describe the same position.

       Given our conclusion that the trial court’s holding adopted the appeals referee’s findings of fact and reasonable factual conclusions, we need not address the plaintiffs second claim of error, that the trial court’s finding was not supported by the subordinate facts and evidence.

       The paragraph provided in pertinent part: “We refer to section 31-222 (E), ‘For the purposes of subparagraphs (C) and (D) the term “employment” does not apply to service performed . . . (iii) prior to January 1, 1978 in the employ of a school which is not an institution of higher education; after December 31,1977 in the employ of a governmental entity referred to in subparagraph (C) of this subsection if such service is performed by an individual in the exercise of duties ... (V) in a position which, under or pursuant to the laws of this state, is designated as (i) a major nontenured policy-making or advisory position.’ ”


author: Daly, J.

text:
    Edward Vonaa v. Robin Vonaa
    (5956)
    Dupont, C. J., Daly and O’Connell, Js.
    Argued April 13—
    decision released August 30, 1988

      Wilbur Ward Dinegar, assistant attorney general, with whom, on the brief, was Joseph I. Lieberman, attorney general, for the appellant (state).

      Ciar anee J. Jones, for the appellee (plaintiff).
   Daly, J.

The state of Connecticut, pursuant to General Statutes § 46b-55 (a), appeals from the trial court’s granting of a motion for modification of a child support order which decreased the support to be paid by the plaintiff. The state claims that the trial court erred: (1) in determining that the support payments originally ordered were made in contemplation of the plaintiff’s obtaining a part-time job; (2) in finding a change in circumstances of the plaintiff; and (3) in granting the motion for modification without finding a substantial change in circumstances. We find error.

The facts are not in dispute. The parties were married on May 3, 1985, and had one child born to them on December 26,1985. Over the course of the year, the marriage broke down and was dissolved on August 25, 1986. The trial court, at the date of the dissolution of the marriage, ordered, inter alia, the respondent to pay “the sum of $75 per week and $5 arrearage as child support until November 1,1986. On November 1,1986, child support shall increase to $85 per week and $5 on arrearage. On January 1,1987, the child support shall increase to $95 per week and $5 on the arrearage.”

On March 6,1987, the plaintiff moved to modify the order claiming that he could not meet his basic financial needs while abiding by the order. Additionally, the plaintiff argued that the order was entered by mistake and should therefore be reduced. Although the motion was properly accompanied by a financial affidavit, the plaintiff made no claim of a substantial change of circumstances. The trial court issued its written order finding a change of circumstances, vacated the prior orders and reduced the support and arrearage payments.

“As a preliminary matter, we note that the trial court has broad discretion in domestic relations cases. Leo v. Leo, 197 Conn. 1, 4, 495 A.2d 704 (1985); Flynn v. Flynn, 7 Conn. App. 745, 746, 510 A.2d 1005 (1986). A reviewing court allows every reasonable presumption in favor of the correctness of the trial court’s ruling. Gallo v. Gallo, 184 Conn. 36, 44, 440 A.2d 782 (1981).” Little v. Little, 14 Conn. App. 195, 196, 540 A.2d 102 (1988). The standard of review is a determination of whether the trial court abused its legal discretion. deCossy v. deCossy, 172 Conn. 202, 204, 374 A.2d 182 (1977).

This standard of review has been noted in numerous modification cases in which our Supreme Court has held that “the unquestioned rule is that great weight is due to the action of the trial court and every reasonable presumption will be made in favor of its correctness.” Noce v. Noce, 181 Conn. 145, 149, 434 A.2d 345 (1980).

General Statutes § 46b-86 (a), in pertinent part, provides that any final order for the periodic payment of alimony or child support “may at any time thereafter be continued, set aside, altered or modified . . . upon a showing of a substantial change in the circumstances of either party.” (Emphasis added.)

“Connecticut unequivocally follows the widely established rule that no modification of alimony or support is to be granted unless there has been a showing of a substantial change in the circumstances of either party. General Statutes § 46-54; Viglione v. Viglione, 171 Conn. 213, 215, 368 A.2d 202 [1976]; see Clark, Domestic Relations § 14.9.” Grinold v. Grinold, 172 Conn. 192, 195, 374 A.2d 172 (1976). Case law in the area of modification makes it abundantly clear that three elements must be present in order for the modification to be proper: (1) that the burden of proof is on the moving party to make a clear showing of a substantial change in circumstances: McGuinness v. McGuinness, 185 Conn. 7, 10, 440 A.2d 804 (1981); (2) that the change in circumstances was not contemplated at the time of the entry of the original decree and arose thereafter; Grinold v. Grinold, supra, 195; and (3) that the change was, in fact, substantial. Id.

In this case, the trial court found that there was a change in circumstances in that the husband did not obtain a part-time job. The trial court ruled that the fact that the husband did not obtain a part-time job supported a reduction of the original child support order. The trial court’s conclusion that, at the time of the dissolution, it was contemplated that the husband would obtain a second job is not supported by the record.

Moreover, the record indicates that the plaintiff at the time he sought a modification, had the same job that he had at the time of the dissolution. The plaintiff, according to the financial affidavit submitted in the course of seeking a modification showed a slight increase in net earnings which should not result in a decrease of support. Even if we assume, arguendo, that a part-time job was originally contemplated, the established requirement in modification cases is that there be a clear and definite showing of substantial change in circumstances since the time of the original decree. Id., 196.

There is error and the case is remanded with direction to vacate the court’s modification order and to reinstate the original support order.

In this opinion the other judges concurred.

       The order read as follows:
      “The court finds that there has been a change of circumstances in that it was contemplated at the time the initial orders were entered the plaintiff would obtain a second job. He has not—but does work full time for the VA as a ‘housekeeper.’
      “The court finds that the plaintiff has net available income of $214.78 (before provision is made for debt) and has living expenses of $156.52 leaving a net sum of $58. The court orders that the plaintiff pay child support in the amount of $58 plus cover the minor child with such medical and dental insurance which is available to him at his place of employment. $1 a year alimony shall continue. In addition, the plaintiff shall pay arrearages at the rate of $2 per week. In all, $60 per week. Wage execution on the above for the benefit of the state to the extent of its interest.”

       The statute was changed effective October 1, 1987, to the effect that contemplation of the parties is not relevant unless specifically set forth in the agreement. Public Acts 1987, No. 87-104.


author: Borden, J.

text:
    State of Connecticut v. Luis Ortiz
    (6107)
    Dupont, C. J., Borden and Spallone, Js.
    Argued June 7—
    decision released August 30, 1988

      John D. Watson, assistant public defender, with whom, on the brief, were Joette Katz, public defender, and G. Douglas Nash and Temmy Ann Pieszak, assistant public defenders, for the appellant (defendant).

      Timothy J. Sugrue, deputy assistant state’s attorney, with whom, on the brief, were Mitchell S. Brody and John Smirga, assistant state’s attorneys, for the appellee (state).
   Borden, J.

The defendant appeals from the judgment of conviction, after a jury trial, of carrying a pistol without a permit in violation of General Statutes § 29-35 and criminal possession of a revolver in violation of General Statutes § 53a-217 (a). The defendant claims (1) that the trial court erred in refusing to sever the two charges and order separate trials on the two offenses, (2) that the trial court committed plain error in failing to bifurcate the trial on the criminal possession of a revolver charge, (3) that General Statutes § 53a-217 (a) is unconstitutional, and (4) that his convictions under General Statutes §§ 29-35 and 53a-217 (a) violated his right to be free of double jeopardy under the state and federal constitutions. We find no error.

A recitation of the facts of this case is unnecessary. Each of the defendant’s claims has recently been addressed, and rejected, by this court. No facts in the record before us sufficiently distinguish this case from the cases cited below, which are dispositive of the defendant’s appeal.

The defendant’s first claim of error is that the trial court erred in refusing to sever the criminal possession of a revolver charge, which requires proof of a prior felony conviction, from the trial of the charge of carrying a pistol without a permit. We do not agree. See generally, State v. Banta, 15 Conn. App. 161, 166, 544 A.2d 1226 (1988). The defendant “ ‘has failed to sustain his heavy burden of showing that the denial of his motion to sever resulted in substantial injustice or prejudice.’ ” Id., 172, quoting (State v. Edwards, 10 Conn. App. 503, 509, 524 A.2d 648, cert. denied, 204 Conn. 808, 528 A.2d 1155 (1987).

The defendant next claims that the trial court’s failure to bifurcate, sua sponte, the trial of the criminal possession of a revolver charge for separate jury consideration of the two elements of the crime, amounted to plain error. This claim is without merit. State v. Banta, supra, 172.

The defendant’s challenge to the constitutionality of General Statutes § 53a-217 (a) is raised for the first time on appeal. The defendant’s constitutional claims, which are the same as those raised in State v. Banta, supra, do not qualify for full review under State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973). State v. Banta, supra, 181; State v. Reddick, 15 Conn. App. 342, 355, 545 A.2d 1109 (1988).

The defendant’s final claim of error is also without merit. The defendant’s conviction of carrying a pistol without a permit in violation of General Statutes § 29-35 and his conviction of criminal possession of a revolver in violation of General Statutes § 53a-217 (a), did not violate the protection against multiple punishments for the same offense under the double jeopardy clause. State v. King, 15 Conn. App. 330, 331, 544 A.2d 261 (1988).

There is no error.

In this opinion the other judges concurred.

       “Although there is no specific prohibition of double jeopardy in the Connecticut constitution, [our Supreme Court has] in large part adopted the common-law rule against it ‘as necessary to the due process guaranteed by article first, § 9 of our constitution.’ ” State v. Aillon, 182 Conn. 124, 126 n.2, 438 A.2d 30 (1980), cert. denied, 449 U.S. 1090, 101 S. Ct. 883, 66 L. Ed. 2d 817 (1981), quoting Kohlfuss v. Warden, 149 Conn. 692, 695, 183 A.2d 626 (1962). While the defendant relies on both the state and federal constitutions in support of his double jeopardy claim, he offers no separate analysis of the Connecticut constitution as a basis for different treatment of the federal and state constitutional claims. We decline to undertake such analysis. See State v. Camerone, 8 Conn. App. 317, 321 n.1, 513 A.2d 718 (1986).

       The defendant’s claim that the trial court’s jury instructions on the defendant’s failure to testify did not comply with General Statutes § 54-84 (b), was withdrawn prior to argument.

       The defendant also claims that General Statutes § 53a-217 (a) violates the due process clause because the possession criminalized by § 53a-217 (a) is “a wholly passive continuation of previously legal behavior.” In support of this claim, the defendant relies upon Lambert v. California, 355 U.S. 225, 78 S. Ct. 240, 2 L. Ed. 2d 228 (1957). We will not review this claim under State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), because the record does not adequately support the claim that the defendant has clearly been deprived of a fundamental constitutional right and a fair trial.


author: Norcott, J.

text:
    Stafford Higgins Industries, Inc., et al. v. City of Norwalk et al.
    (5988)
    Stoughton, Norcott and Foti, Js.
    Argued May 19—
    decision released August 30, 1988

      Bruce M. Perlman, with whom were Jay H. Sandak and, on the brief, Robert A. Slavitt, for the appellants (plaintiffs).

      Sara L. Oley, assistant corporation counsel, for the appellee (defendants).
   Norcott, J.

This case arises from an appeal to the Superior Court from a decision of the board of tax review of the city of Norwalk increasing the assessment on a building located at 25 Van Zant Street in that city. The plaintiffs are the owners of units of the 25 Van Zant Street condominium. The subject building was one of the first commercial condominium conversions in the state of Connecticut. The premises were converted from a multi-tenanted factory to an industrial condominium.

On February 14, 15, and 19, 1980, the defendant board of tax review reassessed the value of the condominium according to the defendant tax assessor’s revaluation, even though a reassessment of the same premises had been done in 1973. The 1980 reassessment was done as a supplement to the 1979 grand list. The assessor’s revaluation nearly quadrupled the property value of the condominium from the time of the 1973 valuation.

The plaintiffs appealed the board’s actions affecting the 1979 tax list to the Superior Court. Thereafter, pursuant to General Statutes § 12-118, the plaintiffs amended their appeal to include the subsequent tax list years 1980,1981 and 1982. On November 18,1982, the trial court granted a motion for summary judgment in favor of the plaintiffs as to the 1979 grand list only. The court held that certain defects in the notice given to the plaintiffs with respect to the 1979 list year mandated the granting of the summary judgment.

Pursuant to the court’s memorandum of decision on the motion for summary judgment, the plaintiffs’ counsel prepared a judgment file based on the trial court’s decision. The memorandum of decision made no mention of an award of interest, but the judgment file prepared by plaintiffs’ counsel and subsequently signed by the court, Nigro, J., stated that the sums owed to the plaintiffs were to be “repaid with statutory interest.”

Thereafter, on July 23,1986, the parties executed a stipulation for judgment before the court, Emmett, J., which was entered as a judgment on July 31,1986. The stipulation provided for rebates of tax overpayments and postjudgment interest and pertained to the 1980, 1981 and 1982 list years only. The 1979 list year had been disposed of by virtue of the summary judgment. The parties fully complied with the stipulation.

The defendant contends that the stipulation between the parties dated July 31,1986, fully covered and settled all matters contained within the plaintiffs’ complaint, including the consideration of all interest. The plaintiffs argue that the stipulation was silent as to prejudgment interest for the 1979 list year, and that such silence was at variance with the judgment file of November 30,1982, which the plaintiffs contend only could have referred to prejudgment interest.

On January 30,1987, the trial court, Ryan, J., summarily denied the plaintiffs’ motion for execution seeking an order from the court permitting them to execute upon the summary judgment for prejudgment interest as to the 1979 list year. Specifically, the plaintiffs sought to execute the judgment in order to collect prejudgment interest on the tax overpayments from the date on which they paid the taxes until the date of the summary judgment. The plaintiffs contend that they should at least have been given the opportunity for a hearing on the ambiguity between the judgment file and the stipulation during consideration of their motion for execution, but were precluded from doing so by the trial court. The trial court’s denial of the plaintiffs’ motion for execution of judgment is the subject of the present appeal.

The trial court issued no written memorandum of decision for this court’s review, but orally stated on the record the basis for its order. Neither party moved for an articulation of the court’s decision. Under these circumstances, we limit our review to a determination of whether, in light of the entire record before us, the trial court’s decision was erroneous as a matter of law. Practice Book § 4061.

We first note that the court’s grant of summary judgment was entered pursuant to General Statutes § 12-119 which provides for the reimbursement of the overpaid taxes in accordance with the judgment of the Superior Court. General Statutes § 12-119 also provides that the trial court may make a discretionary award of interest. In its memorandum of decision, the first trial court did not address the matter of interest, but “directed [the plaintiffs’ counsel] to submit a form of judgment” which would conform to the court’s memorandum. The judgment subsequently prepared by the plaintiffs’ counsel, signed by the court, and dated November 30, 1982, specified that the tax overpayments be repaid to the plaintiffs “with statutory interest.” No appeal was taken from that judgment.

It is well established that the judgment file itself and not the court’s memorandum of decision constitutes the record judgment. Pepin v. Danbury, 171 Conn. 74, 81, 368 A.2d 88 (1976); Harris v. First National Bank & Trust Co., 139 Conn. 749, 752, 97 A.2d 260 (1953). A claimed discrepancy between the memorandum of decision and the judgment file is one of substance and should have been raised by an appeal from the judgment. Ravizza v. Waldie, 3 Conn. App. 491, 494, 490 A.2d 90 (1985). An instrument signed by a judge rendering a judgment is prima facie the judgment of the court, and is evidence of what the court has decided. 46 Am. Jur., Judgments § 70; see also Practice Book § 338. Accordingly, we find that the first trial court exercised its discretion and awarded the plaintiff interest on the judgment.

General Statutes § 52-598 provides that an execution may issue upon a judgment for money damages for up to twenty years from the date the judgment entered. In this case, there is no real dispute that the summary judgment rendered by the trial court was for money damages. From our review of the record, however, it is apparent that the trial court, while considering the plaintiffs’ motion for execution on March 2, 1987, ruled that it would not allow interest on the judgment solely because it had been entered some five years earlier. This ruling was clearly erroneous because, as we noted above, execution could issue upon the judgment for up to twenty years. In refusing to execute upon the judgment because it considered the judgment stale, the trial court did not rule upon the questions of whether the stipulated judgment entered into by the parties covered the 1979 tax year or whether the summary judgment included prejudgment interest for the 1979 tax year. Accordingly, this case must be remanded for a resolution of those questions.

There is error, the decision of the trial court is set aside and the case is remanded for a rehearing on the plaintiffs’ motion for execution.

In this opinion the other judges concurred.

       General Statutes § 12-118 provides: “APPEAL FROM BOARD OF TAX REVIEW. Any person, including any lessee of real property whose lease has been recorded as provided in section 47-19 and who is bound under the terms of his lease to pay real property taxes, claiming to be aggrieved by the action of the board of tax review in any town or city may, within two months from the time of such action, make application, in the nature of an appeal therefrom, to the superior court for the judicial district in which such town or city is situated, which shall be accompanied by a citation to such town or city to appear before said court. Such citation shall be signed by the same authority and such appeal shall be returnable at the same time and served and returned in the same manner as is required in case of a summons in a civil action. The authority issuing the citation shall take from the applicant a bond or recognizance to such town or city, with surety, to prosecute the application to effect and to comply with and conform to the orders and decrees of the court in the premises. Any such application shall be a preferred case, to be heard, unless good cause appears to the contrary, at the first session, by the court or by a committee appointed by the court, and the pendency of such application shall not suspend an action by such town or city to collect not more than seventy-five per cent of the tax so assessed or not more than ninety per cent of such tax with respect to any real property for which the assessed value is five hundred thousand dollars or more, and upon which such appeal is taken. If, during the pendency of such appeal, a new assessment year begins, the applicant may amend his application as to any matter therein, including an appeal for such new year, which is affected by the inception of such new year and such applicant need not appear before the board of tax review to make such amendment effective. The court shall have power to grant such relief as to justice and equity appertains, upon such terms and in such manner and form as appear equitable, and, if the application appears to demand; and, upon all such applications, costs may be taxed at the discretion of the court. If the assessment made by the board of tax review is reduced by said court, the applicant shall be reimbursed by the town or city for any overpayment of taxes, together with interest and costs, or, at the applicant’s option, shall be granted a tax credit for such overpayment, interest and costs. Upon motion, said court shall, in event of such overpayment, enter judgment in favor of such applicant and against such city or town for the whole amount of such overpayment, together with interest and costs. The amount to which the assessment is so reduced shall be the assessed value of such property on the grand lists for succeeding years until the tax assessor finds that the value of the applicant’s property has increased or decreased.”

       General Statutes § 12-119 provides: “remedy when property wrongfully assessed. When it is claimed that a tax has been laid on property not taxable in the town or city in whose tax list such property was set, or that a tax laid on property was computed on an assessment which, under all the circumstances, was manifestly excessive and could not have been arrived at except by disregarding the provisions of the statutes for determining the valuation of such property, the owner thereof or any lessee thereof whose lease has been recorded as provided in section 47-19 and who is bound under the terms of his lease to pay real property taxes, prior to the payment of such tax, may, in addition to the other remedies provided by law, make application for relief to the superior court for the judicial district in which such town or city is situated. Such application may be made within one year from the date as of which the property was last evaluated for purposes of taxation and shall be served and returned in the same manner as is required in the case of a summons in a civil action, and the pendency of such application shall not suspend action upon the tax against the applicant. In all such actions, the superior court shall have power to grant such relief upon such terms and in such manner and form as to justice and equity appertains, and costs may be taxed at the discretion of the court. If such assessment is reduced by said court, the applicant shall be reimbursed by the town or city for any overpayment of taxes in accordance with the judgment of said court.”

       General Statutes § 52-598 provides in pertinent part: “Execution or action upon judgment for money damages, (a) No execution to enforce a judgment for money damages rendered in any court of this state may be issued after the expiration of twenty years from the date the judgment was entered and no action based upon such a judgment may be instituted after the expiration of twenty-five years from the date the judgment was entered.”

       At the hearing on the plaintiffs’ motion for execution, the following colloquy took place between the court and the plaintiffs’ counsel:
      “Mr. Perlman: It’s our Motion for Execution. Essentially this involved a tax appeal of an industrial condominium development in Norwalk that was reassessed in 1979, when it went condominium, and it involved subsequent years up through I believe the 1985 revaluation year. Judge Nigro, in 1982, granted a summary judgment as to the 1979 list year only, based on an issue of notice, stating a notice was insufficient.
      “The Court: When did he do this? In 1980?
      “Mr. Perlman: Yes, your Honor. We have—the parties subsequently stipulated before the Court as to the disposition of the 1980 and subsequent years that were involved in this appeal, so that we could settle the case in full. The defendant has paid the plaintiffs the principal amount of all of the tax years and the interest based I think on the subsequent years. The only issue that we are before the court today is on whether or not interest should be paid on the 1979 list year from the dates of payment by the taxpayers to the City running until the date that the City refunded those, amounts back to the taxpayers pursuant to the reduction in assessment. It’s the Plaintiff’s position, your Honor, that these assessments were not reduced by stipulation, so in that sense it’s a little different than the West-port matter.
      “The Court: Yes, but I don’t want to go back to ‘82.
      “Mr. Perlman: I’m not sure I understand your Honor.
      “The Court: Well, this is something, if you moved for execution within 30 or 60 days of what happened, I may be interested. But, you’re saying now this is ‘82? This is something that happened back in 1982?
      “Mr. Perlman: Yes, your Honor.
      “The Court: And now you’re coming into court, for me to start adding interest to something that the Judgment in ‘82? I don’t want to exercise my discretion on that.
      “Mr. Perlman: Your Honor, I would submit that I’m not sure whether it’s discretionary in 12-118. It says that any court ordered reduction shall include interest on the overpayment.
      “The Court: Well, somebody can take an appeal. This way I’m going to be on both sides of the issue in the Appellate Division, and I’ll be guaranteed to win one way or the other.
      “Mr. Perlman: The point of the matter is that while Judge Nigro’s partial summary judgment was decided in 1982, the case wasn’t resolved until 1986.
      “The Court: Well, then maybe I misunderstood. In 1986 what happened?
      “Mr. Perlman: In 1986, a stipulated judgment was entered into which cleared up all the subsequent tax years; did not include the 1979 year which had been disposed of by virtue of the partial summary judgment.
      “The Court: Oh well, I maintain my position.
      “Mr. Perlman: I just dug a hole out of which I just dug myself out of, your Honor.
      “The Court: I maintain my position. To give you interest, I don’t know whether I can.
      “Ms. Senie: Can I speak?
      “The Court: You may.
      “Ms. Senie: The stipulations entered into in 1986 did indeed provide for interest starting from the date of that judgment, that partial summary judgment from November 18, 1982. “The Court: That’s what I was just going to say.
      “Ms. Senie: So, the stipulations provided for interest. So, we’ve dealt with it. And the partial summary judgment by Judge Nigro never dealt with it. So, it was dealt with in the stipulations in July of ‘86.
      “The Court: What do you say to that? She says the stipulation in July of ‘86 included interest.
      “Mr. Perlman: It included postjudgment interest, not prejudgment interest, which by virtue of the statute we can’t waive. I’m not saying we’re not inclined to waive it. But, the statute says ‘shall.’
      “Ms. Senie: The statute doesn’t say when interest shall become due.
      “The Court: I’ll take the papers. But, I’ll deny it. We have to straighten out what we’ve done in the others.
      “Ms. Senie: I would urge you to deny it. The stipulation should govern. Otherwise we make a mockery of entering stipulations in court.
      “The Court: I’ll deny it without prejudice and see what’s going on with that other one.
      “Mr. Perlman: Thank you, your Honor.
      “Ms. Senie: Thank you, your Honor.”


author: Per Curiam.

text:
    David W. Benvenuti et al. v. Edward T. Lynch, Sr., et al.
    (5939)
    Spallone, Stoughton and Foti, Js.
    Argued May 19—
    decision released May 24, 1988

      Dennis G. Ciccarillo, for the appellants (defendants).

      Edward B. O’Connell, for the appellees (plaintiffs).
   Per Curiam.

There is no error.


text:
    Parker Benjamin, Inc. v. New London Inn Associates et al.
    (5953)
    Spallone, Stoughton and Foti, Js.
    Argued May 19—
    decision released May 24, 1988

      John C. Wirzbicki, for the appellants (defendants).

      Glenn E. Coe, with whom, on the brief, was John J. Kindi, for the appellee (plaintiff).
   Per Curiam.

The defendant attacks the factual findings of the trial court and, in addition, challenges the trial court’s construction of the contract between the parties.

We will not retry the issues where, as here, there is ample evidence to support the factual findings; nor will we reconstrue the contract where, as here, the construction made by the trial court reveals no abuse of discretion in that it manifests a lawful, logical and reasonable interpretation of the unambiguous language of the contract.

There is no error.


text:
    Gilbert Marbe v. Robert W. Worley, Jr., et al., Executors (Estate of Fay Marbe)
    (6502)
    Dupont, C. J., Stoughton and Foti, Js.
    Submitted on briefs May 16—
    decision released May 19, 1988

      Gilbert Marbe, pro se, the appellant (plaintiff), filed a brief.

      Kurt W. Hansson and Robert P. Dolian filed a brief for the appellees (defendants).
   Per Curiam.

There is no error.


text:
    Peter Driscoll v. Town of Winchester
    (6103)
    Borden, Daly and Norcott, Js.
    Submitted on briefs May 9—
    decision released May 19, 1988

      Robert Nastri, Jr., filed a brief for the appellant (defendant).

      Richard A. Wallace filed a brief for the appellee (plaintiff).
   Per Curiam.

There is no error.


text:
    Patrick E. Hughes v. Alice F. Hughes
    (5872)
    O’Connell, Stoughton and Foti, Js.
    Argued May 18—
    decision released May 24, 1988

      Reuben S. Midler, for the appellant (plaintiff).

      Dianne M. Andersen, with whom, on the brief, was Melissa A. Grauel, for the appellee (defendant).
   Per Curiam.

There is no error.


text:
    Robert A. Golfin v. Plymouth Industrial Development Corporation of Connecticut, Inc.
    (6211)
    Dupont, C. J., Stoughton and Foti, Js.
    Submitted on briefs May 16—
    decision released May 24, 1988

      Joseph P. Patrucco filed a brief for the appellant (defendant).

      Anthony A. Denorfia filed a brief for the appellee (plaintiff).
   Per Curiam.

The defendant appeals from the judgment of the trial court in favor of the plaintiff in an action seeking specific performance of a contract for the purchase of real property. The defendant claims that the trial court erred (1) in finding that the contract was valid, (2) in concluding that the contract was still in existence on a particular date, and (3) in finding that the plaintiff was ready, willing and able to perform so as to be entitled to the relief granted. We find no error.

It is well established that appellate courts will not retry facts or pass upon the credibility of witnesses and the weight to be accorded the evidence. Cioffoletti Construction v. Nering, 14 Conn. App. 161, 162, 540 A.2d 91 (1988). We are limited in our review to determining whether the judgment of the trial court was clearly erroneous, or if that judgment was contrary to law. Parkview Paving Co. v. New Haven, 13 Conn. App. 574, 537 A.2d 1049 (1988). After a careful review of the record and briefs we conclude that the trial court did not err. The facts found were sufficient for the trial court to have concluded that there was a valid contract, that the contract had not been terminated, and that the plaintiff was ready, willing and able to perform prior to the closing. The court did not err in granting specific performance. Since the facts found are not clearly erroneous, and the conclusions are legally and logically correct, the trial court’s decision must stand. Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221, 435 A.2d 24 (1980).

There is no error.


text:
    Albert Damelio v. Anaconda, Inc., et al.
    (5922)
    Spallone, Stoughton and Foti, Js.
    Argued May 17—
    decision released May 24, 1988

      Edward T. Dodd, Jr., for the appellant (plaintiff).

      Richard T. Stabnick, for the appellees (defendants).
   Per Curiam.

The plaintiff has attacked the factual findings of the workers’ compensation commissioner as affirmed by the compensation review division. We cannot say that the factual findings are clearly erroneous in view of the evidence and the whole record, or that the decision was otherwise erroneous in law. Practice Book § 4061.

There is no error.


text:
    Frederick C. DeVita et al. v. New Haven Redevelopment Agency et al.
    (5711)
    Spall one, Stoughton and Foti, Js.
    Argued May 17—
    decision released May 24, 1988

      Peter A. Kelly, for the appellants (plaintiffs).

      Martin S. Echter, for the appellees (defendants).
   Per Curiam.

We agree with the findings and conclusions of the trial referee that the defendants disposed of city owned real estate properly and in accordance with applicable law.

There is no error.


text:
    Brenda Lee Williams v. American Totalisator Company, Inc.
    (6182)
    Dupont, C. J., Stoughton and Foti, Js.
    Submitted on briefs May 16—
    decision released May 24, 1988

      Stuart T. Cadwell and Albert R. Annunziata filed a brief for the appellant (plaintiff).

      Linda D. DAlbis filed a brief for the appellee (defendant).
   Per Curiam.

The plaintiff appeals from the judgment of the trial court granting the defendant’s motion for summary judgment. The sole issue before us is whether the trial court erred in granting summary judgment after concluding, as a matter of law, that there was an adequate, sufficient and necessary factual basis that the work procured by the defendant to be done by the plaintiff’s employer was part or process of the defendant’s business, within General Statutes § 31-291. The plaintiff conceded that this issue was a matter of law for the court to decide.

The trial court filed a complete and legally sound memorandum of decision granting summary judgment for the defendant. The court stated: “The vital issue herein is whether the work procured by the defendant to be done by the plaintiff’s employer is part and process of the former’s trade or business.” The court correctly determined it would be such if the work is of such a character that it ordinarily or appropriately would be performed by the principal employer’s own employees in the prosecution of his business or as an essential part of the maintenance thereof. Grenier v. Grenier, 138 Conn. 569, 571, 87 A.2d 148 (1952).

The counteraffidavit submitted by the plaintiff does not contradict the defendant’s documentary evidence which presents the following facts. The defendant’s business was the operation of a wagering facility to which the public was invited. An indispensible part of that operation was providing food services for its patrons. The defendant monitored the food service company which employed the plaintiff and received a percentage of the income from its sales. Thus, the duties performed by the plaintiff were those which ordinarily would have been performed by the defendant’s employees in the operation of its business.

The plaintiff, as an employee of the food service company, is barred from instituting an action against the defendant for an injury sustained in the course of her employment and is limited to workers’ compensation benefits under General Statutes § 31-291.

There was no genuine issue as to any material fact in this case and the applicable law required the entry of a summary judgment for the defendant. Genco v. Connecticut Light & Power Co., 7 Conn. App. 164, 175, 508 A.2d 58 (1986).

There is no error.


text:
    Town of East Windsor v. Edwin Thrall et al.
    (6485)
    Borden, Norcott and Foti, Js.
    Argued June 1—
    decision released June 3, 1988

      Edwin Thrall, pro se, and Olive Thrall, pro se, the appellants (defendants).

      Thomas W. Fahey, Jr., for the appellee (plaintiff).
   Per Curiam.

There is no error.


text:
    Kathleen E. Murphy v. William B. McCaffery
    (5841)
    Borden, Spallone and Norcott, Js.
    Argued April 5—
    decision released May 24, 1988

      Chester Fairlie, for the appellant (defendant).

      Marshall S. Feingold, with whom was M. Katheryn Oakland, for the appellee (plaintiff).
   Per Curiam.

The defendant in this marital dissolution case challenges the trial court’s allocation of the assets of the parties. The trial court issued a detailed and thoughtful memorandum of decision, indicating that it gave full consideration to all the statutory-criteria.

The defendant’s principal claim is that the court failed to find, from undisputed evidence, that the plaintiff would receive approximately $43,000 as an inheritance from her deceased mother’s estate within one year, and an additional $42,700 within five years from the contemplated sale of a house in the estate. The defendant misreads the court’s memorandum of decision. The court specifically found that the “[pjlaintiff will receive some financial support by way of an inheritance from her mother’s estate within the year.” This reference clearly included, not only the $43,000 in cash which the plaintiff expected from the estate, but her one-quarter share of the house. The evidence indicated that the estate would be distributed within 1987. The trial court was entitled to infer, as it did, that the distribution would then also include the plaintiffs one quarter interest in the house. The exclusion of this inheritance from the specific list of assets found by the court was not erroneous. That finding was explicitly limited to “the following assets which must be assigned . . . .” (Emphasis added.) Thus, the court clearly contemplated leaving the plaintiff’s inheritance with her.

We have fully reviewed the defendant’s other claims of error, and find them to be without merit.

There is no error.


text:
    State of Connecticut v. William Freytag
    (6352)
    Stoughton, Norcott and Foti, Js.
    Argued May 19—
    decision released May 24, 1988

      Timothy Brignole, for the appellant (defendant).

      Leon F. Dalbec, Jr., deputy assistant state’s attorney, with whom, on the brief, was Samuel Sferrazza, assistant state’s attorney, for the appellee (state).
   Per Curiam.

There is no error.


text:
    Guiseppina Juliano et al. v. Patricia Kapish et al.
    (6035)
    Stoughton, Norcott and Foti, Js.
    Argued June 1—
    decision released June 3, 1988

      Daniel V. Presnick, for the appellants (plaintiffs).

      Louise C. LaMontagne, for the appellees (defendants).
   Per Curiam.

There is no error.


text:
    Pamela L. Waldron v. Frederick C. Waldron
    (6195)
    O’Connell, Norcott and Foti, Js.
    Argued June 3—
    decision released June 10, 1988

      Daniel W. Moger, Jr., for the appellant (defendant).

      John D. Paul, for the appellee (plaintiff).
   Per Curiam.

There is no error.


text:
    Erio Godinez v. Hartford Square Associates
    (5971)
    Dupont, C. J., Borden and Spallone, Js.
    Argued June 7—
    decision released June 24, 1988

      Jeffrey J. Mirman, with whom, on the brief, was Bianca D. Mackey, for the appellant (plaintiff).

      Andrew J. O’Keefe, with whom was Maureen Sullivan Dinnan, for the appellee (defendant).
   Per Curiam.

There is no error.


text:
    Samuel Allawerdian v. Jenni Priebe
    (6145)
    Daly, Stoughton and O’Connell, Js.
    Argued June 14—
    decision released June 23, 1988

      Ellen C. Brown, for the appellant (plaintiff).

      David S. Williams, for the appellee (defendant).
   Per Curiam.

There is no error.


text:
    Dezso Bartha v. Donald Simmons et al.
    (6109)
    Dupont, C. J., Borden and Spallone, Js.
    Argued June 8—
    decision released June 23, 1988

      Kathleen A. Hogan, with whom was Arnold H. Rutkin, for the appellant (plaintiff).

      Joseph F. Skelley, Jr., with whom, on the brief, was Barbara B. Sacks, for the appellees (defendants).
   Per Curiam.

The plaintiff is appealing the judgment of the trial court rendered upon the grant of the defendants’ motion for summary judgment.

Our review of the record with particular regard to the documents submitted to the trial court in support of the defendants’ motion for summary judgment clearly indicates that the trial court resolved disputed issues of fact in ruling on the motion. The documents disclose the existence of genuine issues of material fact. Therefore, the defendants were not entitled to judgment as a matter of law. Fairfield Lease Corporation v. Romano’s Auto Service, 4 Conn. App. 495, 499, 495 A.2d 286 (1985).

There is error, the judgment is set aside and the case is remanded for further proceedings according to law.


text:
    James DePalma v. Joan DePalma
    (6126)
    Dupont, C. J., Borden and Spallone, Js.
    Submitted on briefs June 10—
    decision released June 23, 1988

      George Ganim, Jr., filed a brief for the appellant (defendant).

      Elaine Gordon filed a brief for the appellee (plaintiff).
   Per Curiam.

There is no error.


text:
    Alphonse Abbagnaro v. Roland Anderson
    (6396)
    Spallone, Norcott and Foti, Js.
    Argued June 3—
    decision released June 10, 1988

      Joseph H. Pellegrino, for the appellant (plaintiff).

      Lesley D. Torsiello, with whom, on the brief, was Dion W. Moore, for the appellee (defendant).
   Per Curiam.

The plaintiff is appealing from the judgment for the defendant rendered after the trial court granted the defendant’s motion for summary judgment.

Our review of the record and the pertinent documents fully support the trial court’s determination that there was no genuine issue of a material fact. See, e.g., Pacileo v. Morganti, Inc., 10 Conn. App. 261, 522 A.2d 841 (1987); Alpha Crane Service, Inc. v. Capital Crane Co., 6 Conn. App. 60, 504 A.2d 1376, cert. denied, 199 Conn. 807, 808, 508 A.2d 769 (1986).

There is no error.


text:
    Wilma Gerry Schurgast v. Anselm Wolfgang Schurgast
    (6175)
    Bieluch, Daly and Stoughton, Js.
    Submitted on briefs June 17—
    decision released June 24, 1988

      F. Woodward Lewis, Jr., filed a brief for the appellant (plaintiff).

      Fred A. Hitt, John N. Montalbano and Harry B. Elliott filed a brief for the appellee (defendant).
   Per Curiam.

There is no error.


text:
    Gila Hellman v. Mordecai Hellman
    (6249)
    Spallone, Norcott and Poti, Js.
    Submitted on briefs June 3—
    decision released June 23, 1988

      Vicky D. Henry and Paul Martin Tymniak filed a brief for the appellant (defendant).

      Gaetano Ferro filed a brief for the appellee (plaintiff).
   Per Curiam.

The defendant appeals from the trial court’s pendente lite awards of alimony and child support.

The defendant contends that the trial court erred (1) in finding that it had jurisdiction over the defendant, and (2) in ruling on the plaintiff’s motion for alimony and support, pendente lite, without a showing of a substantial change in circumstances.

Neither claim of error has merit. The defendant was personally served in Connecticut and our review of the record, transcript and briefs clearly indicates that the trial court properly exercised its broad discretion and fashioned its awards in conformity with applicable law.

There is no error.


text:
    Philip J. Sullivan v. Michael Pearce
    (6072)
    Daly, Stoughton and O’Connell, Js.
    Argued June 15—
    decision released June 24, 1988

      Robert K. Walsh, for the appellant (plaintiff).

      Edward J. Dolan, with whom, on the brief, was Kent Harvey, for the appellee (defendant).
   Per Curiam.

There is no error.


text:
    Richard Wierzbicki et al. v. Somers Builders, Inc., et al.
    (6122)
    Daly, Noecott and Foti, Js.
    Argued May 31—
    decision released June 24, 1988

      Glenn T. Davis, for the appellants (defendants).

      Robert B. Basine, for the appellees (plaintiffs).
   Per Curiam.

In this breach of contract action, the defendants appeal from the judgment rendered by the trial court in favor of the plaintiffs.

The plaintiffs entered into a contract to have the defendants construct a single-family home in the town of Enfield. During the course of construction, disputes arose concerning changes sought by the plaintiffs; thereafter, the defendants ceased work on the house. The plaintiffs hired a second contractor to finish the work started by the defendants. This action was subsequently initiated by the plaintiffs, against the original contractor, seeking damages for breach of contract and negligence. The case was referred to an attorney trial referee pursuant to General Statutes § 52-434 (a) (4). After a hearing, the attorney trial referee filed a report setting forth his findings and recommending that judgment be rendered for the plaintiffs in the amount of $17,706.09, with interest at the rate of 10 percent per annum from the time the contract specified that the work should have been completed. The attorney trial referee’s report was issued on April 23,1987. The plaintiffs, by motion filed May 6, 1987, requested that the trial court render judgment in accordance with the report of the attorney trial referee. No objection to this motion was filed by the defendants, nor did they file a motion to correct the referee’s findings. The trial court accepted the report and rendered judgment on May 13,1987. On appeal, the defendants challenge the findings of the attorney trial referee, the granting of interest as part of the judgment and certain evidentiary rulings.

“Practice Book § 438 requires that a party challenging the factual findings of an attorney trial referee must file a motion to correct with the trial court within two weeks after the filing of the referee’s report. The defendant, however, failed to file such a motion in the present case. Having filed no motion to correct any of the facts found by the trial referee, the defendant has waived any right to attack the subordinate factual findings contained in the report. Seal Audio, Inc. v. Bozak, Inc., 199 Conn. 496, 518, 508 A.2d 415 (1986); Kowalsky Properties, Inc. v. Sherwin-Williams Co., 7 Conn. App. 136, 140, 508 A.2d 43 (1986); Ruhl v. Fairfield, 5 Conn. App. 104, 106, 496 A.2d 994 (1985). Furthermore, the defendant failed to object to the trial court’s acceptance of the report pursuant to Practice Book § 440 and, therefore, the conclusions reached in the report must stand. Seal Audio, Inc. v. Bozak, Inc., supra.” LiVolsi v. Pylypchuk, 12 Conn. App. 527, 528, 532 A.2d 593 (1987). Accordingly, we decline to review the defendant’s other claims of error.

There is no error.


text:
    State of Connecticut v. James T. Stone
    (6565)
    Daly, Stoughton and O’Connell, Js.
    Argued June 16—
    decision released June 24, 1988

      Richard W. Gifford, with whom was Paul B. Groobert, for the appellant (defendant).

      Leon F. Dalbec, Jr., deputy assistant state’s attorney, with whom, on the brief, was T.R. Paulding, assistant state’s attorney, for the appellee (state).
   Per Curiam.

There is no error.


text:
    Richard C. Schaeffer v. Cheryl N. Schaeffer
    (6184)
    Daly, O’Connell and Stoughton, Js.
    Argued June 16—
    decision released June 30, 1988

      Tony Ghecas, for the appellant (defendant).

      Charles F. Stelljes, for the appellee (plaintiff).
   Per Curiam.

We have carefully examined the records, transcripts and briefs submitted to us on this appeal. After affording the plaintiff’s claims of error the appropriate scope of review, to the extent that they have been properly presented, we conclude that the trial court correctly applied the law to the evidence. We cannot retry the case. Stiepel v. Cone, 14 Conn. App. 815, 541 A.2d 547 (1988).

There is no error.