author: PETERS, J.

text:
    DAVID S. LABOSSIERE v. CATHERINE A. JONES
    (AC 29259)
    (AC 29460)
    (AC 29865)
    (AC 30190)
    Flynn, C. J., and Alvord and Peters, Js.

      Argued May 18
    officially released September 22, 2009

      Norma Pierce Arel, for the appellant (plaintiff).

      Steven H. St. Clair, with whom, on the brief, was Claudia S. Weiss, for the appellee (defendant).
   Opinion

PETERS, J.

A decision to award counsel fees in a marital dissolution dispute ordinarily is based on an appraisal of the respective financial ability of each party to pay his or her own fees. See General Statutes § 46b-62; Koizim v. Koizim, 181 Conn. 492, 500-501, 435 A.2d 1030 (1980). Where, however, “a party has engaged in egregious litigation misconduct that has required the other party to expend significant amounts of money for attorney’s fees, and where the court determines, in its discretion, that the misconduct has not been addressed adequately by other orders of the court, the court has discretion to award attorney’s fees to compensate for the harm caused by that misconduct, irrespective of whether the other party has ample liquid assets and of whether the lack of such an award would undermine the court’s other financial orders.” Ramin v. Ramin, 281 Conn. 324, 357, 915 A.2d 790 (2007); see also General Statutes § 46b-87. In this case, the trial court, because of a former husband’s repeated alimony arrearages and his deliberate failure to comply with a documentary subpoena, found that he had wilfully failed to honor his alimony obligations to his former wife, held him in contempt and ordered him to pay her attorney’s fees, both for the contempt proceeding and to defend against his subsequent appeals from that proceeding. We affirm the judgments of the trial court.

On August 19, 1998, the court, Hon. Michael P. Conway, judge trial referee, in a judgment incorporating a contemporaneous written settlement agreement of the parties, dissolved the marriage between the plaintiff, David S. LaBossiere, and the defendant, Catherine A. Jones. The judgment obligated the plaintiff to pay the defendant weekly alimony of $400 until she died or remarried and, as additional alimony, required him to reimburse her for her dental and chiropractic expenses. In 2002, after the accrual of an alimony arrearage of $27,600 that the parties agreed to resolve by having the plaintiff remodel the defendant’s residence, the trial court, Dannehy, J., reduced the plaintiffs future alimony obligation to $300 a week.

The present litigation arises out of a motion for contempt filed by the defendant on March 7, 2007, in which she claimed an alimony arrearage of $2400. In support of her efforts to demonstrate that the plaintiff had the financial means to pay this arrearage, the defendant served two subpoenas duces tecum on the plaintiff, first on August 6, 2007, and again on August 15, 2007, ordering him to produce various documents listed in an attached schedule A. Because the plaintiff appeared at a rescheduled deposition, on August 22,2007, without producing any of the listed documentation, the defendant filed a motion for counsel fees and sanctions. At a rescheduled deposition, on September 12, 2007, the only financial document tendered by the plaintiff was an affidavit stating that his income was “unknown.”

After a short calendar hearing held by the trial court, Riley, J., on September 17, 2007, to address the plaintiffs failure to produce the documents listed in schedule A, the parties entered into a written stipulation with respect to the defendant’s motion for counsel fees and sanctions. The stipulation stated: “[The] [defendant's motion for counsel fees [and] sanctions shall be granted such that [the] plaintiff shall be precluded from offering any evidence [or] exhibits other than those . . . produced at the depositions on [August 22, 2007] and [September 12, 2007] in accordance with schedule A of the re-notice of deposition dated [August 15,2007] attached hereto, other than cancelled checks showing alimony payments to the defendant. The issues of counsel fees and costs maybe addressed at the [September 19, 2007] hearing.” The plaintiff has not challenged the enforceability of this stipulation.

Two days later, on September 19, 2007, the court conducted a hearing on the defendant’s motion for contempt and for attorney’s fees. Without disputing the amount of the alimony arrearage, the plaintiff testified that he was paying the alimony as best he could but that his business was down and he had financial obligations to others. He argued that, for these reasons, his failure to pay the alimony arrearage was not wilful. He also questioned the reasonableness of the amount of the attorney’s fees sought by the defendant. The court was unpersuaded by the plaintiffs professed lack of knowledge about his own income, found that he had considerable assets and deplored “his failure to produce the documentation requested [by the defendant].” It ordered the plaintiff to pay the $5000 arrearage to which the parties had stipulated within thirty days or face incarceration. It also held him in contempt for his wilful failure to obey prior court orders and awarded the defendant $4825 in attorney’s fees and costs. On October 9, 2007, the plaintiff filed his first appeal, AC 29259, to challenge the validity of this judgment. Other appeals have ensued.

Before we address the merits of the plaintiffs claims in his four appeals, we must observe that the plaintiff has significantly impaired our ability to undertake a comprehensive review of the trial court judgments that he asks us to reverse. The rules of practice impose on the appellant the responsibility for providing an adequate record for review. See Practice Book § 64-1. The plaintiff has, however, failed to provide either memoranda of decision or signed transcripts to document any of the rulings with which he takes issue. Although the court file contains some unsigned transcripts that we may consult; see In re Francisco R., 111 Conn. App. 529, 531, 959 A.2d 1079 (2008); the plaintiff bears the responsibility for any gaps in the record.

I

The plaintiffs first appeal, AC 29259, challenges the September 19, 2007 judgment of the trial court on two grounds. He maintains that the court’s finding that he had wilfully failed to pay the alimony arrearage of $5000 that he owed the defendant was erroneous because the court did not permit him fully to explain the financial circumstances that accounted for his delinquency. He also maintains that the court improperly awarded the defendant attorney’s fees and costs in the amount of $4825 without conducting an evidentiary hearing. We are not persuaded by either argument.

A

The plaintiffs principal contention is that the court improperly found that his failure to pay the alimony arrearage was wilful because, in his view, the court did not permit him fully to present evidence of his impoverished financial circumstances. Because the plaintiff does not deny that the underlying alimony order was sufficiently clear and unambiguous to support a judgment of contempt, we must “determine whether the trial court abused its discretion in issuing ... a judgment of contempt, which includes a review of the trial court’s determination of whether the violation was wilful or excused by a good faith dispute or misunderstanding.” In re Leah S., 284 Conn. 685, 694, 935 A.2d 1021 (2007).

The plaintiffs argument references the parties’ stipulation, two days before the court hearing, that “[the] plaintiff shall be precluded from offering any evidence [or] exhibits other than those . . . produced at the depositions on [August 22, 2007] and [September 12, 2007] in accordance with schedule A of the re-notice of deposition dated [August 15, 2007] attached hereto, other than cancelled checks showing alimony payments to the defendant.” According to the plaintiff, the parties intended this stipulation to govern only the defendant’s right to recover attorney’s fees and did not mean it to have any relevance to the defendant’s claim that the plaintiffs arrearage in alimony payments was wilful.

The defendant argues, in response, that the court properly based its finding of wilfulness on the plaintiffs lack of candor with the court and on his abuse of the discovery process. The record bears this out. The court stated that its review of the court file had disclosed a history of wilful violations of court orders. The court expressed its incredulity at the plaintiffs statement, in his affidavit, that he had no knowledge of his present income. It expressly rejected his excuses for his failure to comply with the defendant’s subpoenas.

There is, however, a more fundamental flaw in the plaintiffs argument. The record discloses that there was considerable argument at trial about the scope of the stipulation for schedule A preclusion. Indeed, the court sustained several of the defendant’s objections to documentary evidence covered by schedule A that had not been produced at the deposition. As best we can tell, however, the plaintiff never alerted the court to his present claim that the schedule A stipulation was irrelevant to the court’s inquiry into the wilfulness of his delay in making alimony payments. The plaintiff has not substantiated this claim of evidentiary error. See Practice Book § 67-4 (3). We note as well that, although the court, in accordance with the stipulation, excluded some evidence that the plaintiff would have liked to have presented, the court permitted the plaintiff to offer other significant evidence to show why, in his view, his failure to pay the alimony arrearage was not wilful.

On this state of the record, the plaintiff has failed to show that the trial court abused its discretion in applying the stipulation for schedule A preclusion to the contempt motion as well as to the motion for sanction and counsel fees.

B

The plaintiffs second claim in the first appeal is that the court improperly granted the defendant’s motion for attorney’s fees for $4825 without conducting a hearing on the matter. In response, the defendant observes that the award was proper because, at the September 19, 2007 hearing, the court addressed the subject of attorney’s fees without objection from the plaintiff to this award. We agree with the defendant.

The parties had stipulated that the plaintiffs alimony arrearage was $5000 and that the issue of attorney’s fees would be addressed at the September 19, 2007 hearing. Thereafter, at the hearing, the plaintiff testified that he was aware that the defendant was requesting attorney’s fees and costs. The plaintiff did not request any further hearing, did not ask the court to undertake an inquiry into the comparative financial situation of the parties and raised no question about the calculation of the amount of fees claimed by the defendant.

“Our law for awarding attorney’s fees in contempt proceedings is clear. General Statutes § 46b-87 provides that the court may award attorney’s fees to the prevailing party in a contempt proceeding. The award of attorney’s fees in contempt proceedings is within the discretion of the court. ... In making its determination, the court is allowed to rely on its familiarity with the complexity of the legal issues involved. Indeed, it is expected that the court will bring its experience and legal expertise to the determination of the reasonableness of attorney’s fees. . . . Moreover, because the award of attorney’s fees pursuant to § 46b-87 is punitive, rather than compensatory, the court properly may consider the defendant’s behavior as an additional factor in determining both the necessity of awarding attorney’s fees and the proper amount of any award.” (Citation omitted; internal quotation marks omitted.) Gil v. Gil, 110 Conn. App. 798, 806-807, 956 A.2d 593 (2008).

The plaintiff has failed to cite any legal authority for the proposition that he was entitled to a hearing on attorney’s fees beyond the hearing that took place on September 19, 2007. In fact, as noted, the plaintiff did not seek the opportunity to present evidence in opposition to the defendant’s request for attorney’s fees. Even if we assume, without deciding, that a hearing is required on a party’s motion for attorney’s fees, the plaintiff has not presented any basis on which the hearing that was held should be deemed inadequate to meet such a requirement. We conclude, therefore, that the court did not abuse its discretion by awarding attorney’s fees following the September 19, 2007 hearing.

In sum, we are not persuaded that the court improperly found the plaintiff in contempt for his failure to pay the alimony arrearage that he concededly owed to the defendant. We are similarly unpersuaded that the court improperly awarded attorney’s fees in the amount of $4825 to the defendant. In AC 29259, we therefore affirm the judgment rendered by the trial court on September 19, 2007.

II

In response to the plaintiffs appeal from the September 19, 2007 judgment of the trial court, the defendant filed a motion for attorney’s fees and costs to defend herself against the appeal. On November 26, 2007, after a hearing at which the court heard evidence about the financial circumstances of the parties, the court awarded the defendant attorney’s fees of $7500.

The plaintiffs second appeal, AC 29460, challenges the validity of this award of attorney’s fees on two grounds. He maintains that, in making this award, the court improperly (1) relied on the schedule A stipulation to exclude evidence that he proffered with respect to the parties’ relative financial ability to pay their own fees and costs pursuant to General Statutes §§ 46b-62 and 46b-82 and (2) awarded attorney’s fees to the defendant without conducting an evidentiary hearing to ascertain the parties’ relative financial abilities to pay. We are not persuaded by either claim.

A

At the hearing held on November 26, 2007, much of the testimony presented by the parties concerned two motions filed by the defendant that were distinct from her motion for attorney’s fees. Those motions alleged that the plaintiff was again in contempt for failing to pay his periodic alimony obligations to the defendant. In the discussion of those motions, the court, over the objection of the plaintiff, referred to the parties’ stipulation with respect to schedule A documents as precluding the plaintiff “from offering any evidence [or] exhibits other than those items produced at the deposition on September 22 and September 12.” Ultimately, the court postponed a decision on the merits of the contempt motions. Only then did the court consider the merits of the defendant’s motion for attorney’s fees. It never again mentioned the stipulation.

The plaintiffs complaint that the court improperly applied the schedule A stipulation in making its attorney’s fees award founders on his failure to identify any such ruling by the court. The discussion he cites had nothing to do with attorney’s fees. He has not called to our attention anything else in the November 26, 2007, transcript to sustain his claim. If the court indeed made the evidentiary ruling with which the plaintiff takes issue, the rules of practice imposed on him the burden of including in his brief or appendix a verbatim statement of his objection at trial and the ground on which the evidence was held to be admissible. See Practice Book § 67-4 (3). On the present state of the record, the plaintiffs claim warrants no further review. See Sakon v. Glastonbury, 111 Conn. App. 242, 258, 958 A.2d 801 (2008), cert. denied, 290 Conn. 916, 965 A.2d 554 (2009).

B

The plaintiffs alternate claim challenges the validity of the award of attorney’s fees on the ground that the court did not conduct an evidentiary hearing to ascertain the parties’ relative financial abilities to pay. As noted, we review an award of attorney’s fees under the abuse of discretion standard of review. “This standard applies to the amount of fees awarded . . . and also to the trial court’s determination of the factual predicate justifying the award. . . . Under the abuse of discretion standard of review, [w]e will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion. . . . [Thus, our] review of such rulings is limited to the questions of whether the trial court correctly applied the law and reasonably could have reached the conclusion that it did.” (Citations omitted; internal quotation marks omitted.) Schoonmaker v. Lawrence Brunoli, Inc., 265 Conn. 210, 252-53, 828 A.2d 64 (2003).

In advancing his claim of impropriety in the award in this case, the plaintiff asserts that, “[i]n the case at hand, no hearing was held nor was any testimony given regarding attorney fees.” The record does not bear this contention out. The court heard considerable testimony about the defendant’s financial circumstances. This court has held that “[i]f an award of attorney’s fees was sought in the underlying proceeding from which the appeal is being taken, the ruling on that earlier application may substantially control the result on the later application for attorney’s fees on appeal.” (Internal quotation marks omitted.) Durkin v. Durkin, 43 Conn. App. 659, 664, 685 A.2d 344 (1996). In other words, “where there has been a hearing on financial issues at the time of trial, the trial court may be deemed to have sufficient information to award counsel fees to defend an appeal.” Id. Here, the court had adequate information on which to base its award of attorney’s fees.

Furthermore, the court found that the plaintiff had a history of egregious litigation misconduct and based its award of attorney’s fees on his behavior, in reliance, inter alia, on Ramin v. Ramin, supra, 281 Conn. 357. The plaintiff has not challenged the court’s finding in this regard and has not addressed its significance on appeal.

Because the record at trial does not support either of the reasons advanced by the plaintiff for setting aside the court’s award of attorney’s fees to the defendant, he cannot prevail in his second appeal. In AC 29460, we therefore affirm the judgment rendered by the court on November 26, 2007.

Ill

During the pendency of the plaintiffs first two appeals, the defendant filed two additional motions for attorney’s fees. On December 17, 2007, she filed a motion for attorney’s fees and costs to defend herself against the plaintiffs second appeal. On January 11, 2008, she filed a motion for contempt alleging further wilful arrearages in the plaintiffs weekly alimony obligations. After hearings held on February 19 and 21,2008, and further briefing, the court rendered a judgment on March 28, 2008, ordering the plaintiff to pay the defendant $500 for attorney’s fees with respect to her contempt motion and $3000 for attorney’s fees for her defense of the plaintiffs second appeal. The plaintiffs third appeal, AC 29865, challenges the validity of this judgment.

The plaintiffs appeal raises two issues. The plaintiff claims that the court improperly (1) failed to credit evidence of lack of wilfulness in finding that he had wilfully failed to make timely alimony payments and (2) acted without evidence of each parties’ relative ability to pay his or her own fees in finding that the defendant was entitled to counsel fees. We are not persuaded by either claim.

A

The court based its judgment holding the plaintiff in contempt for wilfully failing to pay alimony on a timely basis on current financial affidavits from both parties, on copies of the plaintiffs cancelled alimony checks, on postmarks on several related envelopes and on the plaintiffs history of delay in making alimony payments. It awarded the defendant $500 in attorney’s fees.

The plaintiff asserts, on appeal, that the court’s award was improper because the court did not sufficiently credit his testimony, and that of his secretary, that it was the secretary who was responsible for a delay in mailing two alimony payments to the defendant. The plaintiff maintains that this testimony definitively established that his delinquency was not wilful and that he, therefore, should not have been held in contempt.

It is undisputed that a judgment of civil contempt is improper if “the contemnor, through no fault of his own, was unable to obey the court’s order.” (Internal quotation marks omitted.) In re Leah S., supra, 284 Conn. 692. Accordingly, “a court may not find a person in contempt without considering the circumstances surrounding the violation to determine whether such violation was wilful.” Wilson v. Wilson, 38 Conn. App. 263, 275-76, 661 A.2d 621 (1995). It is, however, equally undisputed that, if a finding of wilful misconduct is based on a court’s determination of the credibility of relevant testimony at trial, we will overturn it only if the record demonstrates a manifest abuse of discretion. “[T]he trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony and, therefore, is free to accept or reject, in whole or in part, the testimony offered by either party.” (Internal quotation marks omitted.) DiVito v. DiVito, 77 Conn. App. 124, 138, 822 A.2d 294, cert. denied, 264 Conn. 921, 828 A.2d 617 (2003).

We are unpersuaded by the plaintiffs argument that the court abused its discretion in declining to attach definitive weight to the testimony of the plaintiffs secretary that she was responsible for mailing alimony checks to the defendant and that, only on two occasions, she had inadvertently failed to do so. The plaintiff might have asked the court to explain its reasoning by filing a motion for articulation pursuant to Practice Book § 66-5. “[W]e will, in the absence of a motion for articulation, assume that the trial court acted properly.” (Internal quotation marks omitted.) Berglass v. Ber-glass, 71 Conn. App. 771, 789, 804 A.2d 889 (2002).

We therefore affirm the court’s award of $500 to the plaintiff for attorney’s fees with respect to her contempt motion.

B

The plaintiff also challenges the court’s award of counsel fees of $3000 to defend the second appeal without holding a hearing or taking testimony or other evidence regarding attorney’s fees, pursuant to §§ 46b-62 and 46b-82. Our standard for review of the court’s award is whether the court abused its discretion. Utz v. Utz, 112 Conn. App. 631, 641, 963 A.2d 1049, cert. denied, 291 Conn. 908, 969 A.2d 173 (2009). We are persuaded that the court did not abuse its discretion.

At the end of the hearing that began on February 19, 2008, and was continued on February 21,2008, the court discussed the pending award of attorney’s fees. The defendant had submitted an affidavit of attorney’s fees on the latter day. The court informed the parties that “with regard to affidavit of counsel fees, this needs to either be agreed upon as to amount, or somebody would need to produce evidence—as to the basis for the attorney’s fees. The court can’t accept an affidavit by case law, unless it’s an affidavit that’s agreed upon ... or not objected to.” The court expressly noted that it was taking under advisement both the award of fees for the contempt and the award of the fees for the second appeal.

The plaintiffs appeal brief notes that, at the February 21, 2008 hearing, the court did not hear testimony or receive other evidence regarding attorney’s fees, but it does not address the significance of the court’s statement that it could accept an affidavit “unless objected to.” The plaintiff has not called to our attention any request on his part for a further hearing on this subject or any objection that he raised against the affidavit of fees submitted by the defendant on the date of the hearing.

In Lambert v. Donahue, 78 Conn. App. 493, 827 A.2d 729 (2003), this court refused to consider the appeal of the plaintiff because, although the trial court ordered the plaintiff to pay attorney’s fees, “the record [did] not reveal the court’s reasoning, specifically, whether or to what extent it considered the [statutory] criteria . . . .” Id., 509. The record in the present case is similarly deficient.

The plaintiff concedes that it is his burden to establish that the court’s award of counsel fees was an abuse of discretion. On the record before us, the plaintiff has not made the requisite showing. In AC 29259, we affirm the judgment rendered by the court on March 28, 2008.

IV

On June 6, 2008, while the plaintiffs earlier appeals were pending, the defendant filed a motion for counsel fees to defend herself against the plaintiffs third appeal. In a judgment rendered after a hearing held on July 21, 2008, the court granted the defendant’s motion and awarded her counsel fees of $3000. The plaintiff s fourth appeal, AC 30190, challenges the validity of that judgment.

At a hearing held on July 21, 2008, the court heard argument on two motions. The first was the defendant’s motion for a protective order to limit the scope of a notice of deposition that had been filed by the plaintiff. The second was the defendant’s motion for attorney’s fees. The court denied the defendant’s motion for a protective order but imposed certain substantive and temporal constraints on the scope of the inquiry that it permitted the plaintiff to pursue. Neither party has raised any issue with respect to the court’s ruling.

The court then granted the defendant’s motion for attorney’s fees of $3000. It did so in reliance on financial affidavits previously filed by the parties because neither of them had complied with the requirements in the rules of practice and the court’s standing orders that such affidavits be filed ten days before a hearing. The court also held that “we’ll deal with the issue of substantiation of the attorney’s fees by hour—an hourly fee at a later date insofar as it deals with the $3000.” There is nothing in the record to indicate that any such further inquiry was ever pursued by the plaintiff.

The plaintiffs principal claim on appeal is that the court abused its discretion in denying his request that the deposition go forward before the court made a further fee award to the defendant. The court declined this request because “the premise of the deposition is to go back and search out other information and financial information” while “the appeal is dealing with different issues.” It was reasonable for the court not to await a broad inquiry into the defendant’s financial history before deciding whether the defendant presently needed financial assistance to defend herself against the plaintiffs pending appeal. We know of no authority to the contrary, and the plaintiff has cited none.

The plaintiff also contends that the court abused its discretion by refusing to accept a financial affidavit that he tendered on the day of the hearing. Without contesting the fact that his filing was late, the plaintiff argues that the court discriminated against him because it accepted a late filed affidavit from the defendant. In fact, however, the defendant acquiesced in the court’s reliance on the affidavit she had previously filed. The record, therefore, does not substantiate this claim.

The plaintiff further argues that the court abused its discretion by awarding attorney’s fees to the defendant without a proper evidentiary foundation either with respect to the comparative financial resources of the parties or with respect to the calculation of the amount of the fees. He has failed, however, to indicate when, if ever, he availed himself of the opportunity provided by the court to require the defendant to make the showings that he now claims to have been required.

The judgments are affirmed.

In this opinion the other judges concurred.

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

       General Statutes § 46b-87 provides in relevant part: “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. ...”

       Indeed, our examination of the transcript reveals that, on at least two occasions, exchanges between the plaintiffs attorney and the court make it clear that the plaintiff agreed that the stipulation was applicable to the hearing in its entirety. First, in a discussion about whether certain testimony was to be excluded, as the defendant maintained, the plaintiffs attorney stated: “But I think if you look at the order, it definitely specifies, in accordance with schedule A, the understanding was that these items on schedule A—he couldn’t produce anything else to try to back up why he hadn’t paid. This is simply cross-examination on what she’s already asked him.” (Emphasis added.) After the conclusion of the presentation of testimony, the plaintiffs attorney stated: “Most of the evidence is not admissible because of the schedule A situation, but it’s clear that [the plaintiff] has had financial problems.”

       We note, additionally, that the plaintiff has not identified anything in the trial court record to show that he requested a further hearing on the amount of the fees sought by the defendant.

       This court granted the plaintiffs motion to consolidate his first three appeals.

       Although the plaintiff objected at trial that, in deciding whether his recent delays in paying alimony were wilful, the court should not consider evidence of prior delays in his fulfillment of his alimony obligations to the defendant, his appellate brief alludes to this claim without citation of relevant authorities. The claim is therefore deemed to have been abandoned. Grimm v. Grimm, 276 Conn. 377, 393, 886 A.2d 391 (2005), cert. denied, 547 U.S. 1148, 126 S. Ct. 2296, 164 L. Ed. 2d 815 (2006).

       Although the plaintiff does not make clear whether, in addition to challenging the merits of the award of attorney’s fees, he also challenges the amount of attorney’s fees awarded, we note that, at the hearing on February 21, 2008, the court made the parties aware that it could not rely on the affidavit of fees to make its award unless the parties agreed to the affidavit or did not object to it. The defendant submitted an affidavit of attorney’s fees on February 21,2008, and the record reveals no objection by the plaintiff, nor any request for a hearing on the amount of attorney’s fees.

       The plaintiff was allowed to ask the defendant questions about her purchase, transfer or sale of real property since August 19, 1998, and about money transfers of more than $10,000 to her children within the last seven years.

       Indeed, the breadth of the information sought in the plaintiffs notice of deposition underscores that the court’s refusal to defer the hearing on attorney’s fees was reasonable.

       The defendant’s counsel stated: “It’s virtually the same as the last one. She has more debt now, Your Honor. That’s the only difference.”


source: Caselaw Access Project

author: PELLEGRINO, J.

license: Public Domain

text:
    MARVIN J. TAYLOR v. ELINOR J. TAYLOR
    (AC 29590)
    Gruendel, Alvord and Pellegrino, Js.
    Argued April 27
    officially released September 22, 2009

      Geraldine Ficarra, with whom was Michael Ruben Peck, for the appellant (defendant).

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

PELLEGRINO, J.

The defendant, Elinor J. Taylor, appeals from the postjudgment order of the trial court granting the motion of the plaintiff, Marvin J. Taylor, for modification of his alimony obligation. On appeal, the defendant claims that the court improperly (1) interpreted the “second look” aspect of the alimony provision in the separation agreement as a de novo postjudgment review and (2) reduced her alimony in contravention of the principles of trust law and considered the trust’s income or appreciation in deciding the plaintiffs motion for modification. We reverse the judgment of the trial court.

The court, Hiller, J., dissolved the parties’ forty year marriage on April 14, 2002. The judgment of dissolution incorporated by reference the parties’ separation agreement, which contained provisions setting forth the plaintiffs alimony obligation and the time at which his obligation could be modified. The plaintiff was required to pay the defendant $5000 per month as alimony, but on the plaintiffs sixty-fifth birthday or the death of the defendant’s father, whichever occurred first, the alimony would then be subject to a second look by the court to determine “the then appropriate order.” Since the date of the judgment of dissolution, the plaintiff has become sixty-five and the defendant’s father has died. On May 22, 2006, the plaintiff filed a motion for modification and in March, 2007, the court, Dolan, J., temporarily reduced the plaintiffs alimony obligation to $2500, effective April 1, 2007. The hearing was not concluded before Judge Dolan, and, with the agreement of the parties, the court, Pinkus, J., ordered a mistrial and commenced a new hearing on October 3, 2007. It was concluded on November 26, 2007.

In its memorandum of decision, the court, Pinkus, J., found that the terms of the judgment of dissolution did not require a finding of a substantial change in circumstances by the court to determine a modification of alimony. The court also found that the defendant was an income beneficiary of the Elinor J. Taylor Generation Skipping Trust (trust) in which the settlor’s primary intent was to provide generously for the defendant’s care and maintenance. The court found that the trust earns more than enough income to provide for the care and maintenance of the defendant without any invasion of the principal. The court, therefore, granted the plaintiffs motion for modification and modified the defendant’s alimony to $1 per year, retroactive to the date the motion was served. This appeal followed.

I

On appeal, the defendant first claims that the court improperly interpreted the language “second look” in the alimony provision in the separation agreement as requiring de novo review rather than a preliminary determination by the court that there had been a substantial change in circumstances that required modification. Specifically, the defendant argues that because the language of the separation agreement did not incorporate the actual words “de novo,” the court was required first to conduct a substantial change of circumstances inquiry. We disagree with the defendant, and agree with the court that the terms of the separation agreement, incorporated into the judgment of dissolution, do not require the finding of a substantial change of circumstances.

We begin with our standard of review. “In a marriage dissolution action, an agreement of the parties executed at the time of the dissolution and incorporated into the judgment is a contract of the parties. . . . The construction of a contract to ascertain the intent of the parties presents a question of law when the contract or agreement is unambiguous within the four comers of the instrument. . . . The scope of review in such cases is plenary. . . ,

“When a modification of alimony is requested on the basis of the separation agreement, the court must look to the agreement. Separation agreements incorporated by reference into dissolution judgments are to be interpreted consistently with accepted principles governing contracts.” (Citation omitted; internal quotation marks omitted.) Cushman v. Cushman, 93 Conn. App. 186, 190-91, 888 A.2d 156 (2006).

The separation agreement, which was incorporated into the judgment of dissolution stated: “Commencing on September 1, 2002, the [plaintiff] shall pay alimony during his lifetime, to the [defendant], until her death, remarriage, cohabitation pursuant to [General Statutes §] 46b-86, whichever shall occur first for her support and maintenance, the amount of $60,000 per year, payable at the rate of $5,000 per month on the 1st of each and every month in advance. Said amount shall be modifiable by either party. Upon the [plaintiffs] 65th birthday or the death of the [defendant’s] father, whichever shall first occur, the alimony shall be subject to a second-look by the Superior Court for the State of Connecticut to determine the then appropriate order, if any.”

The defendant claims that because the agreement failed to include language that after the events mentioned, alimony would be subject to a de novo review, the second look should be based on a substantial change of circumstances. See, e.g., Borkowski v. Borkowski, 228 Conn. 729, 638 A.2d 1060 (1994). We agree with the court that the language of the separation agreement permitted the court to take a fresh look at the parties’ financial circumstances either after the plaintiff reached his sixty-fifth birthday or after the death of the defendant’s father. If that was not the intent of the parties, the second look language would have been superfluous because the agreement provided that alimony could be modified at any time if a substantial change of circumstances occurred. The agreement, however, specifically provides that on the happening of either of the two previously mentioned events, alimony may be given a second look. We conclude, therefore, that this language permits a de novo review of the plaintiffs alimony obligation.

In addition, the defendant claims that both of the events that trigger the second look at the alimony order—the plaintiffs becoming sixty-five or the death of the defendant’s father—relate to a change of circumstance, and, therefore require a change of circumstance inquiry. We disagree.

In Hardisty v. Hardisty, 183 Conn. 253, 258-59, 439 A.2d 307 (1981), our Supreme Court articulated a two part test to modify alimony; first, the court has to find a substantial change in the financial circumstances of one of the parties and then determine whether modification is warranted. In Borkowski v. Borkowski, supra, 228 Conn. 729, our Supreme Court further articulated that the bifurcated inquiry of the trial court is not two completely separate inquiries but that modification can be entertained on a showing of a “substantial change in the circumstances of either party to the original dissolution decree. . . . Thus, once the trial court finds a substantial change in circumstances, it can properly consider a motion for modification of alimony.” (Citation omitted.) Id., 737. Here, by the terms of the separation agreement, the parties had already agreed on events that would constitute a substantial change. The parties agreed that once the plaintiff became sixty-five or the defendant’s father died, those circumstances in and of themselves would trigger a second look at the alimony order. We conclude, therefore, that the court correctly determined that it did not need to find a substantial change of circumstances and properly conducted a de novo review.

II

The defendant next argues that the court improperly crafted an order that tacitly compelled the trustees of the trust to make distributions to the defendant, which was an abuse of its discretion. We agree.

Our inquiry is whether the court properly applied the statutory factors outlined in General Statutes § 46b-82. See Ucci v. Ucci, 114 Conn. App. 256, 260 n.3, 969 A.2d 217 (2009). Because the court has broad discretion in determining the applicability of the factors delineated in § 46b-82, we must determine if the court abused its discretion in modifying the plaintiffs alimony obligation. See Borkowski v. Borkowski, supra, 228 Conn. 739. “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. ... It is within the province of the trial court to find facts and draw proper inferences from the evidence 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. . . . [T]o conclude that the trial court abused its discretion, we must find that the court either incorrectly applied the law or could not reasonably conclude as it did. . . . Appellate review of a trial court's findings of fact is governed by the clearly erroneous standard of review. ... 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.) Moreira v. Moreira, 105 Conn. App. 637, 640, 938 A.2d 1289 (2008). In addition, “[t]he issue of intent as it relates to the interpretation of a trust instrument ... is to be determined by examination of the language of the trust instrument itself and not by extrinsic evidence of actual intent. . . . The construction of a trust instrument presents a question of law to be determined in the light of facts that are found by the trial court or are undisputed or indisputable.” (Internal quotation marks omitted.) Spencer v. Spencer, 71 Conn. App. 475, 482, 802 A.2d 215 (2002).

In the present matter, the court found that the trust earns more than enough income to provide for the care of the defendant and that the primary intent of the settlor of the trust was to provide for her care and maintenance. Accordingly, the court modified the plaintiff s alimony obligation from $60,000 to $1 per year. The defendant argues that the court improperly considered income that she was not receiving and that its order improperly attempted to compel the trustees to make distributions to her, contrary to principles of trust law. We agree.

Article III, § 2, of the trust provides: “[T]he trustees shall pay to or for the benefit of the Settlor’s child, Elinor J. Taylor ... so much of the net income thereof as the Trustees, in their sole discretion, deem advisable for the comfortable maintenance of said child . . . .” “The well-settled rule in this state is that the exercise of discretion by the trustee of a spendthrift trust is subject to the court’s control only to the extent that an abuse has occurred . . . .” Zeoli v. Commissioner of Social Services, 179 Conn. 83, 89, 425 A.2d 553 (1979). There has been no claim raised that the trustees have abused their discretion in not making any distributions to the defendant. The court improperly interpreted the provisions of the trust agreement when, in effect, it assumed that the trustees were obligated to distribute the income to the defendant, a beneficiary of a supplementary spendthrift trust.

Zeoli v. Commissioner of Social Services, supra, 179 Conn. 83, is instructive. In that case, a father, the set-tlor, established a trust account naming his son as the trustee for the settlor’s mentally handicapped daughters. Id., 84-85. The trust account provided that the trustee had the absolute and uncontrolled discretion to distribute income to his sisters, the beneficiaries. Id., 90-91. The trust beneficiaries were recipients of title XIX benefits, and the department of social services sought to compel the trustee to pay for their medical assistance benefits from the trust. Id., 88-89. The court held that the trustee could not be compelled to make the payments as required by the department of social services because the trust was a spendthrift trust and the trustee held the discretionary power to distribute income. Id., 92.

In this case, as in Zeoli, the court could not, in effect, compel the trustees to make income payments and consider the nonreceived income in modifying the alimony order. Until the defendant receives a distribution from the supplementary spendthrift trust, the undistributed income from the trust itself cannot be considered as income to the defendant. “In the case of the typical spendthrift trust under which the beneficiary receives only such sums as the trustee finds to be necessary for his support, we have held that no title in the income passes to him unless and until it is appropriated to him by the trustee, and then only to the amount determined by the trustee.” Bridgeport v. Reilly, 133 Conn. 31, 35-36, 47 A.2d 865 (1946), quoting Reilly v. State, 119 Conn. 508, 512, 177 A. 528 (1935). We conclude, therefore, that it was an abuse of discretion for the court to consider the undistributed trust assets as income to the defendant when the court considered and applied the factors of § 46b-82 and reduced the plaintiffs alimony obligation to the defendant to $1 per year.

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

In this opinion the other judges concurred.

       On appeal, the defendant also claims that the court abused its discretion in maldng its order for modification retroactive to the date of the service of the motion for modification. Because we reverse the court’s judgment with regard to the alimony modification, we do not address this claim.

       The defendant claims that the standard of review should be plain error because the court overlooked controlling case law. The standard of review is well settled, however, for both construction of a contract; Cushman v. Cushman, 93 Conn. App. 186, 190-91, 888 A.2d 156 (2006) (plenary review); and modification of alimony; Blum v. Blum, 109 Conn. App. 316, 328, 951 A.2d 587 (abuse of discretion), cert. denied, 289 Conn. 929, 958 A.2d 157 (2008).

       The trustees are Elinor J. Taylor and an independent trustee, Martin Bernstein.

        Zeoli v. Commissioner of Social Services, supra, 179 Conn. 83, has been superseded by statute 42 U.S.C. § 1396, but only to the extent that “Medicaid agencies consider the value of a Medicaid Qualifying Trust when determining eligibility for [Medicaid].” Viera v. State, Superior Court, judicial district of Hartford-New Britain, Docket No. CV-90-0438151-S (December 10, 1991) (7 C.S.C.R. 130, 132). The reasoning of Zeoli is still sound.


author: HARPER, J.

text:
    CITY OF MILFORD v. HELEN F. MAYKUT ET AL.
    (AC 29177)
    Gruendel, Harper and Pellegrino, Js.

      Argued February 18
    officially released September 22, 2009

      Matthew B. Woods, with whom, on the brief, was Cynthia C. Anger, assistant city attorney, for the appellant (plaintiff).

      Robert J. Sickinger, with whom, on the brief, were Paul J. Ganim and Richard Bepko, for the appellees (defendant Virginia Miller et al.).
   Opinion

HARPER, J.

The plaintiff, the city of Milford, appeals from the judgment of the trial court increasing the amount of compensation payable to the defendants by the plaintiff in connection with the condemnation of certain real property. The plaintiff claims that the court improperly awarded the defendants compensation for the diminution in value of a hypothetical lot of a subdivision when there was no evidence that a subdivision could be achieved within a reasonable time. Because we conclude that the court’s determination of the value of the lot was not supported by sufficient evidence, we reverse in part the judgment of the trial court.

The following facts and procedural history are relevant to the plaintiffs appeal. On September 5, 2002, pursuant to General Statutes (Rev. to 2001) § 7-247, the sewer commission of the city of Milford voted to acquire 0.17 acres of the 6.15 acre property of the defendants Virginia Miller and Helen F. Maykut located at 62 Herbert Street, Milford. The plaintiff determined that the amount of compensation to be paid for the taking was $15,000 and, on November 18, 2002, deposited that amount with the clerk of the Superior Court. On December 23, 2002, the plaintiff filed a certificate of taking in the Superior Court. The defendants filed an appeal and application for review on April 11, 2003.

On August 24, 2007, a hearing was held to determine the amount of damages for the plaintiffs statutory taking. Miller testified that she was a Realtor and that she and Maykut purchased the property for investment, with the intention to subdivide and to develop the property in the future. Miller was unable, however, to state that the boundary lines contained on a surveyor’s feasibility plan, marked for identification as exhibit four, fairly and accurately depicted the actual property lines. In addition, Miller was unable to testify as to the property’s value.

The defendants also called the plaintiffs expert, Stephanie A. Gaffney, a certified residential real estate appraiser, and Ralph A. Bowley, a certified real estate appraiser, to testify. Both Gaffney and Bowley valued the property using a comparable sales approach but employed that methodology in different ways. Gaffney compared the 0.17 acre property to small pieces of property in Milford that had been purchased by abutting property owners at about the time of the taking. In doing so, she determined that the 0.17 acres had a value of $15,000. Bowley compared the proposed fourth lot, encompassing the area that the plaintiff sought to condemn, to three recent sales of buildable residential lots in Milford to determine that the proposed 2.27 acre lot had a value of $170,000 at the time of the taking.

Gaffney testified that in 2002, the plaintiff asked her to appraise the 0.17 acre property that it intended to condemn. Gaffney testified that at that time, she did not appraise the effect of the taking on a possible subdivision of the property because she was unaware of a proposed subdivision. Gaffney conceded that land is often purchased and held for investment purposes, but she was asked by the plaintiff to evaluate only the portion of land that it had planned to condemn.

Gaffney further testified that in November, 2006, George W. Ganim, the executor of Maykut’s estate, asked her to appraise the hypothetical fourth lot as represented on exhibit four. Gaffney testified that in 2006, she placed a hypothetical value of $250,000 on that lot, assuming it existed and that the subdivision creating such lot had been approved. She testified that if the taking made the lot unbuildable, it would have a large impact on the value of the remaining portion of the lot. Gaffney testified that exhibit four shows that a large portion of the proposed fourth lot is wet and subject to regulation as wetlands but that the 0.17 acres taken by the plaintiff are dry. The defendants’ counsel again offered exhibit four as a full exhibit, but the court sustained the plaintiffs objection. After additional testimony by Gaffney, the plan was admitted as an exhibit for the limited purpose of showing “how she arrived at her value, and what she used in arriving at it.”

Gaffney also testified that she did not know if the entire 6.15 acre property owned by the defendants was in fact capable of subdivision. She testified: “[Cjertainly, a six acre plus parcel in a one acre zone has the potential to perhaps be subdivided, but because of all the different factors, wetlands and, you know, so forth and so on, all the town regulations, and setbacks for the dwellings, and perhaps setbacks from the railroad, etc., etc., I couldn’t say whether I felt that this was feasible or not, but certainly that size parcel lends itself to perhaps being subdivided.” Gaffney testified that in valuing the property, she relied on the wetland line on exhibit four but that she lacked independent knowledge of the outlines or boundaries of any wetlands on the subject property. She testified that it was possible to configure the lots differently but that that was not her area of expertise, and she did not know if it was likely. She testified that in determining her valuation, she “reified] on the surveyor’s work to be accurate.” Gaffney testified that the highest and best use of the 6.15 acres would most likely be a subdivision.

During cross-examination, Gaffney testified that she did not know if the Milford subdivision regulations would allow for the creation of the third lot, a rear lot, shown on exhibit four. Finally, she testified that she did not know if any counterpart of exhibit four had been signed by a professional engineer or registered land surveyor. On redirect examination, Gaffney acknowledged that a copy of exhibit four, marked for identification as exhibit five, was the same as exhibit four except that it was a signed copy. The defendants moved to enter the signed copy as a full exhibit, and, following an objection by the plaintiff, it was admitted under the same restrictions as to its proper use as the court had applied to exhibit four.

Also, Gaffney testified that “fi]f the subdivision were approved, and lot four existed, and—there’s a lot of ‘ifs’ here, I’m sorry—and if in fact [the condemned property was] the only place that a dwelling could be built, then certainly I would approach it differently because in effect, it has taken away the usefulness, the utility of that lot, but again, it’s pending a lot of approvals from the city.” She testified that she would not need the approval before determining a value but that the value would be assigned subject to subdivision approvals.

Bowley testified that he originally was engaged by the estate to conduct an appraisal upon the death of Maykut and then asked in January, 2007, to appraise the 6.15 acre parcel on the basis of the value of the taking as of September, 2002. Bowley testified that the value of the 0.17 acres was $170,000 because the taking would deprive the entire parcel of a fourth lot.

Bowley testified that the highest and best use of the 6.15 acre property was to subdivide the property for single-family residential housing. During direct examination, Bowley testified that he “basically valued lot number four in taking a look at how the taking impacted the possible location of the house, and, since it basically is the best piece of that lot, in terms of staying away from wetlands, being a viable location for a house, this was dead in the center of that particular section, so I looked at it as a detriment, and in fact a destroying of the real value of lot number four.” With regard to an alternative placement of the house, Bowley opined that “the rear portion of this lot, which may have supported a building—you had to bring the driveway through what appears to be a wetlands, and that would require us to go to a wetlands board in order to get that driveway through, which I thought was a phenomenal risk. So, the most logical place and the easiest place to put the house is in the front.”

On cross-examination by the plaintiffs counsel, Bow-ley testified that he did not know whether the zoning regulations in effect in 2002 in the city of Milford allowed for rear lots such as the second lot shown on exhibits four and five. Bowley conceded that he was asked to appraise the fourth lot and that if that subdivision had been submitted and if it had been approved, the value of the fourth lot at the time of the taking would have been $170,000. Bowley admitted, however, that in his appraisal, he considered subdivision approval a certainty because he made no adjustment in his opinion for value because of the uncertainty. Bowley also testified that he did not know whether the wetlands depicted on the exhibit were accurate and that the existence of wetlands does not necessarily preclude the construction of a driveway crossing the wetlands to reach a buildable area in the interior of a lot. Bowley further testified that because of the uncertainty of obtaining wetlands approval to construct in a different area of the fourth lot, he discounted the possibility entirely in his appraisal.

The court issued its memorandum of decision on August 29, 2007, finding that the highest and best use of the 6.15 acre property was a subdivision as proposed in the 2006 feasibility study, creating four lots. The following relevant facts are set forth in the court’s memorandum of decision. “The plaintiffs expert witness . . . Gaffney . . . testified that the value of the subject property at the time of the taking was [$15,000]. . . . Her appraisal approach seeks to attempt to directly determine the market value of the taking by ascertaining a value to the 0.17 acre piece of land that was taken by the [plaintiff]. The defendants’ expert . . . Bowley [a senior residential appraiser], on the other hand, valued the taking at [$170,000]. . . . Bowley valued the taking by using a feasibility study that was done for . . . [the estate of] Maykut in 2006 .... The property that was condemned is located within the proposed subdivided lot, number 4. . . . Bowley opines that lot 4 is no longer a viable building lot because of the plaintiffs taking. He further opines that the value of lot 4, but for, and at the time of, the taking was $170,000. He believes that as a result of the taking and the fact that the plaintiff placed a pumping station on the acquired property, lot 4 has no market value at all. . . . Bowley’s conclusion is based in part due to the fact that there are wetlands on lot 4 and because of said wetlands, the property owner is limited by wetland regulations as to where a possible house on the property could be located.

“Lot 4 as described in . . . exhibits four and five is approximately [99,059] square feet. Instead of directly trying to give a value of the [0.17 acre] area that was taken by the [plaintiff], he opines that the defendants’ financial loss was the value of the entire lot. The defendants argued at the hearing that the pumping station was placed in the area where a house would have been located and that they cannot place a house anywhere else on the lot due to wetland regulations.” (Citation omitted.)

The court also made the following findings of fact. “[T]he defendants also argue that the action of the plaintiff in taking the [0.17] acres renders the lot unbuildable; however, other than this conclusory statement, the defendants did not offer sufficient credible and convincing evidence to convince this court that the proposed lot was rendered unbuildable by the taking. The court notes that at no time pertinent hereto did the defendants file any applications with the local wetland regulating agency concerning building a house or other structures on the subject property. Although the defendants’ appraiser concludes that the wetlands on lot 4 prevent the defendants from building a house on the proposed lot because of the plaintiffs taking, other than the feasibility plan . . . this court was not provided with any surveys or evidence of any other kind demarcating the actual size and location of wetlands or wetland buffers. Furthermore, [Miller] acknowledged during the hearing that she could not testify that the wetland areas in [exhibits] four and five are accurate. Additionally . . . Bowley conceded that he was not an expert in the area of wetlands and the information that he had concerning the existence of wetlands on the subject property came from the aforementioned exhibits. . . .

“After considering all of the evidence, this court finds that the more credible and convincing evidence presented at the hearing of this matter proves that the highest and best use of the subject property is to subdivide the property into four lots as is indicated by the feasibility study. However, the court further finds that the credible and convincing evidence does not prove that the proposed lot 4 is an unbuildable lot because of wetland and taking issues. The court further finds that although the evidence did not rise to the level of proving that the proposed lot 4 was not an unbuildable lot, the evidence does prove that a combination of the taking and of the wetland concerns exacerbated by the taking did adversely affect what a willing buyer would pay a willing seller based on the highest and best possible use of the subject property. In light of the foregoing, this court finds that the defendants’ property value at the time of the taking was [$170,000]. The court further finds that the taking diminished the property value by [$56,000] when it occurred, and the defendants are entitled to compensation in that amount.” (Citations omitted.)

The plaintiff claims that the court improperly awarded damages for the diminution in value to an unsubdivided lot when there was no evidence that a subdivision was achievable within the reasonably near future. Specifically, the plaintiff claims that the court improperly (1) determined the highest and best use without regard to whether there was a reasonable probability that the property would be subdivided in the reasonably near future and (2) valued raw land with little or no improvement as if the land was, in fact, a subdivision.

After the court issued its memorandum of decision in this case, our Supreme Court considered similar claims in Bristol v. Tilcon Minerals, Inc., 284 Conn. 55, 931 A.2d 237 (2007). Because of its applicability to the issues before us, Tilcon Minerals, Inc., plays a large role in our analysis.

I

The plaintiff challenges the court’s reassessment of damages for the statutory taking, claiming that the court improperly determined the highest and best use of the property. We agree in part and disagree in part.

In Tilcon Minerals, Inc., when addressing the claim that the trial court improperly determined the highest and best use of the property at issue, our Supreme Court stated that “[i]t is well established that [a] property’s highest and best use is commonly accepted by real estate appraisers as the starting point for the analysis of its true and actual value. . . . [U]nder the general rule of property valuation, fair [market] value, of necessity, regardless of the method of valuation, takes into account the highest and best value of the land. ... A property’s highest and best use is commonly defined as the use that will most likely produce the highest market value, greatest financial return, or the most profit from the use of a particular piece of real estate. . . . The highest and best use determination is inextricably intertwined with the marketplace because fair market value is defined as the price that a willing buyer would pay a willing seller based on the highest and best possible use of the land assuming, of course, that a market exists for such optimum use. . . . The highest and best use conclusion necessarily affects the rest of the valuation process because, as the major factor in determining the scope of the market for the property, it dictates which methods of valuation are applicable. ... In determining its highest and best use, the [court may also] consider whether there was a reasonable probability that the subject property would be put to that use in the reasonably near future, and what effect such a prospective use [might] have had on the property’s market value at the time of the taking. . . . Finally, a trier’s determination of a property’s highest and best use is a question of fact that [a reviewing court] will not disturb unless it is clearly erroneous. . . .

“[I]n a case tried before a court, the trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony. . . . The credibility and the weight of expert testimony is judged by the same standard, and the trial court is privileged to adopt whatever testimony [it] reasonably believes to be credible. . . . On appeal, [reviewing courts] do not retry the facts or pass on the credibility of witnesses.” (Citations omitted; internal quotation marks omitted.) Id., 64-65.

In Tilcon Minerals, Inc., our Supreme Court concluded that the trial court properly found that the highest and best use of the defendant’s property was for a residential subdivision. Id., 65-66. The plaintiff in that case, the city of Bristol, claimed that the trial court improperly determined that a residential subdivision was the highest and best use of the condemned property, even though the defendant landowner had extended its mining permit for an additional two years before the taking and did not develop a residential reuse concept plan until after the plaintiff had exercised its power of eminent domain. Id., 62. Our Supreme Court stated that the trial court had “carefully considered the testimony and written reports of the two expert witnesses as well as [the testimony of the defendant’s director of real estate and environmental compliance] and found the [defendant’s] witnesses to be more persuasive.” Id., 66. There was evidence that the property was zoned for residential use, the mining operations were essentially completed before the taking, the defendant had prepared a concept plan on the basis of town regulations demonstrating the feasibility of subdividing the property, and the court had visited the site and observed its appropriateness for a residential subdivision. Id. In addition, there was evidence that the defendant previously had reclaimed and resold previously mined land for an industrial park and residential subdivision. Id. Our Supreme Court held that the fact that “the concept plan showing the feasibility of residential development was prepared for litigation purposes and that [the defendant] did not intend to develop or to market the property for single-family homes in the immediate future [did] not alter the fact that residential development would have yielded the highest market value, greatest financial return and most profit at the time of the statutory taking.” (Emphasis in original.) Id., 67. Accordingly, our Supreme Court held that “the trial court’s finding that there was a reasonable probability that the property could or would be used for residential development in the reasonably near future and its corollary finding that the highest and best use of the property was for residential development were not clearly erroneous.” Id.

Likewise, we conclude in the present case that the court properly found that the highest and best use of the 6.15 acre property was for a residential subdivision. The court heard testimony that the land was in a residential one acre zone, that it consisted of approximately 6.15 acres and that it held only one house. Miller testified that she and Maykut were in the real estate business and that they purchased the property as an investment for later subdivision and sale. The court also heard testimony from both Gaffney and Bowley that the highest and best use of the property was a residential subdivision. That the defendants had no concrete plans to subdivide the property at the time of the taking does not change the fact that a residential development would have yielded the highest market value for the property at the time of the taking. See id., 67. Accordingly, the court’s finding that the highest and best use of the property was as a residential subdivision was not clearly erroneous. For the reasons stated in part II, however, we conclude that the court’s more specific finding, that the highest and best use of the subject property is to subdivide it into four lots as indicated by the feasibility plan, was clearly erroneous.

II

The plaintiff also claims that the court improperly reassessed the damages for the statutory taking by valuing the 6.15 acre property using the lot method, despite the fact that no subdivision had been undertaken by the defendants. We agree.

“In actions requiring ... a valuation of property, the trial court is charged with the duty of making an independent valuation of the property involved. . . . [N]o one method of valuation is controlling .... In determining the value of the property taken, the trier arrives at its own conclusions by weighing the opinions of the appraisers, the claims of the parties, and its own general knowledge of the elements going to establish value, and then employs the most appropriate method to determine the damages that result from the taking. . . . [T]he trial court has the right to accept so much of the testimony of the experts and the recognized appraisal methods which they employed as he finds applicable; his determination is renewable only if he misapplies, overlooks, or gives a wrong or improper effect to any test or consideration which it was his duty to regard. ... On appeal, it is the function of [a reviewing] court to determine whether . . . [the conclusions of the trial court] are legally and logically correct and whether they find support in the facts set out in the memorandum of decision; where the factual basis of the court’s decision is challenged [a reviewing court] must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous. . . .

“Connecticut courts have recognized the well established constitutional principle that [t]he owner of land taken by condemnation is entitled to be paid just compensation. Conn. Const, art. I, § 11. If the taking is partial, the usual measure of damages is the difference between the market value of the whole tract with its improvements before the taking and the market value of what remained of it thereafter. . . .

“[R]aw land as such, with little or no improvements or preparation for subdivision may not be valued as if the land were in fact a subdivision .... The accepted rule for the evaluation of such land, therefore, is that the land will be considered in its present condition as a whole, with consideration given to any increment or enhancement in value due to the property’s present adaptability to subdivision development. . . .

“In determining the adaptability of a property to residential use, [t]he landowner need not establish the development potential of the property for the proposed use by a preponderance of the evidence, but only that it is reasonably so. The court is to value the tract of land only, and not to determine how it could best be divided into building lots, nor to conjecture how fast they could be sold, nor at what price per lot. Once the question as to the adaptability of a condemned tract of land for subdivision purposes has been answered, the real problem as to valuation must be faced. Does it enhance the market value and, if so, by how much. . . .

“Fair market value for the partial taking of land suitable for subdivision also may be determined by the lot method of valuation, in which the land is valued according to the number of buildable lots that the property can support. The lot method is most reliable in estimating value when substantial steps have been taken toward subdivision, as when portions of the tract already have been subdivided or partially developed, because tangible evidence of this nature clearly demonstrates the land’s potential use as a subdivision. . . . In such cases, [t]he costs to the developer are no longer speculative, the value of the individual lots in the market may be ascertained with as much certainty as in any other condemnation proceeding, and the possibility of such a use is no longer remote. . . .

“A modified version of the lot method of valuation also may be used when few, if any, tangible steps have been taken toward subdivision of a property. Sometimes called the residual approach, an appraiser using this method estimates a sale price for each individual, developed lot, multiplies that price by the number of lots in the tract, then deducts the estimated costs of development and marketing to arrive at a final estimation of the property’s value. United States v. 99.66 Acres of Land, 970 F.2d 651, 655 (9th Cir. 1992); see also Robinsonv. Westport [222 Conn. 402, 404-405, 610 A.2d 611 (1992)] (describing lot method as approach in which land is appraised by establishing value of finished lots and then subtracting capital costs of improvements necessary to put them in that condition). Sufficient evidence of the costs associated with subdividing, preparing and marketing the land, however, must be provided to ensure the integrity and accuracy of the valuation process.

“When used in this state to value unimproved land, the modified approach to the lot method of valuation has been strictly applied. In Robinson v. Westport, supra, 222 Conn. 407, the trial court rejected the lot method of valuation employed by the parties’ appraisers in estimating damages for a partial taking of the plaintiffs’ undeveloped property because evidence as to the value of the hypothetical subdivision lots was too speculative .... On appeal, [our Supreme Court] affirmed the trial court’s decision, emphasizing that [it] did not agree with the proposition that the lot method of appraisal should never be admitted in condemnation cases involving unimproved raw land . . . [but that] the better view ... is that a lot method appraisal can be admitted in appropriate cases if the proponent offers credible evidence of the costs of subdivision— e.g., the expense of clearing and improving the land, surveying and dividing it into lots, advertising and selling, holding it, and paying taxes and interest until all lots are sold. . . . The potential value of land if subdivided could well be considered by a willing buyer and a willing seller where subdivision is a reasonable possibility and the costs of subdivision are not speculative or uncertain. . . .

“[Our Supreme Court] further stated in Robinson that, although a plaintiff need not take specific steps toward subdivision in order for the lot method to be considered, evidence of any attempts to prepare for a future subdivision [of the property] tend to make such use more reasonably probable and less speculative. As the proponent of a hypothetical highest and best use is able to progress along the spectrum from raw land with few or no improvements to, ultimately, a completed subdivision, the weight to be assigned such evidence will be enhanced. [Our Supreme Court] finally acknowledged that [t]rial courts must be afforded substantial discretion in choosing the most appropriate method of determining the value of a taken property. ... In condemnation proceedings, the trial court is more than a trier of facts or an arbiter of . . . [the] opinions of [expert] witnesses; it is charged with the duty of making an independent determination of value and fair compensation in fight of all the circumstances, the evidence, its general knowledge and its viewing of the premises. . . . [T]he trial court [is] not, as a matter of law, bound by the valuations or valuation methods used by the appraisers but [may] consider the comparable sales of land that [are] in evidence as well as the raw data utilized in the presentation of the lot method approach in independently determining fair market value.” (Citations omitted; emphasis added; internal quotation marks omitted.) Bristol v. Tilcon Minerals, Inc., supra, 284 Conn. 70-75.

In Tilcon Minerals, Inc., as in Robinson, the defendant property owner’s appraiser “failed to provide the court with sufficient evidence to compare the property in question with the six subdivided properties described in his report. For example, there was little or no evidence regarding the actual cost of subdividing and holding the property, including the cost of surveying and dividing the property into lots, advertising and marketing the property to potential buyers and paying the required taxes, interest and other carrying costs of the property until it could be sold. Moreover, [the defendant] provided no time fine indicating how long it would take to obtain the necessary subdivision approval or to locate a suitable buyer, which could have a significant effect on the property’s value, depending on market conditions.” Id., 76-77. Because the defendant in that case did not provide evidence of such costs to the court, such as “the actual cost of subdivision approval, which could vary depending on the size and characteristics of the property in question and the nature and extent of modifications required to obtain local approval of the proposed subdivision plan,” our Supreme Court concluded that the trial court’s determination of value was speculative and uncertain and that the court’s reassessment of damages was clearly erroneous. Id., 77.

In this case, as the court noted, the record is bereft of evidence of the proposed lot sizes and the size or exact location of wetlands on the lots. In addition, Bowley’s analysis, which the court adopted to determine the value of the proposed fourth lot, did not provide the court with an evidentiary basis on which to assess the property in the manner that it did. Bowley made no adjustments to value for the fact that the 6.15 acre lot was not in fact subdivided into four lots at the time of the taking. There is no evidence in the record of the zoning regulations that govern the subject property, much less the expense of clearing and improving the land, surveying and dividing it into approved lots, advertising and selling, holding it and paying taxes and interest until all lots are sold. Without such evidence, we conclude that the court’s determination of the value of the proposed fourth lot was not supported by sufficient evidence, and, therefore, the reassessment of damages was clearly erroneous. Accordingly, the case must be remanded for a rehearing on damages.

The judgment is reversed only as to the award of damages for the statutory taking and the case is remanded for a hearing in damages. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       The defendants Virginia Miller and Helen F. Maykut purchased the subject property sometime during the 1970s, with Miller as a one-third owner and Maykut as a two-thirds owner. Maykut died on May 19, 2005. George W. Ganim, the executor of Maykut’s estate, was substituted as a defendant on March 31, 2009. For simplicity, we refer to Miller and Maykut, as well as Ganim in his capacity as executor of her estate, collectively as the defendants. We refer to the individuals by name where appropriate.

       The plaintiff also claims that the court failed to give the plaintiff credit for the $15,000 it deposited with the court upon the filing of the statement of compensation. In light of our disposition of the plaintiffs first claim, which necessitates a new hearing on damages, and the principle that a deposit filed along with a statement of compensation is considered as part payment of an award, we decline to address this claim.

       General Statutes (Rev. to 2001) § 7-247 provides in relevant part: “Any municipality by its water pollution control authority . . . may enter upon and take and hold by purchase, condemnation or otherwise the whole or any part of any real property or interest therein which it determines is necessary or desirable for use in connection with any sewerage system

       The plaintiff planned to use the land as a sewer pump station.

       The feasibility plan, which was admitted for the limited purpose of showing the factual basis on which Gaffney and Bowley relied in determining the value of the taking, divided the property into four proposed lots. The area taken by the plaintiff for a pump station was located wholly within the proposed 2.27 acre fourth lot.

       See footnote 1.

       Connecticut Code of Evidence § 7-4 (b) provides: “The facts in the particular case upon which an expert bases an opinion may be those perceived by or made known to the expert at or before the proceeding. The facts need not be admissible in evidence if of a type customarily relied on by experts in the particular field in forming opinions on the subject. The facts relied on pursuant to this subsection are not substantive evidence, unless otherwise admissible as such evidence.” (Emphasis added.) Accordingly, inadmissible evidence relied on by an expert may be admitted for the limited purpose of explaining the factual basis for the expert’s opinion.

       The court noted that “other than describing lot area calculations, exhibits four and five [do] not contain informal ion such as the size or exact location of the wetlands. There are no measurements in terms of distances, metes or bounds. Furthermore, there is no indication as to the exhibits’ accuracy. The court, further notes that [Miller] could not testify that the wetlands as indicated on the exhibits [were] accurate.”

       In this case, the plaintiffs condemnation of 0.17 acres of the defendants’ property is a partial taking. We agree with the court that the appropriate measure of damages for a partial taking is the difference between the market value of the whole tract with its improvements before the taking and the market value of what remained of it after the taking. See Bristol v. Tilcon

        Minerals, Inc., supra, 284 Conn. 71. Accordingly, the appropriate determination of the highest and best use reflects the highest and best use of the whole tract.

       Exhibits four and five were not admitted as substantive evidence but simply as the factual basis on which Gaffney and Bowley relied. In addition, Miller, Gaffney and Bowley were unable to provide substantive evidence about the property’s boundaries, the wetland boundaries or the applicable zoning regulations, except that the subject property was within a one acre zone.

       See footnote 10.