author: HENNESSY, J. McLACHLAN, J.,

text:
    JAMES WASNIEWSKI v. QUICK AND REILLY, INC.
    (AC 28063)
    McLachlan, Lavine and Hennessy, Js.

      Argued October 9, 2007
    officially released January 22, 2008

      Thomas J. Sansone, for the appellant (defendant).

      Frank J. Liberty, for the appellee (plaintiff).
   Opinion

HENNESSY, J.

The defendant, Quick & Reilly, Inc., appeals from the judgment of the trial court in favor of the plaintiff, James Wasniewski, finding a breach of contract and awarding damages. On appeal, the defendant claims that the court improperly concluded that (1) the requisite donative intent and delivery existed in order to create a valid gift of the brokerage account at issue, and (2) a valid enforceable contract existed between the plaintiff and the defendant. We affirm the judgment of the trial court.

The court found the following facts. The plaintiffs father, John Wasniewski, opened a brokerage account with the defendant on November 14, 1989, in the plaintiffs name and social security number. The account was funded with the proceeds of $30,000 worth of bonds issued by the Connecticut housing finance authority. The account earned $2115 per year in interest. The total value of the account, including accrued interest, was found to be $52,085. The account was closed on January 5, 2001, when the funds were withdrawn by someone other than the plaintiff and transferred to a joint account in the name of the plaintiffs father and the plaintiff’s brother. The plaintiff was unaware of the account during the entire period that it was in existence. The plaintiff became aware of the account when his father mailed him a tax form 1099 for the 2001 calendar year. All statements for the brokerage account had been sent to the address of the plaintiffs father.

The plaintiff commenced a civil action against the defendant by complaint filed August 18,2004. The plaintiff set out four causes of action, three of which were dismissed by the court after hearing argument on the defendant’s motion for summary judgment filed September 2, 2005. The plaintiffs breach of contract claim was the only claim remaining before the court. In a memorandum of decision filed June 27, 2006, the court, Hon. Robert C. Leuba, judge trial referee, held that the account was owned by the plaintiff from the time it was created and that he was entitled to the interest and the principal pursuant to the contract implicit in the relationship between a broker and the owner of an account with that broker. The court further held that the defendant breached this contract when it transferred the funds to someone other than the plaintiff. The plaintiff was awarded $52,085 plus costs.

The defendant filed a motion for reargument on July 11, 2006, which was denied by the court. The defendant filed its appeal September 21, 2006. The defendant then filed a motion for articulation on September 29, 2006, which was granted. The court filed its articulation on October 26, 2006.

To begin, we set forth the standard of review. “The question of whether a gift inter vivos or causa mortis has been made is within the exclusive province of the court. . . . The determination of whether a gift has been made is not reviewable unless the conclusion of the court is one which cannot reasonably be made. . . . The credibility of the witnesses and the weight to be accorded to their testimony is for the trier of fact. . . . This court does not try issues of fact or pass upon the credibility of witnesses.” (Citations omitted; internal quotation marks omitted.) Dalia v. Lawrence, 226 Conn. 51, 70-71, 627 A.2d 392 (1993).

I

The defendant claims that the court improperly held that a valid gift inter vivos was created because of a lack of the requisite intent and affirmative actions necessary to perfect a gift. The plaintiff asserts that ownership of the account is not being disputed by the defendant, and, therefore, the existence of a gift is factually and legally supported by the record. We agree with the plaintiff.

“The term ‘gift,’ which is more appropriately applied to personal property, is the transfer of property without consideration. The two requisites of a valid gift are ‘a delivery of the possession of the property to the donee, and an intent that the title thereto shall pass immediately to him.’ [Guinan’s Appeal from Probate, 70 Conn. 342, 347, 39 A. 482 (1898)]. It is not necessary that there should be a manual delivery of the thing given, nor that it should be made to the donee in person; nor is there any particular form or mode in which the transfer must be made or by which the intention of the donor must be expressed.” Main’s Appeal from Probate, 73 Conn. 638, 640, 48 A. 965 (1901). A rebuttable presumption of donative intent exists when the grantee is the natural object of the grantor’s bounty. Farrah v. Farrah, 187 Conn. 495, 500, 446 A.2d 1075 (1982). We have recognized such a presumption in certain circumstances involving a parent and child. See Zack v. Guzauskas, 171 Conn. 98, 101 n.1, 368 A.2d 193 (1976). “Where actual delivery has not occurred, the resolution of the issue of whether a donor has made a constructive delivery depends on the circumstances of each case.” Fontaine v. Colt’s Mfg. Co., 74 Conn. App. 730, 734, 814 A.2d 433 (2003). “By the great weight of authority no acknowledgment or acceptance of such a gift is necessary on the part of the donee, since it is highly beneficial and his acceptance is assumed.” Burbank v. Stevens, 104 Conn. 17, 23, 131 A. 742 (1926). “Once the funds are deposited in an account under an individual’s name, the account holder is presumed to have title to and control over those funds. See, e.g., 9 C.J.S. Banks and Banking §§ 280, 281 (1996).” United States v. $79,000 in Account Number 2168050/6749900, Docket No. 96 Civ. 3493, 1996 U.S. Dist. LEXIS 16536, *3 (S.D.N.Y. November 7, 1996).

The court held that the plaintiff became the legal owner of the funds in the account once they were placed in his name and under his social security number, citing 9 C.J.S. § 281 (1996). From the weight of the evidence and the long-standing precedents on gifts, the holding of the court was not clearly erroneous and could reasonably have been made.

II

The defendant further claims that even if there was a valid gift, a valid, enforceable contract was never created between the parties, and the court’s finding of a contractual relationship was unsupported by the evidence. The plaintiff argues that he was the legal owner of the account, and the bank became his debtor for the amount deposited into the account. We agree with the plaintiff.

“The law regarding the creation of contract rights in third parties in Connecticut is . . . well settled. In Knapp v. New Haven Road Construction Co., 150 Conn. 321, 325, 189 A.2d 386 (1963), [our Supreme Court] quoted Colonial Discount Co. v. Avon Motors, Inc., 137 Conn. 196, 201, 75 A.2d 507 (1950), and reaffirmed that [t]he ultimate test to be applied [in determining whether a person has a right of action as a third party beneficiary] is whether the intent of the parties to the contract was that the promisor should assume a direct obligation to the third party [beneficiary] and . . . that intent is to be determined from the terms of the contract read in the light of the circumstances attending its making, including the motives and purposes of the parties. . . . Although we explained that it is not in all instances necessary that there be express language in the contract creating a direct obligation to the claimed third party beneficiary; Knapp v. New Haven Road Construction Co., supra, 326; we emphasized that the only way a contract could create a direct obligation between a promisor and a third party beneficiary would have to be, under our rule, because the parties to the contract so intended. Id.” (Internal quotation marks omitted.) Dow & Condon, Inc. v. Brookfield Development Corp., 266 Conn. 572, 580-81, 833 A.2d 908 (2003).

The court held that a contract existed due to the relationship between the broker and the owner of the account. The court further held that the defendant breached that contract when it transferred the funds to someone other than the plaintiff. Here, the plaintiffs father clearly created ownership rights in the plaintiff alone when the account was opened in the plaintiffs name using his social security number. On that basis, there is a clear intention that the rights of an owner would be created in the plaintiff and that he was the intended beneficiary of the contract created with the defendant. The findings of the court are not clearly erroneous.

The judgment is affirmed.

In this opinion LAVINE, J., concurred.

McLACHLAN, J.,

dissenting. I respectfully disagree with the majority’s conclusions that there was a valid inter vivos gift of the brokerage account at issue and that a contract existed between the defendant, Quick & Reilly, Inc., and the plaintiff, James Wasniewski. The plaintiff has failed to satisfy his burden of proof on these issues.

I

In my opinion, there was no gift because there was no valid delivery. Under long established Connecticut precedent, “[a] gift is the transfer of property without consideration. It requires two things: a delivery of the possession of the property to the donee, and an intent that the title thereto shall pass immediately to him.” (Emphasis added.) Guinan’s Appeal from Probate, 70 Conn. 342, 347, 39 A. 482 (1898); see also Hartford-Connecticut Trust Co. v. Slater, 114 Conn. 603, 613, 159 A. 578 (1932). “To make a valid gift inter vivos, the donor must part with control of the property which is the subject of the gift with an intent that title shall pass immediately and irrevocably to the donee. . . . The burden of proving the essential elements of a valid gift rests upon the party claiming the gift.” (Citations omitted; emphasis added.) Kriedel v. Krampitz, 137 Conn. 532, 534, 79A.2d 181 (1951). “To support a factual conclusion of an executed inter-vivos gift, there would have to be a donative intention and at least a constructive delivery. . . . For a constructive delivery, the donor must do that which, under the circumstances, will in reason be equivalent to an actual delivery. It must be as nearly perfect and complete as the nature of the property and the circumstances will permit.” (Citations omitted.) Hebrew University Assn. v. Nye, 148 Conn. 223, 232-33, 169 A.2d 641 (1961).

A

The majority concludes that there is a valid gift because once the funds were deposited in the account under the individual’s name, the account holder is presumed to have control over the account. This argument loses sight of the real issue, which is, in my opinion, whether there was delivery of the account so as to satisfy the elements of an inter vivos gift.

The plaintiff bears the burden of proving the essential elements of a valid gift because he is the party claiming the gift. See Kriedel v. Krampitz, supra, 137 Conn. 534. The trial court and the majority, however, conclude that there was a gift without discussing if there was a valid delivery or whether the plaintiff satisfied his burden of proving the elements of a gift. The facts show that there was no delivery, constructive or actual. In order for there to be constructive delivery, “[i]t must be as nearly perfect and complete as the nature of the property and the circumstances will permit.” Hebrew University Assn. v. Nye, supra, 148 Conn. 232. Delivery could be easy to accomplish in the case of a brokerage account. The plaintiff merely would have to be notified of the existence of the account. Here, the plaintiffs father not only failed to give such notice, but took steps to prevent the plaintiff from finding out about the account. Thus, delivery was not complete or “nearly perfect” to support a tenable constructive delivery argument.

B

Not only did the plaintiff fail to prove that there was constructive delivery, he did not prove actual delivery of the account. The donor’s retention of control is inconsistent with delivery of a gift. Here, the plaintiffs father maintained all elements of control. He received all of the account statements and failed to notify the plaintiff, or anyone, that he had created the account for the benefit of the plaintiff. In fact, he maintained the ultimate indicia of control: he closed the account. These facts coupled with the fact that the plaintiff exercised absolutely no dominion or control over the account supports the conclusion that the plaintiffs father never relinquished control of the account. Because there was no actual delivery, the gift was not completed. See Kriedel v. Krampitz, supra, 137 Conn. 534.

c

A valid inter vivos gift requires two elements, delivery and intent that the “title thereto shall pass immediately . . . .” Guinan’s Appeal from Probate, supra, 70 Conn. 347. “Where . . . the donor maintains some control over the money given, it is some evidence of an intent not to pass title immediately.” Kukanskis v. Jasut, 169 Conn. 29, 35, 362 A.2d 898 (1975). Even if we assume arguendo that the plaintiffs father intended to make a gift at some time, it is far from clear whether he intended to make an immediate gift of the account to the plaintiff. Moreover, as discussed previously, the plaintiffs father retained control over the account, evidencing that he did not intend for the gift to pass immediately.

In 1885, our Supreme Court addressed the issue of intent to make an inter vivos gift of two bank accounts. The court wrote that “[t]he fact that apart of the deposits were made in the plaintiffs name affords the strongest evidence of an intention to make a gift; but that does not necessarily show an intention to make a present gift; it is equally consistent with an intention to have the gift take effect at some future time.” Burton v. Bridgeport Savings Bank, 52 Conn. 398, 402 (1885). Thus, just because the father established the account in the name of the plaintiff does not mean as a matter of law that he intended a present gift.

II

I also respectfully disagree with the majority’s conclusion that a contract existed between the plaintiff and the defendant. The court did not explain how a contract was formed but simply concluded that “[t]he plaintiff was entitled to the interest and the principal from the contract implicit in the relationship between a broker and the owner of an account with the broker.” In the first place, this conclusion begs the question of who was the owner of the account. Second, the court’s analysis is inconsistent with the fundamental principles of contract formation.

“The rules governing contract formation are well settled. To form a valid binding contract in Connecticut, there must be a mutual understanding of the terms that are definite and certain between the parties. ... To constitute an offer and acceptance sufficient to create an enforceable contract, each must be found to have been based on an identical understanding by the parties. ... If the minds of the parties have not truly met, no enforceable contract exists. . . . [A]n agreement must be definite and certain as to its terms and requirements. ... So long as any essential matters are left open for further consideration, the contract is not complete.” (Internal quotation marks omitted.) Duplissie v. Devino, 96 Conn. App. 673, 688, 902 A.2d 30, cert. denied, 280 Conn. 916, 908 A.2d 536 (2006). “It is true . . . that in order to form a contract, generally there must be a bargain in which there is a manifestation of mutual assent to the exchange between two or more parties . . . .” (Internal quotation marks omitted.) BRJM, LLC v. Output Systems, Inc., 100 Conn. App. 143, 152, 917 A.2d 605, cert. denied, 282 Conn. 917, 925 A.2d 1099 (2007).

In this case, the plaintiff never entered into a contract with the defendant. In fact, he testified, when asked if he had ever entered into any agreement with the defendant to create the account, “[n]o, I did not.” There was no meeting of the minds because the plaintiffs father opened the brokerage account. Although it is unclear what representations the plaintiffs father made to the defendant when opening the account, what is clear is that the son never entered into a contract with the defendant because, as he testified, he did not have an agreement with it.

The majority concludes that the court’s finding that a contract was formed was not clearly erroneous because the plaintiff was a third party beneficiary. This finding is inconsistent with the law of third party beneficiaries. The plaintiff does not satisfy the test for a third party beneficiary because there is no evidence that the plaintiffs father and the defendant intended to create a third party beneficiary contract. “[T]he ultimate test to be applied [in determining whether a person has the right of action as a third party beneficiary] is whether the intent of the parties to the contract was that the promisor should assume a direct obligation to pay the third party [beneficiary] and . . . that intent is to be determined from the terms of the contract read in the light of the circumstances attending its making, including the motives and purposes of the parties.” (Internal quotation marks omitted.) Knapp v. New Haven Road Construction Co., 150 Conn. 321, 325, 189 A. 2d 386 (1963). The plaintiff had the burden to prove that he was a third party beneficiary. He presented no evidence that the plaintiffs father and the defendant intended that he be a third party beneficiary. We cannot ascertain the intentions of the parties. It is unclear whether the defendant knew that the account was being opened for the plaintiff. It is unclear what the plaintiffs father told the defendant when he opened the account. Without this crucial information, it is unreasonable to conclude that the plaintiff was an intended third party beneficiary. It is possible that the defendant thought that the plaintiffs father was actually the plaintiff because he did have all of the information concerning the account mailed directly to him. He may have misrepresented himself to the defendant. We have no basis to know the intention of the parties. Thus, with all these questions left unanswered, it is clear that the plaintiff did not satisfy his burden of proof.

Accordingly, I respectfully dissent and would reverse the judgment of the trial court.

       Section 281 of volume nine of Corpus Juris Secundum (1996) states in relevant part: “Ordinarily, where a deposit is made by one person in the name of another, the rights with respect to such deposit belong to the person in whose name the deposit is made, even though the latter is unaware of the deposit, and the bank may not dispute his or her title or rights.”

       The record, however sparse it may be, reflects that there was never any delivery of the account to the plaintiff. Although it is unclear what transpired when the father opened the bank account, because the records were destroyed, it is clear that the plaintiff knew nothing about the account during the entire time it was in existence. In the plaintiff’s words, “I wasn’t aware that the account existed until my father sent me that 1099 from Quick & Reilly in 2003.” Moreover, the plaintiff confirmed that he received the 1099 tax form after the account was closed. The fact that the plaintiff did not know about the account until after it was closed demonstrates that there was no delivery. Moreover, the plaintiff’s father previously had opened another account for his son, the plaintiff, with the investment firm, Tucker Anthony, and the plaintiff had full knowledge of that account. Because the plaintiffs father previously had opened another brokerage account for the plaintiff and the plaintiff had knowledge and control over that account, this indicates that the father understood how to deliver such a gift to his son and that he had no such intention with regard to this account.

       The court never found delivery, a necessary element of a gift. See Guinan’s Appeal from Probate, supra, 70 Conn. 342. In fact, when the defendant moved for articulation seeking clarification and articulation of the basis for which the court concluded that there was a valid gift, given the absence of any factual finding of delivery, the court stated: “Under the circumstances found here, it seems absurd to permit the very party who obstructed the delivery and acceptance by its conduct to be found to benefit by claiming the absence of delivery or acceptance.” The plaintiff did not file a motion for review.
      Instead of focusing on whether there was a valid delivery, the majority relies on United States v. $79,000 in Account Number 2168050/6749900, Docket No. 96 Civ. 3493,1996 U.S. Dist. LEXIS 16536, at *3 (S.D.N.Y. November 7, 1996), for the principle that “[o]nce the funds are deposited in an account under an individual's name, the account holder is presumed to have title to and control over those funds.” That case, however, is distinguishable from this case. In the former case, the claimants deposited money into a preexisting account in order to transfer money out of the United States. Here, the account was not in existence; rather, it was created by the plaintiffs father when he opened it with his funds. The claimants in the federal case, however, were aware of the existence of the account at issue. Thus, just because the account was in the plaintiffs name does not automatically mean that he controlled the account or that there was a valid delivery of the account.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    CHERIE LEE CARRIER v. KELLY M. KING
    (AC 28422)
    McLachlan, Harper and Lavine, Js.
    Argued November 16, 2007
    officially released January 22, 2008

      Cherie Lee Carrier, pro se, the plaintiff (appellant).
   Opinion

PER CURIAM.

The visitation application giving rise to this appeal arose out of tragic circumstances. The plaintiff, Cherie Lee Carrier, seeks visitation with the child of her deceased nephew. The defendant, Kelly M. King, is the biological mother of the child, Devon David James Carrier, who was bom on September 17, 2004. The plaintiffs application was filed on the court supplied form in which she had checked the box alleging that she had a parent-like relationship with the child and that denial of visitation would cause real and significant harm to the child. The court made no finding as to the existence of a parent-like relationship between the plaintiff and the child, but it denied relief, stating that “[ajbsent proof or evidence of any significant harm to the child, then the court has no other option at this time but to dismiss and deny” the application. This appeal followed.

On appeal, the pro se plaintiff claims that the court (1) should have recused itself because of its familiarity with the child’s deceased father and (2) did not give due consideration to her claims.

As to the first claim, which is that the court should have recused itself, we have reviewed the record carefully and conclude that the plaintiff did not raise the issue of disqualification with the court, nor was there anything in the record from which the court could have inferred that it would be inappropriate for it to adjudicate the case. “Absent plain error, issues raised for the first time on appeal will not be reviewed.” Lopiano v. Stamford, 22 Conn. App. 591, 594, 577 A.2d 1135 (1990).

As to the second claim, although our statutory scheme does provide for visitation by third persons, the right of third parties to seek such visitation is limited by the rights of fit parents to raise their children free from interference. Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000); Roth v. Weston, 259 Conn. 202, 222, 789 A.2d 431 (2002). In Roth, our Supreme Court stated that the issue was not whether a child should have the benefit of relationships with persons other than their parents, but whether there was sufficient reason for the state to interfere with the constitutional right of parents to raise their children free from state interference. Roth v. Weston, supra, 223. The Supreme Court held that “[t]he petition [for visitation] must . . . contain specific, good faith allegations that denial of the visitation will cause real and significant harm to the child. . . . [T]he petitioner must prove these allegations by clear and convincing evidence. Only if that enhanced burden of persuasion has been met may the court enter an order of visitation.” Id., 234-35. Because the plaintiff offered no evidence of significant harm to the child, the trial court properly denied the application.

The judgment is affirmed.

       General Statutes § 46b-59 provides: “The Superior Court may grant the right of visitation with respect to any minor child or children to any person, upon an application of such person. Such order shall be according to the court’s best judgment upon the facts of the case and subject to such conditions and limitations as it deems equitable, provided the grant of such visitation rights shall not be contingent upon any order of financial support by the court. In making, modifying or terminating such an order, the court shall be guided by the best interest of the child, giving consideration to the wishes of such child if he is of sufficient age and capable of forming an intelligent opinion. Visitation rights granted in accordance with this section shall not be deemed to have created parental rights in the person or persons to whom such visitation rights are granted. The grant of such visitation rights shall not prevent any court of competent jurisdiction from thereafter acting upon the custody of such child, the parental rights with respect to such child or the adoption of such child and any such court may include in its decree an order terminating such visitation rights.”

       We note that our Supreme Court recently decided that the fair preponderance standard applies in custody disputes between parents and third parties but left undisturbed the enhanced burden in visitation disputes. See Fish v. Fish, 285 Conn. 24, 66-67, 939 A.2d 1040 (2008).


author: LAVINE, J.

text:
    STATE OF CONNECTICUT v. STEVE D. NELSON
    (AC 27541)
    Gruendel, Lavine and Mihalakos, Js.

      Argued October 16, 2007
    officially released January 22, 2008

      David J. Reich, special public defender, for the appellant (defendant).

      Harry D. Weller, senior assistant state’s attorney, with whom, on the brief, were Scott J. Murphy, state’s attorney, and Brian Preleski, senior assistant state’s attorney, for the appellee (state).
   Opinion

LAVINE, J.

The defendant, Steve D. “Sticky” Nelson, appeals from the judgment of conviction, rendered after a jury trial, of conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 (a) and 53a-134 (a) (3). On appeal, the defendant claims that (1) there was insufficient evidence to support a finding of guilty of conspiracy to commit robbery in the first degree, (2) the trial court improperly admitted an audio recording of a 911 call under the spontaneous utterance exception to the hearsay rule, (3) the court improperly admitted the same recording to accredit witness testimony, (4) the court improperly instructed the jury that it could use out-of-court statements to accredit witness testimony and (5) the prosecutor committed improprieties during final argument to the jury. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On January 22,2005, after a day of heavy snowfall, the defendant and another man, both armed and masked, broke into the Wethersfield apartment of Lincoln Marshall and assailed him. The defendant and his cohort bound Marshall’s hands and feet and duct taped his face. Marshall was able to see somewhat with his right eye, which was not completely covered by the tape. The assailants beat Marshall, accosted him for money and rummaged through his apartment. They took Marshall’s wallet, which contained $400, and demanded more money. After heating on Marshall’s stove a knife that they found in his kitchen, the men repeatedly burned him with the knife so that he would tell them where he kept his money. They threatened to kill him. Marshall offered to collect money owed to him from a Hartford man named Brian. The assailants forced Marshall outside and into his car. They also placed in Marshall’s car and another car approximately $12,000 worth of property they had removed from the apartment. When the defendant removed his mask, Marshall recognized him as Sticky Nelson, a local man from whom Marshall had purchased a car.

After binding Marshall’s ankles again and placing him in the backseat of his car, the defendant and his cohort drove Marshall to Brian’s house to collect the debt, but Brian was not home. They next drove to the defendant’s residence, where they removed from the car items that they had taken from Marshall’s apartment. At this location, another man beat Marshall and threatened to kill him if he did not provide money. Finally, the men drove Marshall to Weaver High School in Hartford, where they untied his hands and left him with his cellular telephone, on which they had dialed 911 for him. They drove away in another vehicle after one of them told Marshall: “If you come out, we’re going to shoot you.”

Marshall informed the 911 operator that he was tied up, bleeding and in need of help. He told the operator that he knew one of the assailants, the defendant, and that the assailants were driving a black or dark blue Acura Legend. In response to the call, Officer Matthew Labbe of the Hartford police department arrived at Weaver High School, where he found a very frightened Marshall, ankles bound, in the backseat of his car. Labbe transported Marshall to a hospital, where he was treated for his injuries and later released. Detective Michael Patkoske of the Wethersfield police department led the investigation. On January 26, 2005, Marshall identified the defendant’s photograph in an array shown to him by the police.

The state charged the defendant with two counts of kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (A) and (B), two counts of robbery in the first degree in violation of General Statutes § 53a-134 (a) (3) and (4), assault in the first degree in violation of General Statutes § 53a-59 (a) (1), two counts of burglary in the first degree in violation of General Statutes § 53a-101 (a) (1) and (2), larceny in the first degree in violation of General Statutes § 53a-122 (a) (2) and conspiracy to commit robbery in the first degree in violation of §§ 53a-48 (a) and 53a-134 (a). After a jury trial, the defendant was convicted of conspiracy to commit robbery in the first degree and was sentenced to a term of eighteen years imprisonment. This appeal followed.

I

The defendant first claims that there was insufficient evidence to support finding him guilty of conspiracy to commit robbery in the first degree with a dangerous instrument because the state failed to prove that he had planned prior to the robbery to use a knife during the robbery. More particularly, the defendant contends that to be guilty of a conspiracy to commit robbery in the first degree, he would have to have conspired to use the knife before entering Marshall’s premises. We disagree.

Our standard of review for a sufficiency of evidence claim is well established. “In reviewing a sufficiency of the evidence claim, we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [trier of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. ... In evaluating evidence, the trier of fact is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence. . . . The trier may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. . . . This does not require that each subordinate conclusion established by or inferred from the evidence, or even from other inferences, be proved beyond a reasonable doubt . . . because [our Supreme Court] has held that a [trier’s] factual inferences that support a guilty verdict need only be reasonable.” (Internal quotation marks omitted.) State v. Farnum, 275 Conn. 26, 32, 878 A.2d 1095 (2005). “In conducting our review, we are mindful that the finding of facts, the gauging of witness credibility and the choosing among competing inferences are functions within the exclusive province of the jury, and, therefore, we must afford those determinations great deference.” State v. Conde, 67 Conn. App. 474, 490, 787 A.2d 571 (2001), cert. denied, 259 Conn. 927, 793 A.2d 251 (2002).

“A person is guilty of robbery in the first degree when, in the course of the commission of the crime of robbery as defined in section 53a-133 or of immediate flight therefrom, he or another participant in the crime: (1) Causes serious physical injury to any person who is not a participant in the crime; or (2) is armed with a deadly weapon; or (3) uses or threatens the use of a dangerous instrument; or (4) displays or threatens the use of what he represents by his words or conduct to be a pistol, revolver, rifle, shotgun, machine gun or other firearm . . . .” (Emphasis added.) General Statutes § 53a-134 (a). “A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.” General Statutes § 53a-48 (a).

“To sustain a conviction under § 53a-48 (a), the state needs to prove beyond a reasonable doubt (1) that a defendant intended that conduct constituting a crime be performed [and] (2) that he agreed with one or more persons to engage in or cause the performance of such conduct . . . .” (Internal quotation marks omitted.) State v. Duncan, 96 Conn. App. 533, 541, 901 A.2d 687, cert. denied, 280 Conn. 912, 908 A.2d 540 (2006). “[T]he existence of a formal agreement between the conspirators need not be proved . . . .” (Internal quotation marks omitted.) Id. Rather, “[a] conspiracy can be inferred from the facts and circumstances of the case.” State v. Richardson, 66 Conn. App. 724, 740, 785 A.2d 1209 (2001).

In this case, Marshall testified that the defendant and his cohort heated a knife and, as they demanded money, used it to bum Marshall on his nose, forehead, stomach and back. The fact that the assailants found the knife in the apartment fails to demonstrate the defendant’s lack of intent to participate in this course of action. As long as the defendant had time to reflect and to deliberate on his actions, he can be held culpable for the requisite specific intent to commit a crime. See State v. Brown, 161 Conn. 219, 222, 286 A.2d 304 (1971). From Marshall’s testimony and other corroborating evidence, including Patkoske’s testimony that a kitchen knife was found near Marshall’s couch, the jury reasonably could have inferred that the defendant conspired to use the knife during and in furtherance of the robbery. “It is only in rare instances that conspiracy may be established by proof of an express agreement to unite to accomplish an unlawful purpose. The combination or confederation may be proved by circumstantial evidence, that is, by proof of the separate acts of the individuals accused and by proof of circumstances from which the illegal confederation may be inferred.” (Internal quotation marks omitted.) State v. Richardson, supra, 66 Conn. App. 739.

The evidence in this case manifests the defendant’s complicity in robbery with a dangerous instrument. We therefore conclude that the evidence was sufficient to support a verdict of guilty of conspiracy to commit robbery in the first degree.

II

The defendant next claims that the court improperly admitted the recording of the 911 call, which includes Marshall’s description of his injuries, as well as his identification of the defendant, under the spontaneous utterance exception to the hearsay rule. Pursuant to § 8-3 (2) of the Connecticut Code of Evidence, a spontaneous utterance is “[a] statement relating to a startling event or condition made while the declarant was under stress of excitement caused by the event or condition.” The defendant alleges that Marshall’s 911 statements should not have been admitted as a spontaneous utterance because (1) Marshall did not have an opportunity to observe the events leading to the statements he made to the 911 operator and (2) Marshall was not under the stress of circumstances required for the spontaneous utterance exception when he made the statements at issue. We disagree.

A

The defendant claims that Marshall’s 911 call should not have been admitted as a spontaneous utterance hearsay exception because Marshall did not have an opportunity to observe the events leading to the spontaneous utterance. Specifically, the defendant argues that because Marshall’s eyes were covered with duct tape, Marshall could not have observed the defendant.

“An out-of-court statement offered to prove the truth of the matter asserted is hearsay and is generally inadmissible unless an exception to the general rule applies.” (Internal quotation marks omitted.) State v. Wargo, 255 Conn. 113, 127, 763 A.2d 1 (2000). “The excited utterance exception [to the hearsay rule] is well established. Hearsay statements, otherwise inadmissible, may be admitted into evidence to prove the truth of the matter asserted therein when (1) the declaration follows a startling occurrence, (2) the declaration refers to that occurrence, (3) the declarant observed the occurrence, and (4) the declaration is made under circumstances that negate the opportunity for deliberation and fabrication by the declarant. . . . Whether an utterance is spontaneous and made under circumstances that would preclude contrivance and misrepresentation is a preliminary question of fact to be decided by the trial judge. . . . The trial court has broad discretion in making that factual determination, which will not be disturbed on appeal absent an unreasonable exercise of discretion.” (Citations omitted; internal quotation marks omitted.) State v. Kelly, 256 Conn. 23, 41-42, 770 A.2d 908 (2001).

“Connecticut first recognized the spontaneous utterance exception in Perry v. Haritos, 100 Conn. 476, 124 A. 44 (1924). Our Supreme Court explained: This general principle is based on the experience that, under certain external circumstances of physical shock, a stress of nervous excitement may be produced ... by the external shock. Since this utterance is made under the immediate and uncontrolled domination of the senses, and during the brief period when considerations of self-interest could not have been brought fully to bear by reasoned reflection, the utterance may be taken as particularly trustworthy, . . . and thus as expressing the real tenor of the speaker’s belief as to the facts just observed by him; and may therefore be received as testimony to those facts. . . . When the declaration follows some startling occurrence and is made with reference to it by one having an opportunity to observe the matter of which he speaks, and in such close connection to the event and under such circumstances as to negative the opportunity for deliberation and fabrication and to indicate that it was a spontaneous utterance growing out of the nervous excitement and mental and physical condition of the declarant, it is reasonably probable that it is trustworthy. The spontaneity of the utterance is the guaranty of its trustworthiness.” (Internal quotation marks omitted.) State v. Slater, 98 Conn. App. 288, 295, 908 A.2d 1097, cert. granted on other grounds, 280 Conn. 950, 912 A.2d 484 (2006).

The test of whether a declarant sufficiently observed the subject of his spontaneous utterance is “whether the evidence supports a finding that the declarant had an opportunity to observe the matters described in his or her statement.” State v. Westberry, 68 Conn. App. 622, 631, 792 A.2d 154, cert. denied, 260 Conn. 923, 792 A.2d 519 (2002). In this case, the state presented evidence that Marshall not only observed but also experienced the events in question. Marshall testified that his vision was not completely obscured by the duct tape, that he recognized the defendant to be a man known as “Sticky” and that he recognized landmarks and streets out of the back car window. Marshall also testified that he heard the defendant’s cohort refer to the defendant as “Sticky.” Having heard this evidence, the jury was free to afford it “whatever weight it deemed appropriate in its deliberations.” State v. Westberry, supra, 632.

Because the evidence supports the fact that Marshall had an opportunity to observe the matter of which he spoke, the defendant’s claim that Marshall did not observe the events leading to the statements he made during the 911 call must fail.

B

The defendant additionally submits that Marshall’s 911 call should not have been admitted as a spontaneous utterance because Marshall’s statements to the 911 operator were not made under stress sufficient to negate the opportunity for fabrication. More particularly, the defendant asserts that even if Marshall was under stress when he began the 911 call, he was calmer and capable of deliberating by the time he identified the defendant to the operator.

We reiterate that “[w]hether an utterance is spontaneous ... is a preliminary question of fact to be decided by the trial judge [and that] [t]he trial court has broad discretion in making that factual determination, which will not be disturbed on appeal absent an unreasonable exercise of discretion.” (Internal quotation marks omitted.) State v. Kirby, 280 Conn. 361, 374, 908 A.2d 506 (2006). “The requirement that a spontaneous utterance be made under such circumstances as to [negate] the opportunity for deliberation and fabrication by the declarant . . . does not preclude the admission of statements made after a startling occurrence as long as the statement is made under the stress of that occurrence.” (Internal quotation marks omitted.) Id. “Moreover, that a statement is made in response to a question does not preclude its admission as a spontaneous utterance.” (Emphasis added.) Id., 376.

In this case, the defendant’s contention that Marshall’s 911 call should not have been admitted as a spontaneous utterance because Marshall was not under sufficient stress when he identified the defendant is unpersuasive. “[T]he application of the [spontaneous utterance] exception entails a uniquely fact bound inquiry. The overarching consideration is whether the declarant made the statement before he or she had the opportunity to undertake a reasoned reflection of the event described therein.” State v. Westberry, supra, 68 Conn. App. 628.

It is clear that Marshall, who had been robbed, burned, beaten, threatened with murder, forcibly removed from his apartment, tied up, driven around for an extended period of time and abandoned in wintry conditions, experienced grave stress during his entire conversation with the 911 operator. “I’m still tied up,” he told the operator. “[T]hey burned and cut me. . . . [The blood] is all over my face and my head right now. Please send help.” He exclaimed, “Oh, God,” several times. Even after identifying the defendant as one of his kidnappers, Marshall was distressed enough to get out of the car in freezing conditions, his feet bound, so that the responding police officer would be able to find him. “Please get back in your car,” urged the operator. “The weather is not in [any] condition for you to walk anywhere.”

Contrary to the defendant’s assertions, Marshall’s statements during the 911 call were made under circumstances sufficiently stressful, indeed painful, to negate the opportunity for deliberation and fabrication by Marshall. “The principle [justifying the spontaneous utterance hearsay exception] rests upon the common experience that utterances made under such circumstances are void of self-interest and are in the same category as exclamations of pain.” (Internal quotation marks omitted.) Perry v. Haritos, supra, 100 Conn. 484-85. Considering the infliction of injuries that Marshall experienced during the robbery, as well as the apparent pain and fear that he felt during the telephone call, we find unavailing the defendant’s allegation that Marshall’s statements to the 911 operator were not made under stress sufficient to negate the opportunity for fabrication.

We conclude that the court did not abuse its discretion in admitting Marshall’s statement to the 911 operator as a spontaneous utterance.

Ill

The defendant’s third claim is that the court should not have permitted the jury to hear the recording of the 911 call because it was prejudicial and because it improperly accredited witness testimony. The defendant specifically argues that due to the emotional nature of the tape of the 911 call and the fact that it was introduced during the state’s direct examination of Marshall, the tape served to bolster Marshall’s testimony with prior consistent statements in violation of the Connecticut Code of Evidence. We are not persuaded.

“The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . Every reasonable presumption should be made in favor of the correctness of the court’s ruling in determining whether there has been an abuse of discretion.” (Internal quotation marks omitted.) State v. Brisco, 84 Conn. 120, 132, 852 A.2d 746, cert. denied, 271 Conn. 944, 861 A.2d 1178 (2004). “The trial court, because of its intimate familiarity with the case, is in the best position to weigh the relative merits and dangers of any proffered evidence.” (Internal quotation marks omitted.) State v. Bailey, 32 Conn. App. 773, 782, 631 A.2d 333 (1993).

In State v. Evans, 44 Conn. App. 307, 689 A.2d 494, cert. denied, 240 Conn. 924, 692 A.2d 819 (1997), this court determined that a trial court’s decision to permit a jury to hear a 911 call was proper because the court did not abuse its discretion in admitting the evidence. “We have previously outlined four situations where prejudice to the defendant could outweigh the probative value of evidence. These are: (1) where the facts offered may unduly arouse the jury’s emotions, hostility or sympathy, (2) where the proof and answering evidence it provokes may create a side issue that will unduly distract the jury from the main issues, (3) where the evidence offered and the counterproof will consume an undue amount of time, and (4) where the defendant, having no reasonable ground to anticipate the evidence, is unfairly surprised and unprepared to meet it. . . . We have also noted, however, that ultimately, [a] trial court has broad discretion in determining whether the probative value of proffered evidence is outweighed by the prejudice that is likely to result from its admission. . . . We will not overturn its decision absent an abuse of discretion.” (Citation omitted; internal quotation marks omitted.) Id., 314-15.

“Because of the inherent difficulties in weighing these considerations against the need for relevant evidence, the resolution of this determination has been traditionally entrusted to the trial court. . . . Eveiy reasonable presumption must be given in favor of the correctness of the court’s ruling, and reversal will ensue only where an abuse of discretion is manifest or where injustice appears to have been done. . . . Prejudice is not measured by the significance of the evidence which is relevant but by the impact of that which is extraneous.” (Internal quotation marks omitted.) Id., 315.

The defendant’s argument that the court’s admission of the recording of the 911 call served to accredit Marshall’s testimony is without merit. The court explained to counsel that the purpose of admitting the 911 call pertained to its relevance: “[T]he evidence offered is relevant in that the exhibit tends to establish that a violent crime had occurred. The crying and upset that is heard on the tape is relevant to the defendant’s intent to cause serious physical injury. The jury could find that the witness was upset due to the infliction of injury. The jury could further find [that] physical force was used and further verif[y] how long the witness was in the car, [which is] relevant, obviously, to the counts of kidnapping. The length of time is also relevant to this witness’ identification of the defendant, how long a look he was able to get. It also verifies the fact that at one point in time, the individual in the car with him, [in] the BMW, was referred to as ‘Sticky.’ It further establishes, obviously, the violent nature of the attack. The defendant herein [was] charged with robbery first degree, assault [in the] first degree and kidnapping. Obviously, that evidence is relevant with respect to those counts. The court therefore finds that the probative value of this proffered evidence outweighs its prejudicial effect.”

Nowhere in its charge to the jury did the court suggest that the 911 call accredited or supported Marshall’s testimony. Rather, the court instructed the jury that “any conduct or statement of a witness which you find consistent with any other conduct or statement of that witness you may also consider in weighing the credibility of that witness.” Such credibility determinations factor into jury determinations about the relevance of testimonial evidence. Moreover, the court explained that it found the 911 call relevant in establishing that a crime had occurred. “Relevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue . . . [E]vidence need not exclude all other possibilities [to be relevant]; it is sufficient if it tends to support the conclusion [for which it is offered], even to a slight degree. ... So long as the evidence may reasonably be construed in such a manner that it would be relevant, it is admissible.” (Citations omitted; internal quotation marks omitted.) State v. Bruno, 236 Conn. 514, 549, 673 A.2d 1117 (1996).

The defendant cites State v. Suckley, 26 Conn. App. 65, 72, 597 A.2d 1285, cert. denied, 221 Conn. 901, 600 A.2d 1028 (1991), in support of his claim that the court’s admission of the 911 call violated the Connecticut rules of evidence. The facts of this case, however, unlike the facts of Suckley, do not require the application of § 6-11 (a) of the Connecticut Code of Evidence, which provides in relevant part that “the credibility of a witness may not be supported by evidence of a prior consistent statement made by the witness.” See C. Tait, Connecticut Evidence (3d Ed. 2001) § 6.27.2, p. 440 (discussing prohibition of “[e]vidence accrediting or supporting a witness’s honesty or integrity [before] the witness’s credibility has first been attacked”). In Suckley, we concluded that the court’s admission of a photograph unrelated to the charges was improper because the court admitted the photograph to bolster a witness’ credibility rather than for its relevance. State v. Suckley, supra, 72. In this case, the reverse is true: the court permitted the jury to hear the 911 call, which related to the charges, for its relevance and not to bolster witness testimony.

Because the recording tended to support the fact that a robbery had occurred, the court acted within its discretion in admitting it. “All that is required is that the evidence tend to support a relevant fact even to a slight degree, so long as it is not prejudicial or merely cumulative.” (Internal quotation marks omitted.) Jewett v. Jewett, 265 Conn. 669, 680, 830 A.2d 193 (2003). The 911 recording was not unfairly prejudicial; although the jury may have detected suffering and fear in Marshall’s voice, we cannot conclude that the recording unduly aroused the jury’s emotions. See State v. Rodriguez, 91 Conn. App. 112, 122-23, 881 A.2d 371, cert. denied, 276 Conn. 909, 886 A.2d 423 (2005). With or without the aid of a tape, a reasonable person would assume a person in Marshall’s position to be distressed. See id.

The tape also was not cumulative because it presented new material. “[I]f evidence presents new matter, it is obviously not cumulative with evidence previously received.” (Internal quotation marks omitted.) Id., 122. In Rodriguez, this court concluded that the trial court did not abuse its discretion in admitting a 911 recording because “[t]he prosecutor questioned [the witness] about the events leading to the call, then played the recording and questioned her about the events following the call.” Id., 123. Similarly, in this case, the recording of the 911 call presented matters not covered by Marshall’s testimony, such as the fact that Marshall was disoriented, the fact that Marshall was bleeding profusely and the nature of Labbe’s rescue of Marshall.

We conclude that the court did not abuse its discretion by permitting the jury to hear the recording of the 911 call.

IV

The defendant’s fourth claim is that the court improperly charged the jury that it could use out-of-court statements to accredit witness testimony. Specifically, the defendant alleges that the court’s instruction that the jury could consider witness testimony consistent with prior statements by the same witness allowed the jury to accredit the statements Marshall made during the 911 call in violation of the Connecticut Code of Evidence.

The defendant did not preserve his claim at trial but seeks review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). We conclude, however, that this claim is not reviewable under Golding because the claimed instructional error is evidentiary in nature and is not of constitutional magnitude.

“Evidentiary claims do not merit review pursuant to State v. Golding, [supra, 213 Conn. 239-40], because they are not of constitutional magnitude. [R]obing garden variety claims [of an evidentiary nature] in the majestic garb of constitutional claims does not make such claims constitutional in nature. . . . Putting a constitutional tag on a nonconstitutional claim will no more change its essential nature than calling a bull a cow will change its gender.” (Internal quotation marks omitted.) State v. Cromety, 102 Conn. App. 425, 431, 925 A.2d 1133, cert. denied, 284 Conn. 912, 931 A.2d 932 (2007). We decline to review the defendant’s fourth claim, as it fails under the second prong of Golding.

V

The defendant’s final claim is that the prosecutor improperly commented on the 911 call during final argument to the jury. The defendant alleges that the prosecutor aroused the passions of the jury by describing Marshall’s ordeal as an “unimaginable horror” and that he vouched for the veracity of Marshall’s statements by reminding the jury that Marshall identified the defendant during the 911 call. We disagree.

Our Supreme Court has established an analytical framework for reviewing cases involving alleged prose-cutorial impropriety to which no objection was raised at trial. See State v. Stevenson, 269 Conn. 563, 849 A. 2d 626 (2004). “[I]n analyzing claims of prosecutorial [impropriety], we engage in a two step analytical process. The two steps are separate and distinct: (1) whether [impropriety] occurred in the first instance; and (2) whether that [impropriety] deprived a defendant of his due process right to a fair trial. ... As we have indicated, our determination of whether any improper conduct by the state’s attorney violated the defendant’s fair trial rights is predicated on the factors set forth in State v. Williams, [204 Conn. 523, 540, 529 A.2d 653 (1987)], with due consideration of whether that [impropriety] was objected to at trial.” (Internal quotation marks omitted.) State v. Warholic, 278 Conn. 354, 361-62, 897 A.2d 569 (2006).

“[P]rosecutorial [impropriety] of a constitutional magnitude can occur in the course of closing arguments. ... In determining whether such [impropriety] has occurred, the reviewing court must give due deference to the fact that [c]ounsel must be allowed a generous latitude in argument, as the limits of legitimate argument and fair comment cannot be determined precisely by rule and line, and something must be allowed for the zeal of counsel in the heat of argument. . . . Thus, as the state’s advocate, a prosecutor may argue the state’s case forcefully, [provided the argument is] fair and based upon the facts in evidence and the reasonable inferences to be drawn therefrom. . . . Moreover, [i]t does not follow . . . that every use of rhetorical language or device [by the prosecutor] is improper. . . The occasional use of rhetorical devices is simply fair argument. . . . Nevertheless, the prosecutor has a heightened duty to avoid argument that strays from the evidence or diverts the jury’s attention from the facts of the case. . . . This heightened duty derives from . . . the special role played by the state’s attorney in a criminal trial. He is not only an officer of the court . . . but is also a high public officer, representing the people of the [s]tate, who seek impartial justice for the guilty as much as for the innocent. In discharging his most important duties, he deserves and receives in peculiar degree the support of the court and the respect of the citizens of the county. By reason of his office, he usually exercises great influence upon jurors. His conduct and language in the trial of cases in which human life or liberty [is] at stake should be forceful, but fair, because he represents the public interest, which demands no victim and asks no conviction through the aid of passion, prejudice, or resentment.” (Internal quotation marks omitted.) State v. Camacho, 282 Conn. 328, 367-68, 924 A.2d 99, cert. denied, 552 U.S. 956, 128 S. Ct. 388, 169 L. Ed. 2d 273 (2007). “If the accused be guilty, he should [nonetheless] be convicted only after a fair trial, conducted strictly according to the sound and well-established rules which the laws prescribe. While the privilege of counsel in addressing the jury should not be too closely narrowed or unduly hampered, it must never be used as a license to state, or to comment upon, or to suggest an inference from, facts not in evidence, or to present matters which the jury ha[s] no right to consider.” (Internal quotation marks omitted.) State v. Skakel, 276 Conn. 633, 745-46, 888 A.2d 985, cert. denied, 549 U.S. 1030, 127 S. Ct. 578, 166 L. Ed. 2d 428 (2006).

It is well established that “a prosecutor, in fulfilling his duties, must confine himself to the evidence in the record. . . . Statements as to facts that have not been proven amount to unsworn testimony, which is not the subject of proper closing argument. ... A prosecutor may invite the jury to draw reasonable inferences from the evidence; however, he or she may not invite sheer speculation unconnected to evidence. . . . Moreover, when a prosecutor suggests a fact not in evidence, there is a risk that the jury may conclude that he or she has independent knowledge of facts that could not be presented to the jury.” (Internal quotation marks omitted.) State v. Ceballos, 266 Conn. 364, 400, 832 A.2d 14 (2003).

With these principles in mind, we turn to the defendant’s specific allegations of prosecutorial impropriety during closing argument, noting that defense counsel raised no objection to the state’s rebuttal arguments. Although that fact is by no means dispositive of the defendant’s claim on appeal, we nevertheless consider it in reviewing the merits of an unpreserved claim of prosecutorial impropriety. See State v. Skakel, supra, 276 Conn. 769 n.107.

“As a general matter, a prosecutor may use any evidence properly admitted at trial.” State v. Camacho, supra, 282 Conn. 377. In Camacho, our Supreme Court held a prosecutor’s use of a 911 recording during closing argument to be proper. Id., 378. “[T]he prosecution, with its burden of establishing guilt beyond a reasonable doubt, is not to be denied the right to prove every essential element of the crime by the most convincing evidence it is able to produce.” (Internal quotation marks omitted.) State v. Evans, supra, 44 Conn. App. 316.

During his rebuttal argument, the prosecutor in this case made the following statements: “I would submit to you [that] when you listen to this tape, you’re not listening to someone who’s reflecting. What you’re listening to is a terrified, terribly emotional man who has just gone through an unimaginable horror. And he does identify [the defendant] on that tape, and he does so twice.” As we have noted, the recording of the 911 call was admitted as a full exhibit. Accordingly, it fell within the rule as previously explained under our case law that “[a]n exhibit offered and received as a full exhibit is in the case for all purposes.” Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Cole, 189 Conn. 518, 525, 457 A.2d 656 (1983). Furthermore, these allegedly improper statements were consistent with the purposes the court cited for admitting the tape into evidence, namely, to establish that a robbery had been committed, that injuries had been inflicted on Marshall and that he had spent a considerable amount of time with the defendant he identified.

It is significant that the comments the defendant now complains of were made during the state’s rebuttal argument. We have held that where “[i]t is clear that the prosecutor merely was marshaling the evidence for the fact finder to consider when assessing the credibility of the witnesses . . . the prosecutor’s comments were not improper.” State v. John M., 87 Conn. App. 301, 313, 865 A.2d 450, cert. granted on other grounds, 273 Conn. 916, 871 A.2d 372 (2005). Contrary to the defendant’s assertions, the prosecutor’s statements did not improperly arouse the jury’s emotions but, rather, marshaled the evidence to rebut defense counsel’s argument that Marshall reflected and deliberated before he spoke to the 911 operator. The prosecutor also did not vouch for the veracity of Marshall’s statements. Rather, he countered the allegation made during defense counsel’s final argument that Marshall told the 911 operator that he could not identify his attacker.

Because we do not find it reasonably likely that the prosecutor’s comments confused the jury or prejudiced the defendant in this case, we conclude that the commentary at issue did not rise to the level of prosecutorial impropriety. “A prosecutor ... is permitted to comment upon the evidence presented at trial and to argue the inferences that the [fact finder] might draw therefrom . . . .” (Internal quotation marks omitted.) Id., 313. In this case, the prosecutor merely urged the jury to draw reasonable inferences from the facts. See State v. Skakel, supra, 276 Conn. 751.

Having rejected the defendant’s claim that the prosecutor’s comments about the 911 recording during closing argument constituted prosecutorial impropriety, we need not reach the issue of whether prosecutorial impropriety deprived the defendant of his due process right to a fair trial.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-48 (a) provides: “A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.”

       General Statutes § 53a-134 (a) provides in relevant part: “A person is guilty of robbery in the first degree when, in the course of the commission of the crime of robbery as defined in section 53a-133 or of immediate flight therefrom, he or another participant in the crime: (1) Causes serious physical injury to any person who is not a participant in the crime; or (2) is armed with a deadly weapon; or (3) uses or threatens the use of a dangerous instrument . . .

       The court instructed the jury in relevant part: “In this [ninth] count, [the state] must prove beyond a reasonable doubt, therefore, that when he made such agreement with another person, the defendant had the specific intent to wrongfully take property from Marshall and “to permanently deprive him of his property or to permanently appropriate it to himself or to a third person by the use of physical force, and he further intended that during the robbery he or another person would use a dangerous instrument; to wit, a knife.”

       The defendant additionally claims that the court improperly ruled that the 911 tape was admissible as a nontestimonial statement. Even if Marshall’s statements were testimonial, as the defendant suggests, their admission would not be barred by the confrontation clause, which “does not bar admission of a statement so long as the declarant is present at trial to defend or explain it.” Crawford v. Washington, 541 U.S. 36, 60 n.9, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). Because Marshall testified at trial and was cross-examined by the defendant, we need not address the issue of whether the statements he made during the 911 call were testimonial.

       The tape of the 911 call was admitted as a full exhibit and states:
      “[911 Operator]: . . . May I help you?
      “[Marshall]: Yes, I’ve been tied up and robbed. I’m at Granby Street. Please send help.
      “[911 Operator]: Where are you?

        “[Marshall]: Granby Street behind a school somewhere. . . . They said I’m on Granby Street. I’m still tied up, behind a high school. I think they said something like weave. Help.
      “[911 Operator]: You’re outside?
      “[Marshall]: They locked me up in my car.
      “[911 Operator]: They locked you up in your car?
      “[Marshall]: Please send help quick.
      “[911 Operator]: Who locked you up in your car?
      “[Marshall]: Four men. . . .
      “[911 Operator]: Four men. Do you know them?
      “[Marshall]: No.
      “[911 Operator]: Did they assault you in any way?
      “[Marshall]: Yes, they burned and cut me. . . .
      “[911 Operator]: You’re bleeding from what part of your body?
      “[Marshall]: My head.
      “[911 Operator]: Your head?
      “[Marshall]: It’s all over my face and my head right now. Please send help.
      “[911 Operator]: What is your name?
      “[Marshall]: My name is Lincoln. . . .
      “[911 Operator]: And do you know any of these men that did this to you?
      “[Marshall]: No, but—no, please help. Help.
      “[911 Operator]: How long have you been out there?
      “[Marshall]: I’ve been—they’ve been driving me around five, six hours now. I don’t know.
      “[911 Operator]: What kind of car are you in?
      “[Marshall]: A blue X-5.
      “[911 Operator]: In a blue X-5?
      “[Marshall]: Yes.
      “[911 Operator]: Is that your vehicle?
      “[Marshall]: Yes.
      “[911 Operator]: Where do you live?
      “[Marshall]: I live in Wethersfield.
      “[911 Operator]: In Wethersfield. Do you want to stay on the phone with me until I get officers there?
      “[Marshall]: Yes. Please hurry up.
      “[911 Operator]: Okay. I will send the officers to you, and I will send an ambulance also. Okay?
      “[Marshall]: Yes.
      “[911 Operator]: And they took you from Wethersfield into Hartford or did it happen—
      “[Marshall]: Yes.
      “[911 Operator]: —you were in Wethersfield when they brought you into Hartford?
      “[Marshall]: I couldn’t see anything. I’m trying. Oh God. They took the key to the van.
      “[911 Operator]: These men, were they black, white or Hispanic?
      “[Marshall]: Black. They were all black. I saw some of their faces and they were calling each other names. They have my Nextel phone. Maybe you can track it. . . .
      “[911 Operator]: Whose phone are you using now?
      “[Marshall]: My phone. I have two cell phones. . . .
      “[911 Operator]: You met these people in Hartford?
      “[Marshall]: No, they were at my apartment waiting for me.
      “[911 Operator]: Where do you live ... in Wethersfield?

        “[Marshall]: Yes. . . . Let me see. I’m trying to open the door.
      “[911 Operator]: It’s very cold out there. Don’t open the car door.
      “[Marshall]: I can’t see. Wait. I’m trying to see. I don’t see any name on this school.
      “[911 Operator]: That’s Weaver High School if you’re on Granby Street.
      “[Marshall]: It says Weaver [High School]. . . . Tell them there’s a van parked beside me, too.
      “[911 Operator]: Okay. So, you’re parked on the side of Weaver High School, then, if you can see the name of the school?
      “[Marshall]: No, I can see the—I can see the garbage can. Oh, gosh.
      “[911 Operator]: Stay in your vehicle because it’s cold out there. Get back in your car. Are you back in your car?
      “[Marshall]: Yes.
      “[911 Operator]: Stay in there, please. There’s a cruiser on the way. I’m still here. ... I also got the ambulance and fire department on the way to help you.
      “[Marshall]: Okay. I got the tape off my face. Oh, God. They burned me up real bad. Oh, God.
      “[911 Operator]: And you’re bleeding 1'rom your face, you said?
      “[Marshall]: They burned me with a knife in my head and they cut me— they burned me on my stomach. It just bums.
      “[911 Operator]: They burned you with a knife?
      “[911 Operator]: And you don’t know any of these guys?
      “[Marshall]: Yeah ....
      “[Marshall]: I recognize one of them because they duct taped my face and my eye. I could see one of them.
      “[911 Operator]: Uh-huh.
      “[Marshall]: And they called him—they called his name, too.
      “[911 Operator]: What did they call him?
      “[Marshall]: Sticky. . . .
      “[911 Operator]: Sticky?
      “[Marshall]: Yes.
      “[911 Operator]: And they were driving your car, and then they took off.
      “[Marshall]: They were driving—I seen the car that they came—
      “[911 Operator]: What kind of car was it?
      “[Marshall]: Acura Legend. I couldn’t see the license plate, but I know the street where they took me because I could see out of one of my eyes.
      “[911 Operator]: And what color was the Acura?
      “[Marshall]: I think it was either black or blue. It was real dark.
      “¡911 Operator]: Dark. And you don’t recall any of the letters or the numbers on the plate?
      “[Marshall]: I couldn’t see any. It was snowing still.
      “[911 Operator]: So, this must have been five o’clock or six o’clock when they picked you up?
      “[Marshall]: I’d say about six o’clock.
      “[911 Operator]: About six o’clock. I have an officer there.
      “[Marshall]: I don’t see any police. . . .
      “[911 Operator]: Stay right there. Ihave officers there. They’re just looking for you at this point Okay. Anyway can you blow your horn?
      “[Marshall]: Yes.
      “[911 Operator]: He’s going to blow his horn so they can find him.
      “[Marshall]: It’s not blowing.
      “[911 Operator]: It’s not blowing?
      “[Marshall]: No.

        “[911 Operator]: Can your lights come on?
      “[Marshall]: The lights are on.
      “[911 Operator]: The lights are on. Can you flick them? Keep on flicking your lights. He’s flicking the lights because the horn is not working.
      “[Marshall]: It’s facing, like, an apartment complex.
      “[911 Operator]: You see an apartment complex?
      “[Marshall]: Yeah, it’s across. . . . It’s an apartment complex across from the high school. . . . I’m trying to go-—
      “[911 Operator]: Don’t go anywhere. Stay right there. Stay in your car. Don’t go anywhere. Are you back in your car?
      “[Marshall]: I’m getting back in there.
      “[911 Operator]: Please get back in your car. The weather is not in no condition for you to walk anywhere. Are you flicking your lights now? Is he in the back of Weaver? Lincoln? Hello? Hello? I lost him. . . .”

       Under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), the defendant can prevail on his unpreserved claim only if the following four 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.” “The first two questions relate to whether a defendant’s claim is reviewable, and the last two relate to the substance of the actual review.” (Internal quotation marks omitted.) State v. Iassogna, 95 Conn. App. 780, 787, 898 A.2d 237 (2006).

       “The use of the term ‘prosecutorial impropriety,’ when reviewing allegedly improper statements by a prosecutor at trial, is more appropriate than the traditional term of ‘prosecutorial misconduct’ . . . (Citation omitted.) State v. Fauci, 282 Conn. 23, 26 n.2, 917 A.2d 978 (2007).

       “In determining whether prosecutorial [impropriety] was so serious as to amount to a denial of due process, we focus on several factors: (1) the extent to which the [impropriety] was invited by defense conduct or argument; (2) the severity of the conduct; (3) the frequency of the conduct; (4) the centrality of the [impropriety] to the critical issues of the case; (5) the strength of the curative instructions adopted; and (6) the strength of the state’s case.” State v. Williams, 41 Conn. App. 180, 190, 674 A.2d 1372, cert. denied, 237 Conn. 925, 677 A.2d 950 (1996).


author: FOTI, J.

text:
    ROBERTA A. GUARASCIO v. ANTHONY R. GUARASCIO
    (AC 27685)
    Gruendel, Lavine and Foü, Js.

      Argued November 27, 2007
    officially released January 22, 2008

      David N. Rubin, for the appellant (defendant).

      Gwen E. Adamson, with whom was Dominick J. Rutigliano, for the appellee (plaintiff).
   Opinion

FOTI, J.

The defendant, Anthony R. Guarascio, appeals from the judgment of the trial court dissolving his marriage to the plaintiff, Roberta A. Guarascio. He claims that the court improperly (1) included in its alimony order a percentage of future additional gross income, (2) failed to make any finding as to whether the plaintiffs interest in the Adam F. Fusco family trust and the estate of Adam F. Fusco was a marital asset, and (3) ordered him to pay the plaintiffs COBRA insurance premium for three years. We disagree and affirm the judgment of the trial court.

The court found the following facts. The plaintiff and the defendant were married in Branford on November 29, 1979. They have two children from this marriage, who have reached the age of majority. The plaintiff has been working on a part-time basis since the younger child was bom and is currently working twenty hours a week as a part-time secretary at Joel Barlow High School in Redding. The plaintiff is unable to work full-time for both emotional and physical reasons. The defendant became involved with another woman with whom he was living at the time of trial. He claimed, however, that his relationship with this woman was his only extramarital relationship and that it commenced long after his marriage had broken down. The court also noted that the plaintiff admitted that she was partially responsible for the breakdown of the marriage. The court found that “[w]hile the marriage was far from ideal, [the defendant’s] decision to establish a sexual liaison with the forty-two year-old [woman] after twenty-five years of marriage was the breaking point of the marriage.” The court found that the defendant was responsible primarily for the breakdown of the marriage. The court also found that he had been financially successful. At the time of trial, he was employed at Search Space Corporation as chief financial officer and earned approximately $250,000 annually. In addition, the court found that he anticipated an annual bonus of up to $100,000.

The court stated that it had considered all of the criteria set forth in General Statutes §§ 46b-81 and 46b-82 in entering its orders. The court’s orders were, inter alia, that the dissolution of marriage was granted, that the defendant had to pay the plaintiffs COBRA premium for three years and that the defendant would pay to the plaintiff a sum equal to a percentage of his additional gross income, which included but was not limited to cash payments, bonuses and vested stock options according to a set scale.

First we set forth the legal principles that guide our review of the defendant’s claims. “The standard of review in family matters is that this court will not disturb the trial court’s orders unless it has abused its legal discretion or its findings have no reasonable basis in fact. ... It is within the province of the trial court to find facts and draw proper inferences from the evidence presented. . . . [W]here the factual basis of the court’s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, these facts are clearly erroneous.” (Internal quotation marks omitted.) Bartel v. Bartel, 98 Conn. App. 706, 709, 911 A.2d 1134 (2006).

I

The defendant first claims that the court improperly included in its alimony order a percentage of future additional gross income. We disagree.

In its order, the court stated that the defendant would have to pay to the plaintiff a sum equal to a percentage of his additional gross income, which would include but not be limited to cash payments, bonuses and vested stock options. The defendant argues that the court could not make this order because it was making a modification of alimony without a showing of a substantial change of circumstances. We are not persuaded by this argument.

The defendant argues that there was no evidence before the court as to any income from the defendant’s employment in excess of his salary and a targeted bonus of $100,000, which was not certain and of which there was no track record in the defendant’s new employment. The court found, however, that the defendant anticipated an annual bonus of up to $100,000. This finding was supported by the record. The plaintiff submitted the defendant’s employment agreement, which noted that a target bonus of $100,000 was in place for the first year of employment. The defendant also testified that he “hoped” he would earn the bonus that was mentioned in his employment agreement as additional compensation for his job.

Additionally, the defendant argues that the court improperly modified an alimony order without sufficient evidence of a substantial change in circumstances. We do not agree. First, we are not persuaded that there is any indication in the court’s memorandum of decision that this order constitutes a modification. Second, this court has held that “the trial court may include in a periodic alimony award a future share in the spouse’s earned income should it be increased at some point in the future.” Lawler v. Lawler, 16 Conn. App. 193, 196-97, 547 A.2d 89 (1988), appeal dismissed, 212 Conn. 117, 561 A.2d 128 (1989). In Lawler, the trial court had stated that the alimony the defendant had been ordered to pay to the plaintiff would automatically be increased on a weekly basis by a cost of living factor, and the cost of living factor would be based on 60 percent of the percentage of the gross increase that the plaintiff actually received from his employer. Id., 196. This court held that the trial court did not abuse its discretion in fashioning this order. In addition, this court held that “[t]o allow the trial court to provide in the dissolution decree for future adjustments in periodic alimony is consistent with the well established principle that an alimony order is predicated upon the obligation of support that spouses assume toward each other by virtue of the marriage . . . rather than by virtue of some potential inheritance.” (Citation omitted; internal quotation marks omitted.) Id., 198.

In the present case, the court ordered the defendant to pay to the plaintiff a sum equal to a percentage of his additional gross income, should he gain any, according to a scale set out by the court. See footnote 2. The court stated that “[t]o require the payee to go to court every year to determine net income defies logic and would fly in the face of judicial economy.” Therefore, it was more efficient and practical for the court to fashion this order than to order the defendant to pay the plaintiff every time he acquired additional income. This court previously has upheld court orders that have awarded a party a percentage of the other party’s future bonuses. See Finan v. Finan, 100 Conn. App. 297, 306, 918 A.2d 910 (upholding award of percentage amount of future cash bonuses paid to defendant rather than set dollar value), cert. granted on other grounds, 282 Conn. 926, 926 A.2d 666 (2007); Bartel v. Bartel, supra, 98 Conn. App. 713 (holding that court abused discretion by failing to include defendant’s annual bonus as source of income in determining weekly net income); Burns v. Burns, 41 Conn. App. 716, 727-28, 677 A.2d 971 (upholding order awarding plaintiff 20 percent of defendant’s earned income above his salary base), cert. denied, 239 Conn. 906, 682 A.2d 997 (1996). The court’s award in this case was not improper.

The defendant also claims that the court improperly ordered a modification of alimony based on future changes of income without holding a hearing to determine the net income of the parties. He claims that the modification was based improperly on the gross income of the parties. We already have concluded that we are not persuaded that the court’s order regarding the defendant’s bonus was a modification. We also conclude that the court did not base this order on gross income but instead conclude that the order was a function of gross income. In its order, the court stated that the defendant had to pay the plaintiff a sum equal to a percentage of his “additional gross income . . . .” Nevertheless, just prior to making the orders, the court stated that “[i]t is well settled that the court must base its alimony orders on the available net income of the parties.” Furthermore, the court stated that it was “well aware that gross earnings are not a criterion for awards of alimony.” It is clear, therefore, that the court did not base the alimony order regarding the defendant’s bonus on gross income.

This court drew the distinction between an order based on gross income and an order that is a function of gross income in Medvey v. Medvey, 98 Conn. App. 278, 284, 908 A.2d 1119 (2006). This court explained this distinction in stating that “[b]y ‘function of gross income,’ we mean that the court used gross income to calculate its orders, which is distinguishable from the court basing its order on gross income.” Id. The defendant claimed in that case that because the court in its decision referred only to gross income, and not net income, its order was based solely on gross income and was therefore improper. Id., 281. This court held that in light of the evidence presented and the findings made by the trial court, it was not convinced that the order was based on the plaintiffs gross income. This court concluded, instead, that it was a function of gross income. Id., 284.

In the present case, we similarly conclude that the court’s order was a function of gross income and was not based on gross income. Just as in Medvey, the court in the present case had several exhibits before it, including financial affidavits of both the plaintiff and the defendant, the defendant’s payroll statements and the defendant’s employment contract agreement. Furthermore, the court stated that it “carefully considered all of the criteria set forth in §§ 46b-81 and 46b-82 ... in entering its orders.” Finally, the court stated that it had considered the plaintiffs and the defendant’s “gross income and net income, in entering its orders of alimony . . . .” Because the court had all of these exhibits at its disposal, we conclude that the court; was informed adequately about the defendant’s financial status. On the basis of the evidence presented to the court and the findings and conclusions made by the court, we conclude that the court’s order was made as a function of gross income and was not based on gross income. As a result, we conclude that the court did not abuse its discretion in including in its alimony order a percentage of future additional gross income.

II

The defendant also claims that the court failed to make any finding as to whether the plaintiffs interest in the Adam F. Fusco family trust and the estate of Adam F. Fusco was a marital asset. We decline to review this claim.

The court did not mention the Adam F. Fusco family trust or the estate of Adam F. Fusco in its memorandum of decision. It mentioned only the Margaret Fusco family trust. The defendant did not file a motion for articulation to clarify how the court was characterizing the Adam F. Fusco family trust or the estate of Adam F. Fusco after the memorandum of decision was released. Therefore, he failed to present an adequate record for review on appeal. “It is well settled that [a]n articulation is appropriate where the trial court’s decision contains some ambiguity or deficiency reasonably susceptible of clarification. . . . [Pjroper utilization of the motion for articulation serves to dispel any . . . ambiguity by clarifying the factual and legal basis upon which the trial court rendered its decision . . . .” (Internal quotation marks omitted.) Shobeiri v. Richards, 104 Conn. App. 293, 295, 933 A.2d 728 (2007). “An [appellant’s] failure to seek an articulation of the trial court’s decision to clarify the . . . issues and to preserve them properly for appeal leaves this court without the ability to engage in a meaningful review.” (Internal quotation marks omitted.) Id., 295-96. “The duty to provide this court with a record adequate for review rests with the appellant.” (Internal quotation marks omitted.) Id., 296. “Without the necessary factual and legal conclusions furnished by the trial court, either on its own or in response to a proper motion for articulation, any decision made by us respecting [a] claim would be entirely speculative.” (Internal quotation marks omitted.) Id.

In the present case, the defendant did not file a motion for articulation after reading the memorandum of decision and noting that the Adam F. Fusco family trust and the estate of Adam F. Fusco had not been discussed. Therefore, the court never articulated how it was going to characterize the Adam F. Fusco family trust and the estate of Adam F. Fusco. Because the defendant failed to provide this court with an adequate record for review, we cannot review the merits of this claim.

Ill

Finally, the defendant claims that the court improperly ordered the defendant to pay the plaintiffs COBRA premium for three years. We disagree.

The defendant argues that there is no statutory authority for the court to order either spouse to pay for the medical insurance for the other spouse. Additionally, he claims that because the court did not designate COBRA as additional alimony, the payments will not terminate on the death of either party or the remarriage of the plaintiff, and the payments will not qualify as tax deductions for the defendant. We are not persuaded.

First, the court is given wide discretion in fashioning financial awards in an action for a dissolution. Under § 46b-82, the amount and duration of an alimony payment are left entirely within the discretion of the court. In addition, our Supreme Court has noted that in actions for divorce or dissolution of marriage, the courts have equitable powers, which are not necessarily enumerated in the statutes governing such actions. Pasquariello v. Pasquariello, 168 Conn. 579, 585-86, 362 A.2d 835 (1975). The court has stated: “The power to act equitably has allowed the [trial] court on occasion to order a party to change his group life insurance policy to include his wife as an irrevocable beneficiary . . . pay to third parties accounting fees and investigatory fees [and] pay the expenses of an appeal .... These powers, although not expressly given to the court by statute, have been held to be inherent powers of the trial court in actions for divorce or dissolution of marriage.” (Citations omitted.) Id. In the present case, the court acted equitably in ordering the defendant to pay the plaintiffs COBRA premium for three years. In fact, it is not uncommon for a court to fashion this financial remedy. See Tauck v. Tauck, Superior court, judicial district of Middlesex, Docket No. FA-05-4004889-S (September 21,2007) (“husband shall maintain COBRA medical and dental insurance for the benefit of the wife at his expense for the maximum period allowed by law”); Palczynski v. Palczynski, Superior Court, judicial district of Middlesex, Docket No. FA-04-4000946-S (August 7, 2007) (“husband shall maintain COBRA medical and dental insurance for the benefit of the wife at his expense for the maximum period allowed by law”); St. Jean v. St. Jean, Superior Court, judicial district of Hartford, Docket No. FA-05-4017548-S (November 22, 2006) (“[hjusband shall pay as additional alimony the cost of maintaining the [w]ife on his health insurance plan available to him through his employer, i.e., COBRA, for a period of three years or until such time as [w]ife obtains insurance through her work, whichever comes first”). Therefore, the court did have the authority to order the defendant to pay the plaintiffs COBRA premium for three years.

In addition, the fact that the court did not explicitly designate the COBRA payments as “additional alimony” does not prevent them from being considered as additional alimony. Therefore, the defendant’s concern that the payments will not terminate upon the death of the plaintiff or upon her remarriage to another person and that the payments will not be deductible for his taxes is unfounded. In Dombrowski v. Noyes-Dombrowski, 273 Conn. 127, 134, 869 A.2d 164 (2005), the defendant claimed that the trial court had classified lottery winnings improperly as alimony because the court did not explicitly state that the liability of the payor terminated at the death of the payee. Our Supreme Court was not persuaded. It held that “[i]t is clear from this record that the trial court intended its order to meet [the requirements of termination upon the death of the payee, taxability to the payee and deductibility to the payor]. Thus, it must be read as implicitly providing for the termination of the defendant’s obligation upon the death of the plaintiff.” Id., 135. The court also held that “absent contrary language, the death of the obligor spouse terminates the obligation to pay periodic alimony . . . .” (Citation omitted.) Id.

In the present case, it is also clear that the court intended its order to meet the requirements of alimony, namely, that the payments would terminate upon the death of the plaintiff, that the plaintiff would incur taxes on the payments and that the defendant would be able to deduct the payments from his taxes. There is nothing in the court’s order to the contrary of those requirements. Furthermore, in addition to the case law cited, there is also statutory authority for terminating alimony payments upon a showing that a party is cohabiting. See General Statutes § 46b-86 (b). Because the court had the authority to order the COBRA payments and because the payments met the requirements of alimony, we conclude that the court did not abuse its discretion in ordering the defendant to pay the plaintiffs COBRA premium for three years.

The judgment is affirmed.

In this opinion the other judges concurred.

       See the Consolidated Omnibus Budget Reconciliation Act of 1985, 29 U.S.C. §§ 1161 through 1168.

       The court set out a scale for the defendant to follow in calculating what percentage of his “additional gross income” he would have to pay to the plaintiff. The scale was: “(a) $0 to $150,000 = 30 percent; (b) $150,000 to $300,000 = 25 percent; (c) $300,000 to $500,000 = 20 percent; (d) The [defendant] shall retain 100 percent of any gross bonus, etc., above $500,000.”

       The defendant also argues that the court improperly shifted the burden of proof regarding future modification of alimony to the party opposing a modification. We find this argument untenable because we are not persuaded that the order constituted a modification.

       The court found that the assets presented in the Margaret Fusco family trust should not be considered part of the plaintiffs marital assets because the trust agreement provides that the plaintiffs mother reserves the right to revoke or to modify the trust agreement at any time. Therefore, the court concluded, “the trust established by the plaintiffs mother is not yet property which is part of the plaintiffs estate and thus subject to distribution under [§ 46b-81].”

       General Statutes § 46b-82 (a) provides in relevant part: “At the time of entering the decree, the Superior Court may order either of the parties to pay alimony to the other, in addition to or in lieu of an award pursuant to section 46b-81. The order may direct that security be given therefor on such terms as the court may deem desirable, including an order pursuant to subsection (b) of this section or an order to either party to contract with a third party for periodic payments or payments contingent on a life to the other party. The court may order that a party obtain life insurance as such security unless such party proves, by a preponderance of the evidence, that such insurance is not available to such party, such party is unable to pay the cost of such insurance or such party is uninsurable. In determining whether alimony shall be awarded, and the duration and amount of the award, the court shall hear the witnesses, if any, of each party, except as provided in subsection (a) of section 46b-51, shall consider the length of the marriage, the causes for the . . . dissolution of the marriage . . . the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties and the award, if any, which the court may make pursuant to section 46b-81 . . . .”

       General Statutes § 46b-86 (b) provides: “In an action for divorce, dissolution of marriage, legal separation or annulment brought by a husband or wife, in which a final judgment has been entered providing for the payment of periodic alimony by one party to the other, the Superior Court may, in its discretion and upon notice and hearing, modify such judgment and suspend, reduce or terminate the payment of periodic alimony upon a showing that the party receiving the periodic alimony is living with another person under circumstances which the court finds should result in the modification, suspension, reduction or termination of alimony because the living arrangements cause such a change of circumstances as to alter the financial needs of that party.