author: Norcott, J.

text:
    Nihat Ozkan v. Myxheuer Ozkan
    (6684)
    Dupont, C. J., Norcott and Foti, Js.

      Argued January 12
    decision released April 4, 1989

      Judith A. Busch filed a brief for the appellant (plaintiff).

      Eddi Z. Zyko, for the appellee (defendant).
   Norcott, J.

The plaintiff appeals from the trial court’s decision that it lacked jurisdiction under the Uniform Child Custody Jurisdiction Act (UCCJA), General Statutes §§ 46b-90 through 46b-119, in his action for modification of the custody of the parties’ son.

The marriage of the plaintiff and the defendant was dissolved in Connecticut on July 1, 1985. The crucial issue in the case was the custody of the parties’ son. The court granted joint custody to the parents with physical custody to the defendant mother. The defendant then moved with the child to Detroit, Michigan, to reside with her parents. The plaintiff exercised his visitation rights when he was able, despite his work schedule and the considerable distance between his home in Waterbury and the child’s home in Detroit.

During the late summer of 1987, by mutual agreement, the defendant left the child with the plaintiff for six weeks while she visited relatives in Yugoslavia. On October 12, 1987, after the defendant’s return, the plaintiff, with whom the child continued to reside, filed a motion for a change of custody, claiming that it was in the child’s best interest to continue receiving medical and psychological treatment in Connecticut. When the hearing on custody was scheduled for November 2, 1987, the defendant arranged to pick up the child on October 17,1987, to return him to Detroit. In response to the mother’s plans, the plaintiff sought an ex parte order of temporary custody citing, as reasons for the requested order, the imminent psychological and physical danger to the child if he were to return to Michigan. On October 16, 1987, the court, Lavery, J., granted the ex parte order until the custody hearing on November 2, 1987.

On October 19 and 22,1987, the court, Mihalakos, J., conducted a hearing on whether the ex parte order should be continued. On November 3,1987, the court, finding that there was no basis for the continuation of the ex parte order, dissolved the order and further held that Connecticut courts lacked jurisdiction, under the provisions of the UCCJA, to modify the original custody order. The plaintiff did not request an articulation of the court’s decision or move for a stay of execution. The defendant returned with the child to Michigan, where they continue to reside.

On December 14, 1987, the trial court denied the plaintiff’s motion to open. The plaintiff appeals only the trial court’s decision that it lacked jurisdiction; he does not appeal the ruling dissolving the ex parte order. The plaintiff argues that the trial court erred in concluding that “[n]one of the requirements listed in General Statutes § 46b-93 (UCCJA) applies in the instant case in order to vest the court with jurisdiction.” We agree with the plaintiff.

General Statutes § 46b-93 establishes the general class of custody cases within the trial court’s jurisdiction. Grynkewich v. McGinley, 3 Conn. App. 541, 544, 490 A.2d 534 (1985). In order to achieve interstate uniformity in custody matters, the UCCJA “limits custody jurisdiction to the state where the child has his home or where there are other strong contacts with the child and his family.” Unif. Child Custody Jurisdiction Act. Commissioner’s Prefatory Note, 9 U.L.A. 114 (1979).

In this case, it is clear from the record that the plaintiff sought jurisdiction under the provisions of General Statutes § 46b-93 (a) (2) (A) and (B), (3) (B), and (4) (A) and (B) and presented his case in terms of the best interest of the child. The plaintiff argues that, at the plenary hearing on the question of whether the court had jurisdiction to make a child custody determination under General Statutes § 46b-93, he proved that he and the child had a significant connection with Connecticut and that he produced substantial evidence concerning the child’s present and future care, protection and personal relationships. Accordingly, the plaintiff argues that he demonstrated pursuant to the statute that it was in the child’s best interest that Connecticut exercise jurisdiction.

The trial court denied jurisdiction on the basis that no provision of General Statutes § 46b-93 applied to vest it with jurisdiction. “It is amply clear that a finding as to whether jurisdiction exists under any provision of General Statutes § 46b-93 rests upon a determination of fact by the trial court.” Grynkewich v. McGinley, supra, 546. “ ‘The trial court’s findings are binding upon the court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole.’ ” Nor’easter Group, Inc. v. Colossale Concrete, Inc., 207 Conn. 468, 473, 542 A.2d 692 (1988), quoting Edens v. Kole Construction Co., 188 Conn. 489, 494, 450 A.2d 1161 (1982); Shultz v. Barker, 15 Conn. App. 696, 700, 546 A.2d 324 (1988). We conclude that the trial court’s factual finding, on which it based its ultimate conclusion of law, is not adequately supported by the record and is therefore clearly erroneous.

Our review of the record reveals that there was ample evidence presented to the court to support a conclusion that relevant provisions of General Statutes § 46b-93 applied to the case. Specifically, the plaintiff showed that he and the child had a significant connection to Connecticut. At the time of the October hearing, the child had been living with the father for several months and was enrolled on a continuing basis at the Country Garden Preschool in Waterbury. Additionally, the child had been under the professional care of a clinical psychologist for two months for treatment of emotional problems.

Further, the record is clear that there was substantial evidence available in this state concerning the child’s present and future care and personal relationships. Leah Price, the child’s clinical psychologist, Deborah Platt, the director of the preschool, and the plaintiffs immediate relatives all testified to the child’s emotional improvement while in Connecticut and to the importance of continuing the development of positive personal relationships between the child and others in his present setting. The plaintiff also testified that the child, who was diagnosed in Michigan as having neu-rofibromatosis, is being treated by a number of medical specialists in Connecticut and that he and his son have become involved with a neurofibromatosis foundation to assist with the child’s ongoing physical problems related to the disease. On the basis of this evidence, we conclude that the trial court had jurisdiction to make a child custody determination because the plaintiff presented sufficient evidence to meet the requirements of 46b-93 (a) (2) (A) and (B).

Having concluded that the court had jurisdiction, we must remand the case to the trial court for further proceedings. On remand, under the circumstances of this case, the court should determine whether it is in the best interest of the child for Connecticut to exercise its jurisdiction, or whether another state with concurrent jurisdiction, is a more appropriate forum for resolving the custody issue. See Brown v. Brown, 195 Conn. 98, 107-13, 486 A.2d 1116 (1985). In making this decision, the court shall consider the factors set out in General Statutes 46b-97 (c). If it finds that the factors weigh in favor of the Connecticut court’s exercising its jurisdiction, then the court should decide the plaintiff’s motion for modification of custody. If, however, the weighing of the § 46b-97 (c) factors indicates that Connecticut is an inconvenient forum, and that another state is a more appropriate forum, the court may decline to exercise its jurisdiction and follow the procedures set out in § 46b-97 (e) (g) and (h).

There is error, the judgment of the trial court is set aside with respect to its determination that it lacked jurisdiction of the application for change of custody and the case is remanded for a new hearing to determine whether it is in the best interest of the child for Connecticut to exercise its jurisdiction and rule on the plaintiffs motion for modification of custody or to decline the exercise of its jurisdiction in favor of a more appropriate forum. Physical custody of the minor child shall remain with the defendant until the trial court has had an opportunity to address these issues at the new hearing.

In this opinion the other judges concurred.

       The entire text of the trial court’s memorandum of decision is set forth as follows: “This matter comes before the court upon application by the plaintiff for an order of temporary legal custody.
      “An ex parte judgment remedy was signed granting the desired relief and the matter now was argued before this court.

        “The court finds absolutely no basis for continuation of the prejudgment remedy and accordingly dissolves those orders which were entered.
      “Connecticut is an inappropriate forum. None of the requirements listed in General Statutes § 46b-93 (UCCJA) applies in the instant case in order to vest the court with jurisdiction. Even if, however, the court found that it had jurisdiction, it need not exercise that jurisdiction if it feels that the state’s having concurrent jurisdiction is the more convenient forum. Brown v. Brown, 195 Conn. 98 [107-13, 486 A.2d 1116] (1985).
      “The purpose of the UCCJA is to avoid jurisdictional hagglings between states, Clearly, in this matter the question of custody should be heard in Michigan rather than in Connecticut.”

       General Statutes § 46b-93 provides: “(a) The superior court shall have jurisdiction to make a child custody determination by initial or modification decree if: (1) This state (A) is the home state of the child at the time of commencement of the proceeding, or (B) had been the child’s home state within six months before the commencement of the proceeding and the child is absent from the state because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this state; or (2) it is in the best interest of the child that a court of this state assume jurisdiction because (A) the child and his parents, or the child and at least one contestant, have a significant connection with this state, and (B) there is available in this state substantial evidence concerning the child’s present or future care, protection, training and personal relationships; or (3) the child is physically present in this state and (A) the child has been abandoned or (B) it is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse or is otherwise neglected or dependent; or (4) (A) it appears that no other state would have jurisdiction under prerequisites substantially in accordance with subdivision (2) or (3) of the subsection, or another state has declined to exercise jurisdiction on the ground that this state is the more appropriate forum to determine the custody of the child, and (B) it is in the best interest of the child that this court assume jurisdiction.
      “(b) Except under subdivisions (3) and (4) of subsection (a) of this section, physical presence in this state of the child, or of the child and one of the contestants, is not alone sufficient to confer jurisdiction on a court of this to make a child custody determination.
      “(c) Physical presence of the child is not a prerequisite for jurisdiction to determine his custody.”

       Because we hold that the court had jurisdiction based on these subsections, we find it unnecessary to determine whether the evidence presented by the parties was sufficient to meet the requirements of other subsections of General Statutes § 46b-93.

       Although the court stated that even if it had jurisdiction, the custody issue should be heard in Michigan, we cannot accept this conclusion. The criteria to be weighed in determining the best forum under § 46b-97 (c) include those used to determine jurisdiction under § 46b-93 (a) (2) (A) and (b). Because the court improperly applied these criteria to the latter determination, we cannot assume that they were properly applied to the former.

       We reject the defendant’s claim that the jurisdictional question is moot because the child returned to Michigan following the trial court’s order regarding its jurisdiction. The question of jurisdiction to modify custody does not disappear simply because the child moves to another state; see Hurtado v. Hurtado, 14 Conn. App. 296, 303, 541 A.2d 873 (1988); and the physical presence of the child is not a jurisdictional prerequisite to a determination of his custody. General Statutes § 46b-93 (c). Michigan has enacted the UCCJA; Mich. Stat. Ann. Laws §§ 27A.651 through 27A.673; and will honor the order of the trial court on remand. The spirit and provisions of the UCCJA, which is designed to avoid jurisdictional competition and conflict, clearly apply to the very situation that the defendant now claims is moot.


source: Caselaw Access Project

author: O’Connell, J.

license: Public Domain

text:
    James Honis et al. v. Alan Cohen et al.
    (6746)
    Dupont, C. J., O’Connell and Foti, Js.

      Argued December 13, 1988
    decision released April 4, 1989

      Anthony F. Slez, Jr., for the appellants (plaintiffs).

      Thomas K. Jackson, for the appellees (named defendant et al.).

      Frank J. Riccio, for the appellees (defendant Gary Kelly et al.).
   O’Connell, J.

This is the plaintiffs’ appeal from a ■ judgment in favor of the defendants in an action for a declaratory judgment and an injunction concerning their eligibility to take an examination for promotion to lieutenant in the Bridgeport police department.

The three claims of error raised by the plaintiffs are subsumed in the larger question of whether they may, at this time, question their eligibility for inclusion on the lieutenants list. We answer that question in the negative and find no error.

The following facts are dispositive of this appeal. The three plaintiffs are sergeants in the Bridgeport police department and the defendants are the personnel director of the city of Bridgeport, the civil service commission of the city of Bridgeport and three other sergeants (defendant sergeants) in the police department. On June 11,1983, the civil service commission conducted an examination for promotion to the rank of sergeant. All of the plaintiffs and defendant sergeants took and passed the examination, the results of which were announced in the fall of 1983. Shortly thereafter, the plaintiff Honis challenged the residency of the defendants Frank Resta and Gary Kelly.

City residency is a requirement for promotional eligibility. The civil service commission requested the board of police commissioners to investigate Resta’s and Kelly’s residencies. A board of inquiry was held on May 8,1984, and found that Resta and Kelly were bona fide residents of the city. These findings were transmitted to the civil service commission. On December 28, 1984, that commission certified and promulgated a list of police officers eligible for a promotion to sergeant. The names of the plaintiffs and of the defendant sergeants appeared on this list in the order of their earned ratings as determined by the promotional examination. The defendant sergeants’ names appeared higher on the list than the plaintiffs’ names.

The Bridgeport city charter provides that promotion from a list of this type is automatic and in order of earned ratings with no discretion allowed to the civil service commission. As each of their names rose to the top of the list, each of the plaintiffs and defendants was promoted to sergeant; the defendants were promoted on earlier dates than the plaintiffs. Pursuant to § 9 of the Bridgeport City Charter, this promotional eligibility list expired on December 28, 1986. No appeal was brought to the courts when the defendant sergeants were found to be bona fide Bridgeport residents nor when they were promoted to sergeant.

The problem that is the genesis of the present action arose on March 24, 1987, with the announcement of an examination of eligible sergeants for promotion to the rank of lieutenant. A prerequisite to taking the lieutenants examination was one year of service (time in grade) as a sergeant. The plaintiffs are fifty-one days short of meeting this time in grade requirement.

In this action, the plaintiffs seek a declaratory judgment to the effect that by force of law they were promoted to sergeant effective on April 10,1986, with time and grade from that date, rather than from the later dates on which they were actually promoted. The April 10, 1986 date would qualify the plaintiffs to take the lieutenants examination. Ancillary to the declaratory judgment, the plaintiffs seek an injunction blocking other promotions to the rank of lieutenant until they have taken that examination and damages for violation of their civil rights pursuant to 42 USC § 1983. The latter claim is directed solely against the defendants Cohen and the civil service commission.

The gravamen of the plaintiffs’ complaint is that the defendant sergeants were promoted while they were nonresidents and hence their promotions were illegal. The plaintiffs argue that had it not been for these illegal promotions, they would have been promoted sooner, thereby having the requisite time in grade to take the lieutenants examination.

There is a fundamental flaw in. the plaintiffs’ case. They never appealed the December 28,1984 certification of the defendant sergeants’ eligibility for the sergeants examination. They now are attempting to use this declaratory judgment action as a substitute for that appeal. This is an inappropriate utilization of the declaratory judgment process. Tucker v. Board of Education, 190 Conn. 748, 754, 462 A.2d 385 (1983). They may not, at this date, employ the declaratory judgment statute to achieve a de novo determination of a matter upon which they failed to take a timely appeal. Ginsberg v. Post, 177 Conn. 610, 615, 418 A.2d 941 (1979). Hence, the plaintiffs are precluded from challenging the correctness of the civil service commission’s 1984 certification of the sergeants eligibility list at this time. Tucker v. Board of Education, supra, 754-55.

Moreover, this action is an attempt to challenge a promotion list after its expiration. The effect of the relief sought by the plaintiffs is to change their position on the sergeants promotion list. The failure to act while an eligibility list is in force has been determined by our Supreme Court to render the trial court powerless to alter relative positions on a promotion list after the list’s expiration date. State ex rel. Gaski v. Basile, 174 Conn. 36, 41, 381 A.2d 547 (1977); State ex rel Chernersky v. Civil Service Commission, 141 Conn. 465, 470-71, 106 A.2d 713 (1954).

The plaintiffs’ civil rights claim under 42 U.S.C. § 1983 also lacks merit. In order to prevail, the plaintiffs would have to show a deprivation of a property right within the due process clause of the United States constitution. An application for government employment generally does not give rise to a property interest in the position sought. McFarlane v. Grasso, 696 F.2d 217, 221 (2d Cir. 1982); Gant v. Binder, 596 F. Sup. 757, 766 (D. Neb. 1984), aff'd, 766 F.2d 358 (8th Cir. 1985); nor, except when termination of employment is involved, do personnel decisions constitute a deprivation of a property interest. Rode v. Dellarciprete, 646 F. Sup. 876, 880 (M.D. Pa. 1986), aff'd in part, vacated and remanded in part, 845 F.2d 1195 (3rd Cir. 1988); Wargat v. Long, 590 F. Sup. 1213, 1215 (D. Conn. 1984); see also Petrowski v. Norwich Free Academy, 199 Conn. 231, 234, 506 A.2d 139, appeal dismissed, 479 U.S. 802, 107 S. Ct. 42, 93 L. Ed. 2d 5 (1986).

There is no error.

In this opinion the other judges concurred.

       The plaintiffs claim that the court erred (1) in excluding all evidence as to the residence of the three police officer defendants, (2) by misapplying the law of two leading cases to the facts of the present case, and (3) in failing to find the right to compete for promotion, under the facts of this case, is a vested property right.

       The residence of defendant Gerald DeStefano was not challenged prior to this action.


author: Dupont, C. J.

text:
    Donna Young et al. v. David T. Chase et al.
    (6253)
    Dupont, C. J., Spallone and Foti, Js.

      Argued October 5, 1988
    decision released April 4, 1989

      Paul W. Orth, for the appellants (plaintiffs).

      Stuart Bear, with whom, on the brief, were Jacob D. Zeldes and Paul F. Thomas, for the appellees (named defendant et al.).

      James J. Tancredi, with whom, on the brief, were Robert E. Pace and Deborah J. Blood, for the appellees (defendant plan and zoning commission of the town of Farmington et al.).
   Dupont, C. J.

The plaintiffs brought this action seeking a declaratory judgment and injunctive relief. The declaratory judgment relief is premised on their claims that two special exceptions granted by the defendant plan and zoning commission of the town of Farming-ton (commission) to construct a television broadcast tower and related transmitter building on two parcels of land are void and illegal, and that the special exceptions do not apply to one of the parcels of land. The injunctive relief sought was to compel the named defendant, David Chase, to remove all or a portion of the television transmission tower, property and equipment for which the special exceptions were granted.

Both Chase and the commission moved for dismissal. The claim of the commission was that the court lacked subject matter jurisdiction because a validating act, Spec. Acts 1985, No. 85-47, cured the defects in notice alleged in the plaintiffs’ complaint, thereby leaving no actual question in dispute. Chase made the same claim and also argued that all persons having an interest in the subject matter of the plaintiffs’ complaint had not been given reasonable notice as required by Practice Book § 390 (d). The trial court granted the defendants’ motions to dismiss on grounds other than those advanced by the defendants, finding that the appropriate procedure for challenging the special exceptions was by an administrative appeal and that, accordingly, the court lacked subject matter jurisdiction over the plaintiffs’ declaratory judgment action. The court, therefore, did not decide whether there was an actual question in dispute, nor did it reach the second basis for dismissal presented in Chase’s motion to dismiss. The plaintiffs have appealed from the trial court’s judgment of dismissal. We find error.

The first issue to be resolved is whether the plaintiffs have alleged facts sufficient to support the bringing of an action for a declaratory judgment, and, if so, whether they have afforded all persons having an interest in the subject matter of their action reasonable notice in accordance with Practice Book § 390 (d). The second issue, if the allegations support a declaratory judgment action, is whether the alleged defects in the notice required by General Statutes § 8-3 and the Farm-ington zoning regulations were cured by a validating act, Spec. Acts 1985, No. 85-47.

I

The plaintiffs’ amended complaint states that they are owners of real estate adjoining a parcel of land referred to as the orchard, situated on Rattlesnake Mountain in the town of Farmington, and that Chase is the present owner of the orchard and of a parcel of land referred to as the tower parcel which abuts the orchard parcel.

The plaintiffs allege that, in June, 1979, the commission granted a special exception to Enzo DeDominicus and Nicholas Robinson to build a radio transmission tower on Rattlesnake Mountain. The radio transmission tower was not built by the original applicants for the special exception and the special exception was not recorded in the office of the town clerk for Farming-ton as is required by General Statutes §§ 8-3c and 8-3d.

The plaintiffs further allege that in December, 1983, Chase filed an application for a special exception as to the tower parcel in order to modify the location and height of the transmission tower previously approved and to construct an associated transmitter building. In January, 1984, Chase provided the Farmington town planner a site plan and map that showed “land to be conveyed to David Chase.” The map showed the proposed tower as located on the tower parcel and had lines representing banks of guy wires, one of which ran from the tower parcel eight hundred feet onto the orchard parcel. There was no application filed for a special exception for the orchard parcel on which the construction and use of an anchor area and guy wires were to be located.

In March, 1984, after public hearings, the commission voted to grant a special exception for the construction of a transmitter building on the tower parcel and a modification as to the tower parcel for the location and height of the transmission tower previously approved in 1979. In May, 1984, after the commission had granted Chase’s application, he purchased both the tower and the orchard parcels. The special exceptions were never filed or recorded. The plaintiffs allege that they first received notice of the special exceptions when construction of the steel tower began sometime during the summer of 1984.

The plaintiffs’ amended complaint further alleges that the commission’s granting of the special exceptions to Chase, and the resulting use of the tower and orchard parcel are void and illegal. Specifically, the plaintiffs allege that the commission was without power to utilize and modify the special exception granted in 1979, that Chase’s application did not give fair notice of the nature and extent of the special use sought, that the application did not give fair notice that the orchard parcel was substantially affected by the proposed use, and that Chase failed to give the plaintiffs personal notice as required by the zoning regulations of Farm-ington, article II, section l. The plaintiffs farther allege that Chase did not file a separate application for a special exception for the orchard parcel, thereby resulting in a failure of the notice required by General Statutes § 8-3. In addition, the plaintiffs alleged that the town zoning regulations governing special exceptions lacked adequate standards for denying or granting such exceptions, and that the special exceptions were ineffective because Chase failed to record them within a reasonable time.

The plaintiffs claim that their complaint presents issues appropriate for resolution by declaratory judgment. The plaintiffs contend, despite the trial court’s characterization of their claims as relating to the merits of the commission’s action, that those claims present genuine questions as to the jurisdiction of the commission and the validity of the zoning regulation at issue.

“The motion to dismiss like a ‘motion to erase admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone.’ Perrys Inc. v. Waterbury Redevelopment Agency, 157 Conn. 122, 124, 249 A.2d 256 (1968).” Barde v. Board of Trustees, 207 Conn. 59, 62, 539 A.2d 1000 (1988). The complaint is to be construed most favorably to the plaintiffs. Duguay v. Hopkins, 191 Conn. 222, 227, 464 A.2d 45 (1983). In evaluating the sufficiency of the plaintiffs’ complaint, we presume the validity of its allegations.

General Statutes § 8-9 provides: “Appeals from zoning commissions and planning and zoning commissions may be taken to the superior court and, upon certification for review, to the appellate court in the manner provided in section 8-8.” “[W]here a statutory right of appeal from an administrative decision exists, an aggrieved party may not bypass the statutory procedure and instead bring an independent action ‘to test the very issue which the appeal was designed to test.’ Carpenter v. Planning & Zoning Commission, 176 Conn. 581, 598, 409 A.2d 1029 (1979).” LaCroix v. Board of Education, 199 Conn. 70, 78, 505 A.2d 1233 (1986); Cretaro v. Equitec Real Estate Investors Fund XII, 6 Conn. App. 317, 319, 505 A.2d 22 (1986). There are several exceptions to this rule.

Declaratory judgment proceedings are appropriate for determining the validity of the regulations of an administrative agency. Aaron v. Conservation Commission, 178 Conn. 173, 177, 422 A.2d 290 (1979). “[DJeclaratory judgment proceedings are appropriate for determining jurisdictional issues or questions concerning the validity of the regulations of an administrative agency, while questions concerning the correctness of an agency’s decision in a particular case or of the sufficiency of the evidence can properly be resolved only by appeal.” Id., 178. Cases in which an action for declaratory or injunctive relief can be maintained include those where an agency lacks jurisdiction due to defective notice, where statutory authority has been exceeded, or where the validity of a statute or ordinance is attacked. Cretaro v. Equitec Real Estate Investors Fund XII, supra; see also Bottone v. Westport, 209 Conn. 652, 553 A.2d 576 (1989).

The plaintiffs’ allegations regarding the validity of the defendant commission’s action consist essentially of three claims. The plaintiffs claim that the granting of the special exceptions was void because notice to the plaintiffs was defective, the zoning regulations governing the granting or denying of special exceptions applications lacked adequate standards, and the commission lacked the power to modify the special exception granted in 1979.

The plaintiffs’ claims regarding notice are that the defendants failed to give personal notice to abutting landowners of the orchard parcel, as required by Farm-ington zoning regulations, and that Chase’s application failed to indicate that the orchard parcel, in addition to the tower parcel, was a subject of the special exception applications, thus resulting in a failure of the notice required by General Statutes § 8-3. “Failure to give proper notice constitutes a jurisdictional defect.” Aurora v. Zoning Board of Appeals, 153 Conn. 623, 625, 220 A.2d 277 (1966); Cretaro v. Equitec Real Estate Investors Fund XII, supra. As jurisdictional issues are among those for which an action for declaratory judgment may lie, the plaintiffs’ claims regarding defective notice are appropriate for resolution by declaratory judgment.

In addition to claims of defective notice, the plaintiffs’ complaint alleges that the zoning regulation under which the special exceptions were granted is invalid for lack of adequate standards. “Exhaustion of administrative remedies is generally not required when the challenge is to the constitutionality of the statute or regulation under which the board or agency operates . . . .” LaCroix v. Board of Education, supra, 79 n.7. “[Djeclaratory judgment proceedings are appropriate for determining . . . questions concerning the validity of the regulations of an administrative agency . . . .” Aaron v. Conservation Commission, sUpra. Declaratory judgment actions are the proper procedure for challenging the constitutionality of zoning regulations. Davis v. Yudkin, 3 Conn. App. 576, 578, 495 A.2d 714, cert. denied, 197 Conn. 805, 499 A.2d 56 (1985). Thus, the plaintiffs’ claims as to the validity of the zoning regulations are appropriate for inclusion in their action for declaratory judgment.

Finally, the plaintiffs claim that the commission lacked the power to modify the prior special exception granted in 1979. A claim that limited statutory authority has been exceeded is jurisdictional in nature. Cretaro v. Equitec Real Estate Investors Fund XII, supra. Action taken by an administrative agency in excess of its statutory authority is void and without legal effect. See Arterburn Convalescent Home, Inc. v. Committee on State Payments to Hospitals, 176 Conn. 82, 88, 405 A.2d 48 (1978) (Loiselle, J., concurring).

The plaintiffs’ allegations regarding the commission’s lack of power to modify prior special exceptions are combined with allegations that relate to the correctness of the commission’s decision to grant the modification in this particular case. The latter allegations can properly be resolved only by appeal. See Aaron v. Conservation Commission, supra. Insofar as the plaintiffs’ claims, however, allege that the commission exceeded its statutory authority in granting the modification and thus that its action is void, they suffice to state a claim appropriate for resolution by declaratory judgment. We conclude that the plaintiffs have alleged facts sufficient to support a cause of action for a declaratory judgment.

The defendants contend that even if some of the plaintiffs’ claims are appropriate for resolution by declaratory judgment, the trial court did not err in dismissing the plaintiffs’ complaint because the plaintiffs failed to comply with the notice requirements of Practice Book § 390 (d).

Subsequent to commencement of their declaratory judgment action, the plaintiffs moved for an order of notice requesting that notice of the action be given by mail to owners of real estate adjoining the orchard parcel and to lessees, sublessees, licensees and mortgagees of the orchard and tower parcels and the equipment located thereon, and that notice be published once in the Farmington Valley Herald and the Hartford Cour-ant. The motion was granted and the notice pursuant to the order was given.

Chase claims that viewers of channel 61, for which the transmission tower broadcasts, and the subscribers of a community antenna television company that leases space on the transmission tower, are interested persons entitled to notice and that the notice given did not constitute reasonable notice to those persons. Because the trial court decided the defendants’ motions to dismiss on grounds other than a lack of notice which the defendants claim is required by Practice Book § 390 (d), it did not reach the issue of whether the notice given in this case satisfied § 390 (d). Although the trial court did not decide whether notice was adequate, which ordinarily would be a question to be resolved by it, we will in this instance, as an appellate court, resolve this issue. Even where the question of notice has not been reached by a trial court, reviewing courts have decided whether plaintiffs have complied with the notice requirements of Practice Book § 390 (d). See, e.g., Tucker v. Maher, 192 Conn. 460, 472 A.2d 1261 (1984); Clough v. Wilson, 170 Conn. 548, 368 A.2d 231 (1976); Copp v. Barnum, 160 Conn. 557, 276 A.2d 893 (1970). Although in some instances, in order to determine a motion to dismiss, an evidentiary hearing must be held in the trial court to determine facts relating to jurisdiction; 1 E. Stephenson, Connecticut Civil Procedure (2d Ed. 1982 Supp.) § 103; it is not necessary in this case to remand for this purpose because the record before us is sufficient to determine that the notice given complied with Practice Book § 390 (d).

“ ‘Practice Book, 1978, § 390 (d) governing actions for declaratory judgment requires all persons having an interest in the subject matter of the complaint to be parties to the action or have reasonable notice thereof. Failure to observe this requirement deprives the court of jurisdiction over the case. State ex rel. Kelman v. Schaffer, 161 Conn. 522, 526-27, 290 A.2d 327 (1971).’ Pinnix v. LaMorte, 182 Conn. 342, 343, 438 A.2d 102 (1980).” Pierce v. Zoning Board of Appeals, 7 Conn. App. 632, 634-35, 509 A.2d 1085 (1986). If interested persons are within the reach of process and are not so numerous that it would impose an unreasonable burden upon the plaintiff, they should be made parties; but if including them as parties in the action would impose an unreasonable burden on the plaintiff, the provision for reasonable notice applies. Benz v. Walker, 154 Conn. 74, 78, 221 A.2d 841 (1966).

The defendants claim that viewers of channel 61 and subscribers of the community television company are interested persons entitled to reasonable notice. This group is not only numerous, but is a shifting population whose identity may change from day to day. In Pierce v. Zoning Board of Appeals, supra, 637-38, we noted that practical considerations may dictate the form in which notice pursuant to Practice Book § 390 (d) is given. In the present case, the plaintiffs gave notice of the declaratory judgment action by publication in two newspapers. We conclude that, even if the viewers and subscribers arguably had an interest in the plaintiffs’ action and were entitled to reasonable notice, notice by newspaper publication was the only practical means by which to provide notice to this group. The plaintiffs’ complaint was not, therefore, subject to dismissal because of a failure to comply with Practice Book § 390 (d).

II

The defendants contend that even if the allegations of the plaintiffs’ complaint relating to defective notice are jurisdictional in nature, and appropriate for resolution by declaratory judgment, the claims do not present an actual question in dispute because Spec. Acts 1985, No. 85-47, § 6 (c), cured any defects in the notice that should have been given to the plaintiffs.

That act validates certain actions in the areas of assessment and taxation, condominiums, conveyancing, fiduciary relationships, planning and zoning, and probate, where such action would otherwise be valid except for certain technical omissions and irregularities. Section 6 (c) of the 1985 Special Acts, No. 85-47, which deals specifically with notice defects in planning and zoning actions, provides in pertinent part: “Any and all actions taken by any planning commission, zoning commission, planning and zoning commission, zoning board of appeals . . . otherwise valid except that said planning commission, zoning commission, planning and zoning commission, zoning board of appeals . . . failed to comply with the requirement or requirements of any general or special law, ordinance or regulation governing the contents, giving, mailing, publishing, filing or recording of any notice, either of the hearing or of the action taken, is validated, provided no such action shall be validated if an appeal from such action is pending in any court or the time for taking such appeal has not expired as of the effective date of this act.”

The defendants contend that any failure on the part of the defendants to comply with notice requirements was validated by the special act. The plaintiffs argue that Spec. Acts 1985, No. 85-47, is not applicable because the plaintiffs’ declaratory judgment action was pending before the effective date of the act and because the act validates only defects in notice required to be given by a commission and not by an applicant such as the defendant Chase.

Section 6 (c) relates to defects in notice such as those alleged here, and provides that “no such action shall be validated if an appeal from such action is pending in any court or the time for taking such appeal has not expired as of the effective date of this act.” Section 8 of the act provides: “applicability. No defects, omissions or irregularities enumerated in this act shall be validated if any action, suit or proceeding has been commenced, or notice of pendency thereof has been duly recorded on or before the effective date of this act.”

The defendants argue that the applicability provisions are conflicting, but that the provisions of § 6 (c) that relate to notice defects should control. They further argue that only an appeal pending before the effective date of the act renders the act inapplicable to cure defects in notice. The defendants contend that because the plaintiffs’ declaratory judgment action is not an “appeal,” the filing of such an action before the effective date of the act does not render the act inapplicable.

The plaintiffs argue, relying on § 8 of the act, that any proceeding challenging defects in notice, including a declaratory judgment action, filed before the effective date of the act, renders the act inapplicable to cure those defects.

In interpreting the act and its applicability provisions, we adopt a functional approach. The function of the statute is to cure defects in notice not attacked by timely court proceedings, and to allow parties challenging such defects by timely court action to continue the judicial process. An appeal and a declaratory judgment are functionally the same in the context of this particular statute. Both are methods by which a plaintiff can challenge defects in notice. The purpose of the statute would not be served if the statute were interpreted to prevent the plaintiffs, having filed a declaratory judgment action before the effective date of the act, from continuing the process. Moreover, the fact that notice defects are jurisdictional in nature and appropriate for challenge by declaratory judgment actions makes it unlikely that the legislature intended that only timely appeals and not timely declaratory judgment actions would render inapplicable the validating act.

We find, therefore, that because the plaintiffs’ declaratory judgment action was filed before the effective date of Spec. Acts 1985, No. 85-47, the alleged notice defects are not cured by the act.

Because of on our conclusion that Spec. Acts 1985, No. 85-47, is inapplicable to validate the notice defects at issue, it is unnecessary to determine whether the act was intended to cure only notice required to be given by a zoning commission and not notice required to be given by applicants.

There is error, the judgment of dismissal is set aside and the case is remanded for further proceedings in accordance with this opinion.

In this opinion the other judges concurred.

       The plaintiffs also include as defendants in their complaint numerous limited partnerships and corporations of which David Chase is alleged to be a general partner or to own, control or influence. These partnerships and corporations are alleged to have some interest in the real estate and equipment at issue. As used in this opinion, “Chase” encompasses all of the Chase business entities and David Chase.

       Article II, section 1, of the Farmington zoning regulations pertaining to subdivision provides in pertinent part: “Permitted Uses .... The following uses when permitted by the Town Plan and Zoning Commission after a public hearing, notice of which shall be provided as described in Section 8-3 of the Connecticut General Statutes. Notice by certified mail shall be given by the applicant to all owners of property located within 200 feet of any boundary of the property which is the subject of the application. Such notice shall be mailed no later than seven days prior to the date of the hearing: ... 2. Radio and television broadcasting towers. . . .”

       General Statutes § 8-3 provides in pertinent part: “Notice of the time and place of such hearings shall be published in the form of a legal advertisement appearing in a newspaper having a substantial circulation in such municipality at least twice at intervals not less than two days, the first not more than fifteen days nor less than ten days, and the last not less than two days, before such hearing . . . .”

       Article II, section I, of the Farmington zoning regulations provides in pertinent part: “Permits in these cases shall not be issued unless the commission finds that the proposed building, structure or use will not increase the fire hazard, traffic hazard or panic hazard, and that they will not tend to depreciate the value of property in the neighborhood or be otherwise detrimental to the neighborhood or its residents or alter the neighborhood’s essential characteristics. . . .”

       Practice Book § 390 provides in pertinent part: “The court will not render declaratory judgments upon the complaint of any person . . . (d) unless all persons having an interest in the subject matter of the complaint are parties to the action or have reasonable notice thereof.”

       The plaintiffs filed a motion for further order of notice in which it stated the view of Chase as to notice, and sought whatever notice the court deemed appropriate, to be given at Chase’s expense. This motion was not acted upon by the court.

       The plaintiffs’ declaratory judgment action was filed on May 16,1985. Spec. Acts 1985, No. 85-47, was approved on June 16, 1985.


text:
    Paul DeRito et al. v. Zoning Board of Appeals of the Town of Middlebury et al.
    (7008)
    Dupont, C. J., Noecott and Foti, Js.
    Submitted on briefs January 11
    decision released April 4, 1989

      Robert P. Hanahan filed a brief for the appellants (defendants).

      Thomas P. Byrne filed a brief for the appellees (plaintiffs).
   Norcott, J.

The plaintiffs in this action are the town of Middlebury and Paul A. DeRito, the duly authorized building official and zoning enforcement officer for Mid-dlebury. The defendants Paul A. Lux and Patricia Tillyer sought and secured a variance from the defendant Middlebury Zoning Board of Appeals (ZBA) to create a new nonconforming building lot from their two existing separate nonconforming lots. The plaintiff DeRito had determined that the defendant property owners’ plans did not conform to the Middlebury zoning regulations and, together with the town, appealed the defendant ZBA’s granting of the variance. The trial court sustained the appeal, holding that the ZBA had acted illegally in granting the variance and that the plaintiff DeRito had standing to contest the variance. The defendants appeal from the judgment of the trial court, claiming that the court erred (1) in not dismissing the zoning appeal for lack of subject matter jurisdiction because the citation failed to name the town clerk as a necessary party to the action, and (2) in ruling that DeRito had standing to appeal the decision of the ZBA under General Statutes § 8-8 (a). The trial court’s determination of the validity of the variance is not an issue in this appeal.

Before we address the issue of DeRito’s standing to appeal the ZBA’s granting of the variance, we must consider the jurisdictional issue first raised by the defendants Lux and Tillyer in their December 16,1987 motion to dismiss the trial court proceedings based on an improper citation. The record indicates that the trial court took no action on this motion. Although the challenge to the court’s subject matter jurisdiction should have been addressed by the trial court; Cahill v. Board of Education, 198 Conn. 229, 238, 502 A.2d 410 (1985); subject matter jurisdiction may be raised at any time including on appeal. Concerned Citizens of Sterling v. Sterling, 204 Conn. 551, 556, 529 A.2d 666 (1987); Romanowski v. Foley, 10 Conn. App. 80, 83, 521 A.2d 601, cert. denied, 204 Conn. 802, 525 A.2d 1352 (1987). The defendants claim that the trial court did not have subject matter jurisdiction in this action based on our Supreme Court’s decision in Simko v. Zoning Board of Appeals, 206 Conn. 374, 538 A.2d 202 (1988) (Simko II). They argue that the plaintiffs, who cited and served the town clerk of Middlebury, failed to cite and summon the clerk as an indispensable party, as required by General Statutes § 8-8 (b) and Simko II.

This issue was resolved in Schwartz v. Planning & Zoning Commission, 208 Conn. 146, 543 A.2d 1339 (1988). The facts in this case are indistinguishable from those in Schwartz, in which the citation specifically directed the sheriff to serve both the chairman or clerk of the planning and zoning commission and the town clerk with copies of the complaint and the appeal citation. The sheriff accordingly made proper and timely service on both the chairman and the town clerk. In Schwartz, our Supreme Court held that “[although the citation did not direct the sheriff to summon the town clerk ... as a party for all purposes, it does comply with the purpose of the 1985 amendment to General Statutes § 8-8 (b), as interpreted in Simko II, supra, 383, which was ‘to ensure that the municipality will receive adequate notice [of the appeal] and have sufficient opportunity to be heard and protect the interests of the public where necessary.’ In addition, as we stated in Simko II, supra, 382, ‘the clerk of the municipality is a statutorily mandated, necessary party to the proper institution of an appeal and must properly be served with true and attested copies of the appeal.’ (Emphasis added.) Here, the service by the sheriff, who was acting pursuant to the lawfully issued citation, was legally sufficient.” Schwartz, supra, 150-51. The result in this case is controlled by Schwartz, and we therefore hold that the citation was proper, and that it was not reversible error for the trial court not to have dismissed the appeal for lack of subject matter jurisdiction.

We next turn to the defendants’ challenge to the trial court’s determination that DeRito had standing to bring an appeal from the ZBA’s granting of the variance. We begin by noting that the defendants do not challenge the standing of the plaintiff town of Middlebury to appeal the ZBA’s decision. Indeed, it is now settled that “ ‘[t]he municipality concerned is always entitled to represent such interests by participating as a party to an appeal. Milford v. Commissioner of Motor Vehicles, 139 Conn. 677, 681, 96 A.2d 806 [1953]; Keating v. Patterson, 132 Conn. 210, 212n., 43 A.2d 659 [1945]; Malt-bie, Conn. App. Proc., § 226.’ ” Simko v. Zoning Board of Appeals, supra, 381, quoting Tyler v. Board of Zoning Appeals, 145 Conn. 655, 658, 145 A.2d 832 (1958). Thus, even without DeRito as a party to the appeal of the ZBA’s decision, the trial court had subject matter jurisdiction over the appeal by virtue of the presence of the plaintiff town of Middlebury. The question of DeRito’s standing to appeal was one that the trial court need not have decided.

On appeal, the question of DeRito’s standing does not present a controversy relevant to the outcome of the case. We have found that the trial court had jurisdiction to decide the appeal, the merits of which remain unchallenged. A decision on DeRito’s standing to appeal the ZBA’s decision will not affect the trial court’s reversal of the ZBA’s granting of the variance. Therefore, although the plaintiffs and defendants disagree as to the resolution of a question of law regarding the standing of DeRito, that issue presents no justiciable controversy on appeal. “ Tn the absence of an actual and existing controversy for us to adjudicate in any sense of the term, the courts of this state may not be used as a vehicle to obtain judicial opinions upon points of law; Reply of the Judges, 33 Conn. 586 [1867]; and where the question presented is purely academic, we must refuse to entertain the appeal. Young v. Tynan, 148 Conn. 456, 459, 172 A.2d 190 [1961].’ Connecticut Foundry Co. v. International Ladies Garment Workers Union, 177 Conn. 17, 19, 411 A.2d 1 (1979).” Shays v. Local Grievance Committee, 197 Conn. 566, 571-72, 499 A.2d 1158 (1985). A review of the defendants’ claim is unnecessary because it will not affect the final result in the case. See Vogel v. New Milford, 161 Conn. 490, 499, 290 A.2d 231 (1971). No practical relief can be granted to the defendants on this claim, and it is not the province of appellate courts to decide questions disconnected from the granting of actual relief or from the determination of which no practical relief can follow. See Accurate Forging Corporation v. UAW Local No. 1017, 189 Conn. 24, 26, 453 A.2d 769 (1983). Accordingly, the portion of the defendant’s appeal claiming error in the trial court’s ruling on DeRito’s standing to appeal is dismissed.

There is no error in part; the appeal is dismissed in part.

In this opinion the other judges concurred.

       General Statutes § 8-8 (a) provides: “Any person or persons severally or jointly aggrieved by any decision of said board, or any person owning land which abuts or is within a radius of one hundred feet of any portion of the land involved in any decision of said board, or any officer, department, board or bureau of any municipality, charged with the enforcement of any order, requirement or decision of said board, may, within fifteen days from the date when notice of such decision was published in a newspaper pursuant to the provisions of section 8-8 or 8-7, as the case may be, take an appeal to the superior court for the judicial district in which such municipality is located, which appeal shall be made returnable to said court in the same manner as that prescribed for civil actions brought to said court.” .

       We note that the trial court hearing on the defendants’ motion to dismiss took place on February 3, 1988. It appears from our review of the record that because Simko v. Zoning Board of Appeals, 206 Conn. 374, 538 A.2d 202 (1988) (Simko II), was then pending before our Supreme Court, the trial court deferred its determination of the motion pending the outcome of that case but then never acted on the motion.

       General Statutes § 8-8 (b) provides: “Notice of such appeal shall be given by leaving a true and attested copy thereof with, or at the usual place of abode of, the chairman or clerk of said board, and by serving a true and attested copy upon the clerk of the municipality. The appeal shall state the reasons upon which it has been predicated and shall not stay proceedings upon the decision appealed from, but the court to which such appeal is returnable may, on application, on notice to the board and on cause shown, grant a restraining order.”

       The plaintiff’s citation provided as folows:
      “CITATION
      “TO ANY PROPER OFFICER:
      “BY AUTHORITY OF THE STATE OF CONNECTICUT, you are hereby commanded to summon THE ZONING BOARD OF APPEALS of the Town of Middlebury, Town Hall, Middlebury, Connecticut, PAUL A. LUX and PATRICIA TILLYER, both of Three Mile Road Middlebury, Connecticut to appear before the Superior Court within and for the Judicial District of Waterbury 300 Grand Street Waterbury, Connecticut 06702 on June 30,1987, said appearance to be made by said Middlebury Zoning Board of Appeals of Middlebury, Connecticut, or its Attorney, and by Paul A. Lux and Patricia Tillyer, or their Attorney, by filing a written statement of appearance with the Clerk of said Court on or before the second day following said return day, then and there to answer unto the foregoing complaint, by leaving with, or at the usual place of abode, of the Chairman or Clerk of the Middlebury Zoning Board of Appeals and the Town of [sic] Clerk of the Town of Middlebury and with Paul A. Lux and Patricia Tillyer both of Three Mile Road Middlebury, Connecticut a true and attested eopy of the complaint and of this citation at least twelve days before the return date.
      “I hereby certify that I have personal knowledge of the financial responsibility of the Plaintiff and deem it sufficient to pay the costs of this action.
      “HEREOF fail not, but of this writ with your doings thereon, make due service and return according to law.
      “DATED at Farmington, Connecticut this 22nd day of May 1987.”


author: Borden, J.

text:
    State of Connecticut v. Maura Rogers State of Connecticut v. Paul Rogers
    (6910)
    (6911)
    Borden, Daly and Norcott, Js.

      Argued December 21, 1988
    decision released April 11, 1989

      Timothy J. Sugrue, deputy assistant state’s attorney, with whom, on the brief, was Francis J. McQuade, assistant state’s attorney, for the appellant (state).

      Richard T. Meehan, Sr., with whom were Richard T. Meehan, Jr., and Judith Stevens, for the appellees (defendants).
   Borden, J.

In these consolidated cases, the state appeals, with the permission of the trial court, from the judgments dismissing the informations following the granting of the defendants’ motions to suppress. The state claims that, because some of the seized items were admissible under the “independent source” exception to the exclusionary rule, the trial court committed plain error by suppressing all the results of the search of the defendants’ house. We conclude that the case should be remanded to the trial court to determine the application of the independent source doctrine.

The defendant Maura Rogers was charged with illegal possession of narcotics in violation of General Statutes § 21a-279 (a). The defendant Paul Rogers was charged with illegal sale of drugs in violation of General Statutes § 21a-278 (a), and with interfering with an officer in violation of General Statutes § 53a-167a. These charges arose out of a search by the police of the defendants’ house in Milford on December 19,1986. The search followed a warrantless entry of the house by the police, who then secured the premises, and sought and obtained a search warrant for the house from a Superior Court judge, McKeever, J. Some evidence was seized during the two or three hour interval between the initial entry by the police and the issuance of the search warrant, and some evidence was seized after the warrant was issued.

The defendants moved to suppress all the evidence yielded by the search of the house. The trial court, Cur-ran, J., found the following facts: On December 19, 1986, an undercover police officer had arranged to purchase one quarter of a pound of cocaine from Victor Braese, from whom he had made previous purchases. Because the source of the cocaine in the previous purchases had been John DeCeasre of Milford, arrest and search warrants were obtained on December 19,1986, for the persons and homes of Braese and DeCeasre. The undercover officer was carrying a transmitter that was to be monitered by other police officers who would be in separate vehicles. When the undercover officer met with Braese, Braese told him that they would be going to a new source for this purchase, at another location in Milford.

Braese and the undercover police officer, followed by the other police officers, went to the defendants’ house in Milford, where the undercover officer gave Braese $250 for the purchase of an “eight ball,” a sample of the cocaine that was to be purchased. Braese entered the defendants’ house.

The court further found that while Braese was inside the house, the officers in charge agreed that if Braese returned with what was alleged to be cocaine, he would be arrested immediately, and that they would enter the house, secure the premises and then obtain a search warrant. When Braese returned to the undercover police officer’s car outside the house, he displayed what purported to be an ounce of cocaine but indicated that in order for the undercover officer to receive the “eight ball,” they would have to go to Braese’s home in Shelton and cut it up. He also indicated that if the undercover officer wanted the quarter pound he had better make up his mind quickly or it would be gone.

The court also found that, at this point, as previously agreed, the officers entered the defendants’ house without a warrant and secured the premises while a search warrant was being obtained. When they entered the premises, the officers did not knock but kicked in the door, and after they were inside announced that they were police officers. There were three people in the house: the two defendants and a child who was the son of Paul Rogers. Maura Rogers and the child were in the living room watching television. Paul Rogers was in a hallway off the kitchen, standing at the top of the stairs leading to the basement. He was told to stay where he was, but he bolted down the stairs. The police let loose a police dog, and Paul Rogers was apprehended in the basement. After placing him under arrest, the police remained in the house while two officers were directed to obtain a search warrant for the premises. The search of the house yielded cocaine, a large amount of cash and other items.

As disclosed by their trial briefs on the-motions to suppress, the defendants claimed that the search of the house was performed without a warrant, that it followed a forcible entry of the home without the police first having knocked and announced their purpose, and that it was not justified by any exigent circumstances. The defendants also claimed that there was no probable cause for the issuance of the search warrant, and that, even if there were, the warrant was obtained as a result of the illegal conduct of the police in forcibly entering the defendants’ house without knocking and announcing their purpose. The state sought to uphold the warrantless entry and ensuing search of the premises on the ground that there was both probable cause and exigent circumstances and that, in the alternative, the officers acted in a good faith belief that they had the right to enter and secure the house without a warrant. The state did not, however, rely on the search warrant or on a claim that the police acted in good faith reliance on the warrant.

The court framed the issue for its determination as “whether following the arrest of Victor Braese, exigent circumstances of a sufficient magnitude existed outside the defendant’s house to warrant the entry into the residence thereat without the benefit of a search and seizure warrant.” The court concluded that no such exigent circumstances existed, and granted the motions to suppress. The court did not discuss the legal implications, if any, of the search warrant that had been issued; nor did it distinguish in its findings or conclusions between the evidence seized before and after the search warrant was obtained.

The state then moved to reargue the motion to suppress, advancing for the first time the claim that, because the evidence was seized pursuant to the search warrant, the exclusionary rule did not apply, under the inevitable discovery doctrine recognized by the United States Supreme Court in Nix v. Williams, 467 U.S. 431, 104 S. Ct. 2501, 81 L. Ed. 2d 377 (1984), and our Supreme Court in State v. Badgett, 200 Conn. 412, 512 A.2d 160 (1986), cert. denied, 479 U.S. 940, 107 S. Ct. 423, 93 L. Ed. 2d 373 (1986). After additional argument and briefing on the state’s motion to reargue, the court denied the motion. It found that “while the intention of the police officer in charge may have been to have a subordinate obtain a search warrant, one was not actively pursued until after the unconstitutional entry of the premises.” (Emphasis in original.) The court concluded, therefore, that the inevitable discovery doctrine did not apply because that doctrine requires “that the lawful means which made discovery inevitable were possessed by the police and were being actively pursued prior to the occurrence of the constitutional violation.” (Emphasis in original.) State v. Badgett, supra, 433.

The court thereafter dismissed the informations. These appeals followed.

On appeal, the state raises, for the first time, a different exception to the exclusionary rule, namely, the independent source doctrine. It claims that the trial court committed plain error by suppressing all of the evidence seized from the defendants’ house, because some of the items were legally seized pursuant to the search warrant and therefore were admissible under that doctrine.

It is useful to note what the state does not challenge. It does not challenge the conclusion that the inevitable discovery doctrine does not apply. It does not challenge the trial court’s finding that exigent circumstances did not exist for the warrantless entry of the house, and it does not challenge the conclusions that the initial entry was illegal and that the illegal entry and ensuing security check of the house constituted an illegal search. Nor does it challenge the suppression, as the fruit of the illegal search, of what the state characterizes as “the prewarrant evidence.” This evidence, the state claims, consists of a screening device containing a small amount of cocaine and a document on which drug transactions were recorded that were found in the basement when Paul Rogers was apprehended there, and a rifle found in an upstairs bedroom during the initial security check of the house.

The state does challenge the suppression of what it characterizes as “the postwarrant evidence.” This evidence, which the state claims was found in the search pursuant to the warrant, consists of one quarter of a pound of cocaine found in a microwave oven, approximately $5800 in cash found in a bedroom, a scale found in the basement, and some marihuana and records of drug transactions found in a desk.

We first consider whether, as the state argues, its claim is reviewable under the plain error doctrine. Practice Book § 4185. We conclude that it is. “Although generally plain error review is limited to instances involving confidence in the fairness and integrity of the adjudicative process; Smith v. Czercel, 12 Conn. App. 558, 563, 533 A.2d 223 (1987); the doctrine essentially invokes the discretion of the court. Finley v. Aetna Life & Casualty Co., [202 Conn. 190,] 196, [520 A.2d 208 (1987)]. One standard for this appellate discretion is whether the issue is of importance to the development of the law of the state, is vital to the proper resolution of the case, and was sufficiently presented to the trial court initially ... so that appellate consideration of it does not amount to ambuscade of the trial court. Finley v. Aetna Life & Casualty, 5 Conn. App. 394, 402-403, 499 A.2d 64 (1985), rev’d on other grounds, 202 Conn. 190, 520 A.2d 208 (1987). It is this latter branch of the plain error doctrine which we invoke here.” Daley v. Gaitor, 16 Conn. App. 379, 383, 547 A.2d 1375 (1988).

The independent source doctrine as an exception to the exclusionary rule was first articulated by the United States Supreme Court in Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S. Ct. 182, 64 L. Ed. 319 (1920). Simply put, it states that the rule barring the use of illegally obtained evidence “does not mean that the facts thus obtained become sacred and inaccessible. If knowledge of them is gained from an independent source, they may be proved like any others . . . . ” Id., 392. The rationale for the doctrine is “that the interest of society in deterring unlawful police conduct and the public interest in having juries receive all probative evidence of a crime are properly balanced by putting the police in the same, not a worse, position [than] that they would have been in if no police error or misconduct had occurred. . . . When the challenged evidence has an independent source, exclusion of such evidence would put the police in a worse position than they would have been in absent any error or violation.” (Citation omitted; emphasis in original.) Nix v. Williams, supra, 443.

Our Supreme Court has recognized, in other factual contexts, the independent source doctrine as an exception to the exclusionary rule. “The exclusionary rule applies to suppress evidence obtained in violation of the fourth amendment to the United States constitution. Its sweep is not so broad, however, that it mandates suppression of evidence obtained independently of the illegality. Segura v. United States, 468 U.S. 796, 813-16, 104 S. Ct. 3380, 82 L. Ed. 2d 599 (1984).” State v. Ostroski, 201 Conn. 534, 542, 518 A.2d 915 (1986); State v. Arpin, 188 Conn. 183, 190, 448 A.2d 1334 (1982) (independent source rule has vitality in context of search warrant).

The state in this case relies principally on the application of the independent source doctrine by the United States Supreme Court in Segura v. United States, supra, and in numerous other cases that both follow and predate Segura. See, e.g., United States v. Crespo de Llano, 830 F.2d 1532 (9th Cir. 1987); United States v. Curry, 751 F.2d 442 (1st Cir. 1984); United States v. Agapito, 620 F.2d 324 (2d Cir.), cert. denied, 449 U.S. 834, 101 S. Ct. 107, 66 L. Ed. 2d 40 (1980). In Segura, the court considered “whether, because of an earlier illegal entry, the Fourth Amendment requires suppression of evidence seized later from a private residence pursuant to a valid search warrant which was issued on information obtained by the police before the entry into the residence.” Id., 797-98. The court applied the independent source doctrine to deny the suppression of evidence gathered pursuant to the search warrant that was obtained while the illegally entered premises were secured from the inside. Id., 813-16. Neither our Supreme Court nor this court, however, has had occasion to determine whether and to what extent the independent source exception to the exclusionary rule applies in the factual scenario presented by this case. Thus, this “issue is of importance to the development of the law of the state . . . D Daley v. Gaitor, supra.

Furthermore, whether the exclusionary rule should be applied to the evidence gathered by the search of the defendants’ premises, or whether the independent source exception to that rule applies, is largely determinative of the outcome of the charges against the defendants. If the exclusionary rule applies, the defendants are entitled to the dismissals. On the other hand, “[tjhere can be no question of the great harm to the state in the dismissal of charges alleged involving serious drug dealing.” State v. Scott, 10 Conn. App. 347, 353, 522 A.2d 1245, cert. denied, 204 Conn. 804, 528 A.2d 1152 (1987). Thus, this issue is “vital to the proper resolution of the case . . . . ” Daley v. Gaitor, supra.

Finally, the state urged in the trial court the inevitable discovery doctrine as articulated by the United States Supreme Court in Nix v. Williams, supra, where the court also explicitly recognized that doctrine as “closely related to” the independent source doctrine; id.; and also recognized that there “is a functional similarity between [the] two doctrines . . . .”Id., 444; see also Murray v. United States, 487 U.S. 533, 539, 108 S. Ct. 2529, 101 L. Ed. 2d 472 (1988) (inevitable discovery doctrine is extrapolation from independent source doctrine). For their part, the defendants, in their trial court memorandum of law in support of their motions to suppress, referred to Segura v. United States, supra. Thus, the issue “was sufficiently presented to the trial court initially ... so that appellate consideration of it does not amount to ambuscade of the trial court.” Daley v. Gaitor, supra, 383.

We decline the state’s invitation, however, to determine ourselves from this record whether the so-called “postwarrant evidence” was admissible under the independent source doctrine. Whether evidence is the product of illegality or of a source sufficiently independent thereof is, in the first instance, a factual question. Murray v. United States, supra. The trial court, which has the responsibility for finding facts, has not yet had occasion to consider that factual question, because it was not the focus of either the motions to suppress or the motion to reargue. Nor do we have the benefit of specific factual findings by the trial court regarding what was seized pursuant to the initial, illegal entry and what was seized pursuant to the warrant. Because the state claims only that the evidence seized after the warrant was issued is subject to the independent source doctrine; but see Murray v. United States, supra, 540-41 (apparently eliminating distinction between evidence seized before and after intervention of search warrant as independent source); these factual findings are necessary in this case. Furthermore, the independent source claimed here is the search warrant, the validity of which has not yet been litigated because of the procedural posture of the case in the trial court. The defendants are entitled to challenge that warrant if they deem it appropriate.

Under similar circumstances, our Supreme Court remanded a criminal appeal to determine whether illegally obtained evidence was nonetheless admissible under the inevitable discovery doctrine, an issue which had not been presented to the trial court initially. See State v. Badgett, supra, 432-34. There the court stated: “Since we have concluded, however, that there must be further proceedings in the trial court to determine the applicability of the inevitable discovery rule under the circumstances of this case, the defendant will have a full opportunity to present in the trial court or in any subsequent appeal any claim, legal or factual, that the rule should not be followed in this case.” Id., 432 n.10. We adopt the same principle in this case. Under the circumstances, therefore, we will follow the lead of our Supreme Court in Badgett, and remand this case to the trial court to determine whether the independent source doctrine is applicable under the circumstances of this case.

In this connection, we note that the United States Supreme Court recently has addressed the focus of the inquiry in order to determine whether a search warrant obtained after an illegal entry is an independent source. “The ultimate question ... is whether the search pursuant to warrant was in fact a genuinely independent source of the information and tangible evidence at issue here. This would not have been the case if the agents’ decision to seek the warrant was prompted by what they had seen during the initial entry, or if information obtained during that entry was presented to the Magistrate and affected his decision to issue the warrant.” Murray v. United States, supra, 2535-36. Furthermore, “[t]o determine whether the warrant was independent of the illegal entry, we must ask whether it would have been sought even if what actually happened had not occurred — not whether it would have been sought if something else had happened. That is to say, what counts is whether the actual illegal search had any effect in producing the warrant, not whether some hypothetical illegal search would have aborted the warrant. Only that much is needed to assure that what comes before the court is not the product of illegality; to go further than that would be to expand our existing exclusionary rule.” Id., 2536 n.3.

The case is remanded for further proceedings in accordance with this opinion.

In this opinion the other judges concurred.

       1 The trial court’s reference in its memorandum of decision to November 19, 1986, is obviously a clerical error.

       The state has confined its argument on appeal to the independent source doctrine as an exception to the exclusionary rule under the federal constitution. The defendants, despite a reference to the Connecticut constitution in their brief, have not offered an independent analysis of that doctrine under the Connecticut constitution. Under these circumstances, we decline to undertake such an analysis, and we confine our discussion to the applicability of the doctrine under the federal constitution.

       In Segura v. United States, 468 U.S. 796, 104 S. Ct. 3380, 82 L. Ed. 2d 599 (1984), the admissibility of the evidence discovered and seized pursuant to the search warrant did not turn on the issue of whether the nineteen hour police occupation of the defendants’ dwelling to prevent the destruction of evidence while a search warrant was being sought was itself an unreasonable seizure. Chief Justice Burger’s assertion, in part IV of his opinion, that such an occupation was not an unreasonable seizure received the vote of only Justice O’Connor. The court held the evidence to be admissible, rather, because the search warrant was procured on the basis of evidence obtained prior to the illegal entry, and any evidence gathered pursuant to the valid search warrant therefore could not be said to have been the fruit of the illegal entry. Id., 813-16.
      The dissent criticized the court’s holding for providing “government agents with an affirmative incentive to engage in unconstitutional violations of the privacy of the home”; id., 817; by permitting the police “to benefit from [blatantly unconstitutional] conduct by avoiding the risk that evidence would be unavailable when the search warrant was finally executed.” Id., 838. Thus, the dissenters argued, the court’s opinion, by inviting violations of the fourth amendment, works in diametric opposition to the “principal purpose of the exclusionary rule [which is] to deter violations of the Fourth Amendment.” Id., 828.

       In this connection, however, we note that our Supreme Court has cited Segura v. United States, 468 U.S. 796, 104 S. Ct. 3380, 82 L. Ed. 2d 599 (1984), in its recognition of the independent source doctrine; see State v. Ostroski, 201 Conn. 534, 542, 518 A.2d 915 (1986); and in the same paragraph cited, with apparent approval, the decision in State v. Kelly, 718 P.2d 385, 392 (Utah 1986), for the proposition that “suppression [was] properly denied where [the] source of [the] search warrant was independently legal and unrelated to [the] illegal impounding of premises.” State v. Ostroski, supra, 543.

       We are aware that the 5-4 Segura decision has not been free from criticism, much of it echoing Justice Stevens’ dissent. See, e.g., 4 W. LaFave, Search and Seizure (2d Ed.) § 11.4 (f); J. Dressler, “A Lesson in Incaution, Overwork, and Fatigue: The Judicial Miscraftsmanship of Segura v. United States,” 26 Wm. & Mary L. Rev. 375 (1985); A. Peck, “Recent Development: The Securing of the Premises Exception: A Search for the Proper Balance,” 38 Vand. L. Rev. 1589 (1985); note, “The Independent Source Exception to the Exclusionary Rule Project: The Burger Court’s Attempted Common-Sense Approach and Resulting ‘Cure-All’ to Fourth Amendment Violations,” 28 How. L. J. 1005. Segura’s most recent progeny, Murray v. United States, 487 U.S. 533, 108 S. Ct. 2529, 101 L. Ed. 2d 472 (1988); a 4-3 decision, also has been criticized by Professor LaFave. 4 W. LaFave, Search and Seizure (1989 Sup.)§ 11.4 (f), pp. 27-32. The defendants remain free to challenge the admissibility of the evidence seized pursuant to the search warrant by offering an independent analysis of the issue under article first, § 7, of the Connecticut constitution. Compare footnote 2, supra; State v. Nelson, 17 Conn. App. 556, 568-69 n.9, 555 A.2d 426 (1989).


text:
    Leonard Labieniec v. Edward Nichols et al.
    (6943)
    Dupont, C. J., Stoughton and Jacobson, Js.
    Argued February 10
    decision released April 11, 1989

      F. Timothy McNamara, for the appellant (plaintiff).

      Lois Tanzer, with whom, on the brief, were Donald W. O’Brien and Jeffrey F. Lahr, for the appellee (defendant Robert D. Langmann).
   Dupont, C. J.

The dispositive issue in this appeal is whether a litigant, after a final judgment on the merits of a claim sounding in tort against a defendant, is barred by the principles of res judicata from thereafter pursuing a second cause of action, sounding in contract, stemming from the same set of facts, against the same defendant. In the present action, the plaintiff alleges that the defendants breached a contract with the plaintiff s employer and that this breach resulted in injury to the plaintiff, an alleged third party beneficiary of that contract. The defendant Robert D. Langmann successfully moved for summary judgment on the ground of res judicata. The plaintiff appeals from that judgment. We find no error.

The facts are undisputed. The plaintiff previously sued the defendant Langmann, and others not parties to the present appeal, for their alleged malpractice in failing to diagnose the plaintiffs cancer. Although the trial court determined in that action that the defendants had been negligent, it directed the jury to return a verdict in favor of the defendants on the ground that the evidence presented was not sufficient to establish that their negligence was the proximate cause of any injury to the plaintiff. On the plaintiff’s appeal to this court we found no error. Labieniec v. Baker, 11 Conn App. 199, 526 A.2d 1341 (1987).

The cause of action now asserted by the plaintiff is the same “original claim” as that upon which he relied in his first action. The Restatement (Second), Judgments § 24, provides that “the claim [that is] extinguished includes all rights of the plaintiff to remedies against the defendant with respect to all or any part of the transaction, or series of connected transactions, out of which the action arose. What factual grouping constitutes a ‘series’ is to be determined pragmatically, giving weight to such considerations as whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties’ expectations or business understanding or usage.” In amplification of this definition of “original claim,” § 25 of the Restatement states that “[t]he rule of § 24 applies to extinguish a claim by the plaintiff against the defendant even though the plaintiff is prepared in the second action (1) [t]o present evidence or grounds or theories of the case not presented in the first action, or (2) [t]o seek remedies or forms of relief not demanded in the first action.” Restatement (Second), Judgments § 25.

The transactional test of the Restatement provides a standard by which to measure the persuasive effect of a prior judgment, which our Supreme Court has held “include[s] ‘any claims relating to the cause of action which were actually made or might have been made.’ ” Duhaime v. American Reserve Life Ins. Co., 200 Conn. 360, 365, 511 A.2d 333 (1986), quoting Corey v. Avco-Lycoming Division, 163 Conn. 309, 317, 307 A.2d 155 (1972), cert. denied, 409 U.S. 1116, 93 S. Ct. 903, 34 L. Ed. 2d 699 (1973); see also Lehto v. Sproul, 9 Conn. App. 441, 443-45, 519 A.2d 1214 (1987). Clearly, the claim raised by the plaintiff in this court could have been raised in the earlier suit.

There is no error.

In this opinion the other judges concurred.

       As used in this opinion, the word “defendant” applies to Langmann. The appeal as to Edward Nichols, the named defendant, was withdrawn on July 18, 1988.


author: Stoughton, J.

text:
    Deborah Tufano v. William D. Tufano
    (6771)
    Spallone, Stoughton and Norcott, Js.
    Submitted on briefs December 8, 1988
    decision released April 11, 1989

      J. Patrick Dwyer and Timothy J. Fitzgerald filed a brief for the appellant (plaintiff).

      Louis Kiefer filed a brief for the appellees (defendants).
   Stoughton, J.

The plaintiff has appealed from a judgment finding her in contempt as a result of violations of orders concerning visitation. She claims that the court erred (1) in denying a motion for a continuance, (2) in finding that her failure to comply with the visitation schedule was wilful, and (3) in ordering her to pay costs and attorney’s fees, and a punitive fine.

The marriage between the plaintiff, now known as Deborah Ann Izzo, and the defendant was dissolved on February 20,1986. The custody of the one child of the marriage, then almost three years old, was awarded to the plaintiff. The paternal grandparents of the child were given permission to intervene in the action and were granted certain visitation rights, both pendente lite and as part of the judgment.

The child’s father, the defendant in the dissolution action, was an inmate in a Connecticut institution when the child was bom, and remained incarcerated throughout these proceedings. The visitation order permitted the grandparents to take the child to the institution to see his father. It is apparent from our review of the entire file that the visitation orders have given rise to friction between the plaintiff and the grandparents. The file contains eight motions for contempt filed by the grandparents and one citation for contempt issued at their request. In the file, there are three motions for modification filed by the plaintiff and three filed by the grandparents.

As part of the judgment granting the dissolution on February 20,1986, the court granted visitation rights to the intervening paternal grandparents every second weekend each month. During these visits they were permitted to take the child to see his father. They also were allowed one full week during the summer and one day near Christmas.

The grandparents prepared a contempt citation, and a show cause order and summons was issued on November 16, 1987. The grandparents alleged that visitation during October and November had been denied to them. On November 27, 1987, the plaintiff filed a motion to modify the judgment and suspend visitation, alleging that the child did not want to visit the grandparents. On December 8, 1987, the plaintiff filed a motion for modification seeking to suspend visitation and alleging that the child did not want to visit either the grandparents or the defendant. On December 7, 1987, the grandparents filed a motion to modify the judgment by extending the visitation rights. On December 17, 1987, the grandparents filed a motion for contempt alleging that their December visitation had been denied them.

On December 17, 1987, the trial court held a hearing at which these matters were considered. The motions for modification were referred to the family relations division and the court ordered therapy for the child. The court further ordered that the December visitation be made up as offered on the weekend of December 19, that the November visitation be made up by three days between Christmas and New Year’s Day, that the October visitation be made up in January, 1988, and that there be visitation on December 22,1987, as agreed upon. There also was an order that the plaintiff obtain a note from a doctor if it became necessary to cancel visitation for medical reasons.

On December 18, 1987, the plaintiff took the child to a psychologist who had seen the boy previously. The psychologist spent a few minutes with the plaintiff and talked to the child for about twenty minutes. He concluded that the child did not want to visit his father or his grandparents, and he told the plaintiff that, at least on a temporary basis, he saw nothing to be gained from forcing the boy to do so.

On December 18, 1987, the plaintiff telephoned the grandparents and told them that she had taken the child to a psychologist and that the grandparents could not pick him up the next day. On December 22, 1987, the grandparents drove to the residence of the plaintiff to pick up the child and rang the doorbell, but they received no response.

On December 28,1987, the grandparents filed what they entitled their tenth motion for contempt, alleging the denial of visitation on December 19,1987, and December 22,1987. The plaintiff thereupon filed another motion to suspend visitation. The court scheduled these matters for a hearing on January 14,1988, and cleared the calendar for that date.

On January 14,1988, a lawyer from the office of the plaintiff’s counsel requested a continuance on the ground that she had not handled the file and that the plaintiff preferred to have J. Patrick Dwyer handle the case. The motion for continuance was denied, and the lawyer who was present proceeded with the case. Dwyer arrived from another court late in the day and examined the psychologist who had been called as a witness for the plaintiff.

The court found that the plaintiff had withheld visitation wilfully and that the plaintiff was in contempt of court for intentionally violating orders for visitation in October, November, December 19, 20 and 22,1987, and the three days between Christmas and New Year’s Day. In order to purge herself from contempt, the plaintiff was ordered to make the following payments: attorney’s fees for the December 17, 1987 hearing of $500 plus costs of $58, to be paid on or before February 19, 1988; attorney’s fees for the January 14, 1988 hearing of $500 plus costs of $48.17, to be paid on or before March 18, 1988; payment of $100 for each of five missed visits, a total of $500, payment to be made to the intervening grandparents by April 18, 1988.

The plaintiff’s first claim of error arises out of her motion for continuance. A motion for continuance is addressed to the discretion of the trial court, and its ruling will not be overturned absent a showing of a clear abuse of that discretion. Vossbrinck v. Vossbrinck, 194 Conn. 229, 232, 478 A.2d 1011 (1984), cert. denied, 471 U.S. 1020, 105 S. Ct. 2048, 85 L. Ed. 2d 311 (1985); State v. Thomas, 15 Conn. App. 197, 201, 543 A.2d 1356 (1988). The burden of proof is upon the party claiming an abuse of discretion. State v. Thomas, supra, 202. We are especially hesitant to find an abuse of discretion when the motion is made on the day of trial. Thode v. Thode, 190 Conn. 694, 697, 462 A.2d 4 (1983). Every reasonable presumption in favor of the proper exercise of the trial court’s discretion will be made. Ridgeway v. Ridgeway, 180 Conn. 533, 538, 429 A.2d 801 (1980). This matter had been assigned for January 14, 1988, and it was imperative for the court to resolve the dispute which had been smouldering for some time. Contrary to the plaintiff’s assertions, the proceedings were not complex and were, in fact, straightforward. The plaintiff has not shown that she was prejudiced by being required to proceed before Dwyer had arrived and the trial court did not abuse its discretion in proceeding as it did.

. The plaintiff next claims that the trial court erred in finding that her violations of the visitation orders were wilful. A wilful failure to comply with an outstanding court order may constitute a civil contempt, although a finding of contempt depends upon the facts and circumstances surrounding it. Marcil v. Marcil, 4 Conn. App. 403, 405, 494 A.2d 620 (1985). The plaintiff claims that she did not comply with the order for visitation in October because she was in Florida with her family that month. Her reason for not complying with the order in November was that the child did not want to go. In December, the plaintiff took the child to a psychologist who advised her that the child should not be forced.

The trial court had before it facts sufficient to support its findings. There is no privilege to disobey a court’s order because the alleged contemnor believes that it is invalid. Cologne v. Westfarms Associates, 197 Conn. 141, 148, 496 A.2d 476 (1985). A fortiori, such an order may not be disobeyed simply because the alleged contemnor believes that it should not be obeyed. A contempt proceeding does not open to reconsideration the legal or factual basis of the order alleged to have been disobeyed and thus become a retrial of the original controversy. Department of Health Services v. CHRO, 198 Conn. 479, 487, 503 A.2d 1151 (1986). The plaintiff had the power to obey the orders of the trial court, and that court did not err in finding that her violations of its orders were wilful.

Finally, the plaintiff claims that the trial court erred in imposing costs, attorney’s fees and fines upon the plaintiff.

This court’s role in reviewing an order of contempt is very limited. Adjudications of contempt are final and may be reviewed only on questions of jurisdiction such as whether the court had authority to impose the punishment inflicted or whether the act for which the penalty was imposed could constitute a contempt. Fox v. First Bank, 198 Conn. 34, 39, 501 A.2d 747 (1985); Friedlander v. Friedlander, 191 Conn. 81, 84, 463 A.2d 587 (1983).

The penalties that may be imposed arise from the inherent common law power of the court to coerce compliance with its orders. Papa v. New Haven Federation of Teachers, 186 Conn. 725, 737, 444 A.2d 196 (1982). The court has the power to fine one who has been found in contempt; Friedlander v. Friedlander, supra, 86; and to enforce compliance through appropriate sanctions. Blaydes v. Blaydes, 187 Conn. 464, 467, 446 A.2d 825 (1982). In addition, General Statutes § 52-256b permits the awarding of reasonable attorney’s fees and court costs to a petitioner upon a finding of contempt. Considering the number of contempt motions filed by the grandparents and the violations found by the court, we cannot say that the orders were an abuse of discretion. A court may use its own general knowledge of what would be a reasonable attorney’s fee. Appliances, Inc. v. Yost, 186 Conn. 673, 680, 443 A.2d 486 (1982). Here, the court ordered attorney’s fees for the proceedings over which it had presided on December 17, 1987, and January 14, 1988. We find no abuse of discretion in these orders.

The plaintiff claims that she has no assets and that she is on welfare and unable to purge herself by payment. No financial affidavit was proffered on January 14, 1988, and the plaintiff has not called to our attention any evidence of her financial condition at that time. No objection was made at the time of the order that the court had not considered the financial condition of the parties, and no testimony was offered by either party on the subject. Thus, the trial court was invited to focus solely on the merits of the request and we will not review a claim made at this stage of the proceedings that the plaintiff does not have the means of payment. Bielen v. Bielen, 12 Conn. App. 513, 515, 531 A.2d 941 (1987).

There is no error.

In this opinion the other judges concurred.