author: GRUENDEL, J.

text:
    SEAN C. KEENAN v. PATRICIA A. CASILLO
    (AC 34872)
    Gruendel, Bear and West, Js.

      Argued February 10
    officially released April 22, 2014

      Samuel V. Schoonmaker TV, with whom was Wendy Dunne DiChristina, for the appellant (plaintiff).

      Brendon P. Levesque, with whom were Karen L. Dowd and, on the brief, Susan A. Moch, for the appel-lee (defendant).
   Opinion

GRUENDEL, J.

The plaintiff, Sean C. Keenan, appeals from the judgment of the trial court awarding him and the defendant, Patricia A. Casillo, joint legal custody of their minor children, and ordering him to pay permanent alimony and child support to the defendant. On appeal, the plaintiff claims that the court erred in (1) awarding the parties joint custody of the children, (2) refusing to remove the guardian ad litem, and (3) awarding permanent alimony to the defendant. We affirm the judgment of the trial court.

The parties married in April, 2007. They have two minor children, a daughter bom in December, 2007, and a son bom in August, 2009. In October, 2010, the plaintiff filed for the dissolution of their marriage, and sought joint custody of their children. The defendant’s subsequent accusations of sexual abuse by the plaintiff against their daughter changed the tenor of the parties’ relationship. The parties were unable to reach a settlement, and a trial followed. The court thereafter issued a memorandum of decision, finding that joint custody was in the best interests of the children. It also ordered the plaintiff to pay the defendant permanent alimony and child support. This appeal followed.

“The standard of review in family matters is well settled. An appellate court will not disturb a trial court’s orders in domestic relations cases unless the court has abused its discretion or it is found that it could not reasonably conclude as it did, based on the facts presented. ... In determining whether a trial court has abused its broad discretion in domestic relations matters, we allow every reasonable presumption in favor of the correctness of its action. . . . Appellate review of a trial court’s findings of fact is governed by the clearly erroneous standard of review. The trial court’s findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. . . . Therefore, to conclude that the trial court abused its discretion, we must find that the court either incorrectly applied the law or could not reasonably conclude as it did.” (Citations omitted; internal quotation marks omitted.) Demartino v. Demartino, 79 Conn. App. 488, 492-93, 830 A.2d 394 (2003).

I

The plaintiff claims that the court erred in ordering joint custody because it lacked the statutory authority to do so. He alternatively argues that the court’s joint custody orders are inconsistent with its findings and the evidence. We disagree.

A

The plaintiff first claims that the court lacked statutory authority to award joint custody, thus depriving him of due process of law. We disagree.

The following undisputed facts are relevant to this issue on appeal. When the plaintiff filed his complaint in October, 2010, he asked for joint custody of the minor children. After the defendant accused the plaintiff of improper sexual contact with their daughter in November, 2010, both parties moved for sole custody pendente lite. The plaintiff, however, did not amend his complaint to remove the requested relief of joint custody.

Before trial began in April, 2012, the parties filed proposed orders with the court. In those orders, the defendant proposed that she receive sole custody of the children, and the plaintiff similarly proposed that he receive sole custody. During trial, however, the defendant orally informed the court that she would be seeking joint custody as an alternative to sole custody. She subsequently filed a revised proposed custody and parenting plan, stating that she “should have sole legal custody of the minor children .... In the alternative, the parties shall have joint legal custody of the minor children, with final decision making authority to be with the [defendant].”

In its decision, the court recognized that “[i]n order to enter an order of joint legal custody, the court must find that such an order in addition to being in the best interests of the children is also based on an agreement of the parties or upon motion of at least one of the parents. Tabackman v. Tabackman, [25 Conn. App. 366, 368, 693 A.2d 526] (1991).” After concluding that such requirements were met, the court ordered joint legal custody.

General Statutes § 46b-56a (c) provides: “If only one parent seeks an order of joint custody upon a motion duly made, the court may order both parties to submit to conciliation at their own expense with the costs of such conciliation to be borne by the parties as the court directs according to each party’s ability to pay.” Our precedent is clear, however, that “joint custody cannot be an alternative to a sole custody award where neither seeks it and where no opportunity is given to the recalcitrant parent to embrace the concept. Further, it is significant that the statute contains no additional subsection providing for a procedure in the event neither parent seeks joint custody.” Emerick v. Emerick, 5 Conn. App. 649, 658, 502 A.2d 933 (1985), cert. dismissed, 200 Conn. 804, 510 A.2d 192 (1986).

The plaintiff claims that the court lacked statutory authority to grant joint custody to the parties in the present case. He states that although he originally sought joint custody in his complaint, both parties thereafter filed pendente lite motions with the court seeking sole custody of the children. The plaintiff also claims that the defendant’s proposed orders of joint custody were filed after the trial was completed, and therefore do not take the place of a motion for leave to amend or serve as a properly pleaded basis for joint custody. Consequently, the plaintiff concludes that he was deprived of his constitutional right to due process because he lacked notice that the court was considering an award of joint custody, and he therefore was not given an opportunity to be heard on the matter.

Our previous decision in Giordano v. Giordano, 9 Conn. App. 641, 520 A.2d 1290 (1987), is dispositive of this issue. In Giordano, “[a] request for joint custody was made by the defendant in his answer and counterclaim, but was not specifically raised by either party thereafter during the course of the trial, although the court inquired of some witnesses about custody arrangements other than sole custody.” Id., 643. In that decision, we stated: “When one of the parties has sought joint custody in the pleadings, it is not error for the court, in the exercise of its discretion, to award joint custody.” Id., 645; see also Tabackman v. Tabackman, supra, 25 Conn. App. 368 (“[a] court may award joint legal custody ... if the parties agree to joint custody or if one party seeks joint custody”).

In the present case, there was a pleading requesting joint custody, namely, the plaintiffs October 6, 2010 complaint. The court, therefore, had statutory authority to grant joint custody to the parties, so long as it found that it was in the best interests of the children.

We further conclude that there was no violation of due process. See In re Jason M., 140 Conn. App. 708, 716, 59 A.3d 902 (in order to afford due process, “[p]arties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified”), cert, denied, 308 Conn. 931, 64 A.3d 330, cert, denied sub nom. Charlene P. v. Dept. of Children & Families, U.S. , 134 S. Ct. 701, 187 L. Ed. 2d 564 (2013). In addition to the plaintiffs complaint, which sought joint custody, there was testimony at trial about whether the parties could coparent. The defendant’s attorney also indicated at trial that her proposed orders would include a request for joint custody. The plaintiff was therefore on notice that the issue of custody, in general, was before the court and that it had the authority to enter an order of joint custody. As a result, the plaintiff had a fair opportunity to be heard on the issue.

B

The plaintiff alternatively claims that the court’s joint custody orders do not logically and legally flow from its findings and, consequently, should be vacated. We do not agree.

The following additional facts, as set forth in the court’s memorandum of decision, are relevant to this claim. When the defendant accused the plaintiff of improper sexual contact with their daughter, “the plaintiff responded with horror and then with anger. . . . The anger, unfortunately, has not passed despite the considerable period of time that has passed. It is, to a large degree, that anger that calls into question any joint custody arrangement for the two very young children. ... In [the plaintiffs] words, expert help would be required for the [parties] to come to [a] ‘common understanding of what happened and what did not happen’ before it would be possible to coparent. . . .

“The plaintiff is, by all accounts, an excellent parent to both of his children. He is described as attentive and attuned; appropriate and disciplined; and very loving. . . . Nevertheless, the level of his anger is apparent to all, and it calls his overall parental judgment into question. . . . [His] anger has already had negative consequences for his children just within the eighteen months since [the parties] have lived apart. Most significantly, his daughter experienced unnecessary anxiety by his cancellation of her therapy last spring. . . . [T]he plaintiff was upset that Dr. [Mary Frances] Sink [the child’s therapist] would not speak to him on any type of regular basis and that he was not informed that the defendant was using a particular type of behavior modification technique at her home on the therapist’s advice. He withdrew his consent for the therapy and insisted that a new, more cooperative therapist be hired. . . . The matter was resolved when he agreed to attempt to work out his relationship with Dr. Sink, and she agreed to be more communicative. However, the little girl was in some distress during the lull and both the [guardian ad litem] and Dr. [Joan] Oppenheim [the court appointed evaluator] noted that stance on the part of the plaintiff [was] a poor parenting decision given the situation. The court agrees. . . .

“The court has very serious concerns about the parenting skills of the defendant. Her behavior around the allegations of abuse in the fall of 2010 are very difficult to understand. When she first claims to have seen the abuse, she did nothing to stop it and even allowed the plaintiff to have unsupervised access to the girl for two more nights. . . . Despite ongoing concerns voiced by the defendant during the investigation, she once again does not seek to go forward with a hearing, but agrees to provide the plaintiff with additional unsupervised access to the children .... It is extremely difficult to understand why she would agree to such terms if she believed that her daughter had been molested. The defendant testified that she felt that she had no choice, but that testimony, along with the other troubling behavior noted, makes the excuse very unconvincing.

“In addition to the unexplained behavior . . . the defendant was not at all consistent in to whom she would make the allegations. She did not report it to the children’s pediatrician even though she brought [both children] to the office within days of reporting the behavior to [the Department of Children and Families]. She brought the girl to a local emergency room after one overnight visit [with the defendant] with the claim that abuse had occurred and the child was complaining of pain, but left the facility against medical advice without allowing her daughter to complete the work up. The defendant’s reason for leaving was entirely lacking in credibility.

“All of these inconsistencies, as well as others not enumerated, call into question the quality of the defendant’s parental decision-making. Either she knew the allegations were false and there was nothing to protect her children from, or she believed the truth of the allegations and felt helpless to protect her daughter. A third possibility is that she believed the allegations to be true and just did not care enough to take action. Having already indicated that the court does not find any evidence of malicious intention on the part of the defendant, the first possibility is to be ruled out. The last one is also not a real possibility. That leaves a mother with so little fortitude and so few personal resources that she cannot protect her own child from a perceived danger. Hardly an endorsement for a custodial parent.

“The [guardian ad litem] recommended to the court that, despite all of these very negative indicators, an attempt to maintain a joint legal custodial arrangement might still be in the best interests of the minor children. It is partially due to the fact that the children are so young that she believes they need the joint custodial arrangement. She points to the fact that, at the present time, there are no safety issues in either home and both children are deeply and closely bonded to both parents. She also sees the parents needing each other. Despite the plaintiffs claims that he can adjust his work schedule to be the full-time custodial parent, that claim is not very credible. The defendant, for her weaknesses, is a fairly competent parent under most situations and is available due to her disability to be a full-time mother. Having a parent rather than a paid worker be the primary caregiver to the children is certainly preferable if possible to arrange.

“The statutory criteria for custody orders are spelled out in . . . General Statutes § 46b-56 (c). In reviewing those criteria, the court is struck by the inability of either parent to significantly meet some of those criteria individually. Neither parent, for example, has demonstrated a great ability to understand or meet the ‘temperament and developmental needs of the child.’ Ample evidence of the defendant’s weakness in this area was provided by the videotapes she made as part of her litigation efforts, and the plaintiffs lack of ability in this area was also clear in his decision to terminate his daughter’s therapy for a six week period. Clearly neither parent has excelled in promoting the children’s relationship with the other parent. The court recognizes that there is a distinct possibility that the plaintiff would quickly marginalize the defendant’s parental role if he were given sole custody, while her past actions in this litigation does not recommend her for that role either. It would appear that the best interests of the children would be served by forcing these parents to cooperate with one another at least on a limited basis and with an appropriate structure imposed on them.” (Footnotes altered.) The court thereafter ordered the parties to share joint legal custody of the two minor children.

In deciding whether to order joint custody in a particular circumstance, § 46b-56 instructs the court to look to the best interests of the child. Section 46b-56 (a) provides in relevant part: “Subject to the provisions of section 46b-56a, the court may assign parental responsibility for raising the child to the parents jointly, or may award custody to either parent or to a third party, according to its best judgment upon the facts of the case and subject to such conditions and limitations as it deems equitable. . . .” Furthermore, § 46b-56 (b) provides in relevant part: “In making or modifying any order as provided in subsection (a) of this section, the rights and responsibilities of both parents shall be considered and the court shall enter orders accordingly that serve the best interests of the child and provide the child with the active and consistent involvement of both parents commensurate with their abilities and interests. . . .”

The plaintiff claims that the court’s decision to award joint custody does not logically and legally flow from its findings. He states that the court found that he was an excellent parent, whereas the court described the defendant’s parenting skills as only fairly competent. In the court’s full decision, however, it described, at length, the strengths and weaknesses of both the plaintiff and the defendant with regard to their parenting. It also cited the guardian ad litem’s recommendation that an order of joint custody was in the best interests of the children. After deliberating on the factors provided in § 46b-56 (c), the court set forth various reasons for ordering joint custody. Most important was the court’s finding that due to the parties’ respective weaknesses, neither the plaintiff nor the defendant would be the proper sole custodial parent of the children. Rather, it found that joint custody had the greatest potential to serve the best interests of the children. “The trial court’s findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole.” (Internal quotation marks omitted.) Demartino v. Demartino, supra, 79 Conn. App. 492. The court’s findings were not clearly erroneous because they were supported by evidence in the record. We therefore conclude that the joint custody order logically and legally flows from the court’s eviden-tiary findings and from its determination of what was in the best interests of the children.

II

The plaintiff next raises claims regarding the guardian ad litem. The plaintiff argues that the court erred in refusing to remove Attorney Sharon Wicks Domfeld as the guardian ad litem, and that it further committed plain error by allowing Domfeld, who was also serving as the attorney for the minor children, to abandon her role as attorney to testify at trial as the guardian ad litem. He lastly argues that the court improperly delegated judicial authority to Domfeld. We do not agree.

The following additional facts are relevant to the resolution of the aforementioned claims. Domfeld served as the guardian ad litem for the minor children beginning on November 8,2010. Following an argument between the parties on November 17, 2010, regarding the defendant’s allegation that the plaintiff sexually abused their three year old daughter, the defendant filed a complaint with the local police department, and the plaintiff was arrested. A protective order was issued, requiring the plaintiff to leave the home and mandating that the plaintiff visit with the children under supervision. On November 23, 2010, however, the parties entered into a stipulation in which the children would not be supervised when with the plaintiff. Despite this agreement, the defendant subsequently made a complaint to the Department of Children and Families (department) expressing concern that her daughter was being sexually abused by the plaintiff.

In February, 2011, after the defendant filed her complaint with the department, Domfeld filed an ex parte motion to modify the plaintiffs parental access to require supervised visitation. The court denied that motion and found that “after weighing ail of the testimony and evidence . . . the best interests of the child would be impaired by modifying the order of January 10, 2011, and that order is reinstated.” The plaintiff thereafter filed a motion to remove Domfeld as guardian ad litem, which was denied by the court.

A

The plaintiff first argues that the court erred in denying his motion to remove Domfeld as the guardian ad litem. We cannot agree.

In the plaintiffs motion to remove Domfeld, he stated that she, among other things, had abused and misused her power as guardian ad litem, attempted to cover up her negligent actions by pressuring and threatening the plaintiff, and interfered with the ongoing independent psychological evaluation of the parties. In his memorandum in support of the motion for removal, he argued: “Domfeld’s conduct and lack of objectivity has made it impossible for her to fulfill the role of [guardian ad litem] in a fair and nonprejudicial manner. As evidenced in this motion, [Domfeld] has engaged in gross misconduct and has apparently become personally involved in the situation in a manner designed to cover up her failure to act, rather than to safeguard the best interests of her ward[s].” He further stated: “Even if the court concludes that [Domfeld’s] conduct did not rise to the level of misconduct, it has been unprofessional and has undermined the plaintiffs confidence in her ability to act in the best interests of the child[ren] in such a way that makes it impossible for her to continue in the role of [guardian ad litem].”

The court denied the plaintiffs motion to remove Domfeld as the guardian ad litem, finding that “[a]fter a lengthy hearing and after considering the evidence presented, the court finds that it is not unusual for a party who is charged with misconduct, as in the present case, to remonstrate.” The court then concluded that it was “not satisfied after hearing all the evidence that [Domfeld] has manifested any bias or prejudice that would affect the outcome of the case.”

The plaintiff claims that the court erred in denying his motion to remove Domfeld as the guardian ad litem. He first argues that the court had ample evidence that Domfeld was acting outside the proper bounds of a guardian ad litem. He also argues that Domfeld was attempting to manipulate the court in a way that prejudiced his case, but in deciding his motion to remove, the court misapplied the best interests standard to require a showing of future prejudice that would affect the outcome of the case.

A court is permitted to remove a guardian ad litem in dissolution matters, subject to General Statutes § 45a-132, which provides in relevant part: “(f) The guardian ad litem may be removed by the judge or magistrate which appointed the guardian ad litem, without notice, whenever it appears to the judge or magistrate to be in the best interests of the ward or wards of the guardian.” Multiple decisions of our Superior Court have interpreted this statute to mean that “it is the burden of the [moving party] ... to allege and prove that the [guardian ad litem] should be disqualified from representing the interests of the minor child because her continued representation prejudices the [moving party] from prosecuting his case.” Petrone v. Connolly, Superior Court, judicial district of New London, Docket No. FA-09-4111149-S (May 8, 2013) (36 Conn. L. Rptr. 600); see also Rubenstein v. Rubenstein, Superior Court, judicial district of New London, Docket No. FA-96-0537581-S (March 5,2004) (moving party needs to prove prejudice in prosecuting claim for custody based on prior or present positions taken by guardian ad litem on behalf of minor child).

We conclude that the court did not err in denying the motion to remove Domfeld as the guardian ad litem. The standard set forth in § 45a-132 focuses on the best interests of the children. The court held that, after reviewing all of Domfeld’s allegedly improper actions, she had not “manifested any bias or prejudice that would affect the outcome of the case.” This broad standard, used by the court in the present case, encompassed the requirements as set forth by multiple decisions of our Superior Court. Here, the court determined whether the outcome of the case had been prejudiced in any manner, and, by answering in the negative, it ensured that the best interests of the children were protected. We therefore cannot say that the court erred in denying the plaintiffs motion to remove Domfeld as the guardian ad litem.

B

The plaintiff farther claims that it was plain error for the court to allow Domfeld to testify as the guardian ad litem after she previously had acted as the attorney for the minor children. We disagree.

The court appointed Domfeld as the attorney for the minor children on April 29, 2011, and, after that appointment, she testified at pendente lite hearings in the dissolution action. After the case failed to settle, Domfeld sought to vacate her appointment as attorney for the minor children. In her motion, she cited Rule 3.7 of the Rules of Professional Conduct, which provides that a lawyer shall not act as an advocate at a trial in which she is likely to be a necessary witness. She made clear, however, that “[t]he children, due to their young ages, have not communicated any privileged or confidential information to me.” The court thereafter vacated Domfeld’s appointment as attorney for the minor children, and allowed her to testify at trial in her capacity as guardian ad litem.

The plaintiff did not preserve this claim in the proceeding before the trial court and now seeks review pursuant to the plain error doctrine. “Codified in Practice Book § 60-5, [t]he plain error doctrine ... is a doctrine that should be invoked sparingly and only on occasions requiring the reversal of the judgment under review. . . . Success on such a claim is rare. Plain error review is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. . . .

“We engage in a two step analysis in reviewing claims of plain error. First, we must determine whether the trial court in fact committed an error and, if it did, whether that error was indeed plain in the sense that it is patent [or] readily discemable on the face of a factually adequate record, [and] also . . . obvious in the sense of not debatable. . . . [T]his inquiry entails a relatively high standard, under which it is not enough for the [party] simply to demonstrate that his position is correct. Rather, the party seeking plain error review must demonstrate that the claimed impropriety was so clear, obvious and indisputable as to warrant the extraordinary remedy of reversal. . . . Because [a] party cannot prevail under plain error unless it has demonstrated that the failure to grant relief will result in manifest injustice . . . under the second prong of the analysis we must determine whether the consequences of the error are so grievous as to be fundamentally unfair or manifestly unjust.” (Citations omitted; emphasis omitted; footnote omitted; internal quotation marks omitted.) Clougherty v. Clougherty, 131 Conn. App. 270, 273-74, 26 A.3d 704, cert. denied, 302 Conn. 948, 31 A.3d 838 (2011).

In support of his argument that the court committed plain error by permitting Domfeld to testify, the plaintiff cites General Statutes § 46b-129a (2) (D), which provides in relevant part: “No person who has served as both counsel and guardian ad litem for a child shall thereafter serve solely as the child’s guardian ad litem.” Section 46b-129a, however, is contained within chapter 815t of the General Statutes and is thus limited to juvenile matters. This statute does not control dissolution matters like the present case. Rather, chapter 815j of the General Statutes controls marital dissolution matters. “Where a statute, with reference to one subject contains a given provision, the omission of such provision from a similar statute concerning a related subject ... is significant to show that a different intention existed.” (Internal quotation marks omitted.) Hatt v. Burlington Coat Factory, 263 Conn. 279, 310, 819 A.2d 260 (2003). Chapter 815j does not have a similar limitation as that in chapter 815t on a person serving both as a guardian ad litem and as an attorney for the same minor children. Such limitation, then, cannot be read into chapter 815j. The plaintiffs reliance on § 46b-129a (2) (D) is therefore misplaced. As a result, we conclude that the court did not commit plain error by allowing Domfeld to testify as the guardian ad litem after serving for a period of time both as attorney for the minor children and as their guardian ad litem.

C

The plaintiff also argues that the court improperly delegated its judicial authority to the guardian ad litem. He argues that although courts have statutory authority to appoint a guardian ad litem, the court must not delegate its judicial authority to such person. More specifically, he claims that the court ordered joint legal custody to the parties on terms substantially similar to those set forth by the guardian ad litem in her recommendations to the court; allowed the guardian ad litem to select the parties’ coparenting therapist; and required each party to select an individual therapist from a list prepared by the guardian ad litem. This claim is unavailing.

“It is well settled authority that [n]o court in this state can delegate its judicial authority to any person serving the court in a nonjudicial function. The court may seek the advice and heed the recommendation contained in the reports of persons engaged by the court to assist it, but in no event may such a nonjudicial entity bind the judicial authority to enter any order or judgment so advised or recommended.” (Internal quotation marks omitted.) Nashid v. Andrawis, 83 Conn. App. 115, 120, 847 A.2d 1098, cert. denied, 270 Conn. 912, 853 A.2d 528 (2004). A court improperly delegates its judicial authority to a guardian ad litem when that person is given authority to issue orders that affect the parties or the children. Such orders are part of a judicial function that can be done only by one clothed with judicial authority. Weinstein v. Weinstein, 18 Conn. App. 622, 628-29, 561 A.2d 443 (1989).

In the present case, the court did not give Domfeld authority to make the final decision regarding custody of the children, nor did it allow her to issue orders that were binding on the parties. Rather, the court accepted the recommendations that Domfeld submitted to the court and implemented them in its own orders. It also accepted Domfeld’s recommendations in choosing a therapist for each of the parties. Domfeld’s involvement in this marital dissolution case, therefore, was proper. A court is permitted to seek advice, and accept recommendations, from the guardian ad litem. Nashid v. Andrawis, supra, 83 Conn. App. 120. The plaintiffs disagreement with Domfeld’s recommendations, and the court’s agreement and adoption of those recommendations in its orders, in no way supports a conclusion that the court improperly delegated its judicial authority to her.

IE

The plaintiff lastly claims that the court abused its discretion in awarding permanent alimony to the defendant. We disagree.

The court, in its memorandum of decision, found the following: “[M]any of the details of [the parties’] finances are clear and undisputed including the fact that the great majority of the family’s assets have been spent during this litigation. The plaintiff has a base salary exceeding three hundred thousand dollars gross annually and historically has also received annual bonus payments in six figure amounts. His most recent bonus received a few months ago was almost equal to his base salary. In addition to his salary, he enjoys generous employment benefits that have significant financial value to him. The defendant is on social security disability benefits receiving less than sixteen thousand dollars annually. The plaintiff argued during the trial that the defendant can work, but that testimony was based on his own observations, and he provided no medical testimony or other expert opinion of any kind to support his conclusions. An alimony award of some type is clearly warranted in this matter based on the criteria as set forth in . . . General Statutes § 46b-82.

“The marital home is currently being marketed for sale and has been on the market for just a little over one year. . . . They also own the adjacent lot which does not appear to be part of the four plus acres on which the residence sits, but is being indicated as ‘available’ according to the listing information .... The combined value of the real estate based on the financial affidavits of the parties is over $1.3 million. . . .

“A comparison of the financial affidavits . . . filed with the court while the case has been pending shows that approximately $365,000 in deferred income assets were liquidated along with approximately $120,000 in liquid bank accounts. A $50,000 loan against the plaintiffs 401 (K) plan was taken, and he also liquidated a large portion of the account. Most recently in early April, 2012, the plaintiffs stocks were sold valued at approximately $61,000. He reported net proceeds from that sale in the amount of $35,000. Testimony was offered that the plaintiff, without permission, also sold the defendant’s stocks originally purchased for $22,000, and those funds were spent by the plaintiff on litigation costs and other expenses. . . .

“The court has considered all of the testimony offered during the trial and its observation of the demeanor of the parties and other witnesses. . . . Consideration has also been given to the various statutory criteria for . . . making financial orders .... A review of the applicable case law was also conducted by the court.” (Footnote omitted.) The court then ordered the plaintiff to pay permanent alimony to the defendant, in addition to child custody payments.

“We will not reverse a trial court’s rulings regarding financial orders unless the court incorrectly applied the law or could not reasonably have concluded as it did. ... A fundamental principle in dissolution actions is that a trial court may exercise broad discretion in awarding alimony and dividing property as long as it considers all relevant statutory criteria. ... In reviewing the trial court’s decision under [an abuse of discretion] standard, we are cognizant that [t]he issues involving financial orders are entirely interwoven. The rendering of judgment in a complicated dissolution case is a carefully crafted mosaic, each element of which may be dependent on the other. ... A reviewing court must indulge every reasonable presumption in favor of the correctness of the trial court’s action to determine ultimately whether the court could reasonably conclude as it did. . . . This standard of review reflects the sound policy that the trial court has the opportunity to view the parties first hand and is therefore in the best position to assess all of the circumstances surrounding a dissolution action, in which such personal factors such as the demeanor and the attitude of the parties are so significant.” (Internal quotation marks omitted.) Kunajukr v. Kunajukr, 83 Conn. App. 478, 481-82, 850 A.2d 227, cert. denied, 271 Conn. 903, 859 A.2d 562 (2004).

The plaintiff argues that an award of permanent alimony to a forty year old woman after a three year marriage was an abuse of discretion. He states that the court failed to recognize that the defendant’s past health concerns and receipt of social security benefits are not conclusive proof that she is permanently disabled from work.

“[Section] 46b-82 governs awards of alimony. That section requires the trial court to 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 .... In awarding alimony, [t]he court must consider all of these criteria. ... It need not, however, make explicit reference to the statutory criteria that it considered in making its decision or make express findings as to each statutory factor.” (Internal quotation marks omitted.) Wiegand v. Wiegand, 129 Conn. App. 526, 536, 21 A.3d 489 (2011).

The court did not abuse its discretion in awarding permanent alimony to the defendant. The court cited § 46b-82 and thereafter described, in detail, the plaintiffs and the defendant’s income and assets. Because the court considered all of the relevant statutory criteria, it is given broad discretion in awarding alimony payments. Kunajukr v. Kunajukr, supra, 83 Conn. App. 481; see also McMellon v. McMellon, 116 Conn. App. 393, 396, 976 A.2d 1 (no bright line rule as to how long marriage must last for one party to be entitled to permanent alimony), cert. denied, 293 Conn. 926, 980 A.2d 911 (2009). We therefore review the record only to determine if the court correctly applied the law and reasonably concluded that permanent alimony to the defendant was appropriate under the circumstances of this case. We conclude that it did.

The judgment is affirmed.

In this opinion the other judges concurred.

       Pendente lite motions address the temporary custody of the children during the pendency of the action. In response to the parties’ motions, the court ordered, pendente lite, that the plaintiff would have unsupervised parenting with the minor children, and set forth a schedule. “[PJendente lite orders, by their very definition, are orders that continue to be in force during the pendency of a suit, action, or litigation. . . . Pendente lite orders necessarily cease to exist once a final judgment in the dispute has been rendered because the purpose is extinguished at that time.” (Citation omitted; internal quotation marks omitted.) Milbauer v. Milbauer, 54 Conn. App. 304, 309, 733 A.2d 907 (1999).

       At no time did the plaintiff seek to amend that complaint.

       In fact, the plaintiff presented an expert who was questioned by the plaintiffs counsel about whether the plaintiff and the defendant could copar-ent successfully.

       The court stated that it “need not describe in detail the specific allegations raised by the defendant against the plaintiff as there is no credible evidence that they are true.” It went on to state, however, that “[i]n the same vein, there is no credible evidence that the defendant fabricated them. Because her allegations were not malicious in nature, how she came about to believe these horrid things about [the defendant] is now simply not relevant. How each party reacted to the allegations is, on the other hand, most relevant to the court’s decision.”

       General Statutes § 46b-56 (c) provides: “In making or modifying any order as provided in subsections (a) and (b) of this section, the court shall consider the best interests of the child, and in doing so may consider, but shall not be limited to, one or more of the following factors: (1) The temperament and developmental needs of the child; (2) the capacity and the disposition of the parents to understand and meet the needs of the child; (3) any relevant and material information obtained from the child, including the informed preferences of the child; (4) the wishes of the child’s parents as to custody; (5) the past and current interaction and relationship of the child with each parent, the child’s siblings and any other person who may significantly affect the best interests of the child; (6) the willingness and ability of each parent to facilitate and encourage such continuing parent-child relationship between the child and the other parent as is appropriate, including compliance with any court orders; (7) any manipulation by or coercive behavior of the parents in an effort to involve the child in the parents’ dispute; (8) the ability of each parent to be actively involved in the life of the child; (9) the child’s adjustment to his or her home, school and community environments; (10) the length of time that the child has lived in a stable and satisfactory environment and the desirability of maintaining continuity in such environment, provided the court may consider favorably a parent who voluntarily leaves the child’s family home pendente lite in order to alleviate stress in the household; (11) the stability of the child’s existing or proposed residences, or both; (12) the mental and physical health of all individuals involved, except that a disability of a proposed custodial parent or other party, in and of itself, shall not be determinative of custody unless the proposed custodial arrangement is not in the best interests of the child; (13) the child’s cultural background; (14) the effect on the child of the actions of an abuser, if any domestic violence has occurred between the parents or between a parent and another individual or the child; (15) whether the child or a sibling of the child has been abused or neglected, as defined respectively in section 46b-120; and (16) whether the party satisfactorily completed participation in a parenting education program established pursuant to section 46b-69b. The court is not required to assign any weight to any of the factors that it considers.”

       Following investigation, the department found that the allegations were unsubstantiated.

       The plaintiff was required to pay the defendant a weekly amount of $500 in child support and $1200 in alimony. Despite the use of the term “lifetime,” the court did not order that the alimony be nonmodifiable as to term or amount. See General Statutes § 46b-86 (a); but see General Statutes § 46b-85.

       Despite making this bald assertion, the plaintiff fails to point to evidence, or a lack of evidence, that would support a conclusion that the court’s assessment of the defendant’s health concerns was clearly erroneous. We therefore only address his claim that the court’s alimony award was an abuse of discretion.


source: Caselaw Access Project

author: DiPENTIMA, C. J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. BRANDON MONTRELL BELLAMY
    (AC 35399)
    DiPentima, C. J., and Bear and Keller, Js.

      Argued December 9, 2013
    officially released April 22, 2014

      James B. Streeto, assistant public defender, for the appellant (defendant).

      James M. Ralls, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Michael Pepper and Kevin Doyle, senior assistant state’s attorneys, for the appellee (state).
   Opinion

DiPENTIMA, C. J.

The defendant, Brandon Montrell Bellamy, appeals from the judgment of conviction, rendered after a jury trial, of two counts of murder in violation of General Statutes § 53a-54a (a), assault in the first degree in violation of General Statutes § 53a-59 (a) (5), criminal possession of a pistol in violation of General Statutes § 53a-217c (a) and carrying a pistol without a permit in violation of General Statutes § 29-35. On appeal, the defendant claims that the trial court improperly (1) delivered prejudicial instructions to the jury, (2) granted the state’s motion in limine barring evidence of an eyewitness’ conviction for and involvement with prostitution, and (3) allowed the state to elicit prejudicial testimony from the mother of one of the victims. We affirm the judgment of the court.

The jury reasonably could have found the following facts. In 2008, two of the victims, Christopher Duncan and Justin Davis, lived together with Duncan’s girlfriend, D, in an apartment on the second and third floors of a house located at 124 County Street in New Haven. At times, the third victim, William Burruss, also stayed at the same apartment. On April 18, 2008, Duncan, Davis and Burruss drove to Gotham City, a New Haven nightclub. The defendant, with whom the victims were acquainted, also attended Gotham City that night.

Sometime during that evening, an altercation occurred between Burruss and the defendant; the two men pushed each other back and forth for approximately three or four minutes until club security broke up the fight. Following the incident, the three victims stayed at the club until it closed at approximately 3 a.m. without further interaction with the defendant. The victims left the club and, after dropping off another friend, drove back to County Street, listening to loud music on the way. Because the street was dark, the men drove past the house where they lived with the high beams activated to ensure that no one was waiting for them. Seeing no one, they turned around and parked in front of the house. Exiting the car, Duncan dropped something and stopped to pick it up, such that he was behind the others as they approached the house.

Upon coming to the driveway of the house, the victims heard a male voice from the side of the house saying, “What up, now?” A man in a hooded sweatshirt ran out from the shadows, firing several gunshots at the victims. Burruss was shot and fell to the ground. Duncan and Davis looked at each other and ran off in opposite directions. Duncan ran toward Goffe Street. He was shot in the arm and fell to the ground. When he jumped back up, he was shot again through the back. He continued to run, and when he reached the nearby street he flagged down a driver, who brought him to a hospital.

D, who was waiting for the victims at the house, had heard the loud music from the car and was coming down from the third floor to open the front door when she heard more than fifteen gunshots from the street. She ran into a bedroom on the second floor of the house and looked out the front window to see what was happening below. She saw a body lying motionless on the sidewalk in front of the house. Farther out into the street, she saw a man facing in the direction of Goffe Street. When the man turned his head, D recognized him as the defendant. She was unable to see whether he was carrying a gun. After a few seconds, the defendant ran off.

D went downstairs and exited the house, where she found Davis lying on the ground by the stairs to the house. After retrieving her cell phone from the apartment, she went back outside, where she saw Burruss’ body. She then called emergency dispatch.

The police arrived on the scene at approximately 4 a.m. Burruss and Davis were taken to nearby hospitals, where they both were pronounced dead from multiple gunshot wounds.

The crime scene investigators swept the scene for evidence relating to the shooting. Twenty-two nine millimeter cartridge casings were recovered from the scene, and it was determined that all had been fired from the same weapon, most likely a Glock semiautomatic pistol. The weapon was never recovered. No fingerprint or DNA evidence recovered by the police tied the defendant to the scene.

After an investigation, the police arrested the defendant. Following a trial, the jury found the defendant guilty of two counts of murder, assault in the first degree, criminal possession of a pistol and carrying a pistol without a permit. The defendant received a total effective sentence of 100 years of incarceration. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the court delivered prejudicial jury instructions. He argues that (1) the instructions on the issue of identification were prejudi-cially erroneous and deprived him of a fair trial, and (2) the entire charge was delivered at such a rapid speed that the jury was unable to follow it. We affirm the judgment of the court.

A

In support of his first claim, the defendant argues that the court’s instructions prejudiced the defendant in that, contrary to the model instructions promulgated by the Judicial Branch, they emphasized the importance of the eyewitness’ certainty without any qualification that certainty does not mean accuracy. He also argues that the court did not instruct the jury as to certain factors for consideration, that arguably would have favored the defendant, such as distance, lighting, the emotional state of the witness and the length of time between the crime and identification. We conclude that the defendant waived this claim.

The following additional facts and procedural history are relevant to our discussion. As both the state and the defense acknowledged in their closing arguments, the critical issue at trial was the identity of the shooter. The state’s primary evidence establishing the defendant as the shooter was the testimony of D.

At trial, the defense pursued several strategies for discrediting D’s testimony. This included noting the circumstances of her identification. When the police initially interviewed D on the night of the shooting in April, 2008, she denied having seen anyone responsible for the crime. It was not until August, 2010, after having moved out of state, that she communicated with the Office of the State’s Attorney and told an inspector what she had seen that night. She explained her initial hesitance in revealing the identity of the shooter as being based on fear that the defendant would retaliate against her. The defense also highlighted the conditions under which D had witnessed the events in question, including the lighting, the distance, the viewing angle and her emotional state at the time.

The court gave the following instruction on identification: “Identity is an issue in every criminal case. An element of each offense is the identity of the perpetrator. The state must prove to you beyond a reasonable doubt that this defendant was the individual who committed the crimes that the jury considers. Therefore, the burden in this case is on the prosecution to prove beyond a reasonable doubt not only that the crimes charged were committed, but also that the defendant was the person who committed the crime. If the state does not prove the identity of the defendant as the perpetrator beyond a reasonable doubt in any of the offenses charged, you must find him not guilty of the offense. You must be satisfied beyond a reasonable doubt of the accuracy of the identification of the defendant before you convict him. It is your duty to recall and weigh and consider all of the evidence relating to the identification of the defendant. You should consider the opportunity the witness had to observe the defendant, the degree of certainty of the identification made by the witness, [and] whether the witness knew the defendant before the identification in any other circumstances that you think are relevant to the issue of identification of the defendant.”

On appeal, the defendant claims for the first time that these instructions prejudiced him to the extent that his constitutional right to a fair trial was violated. The defendant seeks review of this unpreserved claim pursuant to State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). We will review an unpreserved claim when “(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. In the absence of any one of these conditions, the defendant’s claim will fail.” (Footnote omitted.) Id., 239-40.

In order to determine initially whether the defendant’s claim is reviewable under Golding, we must first consider whether that claim was waived at trial. “A defendant in a criminal prosecution may waive one or more of his or her fundamental rights. . . . [I]n the usual Golding situation, the defendant raises a claim on appeal [that], while not preserved at trial, at least was not waived at trial. ... [A] constitutional claim that has been waived does not satisfy the third prong of the Golding test because, in such circumstances, we simply cannot conclude that injustice [has been] done to either party ... or that the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial . . . .” (Citation omitted; internal quotation marks omitted.) State v. Kitchens, 299 Conn. 447, 467, 10 A.3d 942 (2011).

In Kitchens, our Supreme Court held that “when the trial court provides counsel with a copy of the proposed jury instructions, allows a meaningful opportunity for their review, solicits comments from counsel regarding changes or modifications and counsel affirmatively accepts the instructions proposed or given, the defendant may be deemed to have knowledge of any potential flaws therein and to have waived implicitly the constitutional right to challenge the instructions on direct appeal.” Id., 482-83. The court cautioned that “[s]uch a determination by the reviewing court must be based on a close examination of the record and the particular facts and circumstances of each case.” Id., 483.

In this case, the record reflects that the state and the defense were provided with a copy of a draft version of the jury instructions on November 4, 2010. On November 8, 2010, the court solicited comments from both sides regarding changes or modifications to the instructions. Defense counsel did not make any objections to the instructions at that time. Subsequent to instructing the jury, the court again provided defense counsel with an opportunity to object to any portion of the instructions, and no objection was made as to the instruction on identification. At sentencing, defense counsel reiterated that the defense had been given an opportunity to view the instructions and voice any objections, and had declined to do so. In fact, defense counsel explicitly stated that he did not have any issue with the content of the instructions and had “agreed on them” at the charging conference.

Since Kitchens, this court has found waiver in situations that resemble the facts of this case. In State v. Beebe, 131 Conn. App. 485, 493, 27 A.3d 26 (2011), cert. denied, 303 Conn. 921, 34 A.3d 397 (2012), we held that a defendant had waived the right to challenge jury instructions where “the court provided defense counsel with a copy of the draft jury charge,” and “defense counsel had meaningful and multiple opportunities to review the trial court’s instructions and to object to any language therein, and, in response to solicitation by the trial court, repeatedly indicated his satisfaction with the charge.” (Internal quotation marks omitted.) In State v. Charles, 134 Conn. App. 242, 252, 39 A.3d 750, cert. denied, 304 Conn. 930, 42 A.3d 392 (2012), we held that a defendant had waived the right to challenge jury instructions where “defense counsel had a meaningful opportunity to review the court’s written instructions and to object to any language therein [but] . . . proposed no instructions of his own and took no exceptions to the charge as given.”

Here, defense counsel, having been provided with a draft copy of the jury instructions and a meaningful opportunity to review them and to alert the court to any potential issues, declined to object in any way to the portion concerning identification, and affirmatively expressed his satisfaction with the content of the instructions. Under these circumstances, the defendant has waived his claim of instructional error and, accordingly, it fails under the third prong of Golding.

B

The defendant also claims that the court erred in delivering the jury instructions at such a rapid speed that the jury was unable to follow them. We disagree.

Following final arguments, the court read the instructions to the jury. The court then asked whether either side wanted to object to the instructions. The defense did not object to the speed at which the instruction was delivered or state any concerns about the clarity or comprehensibility of the instructions. While deliberating, the jury asked for a copy of the instructions, which was provided in written form.

After the guilty verdict, the defendant filed a motion for a new trial on the ground that, among other things, “[t]he court’s instructions tilted the scales of justice in a fundamentally unfair manner, causing material injury to the defense’s case . . . .’’At sentencing, defense counsel was heard on the motion, and he explained that his issue with the instructions “was the speed with [which] the court went through the instructions to the jury.” He explained that he had a hard time following the instructions and argued that the fact that the jury had requested a copy of the instructions supported his argument. The court denied the motion, finding that “the instructions are given at the same rate of speed for every trial” and were delivered in “the court’s normal manner of speaking out when it relates its instructions.” The court also noted that “the jury did have the benefit of the actual transcript of the court’s instructions going in with them in their deliberative process.”

On appeal, the defendant challenges the court’s denial of the motion for a new trial on the ground that the court erred in finding that the instructions were comprehensible. The defendant argues that the claim is properly preserved by the postjudgment motion for a new trial or, alternatively, that the claim is reviewable under Golding, as the rapid delivery deprived him of a constitutionally guaranteed fair trial.

As a preliminary matter, we note that a party who is concerned with the speed in which a judge is delivering instructions should object at the time the instructions are being read so that the judge is aware of the party’s concerns and can adjust the speed of delivery or take other corrective steps if appropriate. Waiting until after the verdict has been entered and the jury has been discharged places the judge and the other parties in an unfair position. In this case, however, we agree that the defendant’s motion for a new trial preserved the claim, and we therefore proceed to its merits without consideration of Golding.

“Appellate review of a trial court’s decision granting or denying a motion for a new trial must take into account the trial judge’s superior opportunity to assess the proceedings over which he or she has personally presided. . . . Thus, [a] motion for a new trial is addressed to the sound discretion of the trial court and is not to be granted except on substantial grounds.” (Internal quotation marks omitted.) State v. Holmes, 75 Conn. App. 721, 727, 817 A.2d 689, cert. denied, 264 Conn. 903, 823 A.2d 1222 (2003). We will not disturb a trial court’s findings of fact in ruling on a motion for a new trial unless they are clearly erroneous. Id., 728. “A finding of fact is clearly erroneous when there is no evidence to support it ... or when . . . the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. ... In making this determination, every reasonable presumption must be given in favor of the trial court’s ruling . . . .” (Internal quotation marks omitted.) Id.

At the defendant’s request and without objection from the state, we have listened to an audio recording of the court’s delivery of the jury instructions and have determined that the speed at which the jury instructions were delivered falls within an acceptable standard. Therefore, we cannot conclude that the court’s factual finding that the instructions were comprehensible was clearly erroneous. We further note that the jury asked for and received a written copy of the instructions. Accordingly, the court acted within its discretion in denying the defendant’s motion for a new trial.

II

Next, the defendant claims that the court erred in granting the state’s motion in limine barring evidence of D’s conviction for and involvement with prostitution. Specifically, he argues that D’s involvement with the victims in the enterprise of prostitution was relevant to establish that she was biased in favor of one of the victims. We are not persuaded.

Prior to trial, the state filed a motion in limine asking the court to require the defense to make an offer of proof outside the presence of the jury prior to pursuing any evidence about D’s involvement with the victims in the enterprise of prostitution. During trial, prior to D’s testimony and outside the presence of the jury, the defense argued that such evidence was necessary to show that the victims played a caretaker role in D’s life and that money was being shared between them, in contrast to the straightforward romantic relationship between Duncan and D that had been portrayed by Duncan. The state argued that such evidence would be more prejudicial to the witness’ credibility than probative of bias. The court ruled that any evidence of D’s involvement with prostitution was barred because it was not relevant to D’s credibility.

We review a court’s evidentiary rulings under the abuse of discretion standard. “The trial court’s ruling on the admissibility of evidence is entitled to great deference. . . . [T]he trial court has broad discretion in ruling on the admissibility ... of evidence . . . [and its] ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . We will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion.” (Internal quotation marks omitted.) State v. Martinez, 295 Conn. 758, 769-70, 991 A.2d 1086 (2010).

The credibility of a witness may be impeached by evidence showing the witness’ bias toward another person. Conn. Code Evid. § 6-5. Such impeachment may be accomplished through examination of the witness or through the introduction of extrinsic evidence, but the offering party bears the burden of establishing the relevancy of the impeachment evidence. State v. Brown, 273 Conn. 330, 341, 869 A.2d 1224 (2005). Otherwise relevant evidence may be excluded if the court, in its discretion, determines that the probative value of the evidence is outweighed by the danger of unfair prejudice. Id., 342; see also Conn. Code Evid. § 4-3. “Unfair prejudice occurs where the facts offered may unduly arouse the jury’s emotions, hostility or sympathy . . . .” (Internal quotation marks omitted.) State v. Douglas, 126 Conn. App. 192, 219, 11 A.3d 699, cert. denied, 300 Conn. 926, 15 A.3d 628 (2011).

In this case, the court concluded that evidence of D’s involvement with prostitution was “not relevant to any finding of credibility or bias.” At that point in the trial, testimony had been adduced establishing that D lived with two of the victims and was in a romantic relationship with one of them. It also was established that the third victim was a frequent guest at the apartment D and the other victims shared. After a careful review of the record, we cannot conclude that the court abused its discretion in precluding the impeachment evidence.

Ill

Next, the defendant claims that the court erred in allowing the state to elicit unduly prejudicial testimony from the mother of one of the victims. Specifically, the defendant argues that the prejudice to the defendant caused by the mother’s testimony that the surviving victim identified the shooter outweighed its probative value as a prior inconsistent statement. As we afford great deference in reviewing such evidentiary rulings, we are not persuaded.

The following additional facts and procedural history are relevant to our analysis of the issue. At trial, Duncan, the surviving victim, testified that he was unable to identify the shooter because it was too dark. This testimony was consistent with what Duncan had told the police during their investigation of the crime. In order to impeach this testimony, the state sought to produce, as evidence of a prior inconsistent statement, testimony from Lynne Jones, the mother of Burruss, that Duncan had spoken to her after the shooting and identified the defendant as the shooter. The state also sought to elicit testimony from Jones that Duncan had recounted to her details of the fight between the defendant and Bur-russ at the nightclub and had described Burruss as having choked the defendant, a detail that Duncan had not included while testifying at trial. The state laid the foundation for such testimony by providing Duncan with an opportunity to explain these inconsistencies on direct examination.

During trial, the defendant moved to preclude such testimony on the grounds that it was hearsay and that the potential to prejudice the defendant outweighed its probative value. The state argued that it was proper inconsistent statement evidence for the purpose of impeaching Duncan and should be admitted subject to a limiting instruction. The court concluded that Jones’ testimony would be admitted, but as to the identification, in order to avoid prejudice, she would be instructed to testify only that Duncan had identified an individual by name and not specify that the defendant was that individual. As to the altercation at the club, the court allowed the state to elicit testimony specifically referring to the defendant because Duncan already had identified the defendant as being involved in the incident.

Jones was then called before the jury, where she testified that Duncan had visited her prior to her son’s funeral. She explained that she asked Duncan who had killed her son and that he told her the name of the person responsible for the shooting. The prosecution then immediately asked Jones what Duncan had told her about the altercation at the club, and Jones said that Duncan told her that Burruss had “choked [the defendant] out.” The court instructed the jury to consider the testimony only for purposes of evaluating Duncan’s credibility.

On appeal, the defendant claims that any testimony from Jones that Duncan had identified an individual responsible for the shooting should have been barred. The defendant argues that the prejudicial effect of the testimony was particularly high, given the circumstances of a mother being told the identity of her son’s murderer, and the probative value was particularly low because evidence of Duncan’s conversation with Jones was collateral to the central issue of identification. We are not persuaded.

As set forth in part II of this opinion, we review a court’s evidentiary rulings under the abuse of discretion standard. The credibility of a witness maybe impeached by evidence that the witness previously made a statement inconsistent with that made at trial. State v. Douglas F., 145 Conn. App. 238, 249, 73 A.3d 915, cert. denied, 310 Conn. 956, 81 A.3d 1181 (2013); see also Conn. Code Evid. § 6-10. Like other evidence, a prior inconsistent statement may be excluded at the court’s discretion if its probative value is outweighed by its prejudicial effect. See State v. Carter, 189 Conn. 631, 642, 458 A.2d 379 (1983); see also Conn. Code Evid. § 4-3. “Because of the difficulties inherent in this balancing process, the trial court’s decision will be reversed only whe[n] abuse of discretion is manifest or whe[n] an injustice appears to have been done. ... On review by this court, therefore, every reasonable presumption should be given in favor of the trial court’s ruling.” (Internal quotation marks omitted.) State v. Morquecho, 138 Conn. App. 841, 853-54, 54 A.3d 609, cert. denied, 307 Conn. 941, 56 A.3d 948 (2012).

In this case, the court recognized the possibility of undue prejudice caused by Jones’ account and thus restricted her testimony to preclude any identification of the defendant as the shooter. This, along with the limiting instruction by the court, was sufficient to guard against the jury considering the evidence for an improper purpose. Furthermore, the prior inconsistent statement was highly probative in calling into question Duncan’s testimony that he was unable to identify the shooter due to darkness, an issue that lay at the heart of the case. Accordingly, we do not find cause to upset the court’s discretionary ruling.

The judgment is affirmed.

In this opinion the other judges concurred.

       In order to protect the privacy interests of the witness, we do not identify the witness by name.

       The defendant also seeks plain error review of this claim. See Practice Book § 60-5. To the extent that the claim is amenable to review under the plain error doctrine, we are not persuaded that an error exists that is so obvious that it affects the fairness and integrity of and the public confidence in the judicial proceedings or that the court’s instructions caused the defendant to suffer manifest injustice. See State v. Santiago, 100 Conn. App. 236, 254, 917 A.2d 1051, cert. denied, 284 Conn. 933, 935 A.2d 153 (2007).

       Although the defendant is correct that the record does not indicate that the defense was provided with a finalized version of the instructions, there is no indication from the record that the final instructions as to identification were altered in any way from the draft version except for the addition of language declaring that it is the state’s burden to prove identity beyond a reasonable doubt. The court notified the defense of this additional language prior to instruction, and it does not relate to the reliability of an eyewitness, which is the subject of the defendant’s claim on appeal.

       The defendant relies on State v. Devalda, 306 Conn. 494, 50 A.3d 882 (2012), and State v. Brown, 299 Conn. 640, 11 A.3d 663 (2011), wherein instructional claims were held to have not been waived under a Kitchens analysis because the records in those cases were not sufficiently complete to show that the defense counsel was apprised of the instructions prior to the jury being charged. These cases are distinguishable from the present case because here, after the “close examination of the record and the particular facts and circumstances of [the] case” required by Kitchens, we have ascertained that defense counsel was made aware of the content of the instructions before they were delivered to the jury. State v. Kitchens, supra, 299 Conn. 483.

       The defendant also argues, for the first time on appeal, that evidence of D’s involvement in prostitution should have been allowed because the state “opened the door” for such evidence by inquiring into the witness’ relationship with the victims. As “[o]ur review ... of evidentiary rulings made by the trial court is limited to the specific legal ground raised [at trial],” we decline to review this claim. State v. Holloway, 117 Conn. App. 798, 813, 982 A.2d 231 (2009) (“[t]o permit a party to raise a different ground on appeal than was raised during trial would amount to trial by ambuscade, unfair both to the trial court and to the opposing party” [internal quotation marks omitted]), cert. denied, 297 Conn. 925, 998 A.2d 1194 (2010).