author: ALVORD, J.

text:
    ADRIAN MARCUS v. DAWN CASSARA
    (AC 32379)
    Graendel, Alvord and Bear, Js.

      Argued January 17
    officially released April 30, 2013

      Susan A. Moch, for the appellant (defendant).

      David V. DeRosa, with whom, on the brief, was Austin B. Johns, for the appellee (plaintiff).
   Opinion

ALVORD, J.

The issue on appeal is whether the trial court properly denied the postjudgment motion for attorney’s fees filed by the defendant, Dawn Cassara, for the legal representation provided to her in connection with the action brought by the plaintiff, Adrian Marcus, seeking joint custody of the parties’ three minor children. The defendant claims that the court abused its discretion (1) by refusing to schedule an evidentiary hearing for her to demonstrate the reasonableness of the requested fees and (2) in failing to award any attorney’s fees given the court’s factual findings when it rendered its judgment. We affirm the judgment of the trial court.

The record reveals the following facts, as found by the court or undisputed, and procedural history. The parties are not and never have been married to each other. Soon after they began dating, the defendant became pregnant with their first child. In 2006, less than two years after the birth of their daughter, the parties’ twin sons were bom. Initially, the plaintiff, the defendant and their children lived in a jointly owned home in Greenwich. In June, 2008, the plaintiff commenced the present action by filing an application seeking joint legal custody of the three minor children pursuant to General Statutes § 46b-61.

As stated by the trial court, this action was “conducted with some degree of both drama and extensive litigation.” On December 10, 2009, following an eight day trial, the court awarded the parties joint legal custody of the children, with physical custody and final decision-making authority regarding the children awarded to the defendant. The court made numerous additional orders regarding visitation, child support and other financial orders pertaining to the children. It reserved ruling on any requests for attorney’s fees until the parties exchanged affidavits and filed them with the court. The court indicated that it would consider the matter concluded if no affidavits were filed. If either or both of the parties filed affidavits, the court stated that it would schedule a hearing upon request.

The defendant filed an affidavit itemizing her attorney’s fees and costs on December 18, 2009. The plaintiff filed a response to the defendant’s affidavit on January 15, 2010, in which he argued that the total amount claimed by the defendant was unreasonable. On January 19,2010, the defendant filed a postjudgment motion for attorney’s fees. In that motion, the defendant stated that “[i]n light of the [defendant's request for the [p]laintiff to pay more than $20,000 of the [defendant's attorney’s fees and costs and the [pjlaintiff s [rjesponse attacking the credibility of the [djefendant’s itemized billing statements, a hearing will be required.”

On January 21, 2010, the court held a hearing on various postjudgment motions. At that time, the court and the parties discussed at length whether it would be necessary to schedule an evidentiary hearing on the defendant’s pending motion for attorney’s fees. The court ultimately determined that it could decide the motion on the papers because no issues had been raised that would require additional evidence. On May 7, 2010, the court denied without comment the defendant’s motion for attorney’s fees. The defendant filed a motion for reargument pursuant to Practice Book § 11-11, which the court summarily denied on May 27, 2010. This appeal followed.

I

The defendant’s first claim is that the trial court abused its discretion in failing to hold an evidentiary hearing on the defendant’s motion for attorney’s fees. According to the defendant, “[tjhe trial court refused to allow the defendant to put on an evidentiary hearing regarding her fee request or to argue in opposition to the plaintiffs [rjesponse, choosing instead to take the matter on the papers without allowing the defendant to respond to [the] plaintiffs allegations and argument.” After a thorough review of the transcript of the proceeding at which this matter was discussed, we conclude that the defendant, through her attorney, waived her claim for a hearing because she acquiesced in the court’s determination that no hearing was necessary. See Falls Church Group, Ltd. v. Tyler, Cooper & Alcorn, LLP, 89 Conn. App. 459, 466-67, 874 A.2d 266 (2005), aff'd, 281 Conn. 84, 912 A.2d 1019 (2007).

During the court proceeding on January 21,2010, the court asked counsel why additional evidence on the motion would be necessary: “Why are we doing evidence? ... I already have all the evidence regarding their financial abilities. ... I already heard all the evidence.” The plaintiffs counsel stated that he was prepared for the court to consider his response to the defendant’s request for attorney’s fees on the papers. The defendant’s counsel stated that evidence was necessary because “[h]e attacks my personal credibility.” The court responded: “I don’t need any testimony on this. Let me just say, that from my standpoint sitting here, this has now become between the two of you [counsel]; I’m not interested in your personal attacks on each other .... I’m just going to take a look at the file, fees, the issues that were going to come up, all the statutory criteria that I have. If you think there’s been attorney misconduct, file a grievance. . . . You [the defendant’s counsel] feel like you’ve been personally attacked; [the plaintiffs counsel] feels like he has been personally attacked. I don’t need to have you . . . cast more stones at each other. It’s only going to get worse.” The defendant’s counsel then stated: “It’s fine, Your Honor. ... So that’s fine, I’m ready to go home.” Before moving on to the next issue, the court concluded: “It was a difficult case, bad feelings came out of it; it was a hard fought trial. I’d like you to all go home and go on to something else. I’ll take care of the attorney’s fees issues. . . . There is absolutely nothing raised in the papers filed before me on which I need evidence.” The defendant’s counsel responded: “That’d be great. . . . Great.”

When this extensive discussion ended, the court reasonably could have concluded that the defendant’s counsel no longer was pursuing her request for an evi-dentiary hearing. It is unfair to the court to leave it with the impression that counsel is in agreement with the court’s preference to decide the motion on the papers and then argue on appeal that the court abused its discretion by failing to schedule an evidentiary hearing. See Stratford v. Castater, 136 Conn. App. 535, 545-46, 46 A.3d 953 (2012). Accordingly, we decline to review the merits of the defendant’s claim.

II

The defendant’s next claim is that the court abused its discretion in failing to award her any attorney’s fees. She argues that the court’s factual findings, made when the judgment was rendered, supported such an award and that the court could not have reasonably concluded that the defendant was able to pay her own attorney’s fees. Additional facts and procedural history are necessary to resolve this claim.

In the middle of the eight day trial involving the custody and support of the parties’ minor children, the defendant submitted her proposed orders in which she requested the court to order the plaintiff to contribute $20,000 toward her attorney’s fees. Three months later, on December 18, 2009, the defendant filed an affidavit averring that the total fees and costs incurred through the trial were $322,162.58, of which approximately $275,000 remained unpaid. Paragraph thirteen of that affidavit acknowledged that the defendant already had paid $20,000 toward those fees and that the plaintiff also paid $20,000 toward the attorney’s fees of the defendant. On January 19, 2010, the defendant filed a motion for attorney’s fees, stating that she now was seeking more than the $20,000 she previously had requested during the trial. After the court denied her motion for attorney’s fees and her motion for reargument, the defendant filed the present appeal.

The defendant subsequently filed a motion for articulation, requesting that the trial court state “the factual and legal basis for the court’s decision to deny any award of attorney’s fees to the defendant.” The trial judge, however, retired from the judiciary prior to ruling on the defendant’s motion for articulation. Accordingly, this court, by order dated March 1, 2012, deemed the motion denied and ordered the defendant to file her brief on or before April 2,2012. The parties subsequently filed their briefs, and oral argument was scheduled for January 17, 2013.

The defendant sought attorney’s fees pursuant to General Statutes § 46b-62, which provides in relevant part: “In any proceeding seeking relief under the provisions of this chapter . . . the court may order either spouse or, if such proceeding concerns the custody, care, education, visitation or support of a minor child, either parent to pay the reasonable attorney’s fees of the other in accordance with their respective financial abilities and the criteria set forth in section 46b-82. . . .” (Emphasis added.) “An award of counsel fees under [§ 46b-62] calls for the exercise of judicial discretion. ... In exercising its discretion, the court must consider the statutory criteria set out in §§ 46b-62 and 46b-82 and the parties’ respective financial abilities.” (Citation omitted; internal quotation marks omitted.) Lambert v. Donahue, 78 Conn. App. 493, 509, 827 A.2d 729 (2003). The language of § 46b-62 “permits, without requiring, a trial court to award attorney’s fees after considering the respective financial abilities of the parties and the criteria set forth in section 46b-82.” (Emphasis added; internal quotation marks omitted.) Fitzgerald v. Fitzgerald, 190 Conn. 26, 33, 459 A.2d 498 (1983). “Counsel fees are not to be awarded merely because the obligor has demonstrated an ability to pay.” Koizim v.Koizim, 181 Conn. 492, 500-501, 435 A.2d 1030 (1980).

Under the abuse of discretion standard of review, “[w]e will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion. . . . [Thus, our] review of such rulings is limited to the questions of whether the trial court correctly applied the law and reasonably could have reached the conclusion that it did.” (Internal quotation marks omitted.) Moasser v. Becker, 121 Conn. App. 593, 595, 996 A.2d 1200 (2010). In the present case, the defendant argues that the court’s refusal to award her attorney’s fees was unreasonable because the court had made the following factual findings when judgment was rendered: (1) the defendant was in financial distress because the plaintiff dissipated the only real asset of the relationship, which was the equity in the jointly owned real estate, by depleting the line of credit and (2) the plaintiff engaged in litigation misconduct.

With respect to the financial abilities of the parties, the court stated at the January 21, 2010 court proceeding that “[it had] all the evidence regarding their financial abilities.” The court also knew that the defendant already had paid $20,000 toward her own attorney’s fees and that the plaintiff had contributed $20,000 toward her fees as well. That information was contained in the sworn affidavit submitted by the defendant’s counsel. It is undisputed that the court was intimately aware of the parties’ financial abilities when it exercised its discretion in refusing to order the plaintiff to pay the defendant additional attorney’s fees.

With respect to the claim of litigation misconduct, the court never made a factual finding that the plaintiffs actions constituted misconduct that could justify an award of attorney’s fees. See Ramin v. Ramin, 281 Conn. 324, 357, 915 A.2d 790 (2007). The defendant directs our attention to various critical statements made by the court concerning the plaintiff during its oral decision at the December 10, 2009 proceeding. In reviewing the entire transcript of that proceeding, however, it is clear that the court complimented and criticized both parties regarding their behavior toward each other during their relationship. The court noted that both parties had been guilty of bad behavior arising out of the conflict, between them. In essence, the court’s remarks are best summarized in its following statement: “I think you’re basically pretty nice people who, independently of each other, are very good parents to your children, but you have a horrible dynamic between you which gets you in trouble . . . .” We conclude that the record does not support the defendant’s claim that the plaintiffs alleged litigation misconduct warranted an award of attorney’s fees.

Absent a record that demonstrates that the court’s denial of the defendant’s request for attorney’s fees was in error, we presume that the court correctly analyzed the law and the facts in rendering its judgment. See Kaczynski v. Kaczynski, 294 Conn. 121, 130, 981 A.2d 1068 (2009). In other words, without indications to the contrary, we will assume that the trial court decided the case correctly. A claim of error cannot be predicated on an assumption that the trial court acted erroneously. Id., 129-30. The defendant has failed to persuade us that the court’s decision was contrary to the law or the facts and, accordingly, we cannot conclude that the court abused its discretion in denying the defendant’s request for attorney’s fees.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 46b-61 provides: “In all cases in which the parents of a minor child live separately, the superior court for the judicial district where the parties or one of them resides may, on the application of either party and after notice is given to the other party, make any order as to the custody, care, education, visitation and support of any minor child of the parties, subject to the provisions of sections 46b-54, 46b-56,46b-57 and 46b-66. Proceedings to obtain such orders shall be commenced by service of an application, a summons and an order to show cause.”

       On September 21, 2009, the defendant filed a document titled “Defendant’s Corrected Proposed Orders,” in which, inter alia, she requested that the court enter the following order in the judgment: “The [pjlaintiff shall contribute $20,000 towards the [djefendant’s counsel fees.” The defendant filed her proposed orders on the fifth day of the eight day trial.

       The plaintiff, in his appellate brief and at the time of oral argument before this court, argued that the defendant waived her claim to an eviden-tiary hearing. The defendant did not respond to this argument.

       The court’s decision was issued orally on December 10, 2009, and the judgment is in the transcript of that proceeding signed by the trial judge. See Practice Book § 64-1.

       It is important to note that this action was limited to issues concerning custody, visitation and child support. It was not a dissolution action involving the division of marital property. Although the file reveals that the defendant attempted to insert claims for the partition of the real estate and unjust enrichment, the court properly limited the parties to claims involving the minor children.

       The court further was aware of the legal work performed by the defendant’s counsel in pursuing issues outside the scope of a § 46b-61 proceeding. See footnote 5 of this opinion. It would be reasonable for the court to exercise its discretion in declining to award additional attorney’s fees for legal work unrelated to custody, visitation and child support.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    ANTHONY C. FITZGERALD v. COMMISSIONER OF MOTOR VEHICLES
    (AC 34870)
    Lavine, Beach and Bear, Js.

      Argued February 21
    officially released April 30, 2013

      James D. Hirschfield, for the appellant (plaintiff).

      Caitlin M. E. Calder, assistant attorney general, with whom, on the brief, was George Jepsen, attorney general, for the appellee (defendant).
   Opinion

PER CURIAM.

The plaintiff, Anthony C. Fitzgerald, appeals from the judgment of the Superior Court dismissing his appeal from the decision of the commissioner of motor vehicles (commissioner) ordering the six month suspension of his license to operate a motor vehicle as a result of his refusal to submit to a chemical test of his breath, as provided by General Statutes § 14-227b. On appeal, the plaintiff claims that the court erred in dismissing his appeal because there was insufficient evidence to support the commissioner’s conclusion that he had refused to submit to the chemical test of his breath under the circumstances of this case, where he was waiting to speak with his attorney and his attorney was present at the police station. We affirm the judgment of the Superior Court.

The record reveals the following facts and procedural history, which are relevant to the issues presented on appeal. While nearing his home in the early morning of December 17,2011, the plaintiff, allegedly after encountering deer crossing the road, swerved his vehicle and hit a utility pole. The plaintiff walked to his home and asked his wife to telephone the police. Trooper Dennis Picheco of the Connecticut state police arrived outside the plaintiffs home and administered field sobriety tests to the plaintiff, which the plaintiff failed. Picheco then placed the plaintiff under arrest for operating a motor vehicle while under the influence of intoxicating liquor in violation of General Statutes § 14-227a. While at the state police barracks, the plaintiff telephoned his father, who is an attorney, and learned that his father already had left for the state police barracks, having been told by the plaintiffs wife that the plaintiff had been arrested. Upon his arrival at the barracks, at approximately 2:15 a.m., the plaintiffs father identified himself to the police and stated that he was there to pick up his son.

Meanwhile, the plaintiff would not submit to a chemical test of his breath, stating that he wanted to speak with his attorney before doing so. Picheco explained to the plaintiff that the testing could not be delayed, but the plaintiff would not agree to be tested. At approximately 2:35 a.m., Picheco officially recorded the plaintiffs refusal to submit to the chemical test of his breath, and, at approximately 2:50 a.m., the plaintiff was released from custody and informed that his attorney was in the barracks’ lobby area. Neither the plaintiff nor his father requested that the plaintiff be administered a blood alcohol test.

The plaintiff was charged with a violation of § 14-227a, and, following an administrative hearing before a department of motor vehicles hearing officer to determine whether the plaintiffs license to operate a motor vehicle should be suspended for his refusal to submit to a chemical test of his breath, the commissioner, in accordance with § 14-227b, suspended the plaintiffs operator’s license for a period of six months. The plaintiff appealed the commissioner’s decision to the Superior Court, which dismissed the plaintiffs appeal after concluding that the decision of the commissioner was supported both by the record and the applicable law. This appeal followed.

On appeal, the plaintiff claims that there was insufficient evidence that he refused to submit to a chemical test of his breath under the facts of this case, where he was waiting to speak with his attorney and his attorney was present at the police station. We reject the plaintiffs claim and conclude that this case is controlled by Dalmaso v. Dept. of Motor Vehicles, 47 Conn. App. 839, 707 A.2d 1275, appeal dismissed, 247 Conn. 273, 720 A.2d 885 (1998).

In Dalmaso, this court concluded that insisting upon the right to telephone an attorney as a condition for taking a chemical test constituted a refusal. Id., 844. We explained that the failure of the police to comply with subsection (b) of § 14-227b, which provides the right to telephone an attorney before being subjected to a chemical test, is irrelevant in a license suspension hearing because the hearing specifically, by legislation, is limited to the four issues specified in § 14-227b (g). Id. Although the present case does not involve the right to telephone an attorney, it, nonetheless, involves the plaintiffs alleged right to speak with an attorney before submitting to chemical testing of his breath, which alleged right is separate from and not relevant to the four issues enumerated in § 14-227b (g) that are to be considered by the hearing officer in the license suspension hearing. See Volck v. Muzio, 204 Conn. 507, 512, 529 A.2d 177 (1987) (because hearing limited to four enumerated issues, multiple failures by arresting officer to comply with statutory dictates of § 14-227b not sufficient grounds for overturning commissioner’s determination that operator’s license should be suspended); Buckley v. Muzio, 200 Conn. 1, 7, 509 A.2d 489 (1986) (hearing limited to four enumerated issues and commissioner not required to determine whether subject of hearing understood consequences of refusal to submit to chemical testing before suspending license); Santiago v. Commissioner of Motor Vehicles, 134 Conn. App. 668, 674, 39 A.3d 1224 (2012) (Connecticut Supreme Court repeatedly has held that license suspension hearing is expressly limited to four issues enumerated in § 14-227b [g]). Even if the plaintiff had a right, as he claimed, to consult an attorney before submitting to the chemical test of his breath, this would not preclude the police officer, the hearing officer, the court, or this court from determining that under Dalmaso, his failure to submit to the chemical test of his breath was a refusal within the ambit of § 14-227b (g).

The judgment is affirmed.

       We note that the suspension of the plaintiff’s operator’s license has been stayed pending his appeal.

       General Statutes § 14-227b (b) provides: “If any such person, having been placed under arrest for operating a motor vehicle while under the influence of intoxicating liquor or any drug or both, and thereafter, after being apprised of such person’s constitutional rights, having been requested to submit to a blood, breath or urine test at the option of the police officer, having been afforded a reasonable opportunity to telephone an attorney prior to the performance of such test and having been informed that such person’s license or nonresident operating privilege may be suspended in accordance with the provisions of this section if such person refuses to submit to such test, or if such person submits to such test and the results of such test indicate that such person has an elevated blood alcohol content, and that evidence of any such refusal shall be admissible in accordance with subsection (e) of section 14-227a and may be used against such person in any criminal prosecution, refuses to submit to the designated test, the test shall not be given; provided, if the person refuses or is unable to submit to a blood test, the police officer shall designate the breath or urine test as the test to be taken. The police officer shall make a notation upon the records of the police department that such officer informed the person that such person’s license or nonresident operating privilege may be suspended if such person refused to submit to such test or if such person submitted to such test and the results of such test indicated that such person had an elevated blood alcohol content.”

       General Statutes § 14-227b (g) provides in relevant part: “The hearing shall be limited to a determination of the following issues: (1) Did the police officer have probable cause to arrest the person for operating a motor vehicle while under the influence of intoxicating liquor or any drug or both; (2) was such person placed under arrest; (3) did such person refuse to submit to such test or analysis or did such person submit to such test or analysis, commenced within two hours of the time of operation, and the results of such test or analysis indicated that such person had an elevated blood alcohol content; and (4) was such person operating the motor vehicle. In the hearing, the results of the test or analysis shall be sufficient to indicate the ratio of alcohol in the blood of such person at the time of operation, provided such test was commenced within two hours of the time of operation. . . .”
      The plaintiffs claim that he did not refuse to take the chemical test, because he wanted to speak with an attorney prior to doing so, presumably was asserted in the license suspension hearing pursuant to subdivision (3) of § 14-227b (g), but, as explained in the body of this opinion, a substantially similar claim was rejected by this court in Dalmaso v. Dept. of Motor Vehicles, supra, 47 Conn. App. 844, on the ground that, regardless of the ostensible reason for the plaintiff not submitting to the chemical test, any failure to submit to the test constitutes a refusal pursuant to subdivision (3). The plaintiff did not make any claims pursuant to subdivisions (1), (2) or (4) of § 14-227b (g).


author: BISHOP, J.

text:
    RKG MANAGEMENT, LLC v. ROSWELL SEDONA ASSOCIATES, INC., ET AL.
    (AC 33920)
    Beach, Sheldon and Bishop, Js.

      Argued January 16
    officially released May 7, 2013

      Peter C. Hunt, for the appellants (defendant Thomas Killackey et al.).

      Tamera S. Fisher Byun, for the appellee (plaintiff).
   Opinion

BISHOP, J.

The defendants, Thomas Killackey and the Maidenstone Trust, appeal from the judgment of strict foreclosure of a mechanic’s hen rendered in favor of the plaintiff, RKG Management, LLC, specifically with respect to the court’s conclusion that the plaintiff was entitled to a mechanic’s lien in the amount of $40,130 for labor and materials supplied to property owned by the defendants. On appeal, the defendants claim that the judgment must be reversed because the court incorrectly deprived them of the right to cross-examine the plaintiffs key witness at trial and thereafter refused to grant the defendants’ request that the witness’ testimony be stricken. We agree and reverse the judgment of the trial court.

The following facts and procedural history is relevant to our consideration of the issues on appeal. By complaint dated November 22, 2006, the plaintiff sought to foreclose a mechanic’s lien it had caused to be filed on property then owned by the named defendant, Roswell Sedona Associates, Inc., or its successors in title, Kil-lackey and the Maidenstone Trust. In its complaint, the plaintiff alleged that, pursuant to a contract, it had supplied materials, labor and services in connection with the construction of improvements on two parcels presently owned by the defendants and for which it was owed the sum of $100,032, exclusive of interest and costs. The plaintiff further alleged that, notwithstanding its fulfillment of its obligations under the contract and having billed the defendants, they had failed and refused to pay the balance due to the plaintiff. Accordingly, the plaintiff sought strict foreclosure of the mechanic’s lien and other relief.

In their answer, the defendants admitted the ownership of the parcels and the existence of an agreement for the performance of work on the property, but claimed, generally, that the plaintiff had not performed services in a workmanlike manner and in accordance with the terms of the contract. By way of affirmative defense, the defendants alleged that the contract was not enforceable because it did not conform to the dictates of the Home Improvement Act, General Statutes § 20-418 et seq. The defendants’ second affirmative defense claimed that no balance was due to the plaintiff. The defendants filed a counterclaim as well in which they alleged that the plaintiff had violated the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq., in the execution of the contract, a misstep for which the defendants sought an award of reasonable attorney’s fees. The plaintiff, in turn, denied the material allegations contained in the special defenses and counterclaim.

A trial to the court in the matter commenced on October 15,2008, when John Hudson, an attorney, testified for the plaintiff regarding title to the parcels under foreclosure. His testimony did not relate to the nature or value of services the plaintiff claimed to have performed. On the next trial day, October 17,2008, Richard Gillotte, the sole member of the plaintiff, testified on direct examination regarding the services he claimed to have performed at the site, including the character and extent of his work, the materials furnished and the costs for labor and materials he claimed were incurred by the plaintiff in performance of its contractual obligations. In conjunction with his testimony, Gillotte was questioned extensively in regard to documents, most of which counsel for the parties previously had agreed could be marked as full trial exhibits. Gillotte’s direct testimony occupied the entire day and was scheduled to resume when the court reconvened for the matter. The next trial date was October 21, 2008, but Gillotte was unable to testily because of a medical condition involving his voice, and his testimony was postponed until October 24, when he again was medically unable to testify. On the next scheduled trial date, October 29, 2008, counsel for the plaintiff requested a continuance on the basis that Gillotte was not able to appear in court because he would lose his job if he had to take any more time off work that week. The court denied the motion for a continuance; instead, the court permitted the plaintiff to call its other witnesses out of order and the court ordered the defendants to proceed with their defense out of order before the completion of Gillotte’s testimony. In response, the defendants objected and asked the court to enter a nonsuit against the plaintiff for Gillotte’s failure to appear and be subject to cross-examination. The court denied this motion. Thereafter, the plaintiff called Killackey to testify. A review of the record reveals that the examination of Killackey on October 29, by the plaintiff, focused largely on matters of ownership and configuration of the titles, with minimal questioning regarding the plaintiffs engagement to perform services at the site.

The court next convened on November 7,2008, when, apparently, Killackey’s direct examination was completed and cross-examination had begun. At a later trial date, on December 12, 2008, Gillotte was again not present. His reason, stated by counsel, was that he could not afford to jeopardize his employment by being absent. Counsel for the plaintiff requested another continuance, arguing, in part that: “Mr. Gillotte being the sole member of the plaintiff ... his testimony is essential to completing the establishment of plaintiffs case.” The court denied the plaintiffs request for a continuance and ordered that the case proceed with Killackey’s cross-examination. Following Killackey’s testimony, counsel for the plaintiff offered a document purporting to be an affidavit of debt completed by the plaintiff. Although the defendants objected to the document’s admissibility on hearsay grounds, the court overruled the objection and allowed the document into evidence. The plaintiff then rested.

In response, the defendants asked the court to enter a judgment of dismissal pursuant to Practice Book § 15-8 on the basis that the plaintiff had not established a prima facie case and that the plaintiff’s principal was absent from the trial. Referring to counsel for the plaintiff, the defendants argued: “[S]he can’t prove a case if her client fails to show up in court.” In response, counsel for the plaintiff argued, in regard to Gillotte’s direct testimony: “My client did put on evidence. The plaintiff did put on evidence as to all the items owed and a spreadsheet was admitted as an exhibit as to the items claimed to be owed. The affidavit of debt merely boils down [to] evidence already admitted . . . [and exhibit] number 120 [the spreadsheet] was admitted by consent, and, therefore, I think there is a factual basis, again, for plaintiff’s motion for judgment of foreclosure by sale to enter.” As part of the colloquy in this regard, the defendants’ counsel remarked, in response to the plaintiffs claim that its case had been proven by the submission of a spreadsheet of work performed and bills paid and not paid, that, “Your Honor, may I just add one other matter? It’s a list of bills he paid. He claims he paid them because Mr. Killackey said he would reimburse him. I’m not trying to controvert them. I don’t have the opportunity to do so at this point because they haven’t produced the plaintiff—Mr. Gil-lotte to enable me to do that.”

The court reserved judgment on the defendants’ motion to dismiss and ordered the defendants to proceed with their evidence. Following the close of the defendants’ case, the parties again argued the defendants’ motion to dismiss. In response, counsel for the plaintiff argued that the plaintiff had produced sufficient evidence to sustain its burden. Counsel argued: “If you were to believe and find credible Mr. Gillotte’s testimony, I believe you would find that moneys are outstanding and owing and were for work done on the property . . . .” The trial concluded with direction to counsel to submit posttrial briefs and proposed findings of fact.

The defendants filed their posttrial brief on May 26, 2008, in which they, again, raised the issue of their inability to cross-examine Gillotte. Specifically, the defendants argued: “First, the defendants respectfully request that the court strike Gillotte’s testimony in its entirety because defendants did not have the opportunity to cross-examine him.” Thereafter, on March 6, 2009, counsel for the parties presented argument to the court during which the defendants’ counsel stated: “Your Honor, I must stress, again, you have the discretion to disallow Mr. Gillotte’s testimony in its entirety. I believe that it would be fundamentally unfair to my client and might violate his procedural due process rights if you give him the benefit of the doubt at the very least. We didn’t have time to cross-examine him. He didn’t make his case even unopposed, okay.” Counsel argued, as well: “We had no opportunity to cross-examine Mr. Gillotte about that. We had no opportunity to cross-examine him to explain how he could claim to be a subcontractor when he was the one that hired Joe Grant, Gerald Grant, Nick Gillotte. He hired all of those people. And if we had the opportunity to question him about this, I believe we would be able to easily show that his case not only has no merit ... he would subject himself to liability for bringing a totally frivolous lawsuit. But we don’t have that opportunity because he brought it to trial and then decided that he could not show up and could not take time off from work.” Finally, in this regard, counsel argued: “I do not have the opportunity to cross-examine the affidavit of debt. As far as I’m concerned, Your Honor, this was a gross abuse of the legal process by Mr. Gillotte, and it was a waste of everybody’s time by calling us up here and then not showing up in court.”

Thereafter, by memorandum of decision dated April 6, 2009, the court rendered a partial judgment as to liability only, finding the value of services rendered by the plaintiff to be $40,130, which amount properly attached through the mechanic’s lien to one of the parcels only. The court did not address the failure of Gil-lotte to reappear at trial, the defendants’ missed opportunity for cross-examination, or their attendant request that Gillotte’s testimony be stricken. Thereafter, the court rendered judgment of strict foreclosure, and this appeal followed.

The centrality of the right to cross-examination to our system of jurisprudence cannot be overstated. As the United States Supreme Court has observed: “In almost every setting where important decisions turn on questions of fact, due process requires an opportunity to confront and cross-examine adverse witnesses.” Goldberg v. Kelly, 397 U.S. 254, 269, 90 S. Ct. 1011, 25 L. Ed. 2d 287 (1970). Our Supreme Court has similarly stated: “The test of cross-examination is the highest and most indispensable test known to the law for the discovery of truth. Professor Wigmore summarizes our own conviction and experience, when he says: For two centuries past, the policy of the Anglo-American system of evidence has been to regard the necessity of testing by cross-examination as a vital feature of the law.” (Internal quotation marks omitted.) Fahey v. Clark, 125 Conn. 44, 46, 3 A.2d 313 (1938). Our Supreme Court stated as well: “A fair and full cross-examination of a witness upon the subjects of his examination in chief is the absolute right, and not the mere privilege, of the party against whom he is called, and a denial of this right is a prejudicial and fatal error. It is only after the right has been substantially and fairly exercised that the allowance of cross-examination becomes discretionary with the trial court.” (Internal quotation marks omitted.) Id., 47-48. So integral to our system of justice is the right of cross-examination that our Supreme Court has opined that when the right is denied, the affected party has a right to have the untested direct testimony stricken. Gordon v. Indusco Management Corp., 164 Conn. 262, 271, 320 A.2d 811 (1973).

Although our Supreme Court has not explicitly cloaked the right of cross-examination in the civil context in constitutional raiment, dicta from one opinion points in that direction. In Society for Savings v. Chestnut Estates, Inc., 176 Conn. 563, 409 A.2d 1020 (1979), a case involving the right of defendants in a foreclosure action to challenge property valuations completed ex parte by court appraisers; id., 565-66; the court, citing Goldberg v. Kelly, supra, 397 U.S. 269, opined that: “In almost every setting where important decisions turn on questions of fact, due process requires an opportunity to confront and cross-examine adverse witnesses.” (Internal quotation marks omitted.) Society for Savings v. Chestnut Estates, Inc., supra, 574. But, whether constitutional or not, the teaching of these cases and the tradition upon which they are founded is that the right to cross-examination is central to our system of justice and its complete denial entitles the party adversely affected to have testimony untested by cross-examination stricken and thus not considered by the fact finder.

Thus, it is clear that the court in the present case should have stricken Gillotte’s testimony. That conclusion, however, does not end our inquiry as the plaintiff claims on appeal that it is entitled to judgment notwithstanding the court’s failure to strike Gillotte’s direct testimony. The plaintiff asserts that there was sufficient documentary evidence and testimony from other witnesses to sustain the judgment and, moreover, that the defendants cannot demonstrate the contrary. Indeed, it appears to be settled law that even if a party is entitled to have the direct testimony of a witness stricken, it does not necessarily follow that the moving party is also entitled to judgment. Rather, in considering whether to reverse a judgment entered after a party has been deprived of the right of cross-examination, a court, on review, should assess whether the improperly admitted testimony was merely cumulative of other validly admitted testimony. See Ann Howard’s Apricots Restaurant, Inc. v. Commission on Human Rights & Opportunities, 237 Conn. 209, 223, 676 A.2d 844 (1996). As Justice Marshall of the United States Supreme Court has noted, it is particularly difficult for an appellate court to determine whether a denial of cross-examination was harmless. See Delaware v. Van Arsdall, 475 U.S. 673, 687, 106 S. Ct. 1431, 89 L. Ed. 2d 674 (1986) (Marshall, J., dissenting). “The centrality of cross-examination to the factfinding process makes it particularly unlikely that an appellate court can determine that a denial of cross-examination had no effect on the outcome of a trial.

“ [T]he court ordinarily cannot measure whether harm has ensued to an appellant when he has been denied the opportunity to cross-examine witnesses against him, given all the risks. Had cross-examination been allowed, for example, it might have served to impeach a witness and thus to cast doubt on corroborating testimony, or it might have elicited exculpatory evidence. Only on rare occasions will an appellate court be able to find that the testimony of the witness was so tangential, or so well corroborated, or so clearly invulnerable to attack that the denial of the right to cross-examination was harmless.” (Internal quotation marks omitted.) Id.

From our review of the record, it is abundantly clear that Gillotte’s testimony was significant to the plaintiffs case. Consuming an entire day of trial, Gillotte’s direct testimony set forth the plaintiffs claims regarding the character, quality and value of services he claimed to have provided to the defendants. Additionally, Gillotte gave testimonial support to numerous fact-laden documents in support of the plaintiffs monetary claims. We contrast the facts in the present case with those found in Ann Howard’s Apricots Restaurant, Inc., supra, 237 Conn. 209, in which our Supreme Court concluded that the testimony of the witness who was unavailable for cross-examination was cumulative of similar testimony from other witnesses as to liability, but that the witness’ testimony regarding damages was unique. Id., 223. Thus, the court held that because the plaintiff was unable to cross-examine the sole witness who testified regarding damages, the hearing officer abused her discretion in failing to strike the testimony and, consequently, the court ordered a new hearing on the issue of damages. Id., 224, 233. Attempting to analogize the evidence in the present case with the liability evidence in Ann Howard’s Apricots Restaurant, Inc., the plaintiff argues that there was sufficient, properly admitted evidence to sustain the court’s judgment. In support of this argument, the plaintiff points to the “host of exhibits” that had been admitted by agreement during Gillotte’s testimony including a spreadsheet upon which the court later stated it relied in formulating its judgment. The plaintiff claims, as well, that the court could have gleaned evidence from Killackey’s testimony to support its judgment. As to the exhibits, we already have noted that the defendants’ agreement for the admission of those exhibits does not stand as a concession to their completeness, accuracy or probative value. See footnote 4 of this opinion. As the defendants argued in urging the trial court not to consider Gillotte’s testimony, they could not cross-examine a spreadsheet or an affidavit of debt. The same is true for any of the dozens of exhibits counsel had agreed could be marked as full exhibits either before or during Gillotte’s testimony. Finally we are not persuaded by the plaintiffs claim, without reference to any particular evidence, that Kil-lackey’s testimony, alone, could have provided the court a basis for its judgment. Rather, we find significance in the court’s explicit reference to exhibit 120, the spreadsheet, as the basis for its determination of the amount of the mechanic’s hen that it granted. This finding belies the claim that the court relied on Killackey’s testimony as a source of damages information.

For reasons akin to those expressed by the court in reversing the judgment as to damages in Ann Howard’s Apricots Restaurant, Inc., supra, 237 Conn. 224, the judgment in the present case cannot stand. The defendants here were deprived of a fair opportunity to cross-examine a crucial witness against them and to probe the accuracy, completeness or probative impact of any of the documents admitted through Gillotte’s testimony and later utilized by the court in finding against the defendants. Without that opportunity, and in the absence of showing that Gillotte’s testimony was merely cumulative, the court’s failure to strike Gillotte’s testimony cannot be viewed as harmless.

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

In this opinion the other judges concurred.

       We note that throughout the proceedings the plaintiff has been identified as both RKG Management, LLC, and RKG Associates, LLC. This case is captioned here as indicated in the summons and complaint in the trial court.

       This action was originally filed against Roswell Sedona Associates, Inc., Killackey (principal or agent of Roswell Sedona Associates, Inc.), Dynamic Mortgage Bankers, Ltd. (holding a mortgage from Thomas Killackey as personal guarantor and Roswell Sedona Associates, Inc., which mortgage was later assigned to Bayview Loan Servicing, LLC), Greenpoint Mortgage Funding, Inc. (holding a mortgage from Killackey), Kenneth D. Robinson HI (a member of Roswell Sedona Associates, Inc.), and the Maidenstone Trust (a Killackey entity). Most of these defendants, including Roswell Sed-ona Associates, Inc., were defaulted before trial or, by stipulated agreement with the plaintiff, were removed as defendants. The only defendants to this appeal are Killackey and the Maidenstone Trust.

       According to the defendants’ pleadings, Roswell Sedona Associates, Inc., was, at one point, the owner of the two parcels subject to the mechanic’s lien and that, at a later date, Killackey became the owner of parcel one and the Maidenstone Trust became the owner of parcel two. The exact ownership of the two parcels was not determined by the court in its memorandum of decision, which stated that “{cjonfusion arose concerning ownership of both parcels.” Instead, as it stated in its articulation dated April 2, 2012, the court ultimately proceeded under the conclusion that the subject property “was owned and controlled by one or more of the defendants. ” Because ownership of the parcels is not in dispute in this appeal, we proceed on the basis of the court’s conclusion that the defendants to this appeal own the subject properties.

       The plaintiff makes the unpersuasive argument on appeal that because the defendants had agreed that these exhibits could be premarked as full exhibits, their contents, alone, constitute sufficient evidence to sustain the plaintiffs burden of proof. In making this argument, the plaintiff conflates the admissibility of these documents with any finding as to their accuracy, reliability and completeness or, in any case, with the degree of their probative value. Notwithstanding the admission into evidence of these documents, counsel for the defendants should have been afforded the opportunity to examine Gillotte in regard to these documents. We will not assume that the defendants agreed to have these documents premarked with an awareness that their accuracy, completeness or reliability would not be subject to scrutiny on cross-examination of the chief proponent of their probative value.

       Although the plaintiff correctly points out that the defendants have not provided the court with a transcript of the November 7, 2008 proceeding, it is clear from counsels’ recitation in the December 12, 2008 proceeding, that Killackey’s testimony had consumed the day.

        In Struckman v. Burns, 205 Conn. 542, 549, 534 A.2d 888 (1987), however, our Supreme Court declined to answer the question, of whether the right to cross-examination in a civil case is protected by the constitution, on the basis that resolution of the underlying claims did not require the court to do so. See also Pet v. Dept. of Health Services, 207 Conn. 346, 542 A.2d 672 (1988), in which the court rejected the plaintiffs constitutionally based claim regarding the deprivation of the right of cross-examination, not on the basis of the plaintiffs characterization of the right, but, rather, because the court found, from the record, that the plaintiff had been provided a right, albeit limited, to cross-examine the witness in question.

       We are mindful that in Ann Howard’s Apricots Restaurant, Inc. v. Commission on Human Rights & Opportunities, 237 Conn. 209, 218, 676 A.2d 844 (1996), our Supreme Court cited, with apparent approval, C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) § 3.4.3, for the proposition that: “If a witness testifies on direct examination but then becomes unavailable for cross-examination because of illness or death, the court has discretion to choose one of the following options: (1) to declare a mistrial, (2) to strike the direct, or (3) to allow the direct to stand.” (Internal quotation marks omitted.) While this dicta appears to be in conflict with the holding of other cases that one deprived of the opportunity for cross-examination has the absolute right to have the direct testimony stricken; see Gordon v. Indusco Management Corp., supra, 164 Conn. 271; the present case does not oblige us to choose which view prevails, as there is no claim here that Gillotte, ultimately, was unavailable for cross-examination on account of illness or death.

       We are aware that there is an issue regarding the burden of proof on the question of harm. The plaintiff asserts that the defendants bear the responsibility to demonstrate that there was insufficient evidence apart from Gillotte’s testimony to sustain the court’s judgment. On the other hand, if cross-examination is a due process right protected by the constitution, it would be the plaintiffs burden to demonstrate that the court’s failure to strike Gillotte’s testimony was harmless. See State v. Golding, 213 Conn. 233, 241, 567 A.2d 823 (1989) (state has burden of demonstrating harmlessness of trial court error of constitutional proportion); Bruno v. Bruno, 132 Conn. App. 339, 348, 31 A.3d 860 (2011) (affirming Golding’s applicability to civil proceedings). In the present case, we need not opine on that interesting issue because, on the basis of our review of the record, it is abundantly clear that Gillotte’s testimony and the documents his testimony supported represented the heart of the plaintiffs case and the basis of the court’s judgment.

       In its articulation dated April 2, 2012, the court stated: “The amounts that the court relied on as probative evidence were derived from the Plaintiffs Exhibit #120, a spreadsheet showing an itemization of checks and amounts paid for labor and certain material presumably related to Parcel B. The court relied on this spreadsheet as a basis for the finding that $40,120 (rounded down from $40,133.81) was due for work, services, and/or material supplied to a particular part of the subject premises.”

       The defendants argue that the judgment should be reversed, but that the case should not be remanded for a new trial. We disagree. In assessing the sufficiency of evidence to sustain a judgment, we look both to the properly and improperly admitted evidence at trial. See State v. Ricketts, 140 Conn. App. 257,261 n. 1,57 A.3d 893 (2013). In this instance, the plaintiffs evidence, including testimony which should have been stricken, was adequate to sustain the court’s judgment.


author: ROBINSON, J.

text:
    ANNE CARPENDER v. KENNETH G. SIGEL
    (AC 34138)
    Beach, Robinson and Alvord, Js.

      Submitted on briefs October 12, 2012
    officially released May 7, 2013

      Bruce A. Chamberlain filed a brief for the appellant (defendant).

      Raymond C. Lubus filed a brief for the appellee (plaintiff).
   Opinion

ROBINSON, J.

The defendant, Kenneth G. Sigel, appeals from the judgment of the trial court denying his motion for contempt against the plaintiff, Anne Car-pender, for her failure to pay educational and extracurricular activities expenses for their minor son. On appeal, the defendant claims, inter alia, that the court erred in finding that (1) the plaintiffs withholding of consent to pay for college expenses was reasonable, and (2) laches, waiver and estoppel applied to the reimbursement of extracurricular activities expenses for the child. We affirm, in part, and reverse, in part, the judgment of the trial court.

The following undisputed facts and procedural history are relevant to this appeal. The defendant and plaintiff were married on April 7, 1991. One son was bom of the marriage. The marriage was dissolved on November 21, 2001, due to an irretrievable breakdown of the marriage. As part of the judgment of dissolution, the court incorporated the separation agreement of the parties. The agreement provided in relevant part: “(a) Based upon the . . . parenting plan the parties are deviating from the child support guidelines .... That deviation is based on the following: . . . (ii) Agreement by the parties to be equally responsible for the following education expenses for the child: Private Secondary Education; College; Graduate School; and Professional School; (iii) The parties’ further agreement to be equally responsible for the following expenses of the minor child including, but not limited to: All sports, music, extracurricular programs; Any camp, daycare, after school programs; and Sports Equipment. . . . (c) The party enrolling any child in a school or an activity under ‘ii’ or ‘iii’ shall be solely responsible for the cost of the school or activity and any related equipment unless the other party agrees that expenses should be incurred for that particular school or activity. Neither party shall unreasonably withhold his or her consent . . . ."

On September 19, 2011, the defendant filed a post-judgment motion for contempt requesting that the plaintiff be held in contempt for her failure to comply with the payment of educational and other expenses. Following a November 7, 2011 hearing, the court issued a memorandum of decision, finding that the plaintiff did not unreasonably withhold her consent to the child attending college at Long Island University and, thus, was not responsible for the college expenses, that the defendant had waived his right to seek reimbursement for the college expenses and was estopped from doing so, and that laches, waiver and estoppel barred the defendant’s claim for the extracurricular activities expenses. This appeal followed.

I

With respect to the college expenses, the defendant claims that the court improperly found that the plaintiff did not unreasonably withhold her consent. We are not persuaded.

“An appellate court will not disturb a trial court’s orders in domestic relations cases unless the court has abused its discretion or it is found that it could not reasonably conclude as it did, based on the facts presented. ... In determining whether a trial court has abused its broad discretion in domestic relations matters, we allow every reasonable presumption in favor of the correctness of its action.” (Internal quotation marks omitted.) Morris v. Morris, 262 Conn. 299, 305, 811 A.2d 1283 (2003). “We apply that standard of review because it reflects the sound policy that the trial court has the unique opportunity to view the parties and their testimony, and is therefore in the best position to assess all of the circumstances surrounding a dissolution action, including such factors as the demeanor and the attitude of the parties.” (Internal quotation marks omitted.) Dombrowski v. Noyes-Dombrowski, 273 Conn. 127, 132, 869 A.2d 164 (2005).

The court heard testimony and received evidence regarding why and when the plaintiff objected to paying for their son’s college expenses. She testified that the defendant had agreed to pay for their son’s education on several occasions both in writing and by e-mails. Two e-mails from 2008 and 2011 from the plaintiff to the defendant were entered into evidence that reiterated the plaintiffs belief that the defendant had agreed to pay for their son’s college expenses. Another e-mail in 2009 from the defendant to the plaintiff was entered into evidence where the defendant offered to pay for all of their son’s schooling, including college, if the son attended Cheshire Academy.

The plaintiff also recounted a conversation that had taken place between the parties in February or March, 2011, when their son had surgery. During lunch, the plaintiff testified, she told the defendant that she did not think that their son was ready for college but that she had not been involved in the college selection process. The defendant reassured her that he would handle everything. On the basis of that conversation, she testified, the plaintiff expected that the defendant would pay for their son’s college expenses.

The plaintiff additionally testified that she did not agree to Long Island University because their son was not a good student and he would do the least amount of work possible. In e-mails in 2011, the plaintiff identified Hofstra University and Norwalk Community College as options for their son. Also submitted into evidence was a copy of their son’s official high school transcript.

Moreover, the plaintiff testified, she did not know that their son had been accepted and was ready to attend Long Island University until after he had been accepted. When she learned that their son had been admitted to Long Island University and that the defendant wanted payment for tuition, the plaintiff promptly voiced her disagreement.

The defendant also testified about his expectations about reimbursement for their son’s college expenses. He testified that he offered to pay for all of their son’s college expenses only if he attended and graduated from Cheshire Academy or some other boarding school, and only that one time. According to the defendant, their son never went to boarding school, so the offer was never accepted. When their son was accepted to Long Island University and no longer living with the plaintiff, the defendant testified, he sought the reimbursement to which he felt he was entitled.

In its memorandum of decision, the court found that the defendant had enrolled the son in college. It further found that the plaintiff was aware that the defendant was enrolling their son in Long Island University and that she did not agree with this decision because she thought he should go to a different school. The court, therefore, concluded that the plaintiffs undisputed refusal to provide consent to their son’s choice of school because she felt he should go to a different school was not unreasonable. Upon an order for articulation by this court, the trial court further articulated its factual findings, stating: “The plaintiff did not agree with the decision of [their son] to attend Long Island University. [Their son] was not a good student in the period of February-March, 2011. The plaintiff, therefore, believed [their son] was not ready to attend Long Island University. She felt [their son] should attend Norwalk Community College and was willing to help financially for him to attend Norwalk Community College.”

On the basis of the record provided, we cannot determine that there was error in the court’s judgment. There was evidence in the record to support the court’s factual findings that the plaintiff did not believe that the parties’ son was ready to attend Long Island University, that he was not a good student and that a different school would be better. Given the evidence, the court had a reasonable basis on which to conclude that the plaintiff did not unreasonably withhold her consent to their son’s enrollment at Long Island University, and, therefore, there was no abuse of discretion.

II

The defendant also claims that the court improperly found that laches, waiver and estoppel applied to the reimbursement of extracurricular activities expenses. He argues that the plaintiff did not present evidence to satisfy all of the elements of these doctrines. We agree.

At the hearing, the court inquired into the dates of some of the extracurricular activities, particularly, Project Exploration, Avery Point Project Oceanology Camp, Mystic Seaport sailing camp, and the Camp Fuller scuba program. After learning that the parties’ son had participated in them seven to eight years prior to the filing of the motion for contempt, the court concluded that the claims for those expenses were waived. In its memorandum of decision, the court summarily concluded with respect to the defendant’s claim that the plaintiff is responsible to reimburse him for their son’s extracurricular activities expenses in accordance with the separation agreement “that based on laches, waiver and estoppel . . . the remaining claims of the defendant are barred.” The court made no factual findings with regard to its legal conclusions. The parties, however, testified about the circumstances surrounding then-son’s enrollment in various after school and summer activities. Specifically, both parties testified that the defendant enrolled their son in various activities, with the plaintiffs consent, that the defendant paid for the activities in full and that the defendant did not seek contribution for the activities until he filed the motion for contempt in 2011.

We begin with the standard of review. “When . . . the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record.” (Internal quotation marks omitted.) Jungnelius v. Jungnelius, 133 Conn. App. 250, 254, 35 A.3d 359 (2012).

Laches “bars [a party] from seeking equitable relief in a case in which there has been an inexcusable delay that has prejudiced the [opposing party]. First, there must have been a delay that was inexcusable, and, second, that delay must have prejudiced the [opposing party]. . . . The mere lapse of time does not constitute laches . . . unless it results in prejudice to the [opposing party] ... as where, for example, the [opposing party] is led to change his position with respect to the matter in question.” (Citations omitted, internal quotation marks omitted.) Fromm v. Fromm, 108 Conn. App. 376, 385-86, 948 A.2d 328 (2008). Thus, even if there was an inexcusable delay by the moving party, the court will not find that party guilty of laches if the prejudice to the opposing party was not the result of the moving party. See, e.g., Papcun v. Papcun, 181 Conn. 618, 621, 436 A.2d 282 (1980) (nine year delay not laches where defendant’s decision to remarry and incur debts not due to plaintiffs inaction); Bozzi v. Bozzi, 177 Conn. 232, 240, 413 A.2d 834 (1979) (no laches after eight year delay where no evidence that defendant changed his position in reliance on abandonment by plaintiff of her claim against him); Kurzatkowski v. Kurzatkowski, 142 Conn. 680, 685, 116 A.2d 906 (1955) (declining to discuss whether lapse of twenty-five years before commencement of action was inexcusable where no finding that delay prejudiced defendant). Moreover, “[t]he burden is on the party alleging laches to establish that defense.” Burner v. Burrier, 59 Conn. App. 593, 596, 758 A.2d 373 (2000).

In the present case, no evidence was admitted on which the comí; could have found that the plaintiff was prejudiced by the defendant’s failure to seek payment for a number of years or that she changed her position in reliance on the defendant’s actions. Further, no evidence was presented that the delay was inexcusable. The only evidence presented to the court with regard to the laches defense was that the defendant waited for seven to eight years to file the motion for contempt. Accordingly, the court improperly concluded that the defendant’s claim for reimbursement for extracurricular activities expenses was barred by laches.

“Waiver is the intentional relinquishment of a known right. . . . Waiver need not be express, but may consist of acts or conduct from which a waiver may be implied. ... In other words, waiver may be inferred from the circumstances if it is reasonable to do so.” (Internal quotation marks omitted.) Kalinowski v. Kropelnicki, 92 Conn. App. 344, 352-53, 885 A.2d 194 (2005). The party asserting waiver, however, must present evidence such that the court can infer waiver from the circumstances. See id., 353.

“Silence may constitute waiver only where there is a duty to speak or otherwise take action. . . . Temporary forbearance does not constitute waiver, and mere delay does not support a waiver.” 31 C.J.S. 419, Estoppel and Waiver § 89 (2008). “For an implied waiver to be found through a party’s actions, intent must be clearly demonstrated by the surrounding facts and circumstances, and there can be no waiver of a right if the person sought to be charged with waiver says or does nothing inconsistent with an intent to rely upon such right. . . . Waivable rights are not extinguished by inaction alone. Inaction, to be interpreted as intention of waiver, must generally be accompanied by other circumstances, such as unreasonable length of time, evidencing intent. Thus, the failure to object immediately to a party’s unlawful act does not constitute the waiver of a right to bring legal action.” 28 Am. Jur. 2d 661-62, Estoppel and Waiver § 195 (2011).

Notwithstanding the defendant’s lack of pursuing a finding of contempt until 2011, no evidence or testimony was admitted on which the court could have found that the defendant explicitly or implicitly waived his right to seek reimbursement for their son’s extracurricular activities expenses. Rather, the parties testified that the defendant simply never broached the subject of payment with the plaintiff. Accordingly, there was no evidence of waiver, and the court improperly concluded that the defendant had waived his right to reimbursement for the extracurricular activities expenses.

“Under our well-established law, any claim of estop-pel is predicated on proof of two essential elements: the party against whom estoppel is claimed must do or say something calculated or intended to induce another party to believe that certain facts exist and to act on that belief; and the other party must change its position in reliance on those facts, thereby incurring some injury. ... It is fundamental that a person who claims an estoppel must show that he has exercised due diligence to know the truth, and that he not only did not know the true state of things but also lacked any reasonably available means of acquiring knowledge.” (Internal quotation marks omitted.) Kalinowski v. Kropelnicki, supra, 92 Conn. App. 353. “Estoppel rests on the misleading conduct of one party to the prejudice of the other. In the absence of prejudice, estoppel does not exist.” (Internal quotation marks omitted.) Fischer v. Zollino, 303 Conn. 661, 668, 35 A.3d 270 (2012). “The party claiming estoppel . . . has the burden of proof.” Id., 667.

As previously noted, the plaintiff did not claim that the defendant ever told her that she did not need to contribute to the cost of the extracurricular activities in which their son participated. The defendant simply did not ask. Moreover, no evidence was admitted on which the court could have found that the defendant’s failure to seek contribution induced her to change her position in any way in reliance on his inactivity. She did not testify regarding whether she exercised due diligence to find out if the defendant wanted her to contribute or if she lacked any reasonably available means of acquiring such information. Accordingly, there was no evidence of estoppel and the court, therefore, improperly concluded that the defense of estoppel barred the defendant from seeking reimbursement of the fees associated with the extracurricular activities.

The judgment is reversed only as to the defendant’s claim for reimbursement of expenses related to extracurricular activities and the case is remanded with direction to conduct a new hearing on the defendant’s motion for contempt as to that claim. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       In his reply brief to this court, the defendant also claims that the trial court improperly considered the defenses of laches, waiver and estoppel because they were never pleaded or argued by the plaintiff. We cannot reach this issue because it was raised for the first time in a reply brief. “[I]t is well settled that new claims cannot be raised for the first time in a reply brief.” Histen v. Histen, 98 Conn. App. 729, 737 n.7, 911 A.2d 348 (2006).

       Because we determine that the court did not err in finding that the plaintiffs withholding of consent was not unreasonable and, accordingly, affirm its judgment in part on this ground, we do not reach the defendant’s claim that the court improperly found that he was estopped and had waived his right to seek reimbursement for college expenses by modifying the separation agreement in an e-mail to the plaintiff.

       The extracurricular activities that the court considered were the New York Film Academy, Bucks Rock Performing and Creative Arts Camp and middle school programs from 2006-2008, as well as Project Exploration, Avery Point Project Oceanology Camp, Mystic Seaport sailing camp, and the Camp Fuller scuba program, which occurred in 2004, approximately seven to eight years prior to the filing of the motion for contempt.