author: SCHALLER, J.

text:
    STATE OF CONNECTICUT v. EDWARD VINES
    (AC 20224)
    Schaller, Dranginis and Daly, Js.
    Argued September 26, 2001 —
    officially released August 27, 2002

      Donald D. Dakers, special public defender, with whom, on the brief, was Katerina Rohner, for the appellant (defendant).

      Mitchell S. Brody, senior assistant state’s attorney, with whom, on the brief, were Eugene Callahan, state’s attorney, and James Bemardi, senior assistant state’s attorney, for the appellee (state).
   Opinion

SCHALLER, J.

The defendant, Edward Vines, appeals from the judgment of conviction of two counts of tampering with a witness in violation of General Statutes § 53a-151 (a). The defendant was also charged with three counts of robbery in the first degree. Because the jury was unable to reach a verdict on those counts, the trial court declared a mistrial. The defendant claims on appeal (1) that the judge improperly absented himself from the courtroom during playback of testimony to the jury, (2) that the court delegated its authority to a clerk and (3) that the court improperly excluded the defendant and defense counsel from the courtroom, thereby violating the defendant’s rights under the fifth, sixth and fourteenth amendments to the United States constitution. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our disposition of this appeal. On May 11, 1998, the defendant was arrested by the Stamford police and charged with four counts of robbery in the first degree. The state alleged that during the late evening hours of May 10, or the early morning hours of May 11, 1998, the defendant and two others, Curtis Vines and Torok Johnson, robbed at gunpoint Carlos Medina, Damian Addison and Germaine Snell, who had been listening to music on the lire escape of the apartment of one of the victims.

The state further alleged that shortly after that robbery had taken place, the defendant and his accomplices approached their next victim, Darryl Petitt, and took approximately forty dollars and a silver and gold watch from him. At approximately 1:30 a.m. on May 11, 1998, a nurse at Stamford Hospital approached James Stackpole, a Stamford police officer, who was at the hospital for reasons unrelated to this case, and told him that a patient, Petitt, had walked in and stated that he had been robbed in Southfield Village by three armed males. Stackpole interviewed Petitt and broadcast a report of the incident. Shortly thereafter, Stamford police encountered three males changing a tire on a car on the side of the road. The police subsequently arrested the three individuals and transported them to the police station, where Petitt identified the defendant, Curtis Vines and Torok Johnson as the three robbers.

The state subsequently filed an amended information charging the defendant, in addition to the robbery charges, with tampering with witnesses in his trial on the robbery charges. Shortly after the defendant’s arrest, Jesse Johnson, Torok Johnson’s father, threatened Petitt, stating that if his son went to jail there would be trouble. On May 21, 1999, Richard Coldwell, a sergeant with the Stamford police, testified that on January 26,1999, he saw Antonio Robinson, also known as “Biggy Smalls,” inside the courthouse where Petitt was testifying during the pretrial evidentiary hearing. Coldwell also said that, a few minutes later, he saw Robinson speaking with Petitt as they crossed the street together.

The trial on both the robbery and tampering charges began on May 6, 1999, and concluded on May 24, 1999. Following the completion of evidence and summation, the court charged the jury on the afternoon of May 20, 1999. The jury deliberation lasted three days, beginning on May 20, and continuing on May 21 and 24, 1999. On the first day of deliberations, the jury requested a playback of certain trial testimony. The trial court granted the request and, before excusing itself, described the procedures that the court would follow when the playback occurred. The court first explained the procedures to the attorneys, outside the presence of the jury, and then to the jury.* **

On the second day of deliberations, the jury sent another note to the court requesting the playback of the testimony of Petitt, Officer Michael Mann and Officer Paul Zarodkivwicz. The court granted the request and excused the jury for lunch. Prior to the lunch recess, the court had a brief colloquy with the defendant’s counsel regarding who would be present in court when it reconvened after lunch. When court reconvened, it instructed the jury on the procedures that it would follow during the playback. The court instructed the jury that, unlike the first playback, the court, the defendant and both counsel would not be present. The defendant apparently agreed with this arrangement.

Following two requests for further instruction on the law, the court granted a third request for the playback of testimony. This third request sought the playback of the defendant’s testimony, and this also took place in the presence of only the clerk and the court monitor. At approximately 6 p.m. on May 21, 1999, the court reconvened and determined that the jury had not finished listening to the defendant’s testimony. After the jury agreed to continue deliberations at 9:30 a.m. on May 24,1999, the court repeated the instructions regarding the procedure for continuing the playback of testimony in its absence, as well as the explanation for the absence of the defendant and both counsel.

On May 24, 1999, the jury returned for its last day of deliberations. On that day, the juiy requested that it be allowed to replay the testimony of Sergeant Nicholas Montagnese. The court repeated its instructions to the jury regarding the playback procedure before clearing the courtroom for the last time. At no point during trial did the defendant object to the absence of the trial judge from the courtroom during the playbacks.

I

The defendant first claims that the judge abused his discretion in absenting himself during the playback of testimony and that that was reversible error because it violated the defendant’s fifth and sixth amendment rights to due process of law and to a fair trial under the United States constitution. In response, the state argues that the absence of the judge, counsel and the defendant during the playback of testimony is not constitutional error. The state further argues that the judge was within his discretion when he absented himself during the playback of testimony, and, therefore, the absence did not prejudice the defendant so as to deny him a fair trial. Although the defendant presented these claims separately, we will address them as one.

We note at the outset that the defendant argues and the state agrees that the trial judge’s absence during the playback of testimony was not “structural error.” “Structural errors are fundamental defects in the trial mechanism that affect the entire ‘framework within which the trial proceeds, rather than simply an error in the trial process itself.’ ” Peck v. United States, 106 F.3d 450, 454 (2d Cir. 1997), quoting Arizona v. Fulminante, 499 U.S. 279, 310, 111 S. Ct. 1246, 113 L. Ed. 2d 302 (1991); see also State v. Anderson, 255 Conn. 425, 445-46, 773 A.2d 287 (2001) (discussing structural error and listing examples). Rather, defense counsel characterized this issue as “trial error.”* Although the defendant claims violations of his constitutional rights to due process and to a fair trial, he correctly points out that his constitutional claim must be reviewed under the standard set out in State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), because he did not preserve these claims at trial. Because we find that the record is inadequate for our review of this claim, we decline to address the merits of the defendant’s claim. See id., 239-40. Thus, we dispose of the defendant’s claim under the first prong of Golding.

“The defendant bears the responsibility for providing a record that is adequate for review of his claim of constitutional error. If the facts revealed by the record are insufficient, unclear' or ambiguous as to whether a constitutional violation has occurred, we will not attempt to supplement or reconstruct the record, or to make factual determinations, in order to decide the defendant’s claim.” Id., 240.

The defendant argues that taped testimony “revisits critical testimony, audibly wrought with accusation, nuance, and emotion, which if repeatedly heard by a jury could taint their decision.” The defendant further argues that when unsupervised, “the usually highly-charged testimony is replayed with considerably less opportunity to keep excluded portions of the testimony and objections from counsel from also being replayed to the jury.” The defendant further argues that certain consequences of the judge’s absence resulted in a denial of his rights. The defendant admits, however, as he must, that the record before us reveals none of the consequences that the defendant claims occurred as a result of the jury’s unsupervised playback of the testimony. While the jury apparently listened to several hours of testimony, no record exists as to what exactly the jury heard or how many times the jury heard it. The defendant’s concern that the jury may have communicated with the clerk is equally without substantiation.

In response to a specific query from this court as to any efforts that the defendant may have made to satisfy his burden to create a record of the trial, the defense admits that there was no objection to the trial judge’s absence. Additionally, the defendant made no posttrial attack on the verdict. Any effort to reconstruct the record at this point would be futile. As a result, we cannot discern whether a colorable claim exists. See State v. Talton, 63 Conn. App. 851, 861, 779 A.2d 166, cert. denied, 258 Conn. 907, 782 A.2d 1250 (2001).

The defendant argues that his failure to object immediately at trial or to make some other postverdict attack on the judgment does not invalidate the issues on appeal. We disagree. We are bound to address the unpre-served claim of constitutional error according to the well established Golding standard of review. For the reasons set forth previously, the defendant cannot satisfy the minimum requirements for review under this standard. In light of the inadequate record, we decline to review the defendant’s claim.

We do not ignore the defendant’s concerns regarding the risks in permitting the unsupervised playback of testimony. Indeed, the trial court acknowledged and addressed some of the inherent risks present in the unsupervised playback in its instructions to the jury prior to the first playback of testimony. When the prosecutor raised the potential for objections and “things like that” getting replayed, the court told him not to “get too concerned about that business. And I’ll direct the jury that sometimes, if that happens, to ignore it, whatever the answer is.” The court then instructed the jury that “during the course of the playback, inadvertently we might come to places where a question is asked, an objection is made, and the objection is sustained. That, where the objection is sustained, just ignore that part of the thing.” See footnote 4. Prior to the second playback, the court further instructed the jury that “there are going to be portions in the playback where you were excused from the courtroom, and I heard arguments and so on. The monitor will be attempting to—because that’s not part of what you heard—will be crossing over those things, although some of it might inadvertently skip, because the counters on these old things are not that precise.” See footnote 5.

In light of the clear potential for these risks to mature into actual harm, and the relative ease with which the risks can be alleviated, we note our disapproval of a trial judge’s absenting himself from the courtroom during the playback of audiotaped testimony. The playback of testimony should be supervised by the trial court. Rather than exercising our supervisory powers to mandate supervised playbacks of taped testimony in the future; see State v. Lisevick, 65 Conn. App. 493, 502, 783 A.2d 73 (declining to exercise supervisory authority to require child interrogations to be videotaped where defendant pointed merely to possibility of taint and court found no evidence in record to support it), cert. denied, 258 Conn. 933, 785 A.2d 230 (2001); we will review such occurrences in the future on a case-by-case basis.

II

The defendant next claims that the court improperly delegated its judicial authority to the clerk during the criminal proceedings. Specifically, the defendant claims that the court delegated its authority in the courtroom to the clerk during a deliberative portion of the trial. In so doing, the defendant argues that the court ignored the procedure mandated in Practice Book § 42-26. Thus, the defendant claims that the court’s choice of trial procedure violated his rights under the sixth and fourteenth amendments. This claim is without merit.

We review this claim that the trial court wrongfully abdicated its authority under the Golding standard of review because the defendant did not preserve this claim at trial. Because we conclude that the record is adequate for our review of this claim and that the claim is of constitutional magnitude alleging the violation of a fundamental right; see State v. Golding, supra, 213 Conn. 239-40; we will review this claim. Because we find that the court did not delegate its authority to the clerk, however, we conclude that no constitutional violation clearly exists. The defendant therefore fails to satisfy the third prong of Golding review.

The record reveals that the court did not delegate its judicial authority to the clerk. Although the defendant cites one small portion of the court’s instructions to the jury that, if read in isolation, might appear to support this strained reading, we conclude that this is not a fair interpretation of the court’s instructions. In fact, the court instructed the clerk in the presence of counsel and the jury that “if there’s any dispute, just excuse the jury, and I’ll come out and hear what these attorneys have to say.” In light of our careful review of the record, we conclude that the court did not delegate its judicial authority to the clerk. Rather, the court merely asked the clerk to excuse the jury and to request that the court and the attorneys return if any questions arose.

Ill

The defendant next claims that the court, in conducting the playback of testimony in the defendant’s absence, deprived him of his constitutional rights under the fifth, sixth and fourteenth amendments to the United States constitution. Specifically, the defendant argues that the court failed to make a specific finding that he knowingly and voluntarily waived his right to be present. The defendant argues that pursuant to common law and the sixth amendment’s confrontation clause, he was entitled to be present at all stages of his trial, and his absence during the playback of testimony denied him the fair trial guaranteed to him by the fifth amendment, made applicable to the states by the fourteenth amendment. We are not persuaded.

We review this claim that the trial court wrongfully excluded the defendant from the playback of the testimony under the Golding standard of review because, again, the defendant did not preserve this claim at trial. We find, however, that the defendant waived his right to be present during the playback and conclude that the alleged constitutional violation did not clearly deprive the defendant of a fair trial. The defendant therefore fails to satisfy the third prong of Golding review.

The following additional facts are relevant to our disposition of this claim. Prior to the lunch recess on May 21, 1999, the court had the following colloquy with the defendant’s counsel regarding who would be present in court when it reconvened after lunch:

“The Court: All right, [defense counsel]?
“[Defense Counsel]: Yes, sir?
“The Court: Have you discussed with your client the alternatives?
“[Defense Counsel]: I have not. May I do so now?
“The Court: Well, you can do it. We’ll stand in recess.”

Upon reconvening, the court discussed the new playback procedures. The court instructed the jury that, unlike the first playback when only the court was absent, during the next playback the court, the defendant and both counsel would not be present. The defendant apparently agreed with this arrangement; the court stated in the presence of the jury that “[f]or the record, your client has indicated he, in his agreement, that he would not be present during the playback.”

“It has long been settled that an accused enjoys a right both at common law and pursuant to the sixth amendment’s confrontation clause to be present at all stages of trial. . . . It is also well settled that under the due process clauses of the fifth and fourteenth amendments a defendant must be allowed to be present at his trial to the extent that a fair and just hearing would be thwarted by his absence.” (Citations omitted.) United States v. Fontanez, 878 F.2d 33, 35 (2d Cir. 1989). Nevertheless, the defendant’s presence is not required when the right is waived. Waiver in this context is addressed both in our rules of practice and in our case law.

Under our rules of practice, the trial court in its discretion may exclude the defendant if it determines that the defendant waived his right to be present or if the defendant’s absence is justified due to his or her conduct. Practice Book § 44-8 provides in relevant part: “The defendant must be present at the trial and at the sentencing hearing, but, if the defendant will be represented by counsel at the trial or sentencing hearing, the judicial authority may: (1) Excuse the defendant from being present at the trial or a part thereof or the sentencing hearing if the defendant waives the right to be present; (2) Direct that the trial or a part thereof or the sentencing hearing be conducted in the defendant’s absence if the judicial authority determines that the defendant waived the right to be present . . . .”

Relevant cases instruct that “[a] defendant in a criminal prosecution may waive one or more of his or her fundamental rights. ... In [State v.] Patterson, [230 Conn. 385, 396, 645 A.2d 535 (1994)], our Supreme Court stated that [i]n some circumstances, a waiver of rights must be knowing, voluntary and intelligent, and it must be expressly made. ... In other circumstances, waiver can be implied. . . . Our Supreme Court has . . . held that a defendant may waive his constitutional right to be present during trial merely by an unexplained absence. State v. Simino, 200 Conn. 113, 125-30, 509 A.2d 1039 (1986).” (Citations omitted; internal quotation marks omitted.) State v. Cooper, 38 Conn. App. 661, 669, 664 A.2d 773, cert. denied, 235 Conn. 908, 665 A.2d 903 (1995), cert. denied, 517 U.S. 1214, 116 S. Ct. 1837, 134 L. Ed. 2d 940 (1996).

In discussing the circumstances in which a valid waiver might be present, our Supreme Court noted that “[w]hether there has been an intelligent and competent waiver of the right to presence must depend, in each case, upon the particular facts and circumstances surrounding that case. Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 82 L. Ed. 1461 [1938]. . . .[A] waiver of the right to be present at a criminal trial may be inferred from certain conduct engaged in by the defendant after the trial has commenced.” (Citation omitted; internal quotation marks omitted.) State v. Simino, supra, 200 Conn. 129.

Turning to the facts of this case, we note initially that contrary to the defendant’s assertion that there is nothing on the record as to the essence of the discussion regarding his absence during the playback of testimony and his position regarding it, the court in fact stated that “[f]or the record, your client has indicated he, in his agreement, that he would not be present during the playback.” See footnote 25. The essence of the discussion, and the defendant’s position regarding it, are, in fact, on the record.

On the basis of the record before us, we cannot agree with the defendant that the record is silent as to whether he waived his right to be present during the playback portion of his trial. Rather, we conclude, on the basis of the court’s statement on the record and the implication in the defendant’s brief, that the defendant “acquiesced in this procedure”; see footnote 23; thereby waiving his right to be present during this stage of his trial. The record in this case is adequate to support the conclusion that the defendant waived his right to be present at the playback on May 21, 1999. Because the defendant waived his right to be present for the playback of the testimony at trial, we conclude that the defendant has failed to demonstrate that the alleged constitutional violation clearly deprived him of a fair trial. Therefore, the defendant has failed to satisfy his burden pursuant to the third prong of Golding.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-151 (a) provides: “A person is guilty of tampering with a witness if, believing that an official proceeding is pending or about to be instituted, he induces or attempts to induce a witness to testily falsely, withhold testimony, elude legal process summoning him to testify or absent himself from any official proceeding.”

       The jury requested a playback of the testimony of Voula Kouskousoglou, the state’s first witness, who had observed the suspects next to their car.

       The Court: “We’re going to have playbacks. It might be a good idea. . . . During the playback neither counsel is to say a word. The defendant is not to say anything. The jury will be in complete charge. And I’m going to tell them this. If they wish to stop the playback at some point, because they’ve heard whatever they want to hear, they will notify the clerk, who will be here. And they will stop and leave. If you have some problem, ask that the playback be stopped. We’ll excuse the jury, and I’ll come out and hear the problem. I have other things I have to do, so I won’t be here. But, the clerk will be in charge of the situation here in court.
      Hi ^ Hi
      “[Assistant State’s Attorney]: We’ve gone through the cross-examination of the two witnesses. We didn’t go through [the testimony of Voula] Kouskou-soglou or the directs of the two witnesses.
      “The Court: All right.
      “[Assistant State’s Attorney]: But I don’t think that it was me who wanted to make sure there wasn’t objections and things like that that were going to get played—
      “The Court: Now, if you run across it, just continue playing it. Don’t get too concerned about that business. And I’ll direct the jury that sometimes, if that happens, to ignore it, whatever the answer is. Otherwise, forget the, it’s too much of a problem with the thing. We’ll have to start typing up transcripts of, all right.”

       “The Court: Here’s the setup that we’re going to have. The playback is going to be here, in the courtroom. . . . Counsel and the monitor went over the tape yesterday, with regard to aspects of the cross-examination that might be concerned with the physical description given by Carlos Medina and Damian Addison of the suspects. Because you had asked yesterday for the whole testimony of [Voula] Kouskousoglou, you had asked yesterday, for the direct of Carlos Medina and any descriptions of the three suspects by Carlos Medina. And you had asked yesterday, for the direct of Damian Addison and any description of the suspects by Damian Addison. So, that’s what they went over with yesterday. We’re doing a playback, rather than having somebody type out transcripts and give them, because that would delay it for several times. And this is not an unusual procedure. You are in complete charge of the situation. These attorneys will say absolutely nothing during the playback. They’re here because they want to make sure that everything you need to hear is being heard. ... If you have some difficulty hearing at some point, or want some, a particular point played back, indicate that. We’ll stop the recording, go back over it again, and get to the point where you will, the part that you want to hear replayed again. In other words, you’re going to be in complete control of the situation. The clerk will be here to represent the court. I have other assignments that I have to attend to. I think everybody’s clear on that. And the process will be, Kouskousoglou will be played first. Then, Carlos Medina’s direct testimony will be played, and portions of the cross-examination that might be relevant to the physical description will be played. Now, during the course of the playback, inadvertently we might come to places where a question is asked, an objection is made, and the objection is sustained. . . . [J]ust ignore that part of the thing. We’ll try to avoid that problem, if possible, but if you try to play back, these are not state of the art machines, of course. . . . [E]ven when [the court monitor] has recorded the position on the tape it tightens it up, and it doesn’t get to the right position again. So, you’re going to have to put up with that business. . . . And if you want to stop for conferences, just let us know. All right. . . . I’ll be disappearing, and you’re in charge.”

       The court instructed the jury: “What I’m going to do is this, because these playbacks may take some length of time, we’ve decided to clear out the courtroom and make this the jury room for the time being. So, the only ones who are going to be here, will be the monitor and the clerk of the court, as well as yourselves. So, you’ll have complete control of the courtroom. . . . [T]he only conditions are as follows. If you’re going to discuss the matters among yourselves, you have to go into the jury room, because the others can’t participate in that . . . Now, there are going to be portions in the playback where you were excused from the courtroom, and I heard arguments and so on. The monitor will be attempting to, because that’s not part of what you heard, will be crossing over those things, although some of it might inadvertently skip, because the counters on these old things are not that precise. And they may not always correspond with her files, but she’s done the best she can to get that straight. I will be available, and counsel will be available, outside the courtroom. We’ll block it, so that nobody can come into the place, so you have, this will be your jury room. The only place you cannot, absolutely cannot come, is up here. ... All right. That’s the ground rules, so you’re in complete charge. The sheriff—
      “The Sheriff: Do you want me to stay inside or outside, Your Honor?
      “The Court: Stay outside, because you’ve got to keep people from coming in and all of that. All right. Gentlemen, you want to, so that’s why the defendant isn’t here. And it’s because we’ve already gone through this. Oh, for the record, your client has indicated he, in his agreement, that he would not be present during the playback.”

       The court’s instructions to the jury included the following: “When you’re all assembled, we’ll start replaying the tape from whatever position you want. And we’ll use this room as the same. So, I’ll keep the lawyers out and keep the defendant out during that period. So, our clerk will be in charge. As soon as you’re ready to hear the balance of the testimony, then just let the clerk know, and we’ll start playing again. And since I have an assignment at another place, I will be a little late. But, if you have any questions or something, I’ll be here in time to answer the balance of them. Then, if there’s any additional testimony you want heard, let our clerk know, and she’ll make arrangements for that with the monitor. . . . [K]eeping the clerks, keeping the defendant out and the attorneys out will save a lot of time at the beginning of the court. So, why don’t you come in and treat the whole courtroom like your jury deliberation room. And when you’re all here, we’ll start the playback.”

       Montagnese took part in booking the defendant at the police station following his arrest. During the booking process, Montagnese took a ring from the defendant that was later identified as one of the items stolen from Medina during the robbery.

       After noting whom the jury wanted to hear on playback, the court then repeated its familiar instructions to the jury, stating: “This will be your deliberation room and you’ll have control over when you want to stop the playback and when you want something repeated again, just as you were doing last Friday. So, meanwhile, the defendant’s counsel and others besides the monitor and our clerk, will be leaving the courtroom so that you can have this.”

       The fifth amendment to the United States constitution provides in relevant part: “No person shall be . . . deprived of life, liberty, or property, without due process of law . . . .”

       The sixth amendment to the United States constitution provides in relevant part: “In all criminal prosecutions, the accused shall enjoy the right ... to be confronted by the witnesses against him . . . .”

       In State v. Gould, 241 Conn. 1, 14-15, 695 A.2d 1022 (1997), our Supreme Court concluded that a trial court’s actions in a context similar to the present case did not constitute an abuse of discretion, nor did it mandate plain error review. Practice Book § 60-5. “It is the policy of the law that every tribunal for the trial of civil or criminal causes should have open to it the best legitimate means of acquiring such knowledge of the law and the facts as will enable it to decide the cases before it fairly and intelligently.” (Internal quotation marks omitted.) State v. Gould, supra, 13, quoting State v. Rubaka, 82 Conn. 59, 67, 72 A. 566 (1909). In Gould, where the trial court permitted the jury to review edited video testimony of the state’s principal witness unsupervised in the jury room, the court stated that “[sjince we have allowed transcripts of testimony to be read to the jury, the trial court’s actions here did not violate our rules of practice.” State v. Gould, supra, 15.

       “[A] defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” State v. Golding, supra, 213 Conn. 239-40. “The first two Golding requirements involve whether the claim is reviewable, and the second two involve whether there was constitutional error requiring a new trial. . . . This court may dispose of the claim on any one of the conditions that the defendant does not meet.” (Internal quotation marks omitted.) State v. Jones, 65 Conn. App. 649, 653, 783 A.2d 511 (2001).

       The defendant apparently argues that the mere absence of the judge during the playback of testimony constitutes a violation of his rights to due process and to a fair trial. We disagree. Initially, we note that “[wjhile we do not encourage trial judges to absent themselves from the bench . . . and recognize that absence under many circumstances would involve error, practical distinctions must be observed. . . . [T]o say that there are reasons favoring the judge’s presence is far short of saying that the judge commits error if he or she is ever absent.” (Citation omitted.) United States v. Grant, 52 F.3d 448, 449 (2d Cir. 1995); see Turner v. Frowein, 253 Conn. 312, 341, 752 A.2d 955 (2000) (“[djecisions of the Second Circuit Court of Appeals, although not binding on us, are particularly persuasive”). Turning to the defendant’s argument, we dispose of this aspect of the claim pursuant to prong three of Golding. While the record is sufficient to verify the judge’s absence, we cannot conclude on this record that a constitutional violation clearly exists.

       In his brief, the defendant states: “Admittedly, there is no record as to what occurred in these proceedings and therefore the defendant cannot claim, with certitude, that the jury did have certain portions of the playback testimony repeated.” At oral argument, defense counsel stated that “there’s absolutely nothing; there’s no record at all.” Defense counsel stated also that, with regard to the reason for the complete lack of a record: “There’s no question there was nothing done at the trial level to alert the trial court to this particular claim.”

       Over the course of the trial, the jury requested the replay of testimony of Medina, Addison, Kouskousoglou, Petitt, Maim, Zarodkivwicz and Montagnese.
      On one occasion, the court instructed that jury: “If you have some difficulty hearing at some point, or want some, a particular point played back, indicate that. We’ll stop the recording, go back over it again, and get to . . . the part that you want to hear replayed again.” On a second occasion, the court stated: “We’ve received a note that you want to hear the testimony or playback of Sergeant Nicholas Montagnese, and I assume you want both direct and cross. . . . This will be your deliberation room, and you’E have control over when you want to stop the playback and when you want something repeated again just as you were doing last Friday.” Thus, the record reveals that the court twice instructed the jurors that they would be permitted to rehear certain requested testimony. This alone, of course, does not constitute an adequate record for us to determine whether the defendant suffered violations of his constitutional rights as a result of speculated jury activity.

       The playback of testimony in this case took place under two different circumstances. The first request for a playback took place in the courtroom in the presence of counsel and the defendant, but without the presence of the judge. The subsequent playbacks occurred in the absence of the judge, the defendant and counsel. Prior to these subsequent playbacks, the judge made a statement indicating that he intended to convert the courtroom into the jury deliberation room. He then instructed the jurors not to talk to the clerk or monitor, and that they were to return to their deliberation room if they wanted to discuss the testimony. Thus, while the record is devoid of any record of communication between the jury and the clerk or the monitor, the court did go on record and instruct the jury not to do so.

       At oral argument before this court, we engaged in the following colloquy with defense counsel:
      “The Court: Is it fair to say that there’s no objection on the record?
      “[Defense Counsel]: It is fair to say that.”

       The following colloquy transpired at oral argument before this court:
      “The Court: Trial counsel didn’t move for a posljudgment hearing to either set aside the verdict or for a judgment of acquittal notwithstanding the verdict. I mean, there was no postverdict attack at the procedure. The only time that the trial court has any indication that this is the claim of error is when the . . . preliminary statement of issues is attached to the appeal.
      “[Defense Counsel]: I grant you that.”

       On April 3,2000, counsel for the defendant filed with this court a motion for extension of time within which to file motions for articulation and rectification. Counsel slated that additional time was necessary to review the case “to make an informed decision on whether to file motions for articulation or rectification.” Although this court granted the extension, a thorough review of the record reveals that the defendant did not file a motion for articulation.

       Practice Book § 42-26 provides: “If the jury after retiring for deliberations request a review of certain testimony, they shall be conducted to the courtroom. Whenever the jury’s request is reasonable, the judicial authority, after notice to and consultation with the prosecuting authority and counsel for the defense, shall have the requested parts of the testimony read to the jury.”

       The defendant contends that the court “[gave the jury] ‘complete control of the courtroom (with) the clerk in charge of the situation here in court.’ ”

       The defendant also claims that the court ignored or misunderstood Practice Book § 42-26, in that because the playbacks would take time, the court “clear[ed] the courtroom for the exclusive use of the jurors during the playbacks of testimony.” The defendant argues that “[w]hile Practice Book § 42-26 requires the jury to be brought to the courtroom for review of testimony, nowhere in this section or any other sections is there a requirement, recommendation or even suggestion that the judge, parties and counselor are exempt from this proceeding, and that the clerk of the court assume authority of the courtroom.”
      As we noted previously, the clerk did not assume authority of the courtroom. Further, the defendant misstates the record of the actual proceedings. During the first playback, the court excluded neither counsel nor the defendant from the proceeding. During the subsequent playbacks, the court excluded counsel and the defendant, without objection and apparently pursuant to an agreement motivated at least in part by the parties’ recognition of logistical difficulties in coordinating the jury’s and the defendant’s differing lunch schedules. Another apparent motivation for the court’s choice of procedure was its concern with time. The court implied at one point that the time it takes to go through the record searching for objections and other matter to omit prior to the playback would defeat the purpose in choosing the playback over transcription services in the first place.
      We conclude that the defendant’s claim that the court ignored or misunderstood Practice Book § 42-26 is without merit.

       The Court: “What I’m going to do is this, because these playbacks may take some length of time, we’ve decided to clear out the courtroom and make this the jury room for the time being. So, the only ones who are going to be here will be the monitor and the clerk of the court as well as yourselves.
      * ** *
      “Gentlemen, you want to, so that’s why the defendant isn’t here. And it’s because we’ve already gone through this. Oh, for the record, your client has indicated he, in his agreement, that he would not be present during the playback." (Emphasis added.)
      In a footnote in the defendant’s appellate brief, the defendant notes: “It would appear, based upon the court’s later actions of keeping both the parties and the defendant out of the courtroom during the subsequent playbacks, that there was an off the record discussion between the court and the attorneys, which was further discussed with the defendant, that not only the court but that the defendant and the attorneys would be absent during any subsequent playbacks. Unfortunately, there is nothing on the record as to the gist of this discussion and the defendant’s position regarding it. Presumably, he acquiesced in this procedure, since neither he nor his attorney were present during any of the subsequent playbaclcs.” (Emphasis added.)

       Tho defendant argues that his agreement to be absent from the playbacks of the testimony of Petitt, Mann and Zarodkivwicz did not constitute consent or waiver as to his absence from the subsequent playbacks. We disagree. On the basis of our conclusion that the defendant waived his right to be present as to these playbacks and his continued absence from the subsequent playbacks without objection, we conclude that the defendant waived his right to be present at these latter playbacks. Cf. State v. Simino, supra, 200 Conn. 131-32. “A defendant is constitutionally guaranteed only the right to have the opportunity to be present at all stages of his trial”; id.; and where the defendant who was free on bail had been present at a prior proceeding but was absent at a later proceeding without explanation, waiver may be inferred.

       The defendant also claims that the court improperly excluded defense counsel from the playback. Again, we disagree and note that defense counsel also apparently consented to being absent from the playbacks. Shortly before recess on May 21, 1999, the jury completed playbacks of the previously requested testimony and submitted to the court another request. The defendant already had been brought to another location for lunch. The court proposed to explain the defendant’s absence and asked defense counsel if there was “any objection to that.” Defense counsel answered that “I don’t have an objection for that, Judge, but I may have problem from my client. I’ve already had a problem with him this morning.”
      Defense counsel then suggested: “Can, maybe, can we solve this possibly, Judge, by myself and [the assistant state’s attorney] being out of the courtroom? And this way he won’t be here and you, are you, is the purpose that you’re just going to excuse them for lunch at this point?” The following colloquy between the court, counsel and the sheriff even more clearly supports our conclusion that the court did not improperly exclude defense counsel from the subsequent playbacks.
      “[Defense Counsel]: Would you have a problem if we were out of the courtroom?

        “The Court: Hello? What’s your position?
      “[Assistant State’s Attorney]: Yeah. I’m not exactly sure what, you want us out of the courtroom to make—
      “The Court: No. I would prefer everybody be in the courtroom. We can’t have everybody at the present time because the state of Connecticut can’t afford enough sheriffs to bring the defendant over. But, that’s beyond my control. I don’t want to keep the jury here until the sheriffs get around to being able to have enough people to bring him over.
      “[Assistant State’s Attorney]: Okay.
      “The Court: My suggestion was, that we explain to the jury that he was brought back for lunch. Because they know he’s incarcerated.
      “[Assistant State’s Attorney]: Okay.
      “The Court: But counselor has a problem, because he doesn’t want to agree to that, because his client may object to it.
      “[Assistant State’s Attorney]: Okay.
      “The Court: So, he gave an alternative that the two of you leave, and the, just here, because all I’m going to . . . .”
      The court then realized that the sheriffs planned to bring the defendant back to court, and the arrangements previously attempted proved unnecessary, at least at that point. Accordingly, the court, in the presence of counsel and the defendant, dismissed the jury for lunch. Following this, the court again addressed defense counsel:
      “The Court: Have you discussed with your client the alternatives?
      “[Defense Counsel]: I have not. May I do so right now?
      “The Court: Well, you can do it. We’ll stand in recess.”
      The court reconvened after lunch and addressed the jury as follows, making specific reference to the fact that counsel would be absent and that pursuant to an agreement, presumably made in chambers, the defendant would be absent as well:
      “The Court: You may be seated. . . . What I’m going to do is this, because these playbacks may take some length of time, we’ve decided to clear out the courtroom and make this the jury room for the time being. So, the only ones who are going to be here, will be the monitor and the clerk of the court, as well as yourselves. ... I will be available, and counsel will be available outside the courtroom. . . .
      “The Sheriff: Do you want me to stay inside or outside, Your Honor?
      “The Court: Stay outside, because you’ve got to keep people from coming in and all of that. All right. Gentlemen, you want to, so that’s why the defendant isn’t here. And it’s because we’ve already gone through this. Oh, for (he record, your client has indicated he, in his agreement, that he would not be present during the playback.”
      As defense counsel conceded at oral argument before this court, there is no objection on the record. Rather, the record discloses that counsel actively participated in structuring the playback portion of the trial to exclude himself as well as the defendant.


source: Caselaw Access Project

author: DRANGINIS, J.

license: Public Domain

text:
    STEVEN BERGLASS v. ABIGAIL BERGLASS
    (AC 20087)
    Mihalakos, Dranginis and Callahan, Js.

      Argued September 28, 2001 —
    officially released August 27, 2002

      Wesley W. Horton, with whom were Robert M. Shields, Jr., and, on the brief, Lori Welch-Rubin, for the appellant (plaintiff).

      Penn Rhodeen, for the appellee (defendant).
   Opinion

DRANGINIS, J.

The plaintiff, Steven Berglass, appeals from the trial court’s postjudgment orders rendered in this marriage dissolution action. On appeal, the plaintiff claims that the court (1) improperly modified the parties’ parenting plan by (a) ordering overnight visitation, (b) increasing evening visitation, (c) limiting the time period for the defendant to be drug tested and (d) eliminating the requirement that the parties submit to mediation prior to modification; (2) abused its discretion in denying his motion for authorization to obtain the defendant’s medical records; and (3) abused its discretion in awarding the defendant attorney’s fees. We affirm, in part, and reverse, in part, the judgment of the trial court.

The following facts and procedural history are relevant to the plaintiffs appeal. The plaintiff and the defendant, Abigail Berglass, were married on July 6, 1984. During their marriage, the parties had two children, Jacqueline, born in 1987, and Laura, bom in 1993. On November 19, 1996, the parties sought dissolution of their marriage, and on August 12, 1998, the court rendered a judgment of dissolution. A stipulated parenting agreement addressing custody and visitation was incorporated into the dissolution judgment. Pursuant to that agreement, the parties maintained joint legal custody of the children, with primary physical custody with the plaintiff. Despite the fact that judgment was rendered on the basis of the parties’ stipulation, this case has all the indicia of a so-called “high conflict” custody case.

The action was filed in late 1996, and in that year, twenty motions were filed. In 1997, there were forty-four docket entries, including two notices of appeal, a family division report and a motion for a mental and physical examination. In 1998, eighty docket entries are noted prior to judgment, including a second report of the family division and one appeal to the Appellate Court. During the postjudgment years of 1998 and 1999, there are forty-six entries, including a third family division report and this appeal.

At the time of the dissolution, the parties took into consideration the defendant’s substance abuse problem in drafting their parenting agreement. It provided in relevant part that her visitation with Laura “is at all times premised on the mother’s continued successful recovery, continued weekly random toxicology test, continued therapy, and continued monthly sessions with Laura and Connie Catrone, [a social worker].” It further provided that “Catrone shall be consulted before visitation between Laura and the mother is expanded beyond the terms of this agreement.” More specifically, the agreement provided that initially, the defendant would have visitation with Laura on Saturdays from 10 a.m. to 5 p.m. “Beginning December 4, 1998, after consideration and approval of Connie Catrone, with continued verification of the mother’s recovery, Laura will spend overnights with her mother each week from Saturday overnight to Sunday.”

The plaintiff, however, would not permit Saturday overnight visitation with the defendant. Consequently, on December 16, 1998, the defendant filed a motion for contempt. Laura’s guardian ad litem filed a similar motion. Thereafter, the plaintiff filed an objection, claiming that the condition precedent to such visitation, namely, confirmation of the defendant’s successful sobriety, had not been satisfied. With respect to overnight visitation, the court ordered that the defendant have visitation from Saturday at 10 a.m. until Sunday at 10 a.m. every weekend. Additionally, the court increased Monday, Wednesday and Friday evening visitation with the defendant and limited the time period during which the defendant would be subject to weekly substance abuse testing to a period of six months. This appeal followed. Additional facts will be set forth as necessary to resolve the issues presented.

“The standard of review in family matters is well settled. An appellate court will not disturb a trial 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.” (Internal quotation marks omitted.) Prial v. Prial, 67 Conn. App. 7, 9-10, 787 A.2d 50 (2001).

I

The plaintiffs first four claims involve whether certain orders by the court constituted improper modifications of the parties’ parenting agreement. We will address each of the claims in turn.

A

The plaintiff first claims that the court’s overnight visitation order was an improper modification of the parties’ agreement. Specifically, the plaintiff argues that the court failed to conduct an evidentiary hearing before ordering overnight visitation, thereby denying him due process. We do not agree.

The following additional facts are relevant to our resolution of the plaintiffs claim. At the September 14, 1999 hearing, in response to the December 16, 1998 motion for contempt, the defendant’s counsel asserted that the defendant had complied with the conditions precedent to overnight visitation. Specifically, she claimed that she had submitted to drug testing by Jerome Schnitt, a physician previously chosen by the plaintiff, and that those tests were negative for substance abuse. The plaintiff, however, argued that the testing was insufficient because it could not or did not test for Ambien, and did not test for Soma and alcohol, drugs that the defendant had admitted to abusing in the past. The plaintiff also claimed that the test samples were diluted and that tests were not conducted or reported on a weekly basis. He therefore argued that overnight visitation should not occur because the defendant had failed to comply with the condition precedent to overnight visitation pursuant to the parenting plan.

“It is a fundamental premise of due process that a court cannot adjudicate a matter until the persons directly concerned have been notified of its pendency and have been given a reasonable opportunity to be heard in sufficient time to prepare their positions on the issues involved. . . . Generally, when the exercise of the court’s discretion depends on issues of fact which are disputed, due process requires that a trial-like hearing be held, in which an opportunity is provided to present evidence and to cross-examine adverse witnesses.” (Internal quotation marks omitted.) Kelly v. Kelly, 54 Conn. App. 50, 58, 732 A.2d 808 (1999).

“Due process of law requires that one charged with contempt of court be advised of the charges against him, have a reasonable opportunity to meet them by way of defense or explanation, have the right to be represented by counsel, and have a chance to testily and call other witnesses in his behalf, either by way of defense or explanation. . . . Because the inability of [a party] to obey an order of the court, without fault on his part, is a good defense to a charge of contempt . . . the [party] had the right to demonstrate that his failure to comply with the order of the trial court was excusable.” (Internal quotation marks omitted.) Id., 59.

Even though the plaintiff unilaterally determined that he would not permit overnight visitation, the court, acting within its discretion, did not find him in contempt. The parties do not challenge that, and, in fact, our Supreme Court has held that “there may be circumstances in which an ambiguity in an order may preclude a finding of contempt . . . when there is an adequate factual basis to explain the failure to honor the court’s order.” (Internal quotation marks omitted.) Sablosky v. Sablosky, 258 Conn. 713, 721, 784 A.2d 890 (2001). Nonetheless, “where there is an ambiguous term in a judgment, a party must seek a clarification upon motion rather than resort to self-help. The appropriate remedy for doubt about the meaning of a judgment is to seek a judicial resolution of any ambiguity; it is not to resort to self-help.” Id., 720. Thus, our Supreme Court has held that “even if the court determines that because of such an ambiguity contempt would not be warranted, it may nonetheless enter an appropriate order . . . based on its interpretation of the judgment.” Id., 723.

We conclude that the court did not improperly modify the parties’ agreement, but rather enforced the judgment and that the plaintiff was not denied his due process rights. The court had before it for consideration the defendant’s motion for contempt relative to the plaintiffs failure to comply with the provision of the parenting agreement granting the defendant overnight visitation with her six year old daughter as of December 4, 1998. The plaintiff correctly points out that this was the only issue before the court. By unilaterally denying the defendant overnight visitation as of December 4, 1998, the plaintiff improperly acted as gatekeeper to the defendant’s visitation. “The doors of the courthouse are always open; it is incumbent upon the parties to seek judicial resolution of any ambiguity in the language of judgments.” Id., 722. It was necessary here for the court, and not the plaintiff, to intexpret the parties’ agreement to determine whether the defendant had satisfied the testing requirement. That is essential in classic high conflict, custody, postjudgment litigation.

It is inappropriate for the custodial parent in a high conflict case to be given decision-making control over the noncustodial parent’s access to minor children. In approving the parenting agreement and in incorporating it into the judgment, the court relied on medical professionals, the guardian ad litem for Laura and counsel for the parties to communicate with respect to the testing requirements. The plaintiff had the obligation to alert the court if he believed that the testing was not in compliance with the judgment prior to his unilateral decision not to comply with the specific order in the judgment that overnight visitation commence on a certain date. The court in this instance, when ultimately informed that the judgment was not being complied with, appropriately inquired and set into motion the contemplated overnight visitation.

We conclude that the plaintiff had a fair opportunity to present evidence on the contested issue of the defendant’s recovery. Upon hearing counsels’ positions on the motion for contempt, the court admitted into evidence the deposition testimony of Schnitt. The plaintiff had chosen Schnitt to perform the defendant’s drug testing and, prior to the admission of Schnitt’s testimony, the plaintiff had agreed with the court’s assessment that Schnitt was “the key” and indicated that he did not want to call him to testify in person. The court, after considering more than sixty pages of deposition testimony, determined that the defendant had complied with the testing requirements.

The court took into account that Schnitt’s testimony revealed that he did not follow the testing procedures exactly as had been requested of him. In fact, on some occasions, the defendant was not tested every week and was not tested for all drags for which tests had been ordered. The court concluded that notwithstanding the inadequacies of Schnitt’s testing protocol, which was entirely beyond the defendant’s control, the defendant had complied with her obligation to submit to testing under the parenting agreement.

The record reveals that Schnitt’s testing used a “broad panel toxicology screen” covering a variety of substances, including, inter alia, amphetamines, barbiturates, benzodiazepine, cocaine and opiates. The bulk of those tests, which took place during the course of a year, were negative. The court also was persuaded that Laura, who was six years old at the time, would be able to report any problems that may occur during overnight stays. Thus, the court ordered overnight visitation in accordance with the parties’ original parenting agreement.

We conclude that the plaintiff had a reasonable opportunity to be heard on the issues involved and that there was ample evidence to support the court’s conclusion that the defendant had satisfied her obligations under the agreement such that overnight visitation should commence pursuant to the agreement. Having considered the entire record, we conclude that the court’s order was founded on a reasonable basis and that the court acted well within its broad discretion in enforcing the underlying judgment.

B

The plaintiff next claims that the court improperly modified the patties’ agreement when it ordered the evening visitation schedule to increase the time that Laura spends with the defendant. We agree.

The defendant argues that the court’s order regarding weekday visitation properly constitutes “compensatory time” provided for in the parties’ parenting agreement for the overnight visitation previously lost. Although “compensatory time” in light of the facts of this case may be a claim raised at a subsequent hearing, it was not properly before the court here.

The court, upon hearing argument from Laura’s guardian ad litem at the contempt hearing, changed the parties’ visitation schedule by ordering that the defendant be allowed to pick the child up at school at 3 p.m. and return her to the plaintiff at 7 p.m. on Monday, Wednesday and Friday evenings, thereby increasing the defendant’s time with the child. Previously, the defendant was enjoying visitation from 5:30 p.m. to 7:30 p.m. on Mondays, from 4 p.m. until 7:30 p.m. on Wednesdays and had no visitation on Fridays. Neither party had filed a motion for modification, and the court did not hear evidence regarding the best interest of the child.

“The authority to render orders concerning custody and visitation is found in General Statutes § 46b-56, which provides in relevant part: ‘(a) In any controversy before the Superior Court . . . the court may at any time make or modify any proper order regarding . . . custody and visitation. . . .’ [Section 46b-56] further provides that in ‘modifying any order with respect to custody or visitation, the court shall (1) be guided by the best interests of the child . . . .’ General Statutes § 46b-56 (b). [Our Supreme Court] has limited the broad discretion given the trial court to modify custody orders under General Statutes § 46b-56 by requiring that modification of a custody award be based upon either a material change of circumstances which alters the court’s finding of the best interests of the child . . . or a finding that the custody order sought to be modified was not based upon the best interests of the child. . . .

“To obtain a modification, the moving party must demonstrate that circumstances have changed since the last court order such that it would be unjust or inequitable to hold either party to it. Because the establishment of changed circumstances is a condition precedent to a party’s relief, it is pertinent for the trial court to inquire as to what, if any, new circumstances warrants a modification of the existing order. In making such an inquiry, the trial court’s discretion is essential. . . .” (Citation omitted; internal quotation marks omitted.) Kelly v. Kelly, supra, 54 Conn. App. 55-56. “It must, however, exercise that authority in a manner consistent with the due process requirements of fair notice and reasonable opportunity to be heard. ... A custody [or visitation] order cannot be modified without adequate notice and opportunity to be heard.” (Citation omitted; internal quotation marks omitted.) Taff v. Bettcher, 35 Conn. App. 421, 430, 646 A.2d 875 (1994).

It is well settled that “[a] judgment cannot be founded on a finding of facts not in issue, although they may have been shown in evidence to which no proper objection was taken.” (Internal quotation marks omitted.) Westfall v. Westfall, 46 Conn. App. 182, 185, 698 A.2d 927 (1997). “[Wjhen a court has approved the provisions of a dissolution decree agreed upon by the parties, the court cannot modify or augment those provisions without following the requirements of due process.” Costello v. Costello, 186 Conn. 773, 777, 443 A.2d 1282 (1982); see also Guss v. Guss, 1 Conn. App. 356, 361, 472 A.2d 790 (1984) (trial court cannot on own initiative modify alimony, child support orders); Grobstein v. Grobstein, 14 Conn. Sup. 378, 379 (1946) (“[n]o decrees concerning alimony, support or custody of children in an action for divorce can be vacated or modified by the mere act of the parties, but only upon application duly made to this court and then only upon consideration warranting such action”). “The purpose of requiring written motions is not only the orderly administration of justice; see Malone v. Steinberg, 138 Conn. 718, 721, 89 A.2d 213 (1952); but the fundamental requirement of due process of law. Winick v. Winick, [153 Conn. 294, 299, 216 A.2d 185 (1965)].” Connolly v. Connolly, 191 Conn. 468, 475, 464 A.2d 837 (1983).

We conclude that the court improperly modified the parties’ evening visitation when it increased the time that Laura spends with the defendant during the week. The record makes clear that the court modified weekly visitation without a hearing and without consideration of the best interest of the child. We are not persuaded that the modifications were ordered properly under the broad equitable powers of the court or that such changes are “so minimal” as not to require the taking of evidence, a finding of a material change in circumstances or a determination of the best interest of the child. We conclude that the increased evening visitation changes were not minimal in light of the parties’ contentious relationship and, particularly, the plaintiffs longstanding concerns about the defendant’s mental health as it relates to visitation. The change in visitation constituted a modification of the previous visitation order. The court therefore should not have modified weekly visitation without having held an evidentiary hearing to determine whether modification was in the best interest of the child. See Kelly v. Kelly, supra, 54 Conn. App. 57-58. As neither party sought to modify the provision of the parenting agreement to increase evening visitation and no evidence was heard on the subject, we conclude that the court abused its discretion. Changes made to the parties’ visitation schedule, with the exception of overnight visitation, therefore are improper.

C

The plaintiff next claims that the court abused its discretion when it modified the parties’ agreement to limit the defendant’s random drug testing to a period of six months. We agree.

As we have stated, to comport with the requirements of due process, a “[visitation] order cannot be modified without adequate notice and opportunity to be heard.” (Internal quotation marks omitted.) Taff v. Bettcher, supra, 35 Conn. App. 430. In the present case, the plaintiff made an oral motion to modify the drug testing requirement such that it be given a finite end. No evidence was presented regarding whether a termination of testing would be in the best interest of the child or how long testing should continue. The court abused its discretion in limiting the defendant’s drug testing to a six month period.

D

The plaintiffs last claim with respect to modification is that the court improperly modified the parties’ agreement that they submit to mediation prior to seeking modification of their agreement because the court in fact modified their agreement without the parties’ having submitted to mediation. Having vacated the court’s orders of modification, we need not consider whether the court implicitly or otherwise obviated the parties’ agreement to submit to mediation prior to seeking modification of their agreement.

II

The plaintiff next claims that the court abused its discretion by denying his motion for authorization to obtain the defendant’s medical records for the preceding four years. We are not persuaded.

The following additional facts are relevant to the resolution of the plaintiffs claim. On February 11,1999, the plaintiff filed a motion seeking authorization from the court to obtain the defendant’s entire medical history for the previous four years. The plaintiff claimed that access to such records was necessary to determine the extent of the defendant’s substance abuse and her progress toward recovery, as those factors related to overnight visitation. During oral argument on the motion, the plaintiff also stated “there’s also a bipolar depression issue that may or may not enter into it.” The court denied the motion.

The plaintiff argues that the defendant’s records may be disclosed pursuant to General Statutes §§ 52-146c (c) (2) and 52-146f (5). Specifically, he contends that the defendant put her mental health in issue by conditioning overnight visitation on her continued sobriety.

“With respect to the appropriate standard of review, Practice Book § 13-14 (a) provides in relevant part that a trial court ‘may, on motion [to compel production], make such order as the ends of justice require.’ Consequently, the granting or denial of a discovery request rests in the sound discretion of the court . . . and can be reversed only if such an order constitutes an abuse of that discretion. The ultimate issue in our review is, therefore, whether the trial court reasonably could have concluded as it did.” (Citation omitted; internal quotation marks omitted.) Metropolitan Life Ins. Co. v. Aetna Casualty & Surety Co., 249 Conn. 36, 51, 730 A.2d 51 (1999).

“To result in a waiver of the privilege, § 52-146c requires that, in addition to a party having put her own mental health in issue, the court must have made a finding that ‘it is more important to the interests of justice that the communications be disclosed than that the relationship between the person and the psychologist be protected.’ The statute, however, does not require that the court make some finding on this question. The burden is, therefore, on the party seeking to establish that the [evidence] is admissible to persuade the court to make a finding that justice requires its admission.” Cabrera v. Cabrera, 23 Conn. App. 330, 339, 580 A.2d 1227, cert. denied, 216 Conn. 828, 582 A.2d 205 (1990).

We conclude that the court properly denied the plaintiffs motion for authorization to obtain the defendant’s medical records because justice did not require their admission into evidence. The court made no finding that it did and, further, found that the plaintiff had all the records necessary to determine whether the defendant was in recovery and was complying with random testing. It follows that the court had determined that justice did not require that the privilege be overridden to introduce medical records that delved into the defendant’s past medical history, including records prior to the dissolution. On the basis of our review of the entire record, we conclude that the court reasonably could have made that determination. We cannot say, therefore, that the court abused its discretion.

IV

The plaintiffs final claim is that the court abused its discretion in awarding the defendant attorney’s fees. Specifically, the plaintiff argues that the award was improper because it was not based on a finding of contempt. We decline to address his claim.

“Ordinarily, courts in this country do not award attorney’s fees to the prevailing party unless there is a prior agreement between the parties or the payment of such fees is provided for by statute. Raph v. Vogeler, 45 Conn. App. 56, 65, 695 A.2d 1066, cert. denied, 241 Conn. 920, 696 A.2d 342 (1997).” Bonhotel v. Bonhotel, 64 Conn. App. 561, 572, 781 A.2d 318, cert. denied, 258 Conn. 918, 782 A.2d 1241 (2001). “The authority of the trial court to award attorney’s fees following a contempt proceeding is well settled. Once a contempt has been found, [General Statutes] § 46b-87 establishes a trial court’s power to sanction a noncomplying party through the award of attorney’s fees. . . . Pursuant to § 46b-87, that sanction may be imposed without balancing the parties’ respective financial abilities. . . . The award of attorney’s fees in contempt proceedings is within the discretion of the trial court.” (Citations omitted; internal quotation marks omitted.) Eldridge v. Eldridge, 244 Conn. 523, 534, 710 A.2d 757 (1998). It is undisputed that the court did not find the plaintiff in contempt. Section 46b-87 does not provide that attorney’s fees be awarded to a moving party where there is no finding of contempt. Bonhotel v. Bonhotel, supra, 64 Conn. App. 572-73 (“[b]ecause the defendant did not ask that the plaintiff be found in contempt and he was not found to be in contempt and because certain of the items for which the defendant sought reimbursement are not included in the statute, the court properly denied the defendant’s request for attorney’s fees”).

General Statutes § 46b-62, however, provides in relevant part that “[i]n any proceeding seeking relief under the provisions of this chapter . . . the court may order either spouse or, if such proceeding concerns the custody, care, education, visitation or support of a minor child, either parent to pay the reasonable attorney’s fees of the other in accordance with their respective financial abilities and criteria set forth in [General Statutes §] 46b-82. . . .” An award of counsel fees under that statutory provision calls for the exercise of judicial discretion. Lambert v. Donahue, 69 Conn. App. 146, 150, 794 A.2d 547 (2002). In exercising its discretion, “the court must consider the statutory criteria set out in §§ 46b-62 and 46b-82 and the parties’ respective financial abilities.” Id.

In the present case, the court clearly predicated its award of attorney’s fees on § 46b-62. We cannot review, however, whether the award was proper, because neither the record nor an articulation on the matter reveals the court’s reasoning, specifically, whether or to what extent it considered the criteria set forth in § 46b-82. “As we often have stated: It is a well established principle of appellate procedure that the appellant has the duty of providing this court with a record adequate to afford review. . . . Where the factual or legal basis of the trial court’s ruling is unclear, the appellant should seek articulation pursuant to Practice Book § [66-5]. . . . Accordingly, [w]hen the decision of the trial court does not make the factual predicates of its findings clear, we will, in the absence of a motion for articulation, assume that the trial court acted properly.” (Internal quotation marks omitted.) Zahringer v. Zahringer, 69 Conn. App. 251, 256-57, 793 A.2d 1214 (2002). We therefore decline to address the question of whether the court’s award of attorney’s fees was an abuse of discretion.

The judgment is reversed only as to the orders allowing weekday evening visitation and limiting the period of substance abuse testing and the case is remanded for a status conference to determine whether the parties intend to file any motions and to determine a date for a hearing on any such motion.

In this opinion the other judges concurred.

       In his statement of the issues on appeal, the plaintiff sets out his claims in relevant part as follows: Whether the court improperly (1) “fail[ed] to hold an evidentiary hearing prior to modifying upward the defendant mother’s visitation with the minor child Laura and modified] the condition precedent to such visitation of weekly random substance abuse screenings by imposing a six month time limitation on any further testing requirement? (2) . . . modified] the visitation schedule and modifped] the condition precedent to such visitation of weekly random substance abuse screenings by imposing a six month time limitation on any further testing requirement when the only relevant mofions pending before the court alleged contempt of the original visitation agreement? (3) . . . modified] the original visitation agreement, both as to the amount of visitation and as to the time limitation imposed on the weekly substance abuse testing as a condition precedent to such visitation, without finding that a material change in circumstances had occurred or that the order sought to be modified was not in the best interests of the minor child? (4) . . . relabeled the increased visitation as ‘compensatory time?’ (5) . . . modified] the original visitation agreement when it failed to satisfy the contractual condition precedent, to such revision or modification, that is that the parents affirmatively submit to mediation prior to court intervention? (6) . . . abuse [d] its discretion when it denied the plaintiffs motion to obtain the defendant mother’s medical records? [and] (7) . . . abuse [d] its discretion in awarding the defendant mother attorney’s fees?”

       Jacqueline is not. interested in visiting with the defendant, nor is her visitation with the defendant an issue in this appeal.

       Because we conclude that the court-ordered overnight visitation was an enforcement of the original judgment rather than a modification of it, we need not consider the plaintiffs additional arguments that (1) there was no motion to modify overnight visitation before the court, (2) the court made no finding of material change in circumstances and (2) the court did not consider the best interest of the child in deciding to order overnight visitation.

       Schnitt’s alcohol testing consisted of a single “sniff test,” whereby he smelled the defendant’s breath.

       The plaintiff filed an objection to the motion in which he alleged that the defendant had failed to comply with what he claimed were the conditions precedent to overnight visitation, specifically, that he did not receive a report from Catrone indicating “satisfactory confirmation of the mother’s recovery” and the compliance with drug testing, as set forth in the parenting agreement.

       The plaintiff also indicated that he could call a “qualified drug administrator,” David Duff Chambers, to testify regarding recovery. Chambers is a “substance abuse professional” with the United States Department of Transportation. The court stated that it did not “really know how to listen to Chambers,” and he did not testify.
      “Concerning expert testimony specifically, we note that the trial court has wide discretion in ruling on the admissibility of expert testimony and, unless that discretion has been abused or the ruling involves a clear misconception of the law, the trial court’s decision will not be disturbed. . . . Expert testimony should be admitted when: (1) the witness has a special skill or knowledge directly applicable to a matter in issue, (2) that skill or knowledge is not common to the average person, and (3) the testimony would be helpful to the court or jury in considering the issues.” (Internal quotation marks omitted.) State v. Wargo, 255 Conn. 113, 123, 763 A.2d 1 (2000). There is nothing in the record to suggest that Chambers had any special knowledge or skill with respect to evaluating the defendant’s recovery. He is not a physician, and the defendant was not under his care. Moreover, the court, had before it for consideration a random drug test protocol prepared by Chambers, and the court noted that Chambers’ protocol was more extensive than Schnitt’s.

       Schnitt did not test for Ambien, Soma or alcohol. He also failed to repeat tests that on four occasions had indicated that the defendant’s urine may-have been diluted by consuming large quantities of fluids before testing. Schnitt’s testimony also revealed that the defendant had failed to appear for certain drug tests when requested, allegedly due to scheduling problems, and she had on one occasion been prescribed Percocet.

       Although representations of counsel do not constitute evidence; Tevolini v. Tevolini, 66 Conn. App. 16, 25-26, 783 A.2d 1157 (2001); we note that the child’s guardian ad litem, Roberta S. Friedman, represented to the court that the child had communicated to her that she wanted to have overnights with the defendant and, “[o]n information and belief from both Connie Catrone and from [Alan M. Shulik, Laura’s therapist,] there seems to be no reason whatsoever why this child could not spend each weekend Saturday overnight until Sunday.”
      A letter from Shulik dated July 28, 1999, clarified his position. It states in relevant part: “I have been impressed by the maimer in which Laura had repeatedly and unambivalently expressed to me the wish to have overnight visits with her mother. . . . Reports of . . . significant problems during the visits were made to me on numerous occasions, however, by Laura’s father [including his allegations of neglect and improper super-vision], . . . My opinion on overnight visits is contingent upon (1) that Laura’s mother meet the standards set for determination of recovery and abstinence from her addictive disorder and (2) that any possibility of neglect and/or poor supervision by Laura’s mother has been completely ruled out.” We note 1hat the plaintiff challenges only the defendant’s proof of continued sobriety.

       General Statutes § 52-146c, which relates to psychologist-patient privilege, provides in relevant part: “(b) Except as provided in subsection (c) of this section, in civil and criminal actions, in juvenile, probate, commitment and arbitration proceedings, in proceedings preliminary to such actions or proceedings, and in legislative and administrative proceedings, all communications shall be privileged and a psychologist shall not disclose any such communications unless the person or his authorized representative consents to waive the privilege and allow such disclosure. The person or his authorized representative may withdraw any consent given under the provisions of this section at any time in a writing addressed to the individual with whom or the office in which the original consent was filed. The withdrawal of consent shall not affect communications disclosed prior to notice of the withdrawal.
      “(c) Consent of the person shall not be required for the disclosure of such person’s communications ... 2) If, in a civil proceeding, a person introduces his psychological condition as an element of his claim or defense or, after a person’s death, his condition is introduced by a party claiming or defending through or as a beneficiary of the person, and the judge finds that it is more important to the interests of justice that the communications be disclosed than that the relationship between the person and psychologist be protected . . . .”

       General Statutes § 52-146Í provides in relevant part: “Consent of the patient shall not be required for the disclosure or transmission of communications or records of the patient in the following situations as specifically limited ... (5) Communications or records may be disclosed in a civil proceeding in which the patient introduces his mental condition as an element of his claim or defense, or, after the patient’s death, when his condition is introduced by a party claiming or defending through or as a beneficiary of the patient and the court or judge finds that it is more important to the interests of justice that the communications be disclosed than that the relationship between patient and psychiatrist be protected.”

       General Statutes § 46b-87 provides: “When any person is found in contempt of an order of the Superior Court entered under section 46b-60 to 46b-62, inclusive, 46b-81 to 46b-83, inclusive, or 46b-86, the court may award to the petitioner a reasonable attorney’s fee and the fees of the officer serving the contempt citation, such sums to be paid by the person found in contempt, provided if any such person is found not to be in contempt of such order, the court may award a reasonable attorney’s fee to such person. The costs of commitment of any person imprisoned for contempt of court by reason of failure to comply with such an order shall be paid by the state as in criminal cases.”

       The plaintiff also argues that the court’s award of attorney’s fees is improper pursuant to General Statutes § 52-256b (a) because there was no finding of contempt. Section 52-256b (a) provides: “When any person is found in contempt of any order or judgment of the Superior Court, the court may award to the petitioner a reasonable attorney’s fee and the fees of the officer serving the contempt citation, such sums to be paid by the person found in contempt.” The plaintiff is correct in his assertion that attorney’s fees pursuant to that statutory subsection must be predicated on a finding of contempt. See In re Jeffrey C., 64 Conn. App. 55, 63, 779 A.2d 765 (2001), rev’d on other grounds, 261 Conn. 189, 802 A.2d 772 (2002).