author:
Freedman, J.
      Lavery, J.,

text:
    Mary-Anne Mulholland v. James Mulholland
    (11225)
    Laveky, Freedman and Schaller, Js.
    Argued December 4, 1992
    decision released May 4, 1993

      James C. Mulholland, pro se, the appellant (defendant).

      Mary-Anne Ziewacz Mulholland, pro se, the appellee (plaintiff).
   Freedman, J.

The sole question presented by this appeal is whether a trial court may render a judgment of contempt after an appellate court has reversed the underlying order where the acts constituting the contempt occurred prior to the reversal. We conclude that the sanction of contempt may be imposed on a party for the willful failure to pay any sums due under an order of child support that is on appeal at the time of the nonpayment, regardless of whether the sanction is imposed before or after the appellate reversal. This conclusion is dictated by our rules of practice, our case law and by sound considerations of public policy.

The following facts are pertinent to the disposition of this appeal. The parties’ marriage was dissolved by order of the trial court on January 16,1991. There were two minor children issue of the marriage, Colin born September 28, 1984, and Rachel born November 5, 1986. The issue of custody of the two minor children and all financial matters were reserved for trial at a later date. In March and April of 1991, a trial was held on the reserved issues. On April 23,1991, the trial court rendered its oral decision. The court ordered that the parties would have joint custody of the minor children and that their primary residence was to be with the plaintiff. The court ordered the defendant to pay $260 per week for the support of Rachel and $100 per week for the support of Colin. There had been no pendente lite support orders. The defendant was also ordered to pay one half of any substantial expenses incurred by the plaintiff for “day care, summer camp, cultural or athletic enrichment programs, educational enhancement, private schooling or other similar services.” The defendant was also ordered to pay one half of “the cost of [medical] insurance for the minor children as well as [one half] of any unreimbursed medical, dental, orthodontic, prescriptive, optical, mental health or other health related expenses of the minor children.”

The defendant immediately appealed to this court from the April 23 orders of the trial court. On May 3, 1991, the defendant sought a stay of the orders of child support from the trial court. On June 11,1991, the trial court denied the stay. The defendant filed no further applications for a stay of execution, nor did he seek review from this court of the denial of the stay.

The defendant made the child support payments as ordered through late November or early December of 1991. He then stopped making payments. On December 30,1991, the plaintiff filed a motion for contempt in the trial court. This motion was filed while the defendant’s appeal from the trial court’s order of April 23, 1991, was pending before this court. Oral argument on the defendant’s appeal was heard by this court on December 6, 1991.

On January 14, 1992, the trial court began its hearing on the plaintiff’s motion for contempt. No orders were entered at that time, although the trial court warned the defendant that he was risking a judgment of contempt, and ordered him to make the payments. On February 11, 1992, this court reversed the trial court’s decision regarding the financial orders, and remanded the case for a new hearing on all financial issues. Mulholland v. Mulholland, 26 Conn. App. 585, 602 A.2d 1054 (1992). On March 5,1992, the trial court again took up the contempt motion. It found that there was an arrearage of $6175 as of the date of this court’s reversal of the underlying order and found the defendant to be in contempt of court. The trial court ordered the defendant incarcerated until he purged the contempt by paying the sum of $6175 to the plaintiff. On the following day, the defendant purged his contempt and was released from incarceration. This appeal followed.

The resolution of the issue presented by this appeal turns, first and foremost, on the enforceability of a child support order pending appeal and the effect that appellate reversal has on the duty to have made such payments in a timely fashion. We begin our analysis of these issues by examining Practice Book § 4046. Generally speaking, the filing of an appeal will automatically stay any proceedings to enforce or carry out a judgment until the final determination of the cause. Practice Book § 4046. No automatic stay, however, applies to orders concerning periodic alimony or support. Id. In such cases, if the obligor wants to avoid payment, he or she must make an application for a stay of the order pending appeal. Practice Book § 4047.

The provisions of Practice Book § 4046 reflect judicial recognition of the needs of children and the public policy considerations involved. The law has universally recognized that the parent-child relationship and the support obligations created within it are unique. See Buchholz’s Appeal from Probate, 9 Conn. App. 413, 418, 519 A.2d 615 (1987); Weisbaum v. Weisbamn, 2 Conn. App. 270, 272-73, 477 A.2d 690 (1984). The failure of a marital relationship often has profound effects on the parties and their children and may, as well, affect society in general. Where the need for child support is established and ordered by the court, it is of the utmost importance for the welfare of the child that such payments be made in a timely fashion. It is also in the interest of society that the child be supported by those obligated to support the child and that the child not be required to seek public assistance to satisfy those needs unless otherwise necessary. Accordingly, § 4046 mandates that, unless stayed by the court, periodic alimony and child support orders remain in effect and unabated during the pendency of an appeal.

For these reasons, the defendant’s reliance on Reilly v. State, 119 Conn. 217, 220-21, 175 A. 582 (1934), Woodruff v. Bacon, 35 Conn. 97, 102 (1868), and Allen v. Adams, 17 Conn. 67, 73 (1845), is misplaced. While those cases do stand for the proposition that appellate reversal “restore[s] the parties to the position in which they were before the judgment was rendered”; Reilly v. State, supra, 221; that common law principle is not controlling in the context of child and spousal support orders in light of § 4046.

Before starting our analysis of the law of contempt as it applies to this case, it is important to note that in the contempt proceedings that are the subject of this appeal, which were initiated before the support order was vacated, the plaintiff sought only to collect unpaid support installments that became due and payable prior to the judgment of this court vacating the support order. The plaintiff did not seek to collect by way of these contempt proceedings, nor could she do so, any child support that became due after the support order was vacated by this court. Because the original child support order was no longer enforceable as a judicial decree after this court’s reversal of the order on February 11, 1992, there could be no contempt for the nonpayment of child support under that order occurring after that date. See Calway v. Calway, 26 Conn. App. 737, 744, 603 A.2d 434 (1992) (party cannot be held in contempt for noncompliance with nonexisting order).

In addition, a distinction must be made between an erroneous order and a void order. In Mulholland v. Mulholland, supra, we reversed only the financial orders of the trial court. In that appeal, it was readily apparent that, at the time of the dissolution, the trial court had jurisdiction of the subject matter and the parties. Because the court had jurisdiction to dissolve the marriage, it also had, incident thereto, the jurisdiction to order child support. See General Statutes § 46b-84 (d). Thus, the judgment of dissolution and the financial orders were valid until and unless overturned on appeal. An erroneous order of child support is as binding as one that is correct until set aside or corrected in a manner provided by law. Cologne v. Westfarms Associates, 197 Conn. 141, 147, 496 A.2d 476 (1985). This distinction between a court order that is void and one that is merely erroneous is critical to the issue presented by this appeal.

Contempt proceedings are a proper means of enforcing a court order of child support. A willful failure to pay court ordered child support as it becomes due constitutes indirect civil contempt. Duve v. Duve, 25 Conn. App. 262, 269, 594 A.2d 473, cert. denied, 220 Conn. 911, 597 A.2d 332 (1991); see General Statutes § 46b-215. In the absence of a stay, the trial court continues to have jurisdiction to enforce its orders during an appeal from those orders. Hartford Federal Savings & Loan Assn. v. Tucker, 192 Conn. 1, 7, 469 A.2d 778 (1984).

In Cologne v. Westfarms Associates, supra, 147-49, our Supreme Court held that contempt proceedings may be used to enforce a court order that is later reversed on appeal. “ ‘The interests of orderly government demand that respect and compliance be given to orders issued by courts possessed of jurisdiction of persons and subject matter. One who defies the public authority and willfully refuses his obedience, does so at his peril.’ United States v. United Mine Workers, 330 U.S. 258, 303, 67 S. Ct. 677, 91 L. Ed. 884 (1947). ‘[A]n order issued by a court with jurisdiction over the subject matter and person must be obeyed by the parties until it is reversed by orderly and proper proceedings.’ Id., 293; see also W. R. Grace & Co. v. Rubber Workers, 461 U.S. 757, 766-67, 103 S. Ct. 2177, 76 L. Ed. 2d 298 (1983); DeMartino v. Monroe Little League, Inc., 192 Conn. 271, 276-77, 471 A.2d 638 (1984).” Id., 147. “[Tjhere is no privilege to disobey a court’s order because the alleged contemnor believes that it is invalid.” Id., 148.

The defendant acknowledges in his brief that “had [he] been adjudicated to have been in contempt prior to and not subsequent to the reversal of the underlying judgment, Cologne would indeed be dispositive . . . .” (Emphasis in original.) He attempts to distinguish Cologne in his brief, however, by emphasizing that “[i]n this case . . . the reversal of the underlying judgment was prior to the contempt hearing.” (Emphasis in original.) The defendant’s arguments to the contrary notwithstanding, we believe that this is a distinction without a difference in light of the fact that in this case an appeal does not automatically stay the enforcement of a child support order. Moreover, our reading of Cologne leads us to the conclusion that an intervening appellate reversal of an underlying judicial mandate will not affect the contempt powers of the trial court as to violations of that mandate that occurred prior to the reversal.

As previously discussed, in Cologne our Supreme Court concluded that the trial court had the authority to hold the defendants in contempt notwithstanding the ultimate reversal of the underlying court order. Id., 147-49. The court, however, reversed the trial court’s finding of contempt because it was not based on competent evidence. Id., 149-57. Under such circumstances, a remand for a proper evidentiary hearing would normally be in order. The Cologne court, however, did not direct any further proceedings. Id., 157. Significantly, the reason why no further proceedings were directed was not because those proceedings would take place after the appellate reversal of the underlying order. The Cologne court did not suggest any such bar to further proceedings. Rather, the court reasoned that, under the circumstances of the case, the purposes of civil contempt could not be advanced by such further proceedings because the defendants had complied with the underlying court order from the day after they were found in contempt through the date of the court’s decision reversing the underlying order. The Cologne court recognized that in order to effectuate the purposes of civil contempt, the contemnor should be able to obtain release from the sanction imposed by the court through compliance with the judicial decree. Id. Without any need to compel compliance with the injunction at issue in Cologne, then, further contempt proceedings made no sense. Thus, Cologne does not stand for the proposition that the intervening appellate reversal poses an impediment to further proceedings on the motion for contempt.

Contempt proceedings after appellate reversal of the underlying court order were approved in Rivenbark v. Southmark Corporation, 93 N.C. App. 414, 378 S.E.2d 196 (1989). There, the court affirmed a finding of contempt notwithstanding the fact that it simultaneously found the underlying order that was violated to be erroneous. The Rivenbark court, however, vacated the sanction imposed for that contemptuous conduct because the trial court had not given proper consideration to sanctions less drastic than that imposed. The court then remanded the matter for additional findings of fact regarding the appropriate contempt sanction. The result in Rivenbark, then, supports the imposition of a sanction for willful disobedience of a court order after the reversal of that court order.

In light of Cologne and Rivenbark, we see no reason why the timing of the contempt adjudication alone should affect the trial court’s ability to remedy disobedience to its orders when the disobedience occurred while the orders were in full force and effect. Here, the defendant chose to disobey a lawful, although subsequently vacated, court order. The defendant concedes, as he must, that under Cologne, he could have been held in contempt any time prior to February 11, 1992. Because the trial court proceedings were not completed by that date, however, he should not be allowed to escape the consequences of his earlier contemptuous conduct. The practical effect of the defendant’s argument would be that if an obligor can avoid the service of a contempt citation or otherwise delay the hearing of the contempt proceedings while an appeal is pending, and if that appeal is ultimately successful, the obligor has circumvented the mandate of Practice Book § 4046 and undermined the authority of our courts to remedy such noncompliance. Under these circumstances, “[¡judgments could be accepted or rejected at whim with impunity and would be essentially advisory in nature ... resulting in a discomfiture of the judicial process.” State ex rel. Girard v. Percich, 557 S.W.2d 25, 36 (Mo. App. 1977).

In addition to frustrating important institutional concerns of our courts, a result different from that reached by us today would also frustrate clearly defined public policy regarding the parental obligation to support minor children. Both state and national policy has been, and continues to be, to ensure that all parents support their children and that children who do not live with their parents benefit from adequate and enforceable orders of child support. Turner v. Turner, 219 Conn. 703, 713-20, 595 A.2d 297 (1991); 42 U.S.C. § 651 et seq. (Part D of Title IV of the Social Security Act). Child support is now widely recognized as an essential component of an effective and comprehensive family income security strategy. See generally A. Houseman, “Poverty Law Developments and Options for the 1990s,” 24 Clearinghouse Review 2, 5-7 (1990); P. Roberts, “Child Support and Beyond: Mapping a Future for America’s Low-Income Children,” 22 Clearinghouse Review 594 (1988). As with any income source, the effectiveness of child support in meeting the needs of children is, of necessity, increased when payments are made regularly and without interruption.

The defendant seeks our approval of his decision to avoid his parental duty of timely support as ordered by the trial court, thus impairing the income flow to his family unilaterally and with impunity. We will not approve such conduct. “[TJhere is no privilege to disobey a court’s order because the alleged contemnor believes that it is invalid.” Cologne v. Westfarms Associates, supra, 148.

The judgment is affirmed.

In this opinion Schaller, J., concurred.

Lavery, J.,

dissenting. Because I believe that the holding of the majority opinion is contrary to established law regarding the effect of an appellate reversal on an order of the Superior Court, I respectfully dissent.

The sole issue in this appeal, whether the trial court may render a judgment of civil contempt for failure to comply with an order of the court after an appellate level court has reversed the underlying order, is an issue of first impression in Connecticut.

It is well settled in Connecticut that the reversal of a trial court judgment by an appellate tribunal renders that judgment void and without effect. Reilly v. State, 119 Conn. 217, 220-21, 175 A. 582 (1934); Brennan v. Berlin Iron Bridge Co., 73 Conn. 412, 415-16, 47 A. 668 (1900); Woodruff v. Bacon, 35 Conn. 97, 102 (1868); Allen v. Adams, 17 Conn. 67, 73 (1845). The effect of a reversal upon a trial court judgment was first discussed nearly 150 years ago in the case of Allen v. Adams, supra. In the present case, as in Allen v. Adams, supra, “the defendant[’]s claim rests upon the effect that is to be given to the judgment of reversal rendered by [an appellate level court].” Id., 72. On this issue, the court wrote: “Now, it is very clear, that, when that judgment was reversed, it ceased to be a judgment of any description, because the effect of such reversal was wholly to vacate and annul it. This is plain from the nature of the proceeding and the form of the entry of a judgment of reversal. Legally speaking, therefore, the judgment so reversed has now no existence. In legal contemplation, it is annihilated, and it is as if it had never been rendered.” Id., 73.

In 1868, the Supreme Court again took up the effect of its reversal of a Superior Court order in Woodruff v. Bacon, supra. That case considered the effect of the Supreme Court’s reversal of a Superior Court order erasing a case from its docket. Of the reversal, the court wrote: “The effect, therefore, of the reversal of the order was to leave the cause as if it had never been made. The order ceased any longer to have any effect whatever, or properly any existence; and being rendered wholly void, it was effectually destroyed and removed out of the way by the reversal of it. ” Id., 102.

In Brennan v. Berlin Iron Bridge Co., supra, the Supreme Court contemplated the use of a prior favorable reversed judgment in the prosecution of a second action. The court noted: “It is a general rule that the reversal of an erroneous judgment and the remanding of the case for further proceedings, restores the parties to the same condition in which they were before the erroneous judgment was rendered, so that they may proceed with the case in the trial court in the same manner as if the case had not been tried and decided, except as to matters not affected by the judgment of reversal. Freem. on Judgm. § 481; Gleasonv. Chester, 1 Day, 152 [1803].” Id., 415-16.

The effect of appellate reversal was most recently discussed in the 1934 case of Reilly v. State, supra. In describing the nature of a writ of error, Chief Justice William M. Maltbie wrote: “That the writ is not a proceeding independent of the original action in any broad sense is apparent when we consider that the effect of a reversal is to destroy the judgment in that action, to restore the parties to the position in which they were before the judgment was rendered, and to permit the re-entry of the case in the trial court for disposition as though no judgment had been entered.” Id., 220-21.

This survey of case law clearly indicates that since the earliest years of Connecticut jurisprudence, our Supreme Court has recognized that the reversal of an order of the Superior Court renders that order completely void, and puts the parties back in the positions they occupied before the original action was brought.

In this case, the order directing child support payments was reversed on February 11,1992. On March 5, when the trial court rendered a judgment of contempt against the defendant, there no longer existed a court order with which the defendant was to comply. “Thus, if no prior court order exists, an actor cannot obey it, and, therefore, the trial court cannot hold the actor in contempt for noncompliance with a nonexisting order.” Calway v. Calway, 26 Conn. App. 737, 744, 603 A.2d 434 (1992). Here, the trial court improperly held the defendant in contempt for “noncompliance with a nonexisting order.”

In People ex rel. Scott v. Police Hall of Fame, 69 Ill. App. 3d 501, 387 N.E.2d 856 (1979), the Illinois Appellate Court encountered a case similar to this one. An action was originally brought by the state attorney general, who sought injunctive relief and an accounting from two charitable organizations. The trial court ordered the defendants to pay $417,928 in compensatory damages and $150,000 in punitive damages. The defendants appealed that order. The Appellate Court reversed the award of punitive damages and affirmed the award of compensatory damages. Following the Appellate Court’s ruling, the defendants were served with a citation to discover assets. A hearing was held, and the defendants did not appear. The trial court then rendered a judgment of contempt, against the defendants. The defendants appealed the contempt judgment to the Illinois Appellate Court.

The Illinois Appellate Court framed the issue before it as “whether supplementary proceedings in the form of a citation to discover assets remain viable where the judgment upon which they are based has been reversed by this court and the cause remanded for further consideration of the amount for which the respondents are liable.” Id., 503. The court stated, consistent with our general rule regarding reversals of judgment, that “[ajs a general proposition, when a judgment or order is reversed, the effect is to abrogate the judgment or order and leave the case as it stood prior to the entry thereof.” Id. The court reasoned that “[sjince the underlying judgment was reversed, it would seem to follow with complete logic that any actions for collection of that judgment must necessarily fail.” Id. This reasoning led the court to the inevitable conclusion that “[sjince the supplementary proceedings must be dismissed, it is impossible for respondents now to obey the original order entered therein. The findings of contempt . . . must therefore fall with the supplementary proceedings.” Id., 504-505. In this case, the motion for contempt was a “supplementary proceeding,” which I believe necessarily fell with the reversal of the trial court’s financial orders.

The majority relies exclusively on Cologne v. Westfarms Associates, 197 Conn. 141, 496 A.2d 476 (1985), (Cologne II), and Rivenbark v. Southmark Corporation, 93 N.C. App. 414, 378 S.E.2d 196 (1989), to support the proposition that an order of contempt may be issued by a trial court after the underlying trial court order that gave rise to the contempt citation has been reversed by an appellate level court. Both Cologne and Rivenbark can be clearly distinguished from this case.

A review of the chronology of the Cologne case is helpful in drawing the important distinction between that case and the present case. On March 2,1983, the trial court rendered a judgment enjoining the Cologne defendants from prohibiting the plaintiffs access, for certain political purposes, to the privately owned West-farms shopping mall. See Cologne v. Westfarms Associates, 192 Conn. 48, 469 A.2d 1201 (1984) (Cologne I). On April 22, 1983, the trial court found the defendants in contempt for refusing to comply with its March 2 order. The plaintiffs were granted access to the mall the next day, April 23, 1983. The following year, on January 17, 1984, the Supreme Court issued its decision in Cologne I, holding that the trial court erred in concluding that the rights of free speech guaranteed by our state constitution may be exercised on private property consisting of a large regional shopping center, contrary to the wishes of its owners. The defendants in Cologne I, therefore, prevailed on the merits of their appeal from the March 2,1983 injunction order. The defendants, however, had also filed an appeal of the April 22, 1983 contempt judgment. They claimed that because the injunction on which the contempt was based was held in Cologne I to have been issued erroneously, the court could not hold them in contempt for failing to obey its injunctive order. Cologne II, supra, 147.

In Cologne II, the Supreme Court held that although the trial court’s March 2,1983 injunction was invalid, the trial court nevertheless properly found the defendants in contempt for failing to obey the injunction. This case is in stark contrast to Cologne II. In Cologne II, the trial court issued an injunction against the defendants. The defendants ignored the trial court’s order and were adjudged by the trial court to be in contempt. The defendants appealed from the injunction order and the Supreme Court held that the trial court’s injunction was invalid. The defendants appealed from the contempt order, and the Supreme Court held that the contempt order was properly issued. In the present case the trial court ordered the defendant to make certain child support payments. The defendant refused to comply with the trial court’s order. The trial court’s order was reversed by this court, and then the defendant was found to be in contempt of the trial court’s original order. The important distinction is that in Cologne II the underlying order was found to be invalid by an appellate level court after the contempt order was issued, while in this case the underlying order was found to be invalid by an appellate level court before the contempt order was issued. I believe that this distinction is fatal to the plaintiffs assertion that Cologne II is dispositive of the issue in this case.

Rivenbark v. Southmark Corporation, supra, is likewise distinguishable from the present case. In Riven-bark, the plaintiff sued for breach of contract when the defendants allegedly failed to give their approval of subleases properly submitted by the plaintiff. In its complaint, the plaintiff sought a temporary injunction that would allow it to stay in possession of certain property and collect rents from it. The defendants denied the plaintiffs allegations, and counterclaimed that the plaintiff had breached the contract between the parties. After a hearing, the trial court denied the plaintiffs motion for injunctive relief, and ordered that after certain conditions were met, the defendants would be entitled to possession of the disputed property, and would be allowed to collect rents pending a trial on the merits.

Several weeks after the trial court issued its interlocutory order, the defendants moved that the plaintiff be held in contempt of court because, the defendants alleged, the plaintiff had violated the court’s order by its collection of certain rent payments. After another hearing, the court ordered the plaintiff to pay the defendants $46,704.88 in improperly collected rent moneys. The plaintiff appealed that order, but its appeal was dismissed as interlocutory.

Nearly two years later, the defendants filed a motion asking the trial court to dismiss the plaintiff’s complaint, and to hold the plaintiff in contempt for its failure to pay the defendants the rent moneys as ordered. The trial court granted the defendants’ motions, and the plaintiff appealed. The Court of Appeals concluded that the underlying trial court order that gave rise to the contempt finding was erroneous, but not void, and affirmed the trial court’s judgment of contempt.

Like Cologne II, Rivenbark is clearly distinguishable from the present case because the contempt order was issued before an appellate tribunal found the underlying trial court order to be defective. Cologne II and Rivenbark are directly on point with each other, but not with the present case. There is an extremely important distinction between a trial court’s finding of contempt when a party fails to obey a properly issued court order before an appeal is taken or decided (even if the underlying order is erroneous), and a trial court’s finding a party in contempt when an appellate judgment, reversing the underlying order, is literally on the courtroom shelves.

The majority states that “[the] distinction between a court order that is void and one that is merely erroneous is critical to the issue presented by this appeal.” Citing Cologne II, supra, the majority concludes that “[a]n erroneous order of child support is as binding as one that is correct until set aside or corrected in a manner provided by law.” I agree that the support orders had full effect until they were reversed on February 11, 1992. The fact that the order had full effect until that day, however, is not an issue in this case. What our case law dictates is that after our reversal on February 11, 1992, the order of child support became void. The distinction between void and erroneous orders relied on by the majority, therefore, is inapplicable in this case.

The majority correctly points out that, under our rules of practice, proceedings to enforce alimony and support orders are not stayed during the pendency of an appeal of those orders. Practice Book § 4046. The majority also properly states that § 4046 is designed to foster the important public policy of ensuring that support orders are complied with regardless of the subsequent history of the litigation. The existence or nonexistence of a stay, however, is not an issue presented by this case. Again, the sole issue in this case is whether a trial court may issue an order of civil contempt once the underlying order has been reversed by an appellate court. Section 4046, whose language is devoid of any reference to the effect of appellate reversal, has, I believe, no effect on the 150 years of Connecticut case law holding that a reversed order has no effect.

At the conclusion of his brief the defendant made a cursory restitution claim for the $6175 he paid to purge the contempt order. Apparently in response to this claim, the plaintiff asserts that the trial court correctly calculated the arrearage owed by the plaintiff as accrued between the date of the support order, April 23, 1991, and the date we reversed that order, February 11, 1992. The plaintiff claims that the trial court correctly calculated the arrearage, and that the defendant properly paid that amount when he purged the contempt. Obviously, there has been no trial court hearing on the issue of restitution, nor has this issue been properly briefed by the parties. On remand, I would direct the trial court, in addition to vacating the contempt order, to hold a hearing on the issue of restitution, taking into account this state’s statutory mandate that parents are liable for the support of their minor children. General Statutes § 46b-215 (a).

Section 46b-215 (a) provides in part: “The superior court or a family support magistrate shall have authority to make and enforce orders for payment of support against any person who neglects or refuses to furnish necessary support to ... a child under the age of eighteen, according to his or her ability to furnish such support . . . .” “There is nothing in this language, or in the important public policy that it reflects, to suggest that the obligation of a parent to support [his] child, according to [his] ability, is subject to a condition precedent of a formal demand. That obligation is ongoing, and does not require the trigger of a request by those persons who are shouldering that responsibility.” Favrow v. Vargas, 222 Conn. 699, 717, 610 A.2d 1267 (1992). In determining the defendant’s liability for the support of his children during the period of nonpayment, the Child Support Guidelines in effect at the time of the hearing would provide the trial court with a starting point.

When we reversed the trial court’s financial support order of April 23,1991, we did so because the trial court improperly balanced the incomes of the parties through its support orders. Mulholland v. Mulholland, 26 Conn. App. 585, 602 A.2d 1054 (1992). Our reversal did not terminate or interrupt the defendant’s legal duty to support his children. “The defendant’s duty to support ... is a continuing obligation, which ordinarily exists even apart from any judgment or decree of support.” Atlas Garage & Custom Builders, Inc. v. Hurley, 167 Conn. 248, 255, 355 A.2d 286 (1974); Pezas v. Pezas, 151 Conn. 611, 617, 201 A.2d 192 (1964). “A parent has both a statutory and common law duty to support his minor children within the reasonable limits of his ability.” Weisbaum v. Weisbaum, 2 Conn. App. 270, 272-73, 477 A.2d 690 (1984).

I disagree with the majority’s assertion that “[t]he practical effect of the defendant’s argument would be that if an obligor can avoid the service of a contempt citation or otherwise delay the hearing of the contempt proceedings while an appeal is pending, and if that appeal is ultimately successful, the obligor has circumvented the mandate of Practice Book § 4046 and undermined the authority of our courts to remedy such noncompliance.” The circumstances of this case are rare. The uniqueness of the situation this court has encountered here is reflected in the paucity of authority in every jurisdiction on the issue of whether a trial court can issue an order of contempt after appellate reversal. Furthermore, a defendant who attempts to circumvent the authority of our courts would not only be risking being held in contempt as soon as payment is withheld, but would be gambling on a very unlikely outcome on appeal. The standard of review in an appeal of a support order remains abuse of discretion, and, as Chief Justice Peters recently wrote, “our appellate decisions emphasize that an abuse of discretion leading to a reversal is rare.” Madigan v. Madigan, 224 Conn. 749, 758, 620 A.2d 1276 (1993).

As the majority correctly points out, this case touches on important and timely public policy questions. The issue of this case, however, is not whether our courts sanction the avoidance of court orders; clearly they do not. The issue here concerns solely the power of the Superior Court to hold someone in contempt of court for the failure to obey an order that has been reversed.

I would reverse the judgment of the trial court and remand the case for the proceedings I have outlined above.

Accordingly, I respectfully dissent.

       In his preliminary statement of the issues, the defendant set forth six issues to be presented in this appeal. His statement of the issue in his appeal brief raises only one issue: “Did the trial court err in finding the defendant in civil contempt and in ordering payment of $6,175.00 in order to purge the contempt when the Appellate Court had previously reversed the underlying judgment?” This single issue statement replaces and supersedes the preliminary statement of issues. Practice Book § 4065 (a).
      In his appeal brief, the defendant properly includes a statement of facts. Practice Book § 4065 (c). In footnotes in this portion of the brief, however, the defendant challenges the trial court’s calculation of his child support arrearage and the amount he was ordered to pay in order to purge his contempt. Because this claim is not properly presented in the argument portion of his brief, we will not address it. Practice Book § 4065 (d); State v. Grant, 221 Conn. 93, 107 n.13, 602 A.2d 581 (1992); State v. Reddick, 15 Conn. App. 342, 343, 545 A.2d 1109, cert. denied, 209 Conn. 819, 551 A.2d 758 (1988).

       Notwithstanding the fact that the defendant has purged himself of the contempt and has been released from incarceration, this appeal is not moot. Sgarellino v. Hightower, 13 Conn. App. 591, 593-95, 538 A.2d 1065 (1988).

       Practice Book § 4046 provides in pertinent part: “In all actions, except where otherwise provided by statute or other law, proceedings to enforce or carry out the judgment shall be automatically stayed until the time to take an appeal has expired; if an appeal is filed, such proceedings shall be stayed until the final determination of the cause; and, if the case goes to judgment on appeal, until ten days after the decision is announced; but if the judge who tried the case is of the opinion that an extension to appeal is sought or the appeal is taken only for delay or that the due administration of justice so requires that judge may at any time, upon motion and hearing, order that the stay be terminated. This section shall not apply to actions concerning attorneys pursuant to chapter 2, to periodic alimony and support orders, as well as to custody or visitation orders in domestic relations matters brought pursuant to chapter 17, to criminal matters brought pursuant to chapter 22 through 30 or to juvenile matters brought pursuant to chapters 31 through 40.” (Emphasis added.)

       An obligor under a child or spousal support order can, pending appeal, seek a stay in the trial court of the child support order, or any portion thereof, pursuant to Practice Book § 4047. If the trial court refuses to grant such a stay, the obligor can seek appellate review of the denial of a stay pursuant to Practice Book §§ 4049 and 4053. These rules serve to ameliorate any harsh implications that might be caused where a trial court’s child or spousal support order is so unreasonable that the obligation it imposes works a severe hardship on an obligor such that a partial or complete granting of a stay will more fairly strike an equitable balance between the parties with respect to their respective child support obligations pending appeal.
      It is important to note that the defendant in this case sought such a stay. The stay was denied by the trial court. He did not seek appellate review of the denial.

       The dissent concludes by stating “[t]he issue here concerns solely the power of the Superior Court to hold someone in contempt of court for the failure to obey an order that has been reversed.” This statement overly simplifies the issue. The issue before the trial court on March 5 was whether the defendant failed to comply with the order before it was reversed and while it was still in full force and effect, not whether he failed to comply with it after it was reversed.

       In Cologne v. Westfarms Associates, 197 Conn. 141, 147-48, 496 A.2d 476 (1985), our Supreme Court emphatically stated: “ ‘The interests of orderly government demand that respect and compliance be given to orders issued by courts possessed of jurisdiction of persons and subject matter. One who defies the public authority and willfully refuses his obedience, does so at his peril.’ United States v. United Mine Workers, 330 U.S. 258, 303, 67 S. Ct. 677, 91 L. Ed. 884 (1947). ‘[A]n order issued by a court with jurisdiction over the subject matter and person must be obeyed by the parties until it is reversed by orderly and proper proceedings.’ Id., 293; see also W. R. Grace & Co. v. Rubber Workers, 461 U.S. 757, 766-67, 103 S. Ct. 2177, 76 L. Ed. 2d 298 (1983); DeMartino v. Monroe Little League, Inc., 192 Conn. 271, 276-77, 471 A.2d 638 (1984). . . . [Tjhere is no privilege to disobey a court’s order because the alleged contemnor believes that it is invalid. Particularly is this true of attorneys [such as the defendant here].” “ ‘An attorney who believes a court order is erroneous is not relieved of the duty to obey it. The proper course of action, unless and until the order is invalidated by an appellate court, is to comply and cite the order as reversible error should an adverse judgment result. Maness v. Meyers, 419 U.S. 449, 95 S. Ct. 584, 42 L. Ed. 2d 574 (1975).’ Chapman v. Pacific Telephone & Telegraph Co., 613 F.2d 193, 197 (9th Cir. 1979); see Barnd v. Tacoma, 664 F.2d 1339, 1342 (9th Cir. 1982).” Id., 148-49.


source: Caselaw Access Project

author: Landau, J.

license: Public Domain

text:
    Neil R. Forbes et al. v. Joseph L. Ballaro et al.
    (11176)
    Landau, Schalleb and Ceetella, Js.
    Argued December 11, 1992
    decision released May 4, 1993

      Alan R. Spirer, for the appellants (plaintiffs).

      CarlR. Ficks, Jr., for the appellees (defendants John Cook et al.).
   Landau, J.

The plaintiffs, Neil Forbes and Marilyn Forbes, appeal from a judgment of the trial court granting a motion to strike filed by the defendants, the city of Shelton, Frank Kullberg and John Cook. On appeal, the plaintiffs claim that the trial court improperly concluded that (1) their claims against the city of Shelton were time barred by the provisions of General Statutes § 7-465 and (2) their claims against Cook and Kullberg were time barred by General Statutes §§ 52-577 and 52-584.

The facts fairly provable under the relevant counts of the complaint are as follows. The plaintiffs entered into a contract with the defendants Joseph L. Ballaro and Joseph Ballaro (Ballaro) for the construction of a single family dwelling on a parcel at 39 Ballaro Drive in Shelton. Because of the location of the lot, Ballaro submitted an application to the Shelton inland wetlands commission for approval. On November 7, 1985, the wetlands commission approved the premises as a building lot subject to a preconstruction conference with the defendant Cook, the Shelton inland wetlands enforcement officer. Ballaro constructed the house and, on May 19, 1986, Joseph Ballaro and Patricia A. Ballaro conveyed the premises to the plaintiffs by warranty deed. On July 18, 1990, the plaintiffs discovered that their house was constructed on compressible organic material, that the soils on which their house was constructed are inadequate to support the structure and that the house is settling, thereby causing damage to the house and rendering it unfit for habitation.

The plaintiffs brought an action against Cook and the city of Shelton jointly for negligence, negligent nuisance and nuisance; against Kullberg and the city of Shelton jointly for negligence, negligent nuisance, nuisance and fraud; and against the city of Shelton for indemnification pursuant to General Statutes § 7-465. The plaintiffs also brought an action against the defendant Ballaro for breach of contract, negligence, fraud, and violations of the Connecticut Unfair Trade Practices Act. On November 18,1991, Cook, Kullberg and the city filed a motion to strike counts five through twelve of the plaintiffs’ revised complaint dated August 27,1991, on the grounds that the actions were barred by applicable statutes of limitation, statutory notice requirements and governmental immunity. The trial court sustained the motion to strike. It ruled that counts five through twelve were time barred against the city pursuant to General Statutes § 7-465, that counts five and eight were time barred against Cook and Kullberg pursuant to General Statutes § 52-584, and that counts six, seven, nine, ten and eleven were time barred against Cook and Kullberg pursuant to General Statutes § 52-577. The plaintiffs failed to plead over. The entire complaint against those defendants having been stricken, judgment was entered in their favor. This appeal followed.

The plaintiffs argue that the defense that the cause of actions against Cook, Kullberg and the city of Shelton are time barred by General Statutes §§ 52-577 and 52-584 is not a proper basis for a motion to strike. The plaintiffs argue that they should be given the opportunity to plead fraudulent concealment, pursuant to General Statutes § 52-595, in avoidance of the statute of limitations defense. We agree.

A motion to strike challenges the legal sufficiency of a pleading. “ ‘In reviewing the granting of a motion to strike, we take the facts alleged in the complaint and construe them in a manner most favorable to the pleader.’ Progressive Casualty Ins. Co. v. DiGangi, 4 Conn. App. 137, 140, 492 A.2d 548 (1985). This includes the facts necessarily implied and fairly provable under the allegations. Id., 140-41. It does not include, however, the legal conclusions or opinions stated in the complaint. Fairfield Lease Corporation v. Romano’s Auto Service, 4 Conn. App. 495, 497, 495 A.2d 286 (1985).” Tomczuk v. American Mutual Ins. Co., 9 Conn. App. 194, 196, 517 A.2d 1053 (1986). The “purpose and scope of a motion to strike are identical to those of a demurrer . . . .” Cavallo v. Derby Savings Bank, 188 Conn. 281, 283, 449 A.2d 986 (1982). A claim that an action is barred by the lapse of the statute of limitations must be pleaded as a special defense, not raised by a motion to strike. Practice Book § 164; see Mac’s Car City, Inc. v. DeNigris, 18 Conn. App. 525, 528, 559 A.2d 712 (1989). The “advantage of the statute of limitations cannot be taken by [a motion to strike]. . . . [T]he objection to this mode of pleading is that it raises no issue” and “deprives the plaintiff of an opportunity to reply a new promise, or an acknowledgement.” O’Connor v. Waterbury, 69 Conn. 206, 210, 37 A. 499 (1897). A motion to strike might also deprive a plaintiff of an opportunity to plead matters in avoidance of the statute of limitations defense. Hitchcock v. Union & New Haven Trust Co., 134 Conn. 246, 248, 56 A.2d 655 (1947). In two limited situations, however, we will allow the use of a motion to strike to raise the defense of the statute of limitations. The first is when “[t]he parties agree that the complaint sets forth all the facts pertinent to the question whether the action is barred by the Statute of Limitations and that, therefore, it is proper to raise that question by [a motion to strike] instead of by answer.” Vilcinskas v. Sears, Roebuck & Co., 144 Conn. 170, 171-72, 127 A.2d 814 (1956). The second is where “a statute gives a right of action which did not exist at common law, and fixes the time within which the right must be enforced, the time fixed is a limitation or condition attached to the right — it is a limitation of the liability itself as created, and not of the remedy alone.” DeMartino v. Siemon, 90 Conn. 527, 528-29, 97 A. 765 (1916).

Counts five through eleven of the plaintiffs’ complaint stated all dates on which the alleged negligent acts occurred. The trial court held that because all the dates were pleaded, all facts necessary to determine if the cause of action was barred by the statute of limitations were also pleaded. Therefore, the trial court held, pursuant to Vilcinskas v. Sears, Roebuck & Co., supra, that this was an instance in which the statute of limitations defense could be raised by a motion to strike.

The trial court misconstrued our Supreme Court’s holding in Vilcinskas. In that case, the parties agreed that all facts necessary to the determination of whether the statute of limitations defense applied were set forth in the complaint. Therefore, there was no need to wait for an answer to determine if the statute of limitations defense could be avoided if the answer could provide no new information. Here, however, there is no such agreement. The complaint did not state facts that the plaintiffs believed would toll the statute of limitations on their claims. The plaintiffs contend, as they have throughout these proceedings, that additional facts are necessary to prove that the claim is not time barred. The plaintiffs should be given the opportunity affirmatively to plead fraudulent concealment in avoidance of the statute of limitations defense pursuant to General Statutes § 52-595. See Hitchcock v. Union & New Haven Trust Co., supra.

The trial court concluded that count twelve of the complaint, the action for indemnification against the city on the basis of the actions of the employees of the city, should be stricken for failure to comply with the notice requirements of § 7-465. With this we agree, and note again that the plaintiff abandoned this claim at oral argument. The trial court also concluded that all of the claims against the city were barred for failure to comply with the notice requirements of § 7-465. With this we do not agree.

In the complaint the plaintiffs set forth causes of action against the city and Cook and Kullberg jointly. These actions, however, were neither for indemnification nor statutory in nature. Rather, they were common law actions that were not subject to the notice requirements of § 7-465. Therefore, like the common law actions against Cook and Kullberg individually, they are subject only to the statute of limitations contained in the respective statutes. As we have concluded, the plaintiffs, if they wish, should be given an opportunity to plead avoidance of the statute of limitations.

The judgment granting the motion to strike is reversed as to counts five through eleven, and affirmed as to count twelve; the case is remanded with direction to deny the motion to strike counts five through eleven.

In this opinion the other judges concurred.

       The other defendants, Joseph L. Ballaro, Joseph Ballaro and Patricia Ballaro, are not parties to this appeal.

       Frank Kullberg was the Shelton building inspector and John Cook was the Shelton inland wetlands enforcement officer.

       General Statutes § 7-465 (a) provides in pertinent part: “Any town, city or borough, notwithstanding any inconsistent provision of law, general, special or local, shall pay on behalf of any employee of such municipality, except firemen covered under the provisions of section 7-308, and on behalf of any member from such municipality of a local emergency planning district, appointed pursuant to section 22a-601, all sums which such employee becomes obligated to pay by reason of the liability imposed upon such employee by law for damages awarded for infringement of any person’s civil rights or for physical damages to person or property, except as hereinafter set forth, if the employee, at the time of the occurrence, accident, physical injury or damages complained of, was acting in the performance of his duties and within the scope of his employment, and if such occurrence, accident, physical injury or damage was not the result of any wilful or wanton act of such employee in the discharge of such duty. ... No action for personal physical injuries or damages to real or personal property shall be maintained against such municipality and employee jointly unless such action is commenced within two years after the cause of action therefor arose nor unless written notice of the intention to commence such action and of the time when and the place where the damages were incurred or sustained has been filed with the clerk of such municipality within six months after such cause of action has accrued. ...”

       General Statutes § 52-577 provides: “No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of.”

       General Statutes § 52-584 provides: “No action to recover damages for injury to the person, or to real or personal property, caused by negligence, or by reckless or wanton misconduct, or by malpractice of a physician, surgeon, dentist, podiatrist, chiropractor, hospital or sanatorium, shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of, except that a counterclaim may be interposed in any such action any time before the pleadings in such action are finally closed.”

       The plaintiffs, at oral argument before us, abandoned their claim that the trial court improperly concluded that their statutory claims against the city of Shelton were time barred by their alleged failure to comply with the notice requirements of General Statutes § 7-465. Therefore, we will not address this claim.

       General Statutes § 52-595 provides: “If any person, liable to an action by another, fraudulently conceals from him the existence of the cause of such action, such cause of action shall be deemed to accrue against such person so liable therefor at the time when the person entitled to sue thereon first discovers its existence.”

       The plaintiffs’ original complaint pleaded fraudulent concealment as a reply to the anticipated defense of the statute of limitations. That complaint was no longer the operative complaint upon the filing of a revised complaint. It does, however, operate as an admission. “When the court has allowed a party in a civil case to withdraw, amend, or supersede a pleading, the pleading ceases to be usable as a conclusive judicial admission, but is usable as an evidentiary admission.” C. Tait & J. LaPlante, Connecticut Evidence (2d Ed.) 11.5.3, p. 333; see Schenck v. Pelkey, 176 Conn. 245, 248, 405 A.2d 665 (1978); Nichols v. Nichols, 126 Conn. 614, 620, 13 A.2d 591 (1940).

       The plaintiffs correctly note that they are not required to plead facts in anticipation of the defense of the statute of limitations. See Todd v. Bradley, 99 Conn. 307, 311, 122 A. 68 (1923).

       The plaintiffs did not abandon their claims that the common law counts against the city were not precluded by General Statutes § 7-465.


author: Schaller, J.

text:
    Malcolm W. Baldwin et al. v. Harmony Builders, Inc., et al.
    (11529)
    Daly, Lavery and Schaller, Js.
    Argued February 22
    decision released May 4, 1993

      Judith A. Mauzaka, for the appellants (plaintiffs).
   Schaller, J.

The plaintiffs appeal from the judgment of the trial court rejecting counts three and four of their complaint. The sole issue in this case is whether the trial court, having granted the plaintiffs’ motion for default for failure to plead, improperly required the plaintiffs to prove fraudulent conveyance at a hearing in damages. We reverse the judgment of the trial court.

On November 14, 1986, the defendant Normand L. Poulin, acting individually and on behalf of the defendant Harmony Builders, Inc., executed two promissory notes and agreed to pay the plaintiffs $120,000 with interest accruing on the balance at the rate of 12 percent per anum. According to the complaint, in 1988 Poulin twice quitclaimed real property to his wife, the defendant Anita Poulin. In August, 1989, the defendants paid $19,833 toward the balance on the first note and $14,167 toward the balance on the second.

On March 13, 1990, the plaintiffs brought an action against the defendants for the balance owing on the two notes. In the third and fourth counts of their complaint, the plaintiffs further claimed that Poulin fraudulently conveyed real property in Milford to his wife. For all of these claims the plaintiffs sought money damages, interest and “such other relief as the court deems appropriate.”

Attorney Peter Melien filed an appearance on behalf of the defendants but did not file any pleadings. On October 19, 1990, the defendant Anita Poulin was defaulted for failure to plead. Subsequently, on January 2, 1991, the court permitted Melien to withdraw his appearance. Then, on June 14,1991, the trial court defaulted the remaining defendants for failure to plead.

On August 19, 1991, the court conducted a hearing in damages. Only one of the three defendants, Normand Poulin, attended the hearing. Neither he nor any of the remaining defendants filed written notice of an intention to contradict the allegations of the plaintiffs’ complaint. After a hearing in damages, the court determined that Poulin and Harmony Builders, Inc., were liable on the two notes for $73,909.57 and $52,795.12 respectively. The court, however, rejected the plaintiffs’ fraudulent conveyance claims, noting that “the evidence does not establish by clear and convincing proof that the conveyances made by Normand L. Poulin to his wife, alleged in the third and fourth counts of the complaint, were fraudulent conveyances, and judgment is entered for the defendant Anita Poulin.” The plaintiffs appealed.

The plaintiffs claim that, at the hearing in damages, the trial court improperly required proof of fraudulent conveyance by clear and convincing evidence. The plaintiffs’ claim is predicated on the fact that subsequent to default, the defendants neither provided written notice of their intent to contradict the allegations in the complaint; Practice Book § 367; nor filed a motion to open the defaults for failure to plead. Practice Book §§ 376 and 377.

Practice Book § 367 provides that “[i]n any hearing in damages upon default suffered . . . the defendant shall not be permitted to offer evidence to contradict any allegations in the plaintiff’s complaint, except such as relate to the amount of damages, unless he has given notice to the plaintiff of his intention to contradict such allegations and of the subject matter which he intends to contradict . . . .” Under these circumstances, the underlying purpose of a hearing in damages is to assist the trial court in determining the amount of damages to be awarded. DeBlasio v. Aetna Life & Casualty Co., 186 Conn. 398, 401, 441 A.2d 838 (1982). “[A]t the very least, [the plaintiff] is entitled to nominal damages.’ Id.; Ratner v. Willametz, 9 Conn. App. 565, 579, 520 A.2d 621 (1987). Further, “ ‘[a] default in an action for legal and equitable relief admits the material facts constituting a cause of action.’ ” (Emphasis added.) Travelers Indemnity Co. v. Rubin, 209 Conn. 437, 445, 551 A.2d 1220 (1988) (judgment could not enter for defendant on fraudulent conveyance claim where court had previously defaulted defendant for failure to appear).

By contrast, at a hearing in damages in which the sole issue is the efficacy of equitable relief, “the principles of equity require that the plaintiff prove the allegations contained in his complaint so that equitable relief may be granted.” Ratner v. Willametz, supra, 576; Starr Cash & Package Car Co. v. Starr, 69 Conn. 440, 446, 37 A. 1057 (1897); 1 E. Stephenson, Connecticut Civil Procedure (2d Ed. 1970) § 163.

From this case law, it is apparent that if a plaintiff seeks monetary and equitable relief and the defendant is in default, the plaintiff may recover damages without first proving the allegations in the complaint; Rat-ner v. Willametz, supra; however, the remaining request for equitable relief implicates the principles of equity and does require the plaintiff to establish a factual predicate for the underlying cause of action. Id. Thus, to determine the appropriate proof requirements at a hearing in damages upon a defendant’s default, the trial court must evaluate the nature of the cause of action and the relief requested by the plaintiff.

The trial court, in this case, defaulted each of the three defendants, and the case proceeded to a hearing in damages. None of the defendants indicated an intent to contradict the allegations. Among the issues before the court were the plaintiffs’ fraudulent conveyance claims. These claims raised mixed issues of law and equity. “A party complaining of a fraudulent convey-anee has, among other remedies, one at law for damages against both the wrongdoers, and one in equity to have the fraudulent conveyance set aside.” Gaudio v. Gaudio, 23 Conn. App. 287, 302, 580 A.2d 1212, cert. denied, 217 Conn. 803, 584 A.2d 471 (1990). The plaintiffs sought damages and “such other relief that the court deems to be appropriate.” As a prerequisite to legal and equitable relief, the court required proof of fraudulent conveyance by clear and convincing evidence.

With respect to the allegations underlying the plaintiffs’ claim for damages, the defendants, in effect, admitted these facts through their failure to plead. At a minimum, it was incumbent on the court to enter an award of nominal damages to reflect the fact that judgment could not enter in favor of the defendants. We conclude that the court improperly required the plaintiffs to prove fraudulent conveyance in support of their claim for damages.

The plaintiffs’ claim for “any other relief that the court deems necessary,” however, presents a different question. This relief may implicate the court’s equitable powers, particularly if read as a request to set aside the conveyance. Because a court order setting aside a conveyance is an equitable remedy, the plaintiffs must prove fraudulent conveyance before they are entitled to such relief.

In sum, the trial court improperly required the plaintiffs to establish the allegations of the complaint when it ruled on their claim for damages. On remand, in determining the claim for damages, the court must restrict its inquiry to the amount of damages that the plaintiffs may recover. If, in addition to damages, the plaintiffs seek to set aside the conveyance, the trial court must require proof of fraudulent conveyance by clear and convincing evidence, but only while ruling on the claim for equitable relief.

The judgment is reversed and the case remanded for further proceedings consistent with this opinion.

In this opinion the other judges concurred.

       Counts three and four specifically provided in pertinent part that “said conveyance was made without consideration and was intended to defraud the legitimate creditors of the defendant, Normand L. Poulin, by removing assets from his name thereby leaving him with insufficient funds or property to meet said creditors’ demands.”

       The defendants have chosen not to respond to the plaintiffs’ claims on appeal.


text:
    Alexander Churchill et al. v. Helen Skjerding, Executrix (Estate of Eva Churchelow), et al.
    (11253)
    Landau, Heiman and Schallek, Js.
    Argued January 6
    decision released May 11, 1993

      Irving H. Perlmutter, for the appellants (named defendant et ah).

      Frederic E. Mascólo and Deborah M. DelBuono, for the appellees (plaintiffs).
   Schaller, J.

The defendants appeal from a judgment for the plaintiffs, rendered after a jury trial, determining in effect that the document offered by the defendants for probate as the last will and testament of Eva Churchelow is not her last will and testament. The defendants, who are the proponents of the will, had prevailed in the Probate Court for the district of Waterbury where the document had been admitted. From this decision, the plaintiffs, the children of Eva Churchelow’s deceased son, who are among her heirs-at-law, took an appeal to the Superior Court. A jury trial resulted in a general verdict for the plaintiffs, which was accepted by the trial court. The defendants claim that the trial court improperly (1) admitted into evidence the testimony of Anna Dobensky and Patricia Ann Senich as expert witnesses without adequate foundation, (2) refused to set aside the verdict as being the result of partiality on the part of the jury in accepting the testimony of handwriting experts in the face of the testimony of execution eyewitnesses offered by the defendants, (3) permitted the jury to consider undue influence in the absence of evidence on that issue, and (4) permitted the jury to consider lack of testamentary capacity in the absence of evidence on that issue. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The decedent, Eva Churchelow, died on April 29, 1985. A document dated June 27,1984, was purported to be her last will and testament. Two witnesses, Phyllis Matten and Pamela Daunis, attested to the will. Attached to the will were two maps on which appeared the decedent’s handwritten name.

The parties agreed that three documents, unrelated to the will at issue, each bore the signature of the decedent. A comparison of the signatures on these documents with those appearing on the will and the maps revealed numerous discrepancies. For example, the signature on the will differed considerably from the signatures on the three documents in terms of the types of strokes used and the slants inherent in the writing. Thus, because the signature on the will was different from that appearing on the three documents and because the parties stipulated that the three documents contained the authentic signature of the decedent, the will could not have borne the decedent’s true signature.

The defendants filed an application in the Probate Court requesting administration of the will. After the Probate Court admitted the will to probate, the plaintiffs appealed the decision of the Probate Court to the Superior Court asserting various theories regarding the invalidity of the will. The case was tried to a jury which returned a verdict for the plaintiffs. The defendants filed a motion to set aside the verdict which the court denied. This appeal followed.

I

The defendants claim that the trial court improperly admitted into evidence the testimony of two handwriting analysts, Anna Dobensky and Patricia Ann Senich. We disagree.

“The trial court has wide discretion in ruling on the admissibility of expert testimony and, unless that discretion has been abused or the error is clear and involves a misconception of the law, its ruling will not be disturbed.” State v. Palmer, 196 Conn. 157, 166, 491 A.2d 1075 (1985); Going v. Pagani, 172 Conn. 29, 35, 372 A.2d 516 (1976). “Expert testimony is admissible if the witness possesses a special skill or knowledge directly applicable to a matter in issue, the skill or knowledge is not commonly shared by the average person, and the testimony would be helpful to the court or jury in considering the issues . . . State v. Hasan, 205 Conn. 485, 488, 534 A.2d 877 (1987).

The issue was whether the will of Churchelow was executed pursuant to the statutory requirements. The plaintiffs contended that the signature on the will was not that of Churchelow. Under these circumstances, testimony from an expert qualified to analyze handwriting is helpful to the jury in determining the authenticity of the signature in question. Id.

At trial, the plaintiffs called Dobensky and Senich as expert witnesses. They testified to their training and experience in the area of handwriting analysis. The trial court, itself, questioned both witnesses regarding their past experiences as expert witnesses testifying in court. Both witnesses stated that they had previously testified in court with respect to signatures on wills. On the basis of the testimony concerning qualifications, the court determined that their expert testimony was admissible. We conclude that the trial court acted within its discretion in admitting the testimony of these two expert witnesses.

II

The defendants next claim that the evidence was insufficient to support a verdict for the plaintiffs. This claim, in essence, challenges the trial court’s denial of the defendants’ motion to set aside the verdict. “When reviewing the action of the trial court, we consider the evidence in the light most favorable to sustaining the judgment. Munson v. United Technologies Corporation, 28 Conn. App. 184, 191, 609 A.2d 1066 (1992). ‘A directed verdict is justified if on the evidence the jury could not reasonably and legally reach any other conclusion than that embodied in [a verdict for the defendants] ... or if the evidence is so weak that it would be proper for the court to set aside a verdict rendered for the other party. . . . When a jury has returned a verdict and the trial court has refused to set it aside, [t]he court’s decision will be upheld on appeal if, from the evidence presented, the jury could reasonably have concluded as it did.’ (Citations omitted; internal quotation marks omitted.) Hall v. Winfrey, 27 Conn. App. 154, 157-58, 604 A.2d 1334, cert. denied, 222 Conn. 903, 606 A.2d 1327 (1992); Boehm v. Kish, 201 Conn. 385, 388-89, 517 A.2d 624 (1986).” Torres v. Waterbury, 30 Conn. App. 620, 622-23, 621 A.2d 764 (1993).

The proponents of a will bear the burden of proof as to due execution. Gardner v. Balboni, 218 Conn. 220, 225, 588 A.2d 634 (1991); Berkeley v. Berkeley, 152 Conn. 398, 401, 207 A.2d 579 (1965). A prima facie case of due execution may be established by calling to the witness stand the available attesting witnesses. Shul-man v. Shulman, 150 Conn. 651, 656, 193 A.2d 525 (1963). “The quantum of proof required is the ordinary one of a fair preponderance of the evidence, that is, that, on the whole evidence, it should reasonably appear more probable than otherwise that the instrument was executed in the manner required by statute.” Wheat v. Wheat, 156 Conn. 575, 581-82, 244 A.2d 359 (1968).

In attempting to meet their burden, the defendants called Attorney F. Patrick Zailckas and his secretary, Pamela Daunis, to the witness stand. Each witness testified to the execution of the will and the signing of the attached maps by a woman each believed to be Chur-chelow. Zailckas testified that he had drafted and supervised the execution of the will with the attached maps at his office and had administered the oath to the attesting witnesses, Phyllis Matten and Daunis. By the time of trial, Matten had died. Daunis had never met the decedent before attesting to the will. Zailckas further testified that he had met twice with Churchelow at his office prior to execution of the will.

In support of their position, the plaintiffs offered evidence in the form of expert testimony. Through extensive testimony, both expert witnesses offered their analyses of the signatures on the will, the attached maps and, in addition, three documents that all parties stipulated had been signed by Churchelow. Dobensky analyzed each letter of the signature on the will before the jury. Both witnesses discussed the composition of the signatures, including the types of strokes used and the slants inherent in the writing. After a comparative analysis of the signatures exhibited at trial, both Dobensky and Senich concluded that the will had not been executed by the same individual who signed' the maps or the three additional documents.

“The sifting and weighing of evidence is peculiarly the function of the trier. [Njothing in our law is more elementary than that the trier is the final judge of the credibility of witnesses and of the weight to be accorded their testimony. . . . The trier has the witnesses before it and is in the position to analyze all the evidence. The trier is free to accept or reject, in whole or in part, the testimony offered by either party.” (Citations omitted; internal quotation marks omitted.) Smith v. Smith, 183 Conn. 121, 123, 438 A.2d 842 (1981). Where both parties had the opportunity to present their own evidence and cross-examine the witnesses of the opposing party, we cannot say that it is unreasonable for the jury to have concluded on the basis of the opinions of the expert witnesses that the signature on the will was not that of Churchelow.

Our determination that the jury reasonably could have concluded that Churchelow did not sign the will renders moot the remaining issues regarding undue influence and lack of testamentary capacity. In light of our conclusion, we need not consider whether the jury could have reached the inconsistent conclusion that the decedent was forced to sign the will. Similarly, whether the decedent was of sound mind when the will was executed is moot since the jury reasonably concluded that her signature did not appear on the will. Cf. Canton Motorcar Works, Inc. v. DiMartino, 6 Conn. App. 447, 457, 505 A.2d 1255, cert. denied, 200 Conn. 802, 509 A.2d 516 (1986) (jury verdict finding liability on express contract renders moot challenge to evidentiary ruling relating to liability for quasi-contract).

The judgment is affirmed.

In this opinion the other judges concurred.

       We will refer in this opinion to the document offered as the last will and testament of Eva Churchelow as the “will” even though we affirm the trial court’s decision that the will is not valid.

       General Statutes § 45a-251 provides in pertinent part: “A will or codicil shall not be valid to pass any property unless it is in writing, subscribed by the testator and attested by two witnesses, each of them subscribing in the testator’s presence . . . .” (Emphasis added.)

       Our conclusion that the trial court properly admitted the testimony of the expert witnesses is dispositive of the defendants’ claim that the jury was unduly partial toward their testimony. The jury was entitled to credit the testimony of these experts.


author: Lavery, J. Freedman, J.,

text:
    Bank of Boston Connecticut v. Harrold DeGroff et al.
    (11427)
    Daly, Lavery and Freedman, Js.
    Argued February 9
    decision released May 11, 1993

      Eric C. Hard, for the appellant (plaintiff).
   Lavery, J.

The plaintiff appeals following the trial court’s denial of its motion to modify a judgment rendered pursuant to a stipulation agreement. The plaintiff claims that the trial court improperly reduced the amount of attorney’s fees set forth in the stipulation in granting the motion for judgment. We agree with the plaintiff, and reverse the trial court’s order denying the plaintiff’s motion to modify the judgment.

On December 10, 1991, the plaintiff initiated a collection action against the defendants, William DeGroff and Harrold DeGroff. The plaintiff alleged a debt in the amount of $11,828.78, costs of collection and reasonable attorney’s fees, pursuant to a promissory note executed by the defendant William DeGroff, and a personal guarantee executed by the defendant Harrold DeGroff. On February 3,1992, the parties entered into a stipulation for judgment that provided, inter alia, that judgment would enter in favor of the plaintiff in the principal amount of $11,089.48 with interest through February 17,1992, in the amount of $588.23, attorney’s fees of $950, plus costs of $250. The parties further stipulated to payments of $450 per month starting February 15, 1992, with subsequent payments on the fifteenth of each month thereafter. The interest on the outstanding principal balance would accrue at the rate of 11 percent per annum. The stipulated agreement further provided that if the defendants failed to make an agreed payment, the plaintiff would be entitled to all costs and reasonable attorney’s fees incurred in enforcing the judgment. The stipulation was signed by all the parties involved.

The plaintiff, on February 27, 1992, filed a motion for judgment in accordance with the stipulation. On March 17,1992, the trial court granted the motion for judgment in accordance with the stipulation, after first reducing the agreed upon attorney’s fee to $750 and reducing the rate of postjudgment interest to 10 percent per annum. The plaintiff then filed a motion to modify the judgment, requesting that the judgment be corrected to reflect an attorney’s fee of $950 pursuant to the stipulation for judgment between the parties. The trial court denied the motion to modify, stating that it found $750 to be a reasonable attorney’s fee in lieu of the stipulated $950. The plaintiff then filed this appeal.

A stipulated judgment has been defined by our Supreme Court as a contract of the parties acknowledged in open court and ordered to be recorded by a court of competent jurisdiction. Gillis v. Gillis, 214 Conn. 336, 339, 572 A.2d 323 (1990); Bryan v. Reynolds, 143 Conn. 456, 460, 123 A.2d 192 (1956). The essence of the judgment is that the parties to the litigation have voluntarily entered into an agreement setting their dispute at rest and that, upon this agreement, the court has entered judgment conforming to the terms of the agreement. Gillis v. Gillis, supra, 339-40.

Certain well established consequences follow from the parties’ entry into a consent decree that is entered on the court records. Lee v. Tufveson, 6 Conn. App. 301, 303, 505 A.2d 18, cert. denied, 199 Conn. 806, 508 A.2d 31 (1986). It necessarily follows that if the judgment conforms to the stipulation it cannot be altered without the consent of all parties, unless it is shown that the stipulation was obtained by fraud, accident, or mistake. Bryan v. Reynolds, supra, 460-61. The court has the power to issue orders necessary to protect the integrity of the stipulated judgment; Foley v. Southport Manor Convalescent Center, Inc., 11 Conn. App. 530, 537, 528 A.2d 841, cert. denied, 205 Conn. 805, 531 A.2d 935 (1987); but it may not enlarge or lessen the scope of the judgment. Lee v. Tufveson, supra, 303; Bryan v. Reynolds, supra, 461. If there is a lack of conformity between stipulation and judgment, an appeal may properly be taken from the refusal of the court to grant a motion to correct the judgment. Bryan v. Reynolds, supra.

Our examination of the record reveals that the trial court lessened the terms of the stipulated agreement by unilaterally reducing the attorney’s fee from $950 to $750. The trial court’s order, therefore, improperly altered the contract in favor of the defendant and to the detriment of the plaintiff. Foley v. Southport Manor Convalescent Center, Inc., supra, 538.

The trial court’s denial of the motion to modify the judgment is reversed, and the case is remanded with direction to modify the judgment to include an award of $950 for attorney’s fees as the stipulation dictates.

In this opinion Daly, J., concurred.

Freedman, J.,

concurring in part and dissenting in part. I cannot join in the majority opinion inasmuch as it suggests that a trial court must accept and render judgment in accordance with any stipulation presented to the court that reflects the parties’ agreement to settle a case. To the contrary, our courts have the inherent authority to reject a stipulation that the parties seek to have the court render as a judgment of the court. Nonetheless, under the facts of this case, I would reverse the judgment of the trial court because I believe that the trial court improperly rejected a portion of the agreement without the consent of the parties. Accordingly, I would remand the case to the trial court for further proceedings.

A stipulated judgment is “a contract of the parties acknowledged in open court and ordered to be recorded by a court of competent jurisdiction.” Gillis v. Gillis, 214 Conn. 336, 339, 572 A.2d 323 (1990); Bryan v. Reynolds, 143 Conn. 456, 460, 123 A.2d 192 (1956). While a stipulated or consent judgment “ ‘is not a judicial determination of any litigated right’ ”; Gillis v. Gillis, supra; Bryan v. Reynolds, supra; “[it] is a judicial function and an exercise of the judicial power to render judgment on consent. A judgment upon consent is ‘a judicial act.’ ” Pope v. United States, 323 U.S. 1, 12, 65 S. Ct. 16, 89 L. Ed. 3 (1944). There is no doubt that the parties may enter into any agreement they choose. By seeking to transform their private agreement into a judgment of court, however, the parties invoke the judicial power of the court. Such a judicial act, like all judicial acts, necessarily involves the court’s exercise of its powers of law and equity. The parties cannot, by giving each other consideration, compel a court to render a judgment in accordance with a stipulation that the court, in the exercise of its discretion, is unwilling to accept. System Federation No. 91, Railway Employees’ Department, AFL-CIO v. Wright, 364 U.S. 642, 651, 81 S. Ct. 368, 5 L. Ed. 2d 349 (1961). “[A] judge is not a mere umpire in a forensic encounter but a minister of justice, and it follows that an agreement is not necessarily binding on the court and may justifiably be disregarded in a particular case.” Central Connecticut Teachers Federal Credit Union v. Grant, 27 Conn. App. 435, 438, 606 A.2d 729 (1992); see also System Federation No. 91, Railroad Employees’ Department, AFL-CIO v. Wright, supra (frequently terms arrived at by the parties are accepted without change by the adopting court, but adopting court is free to reject agreed upon terms as not in furtherance of statutory objectives).

In considering a motion to render judgment pursuant to a stipulation of the parties, a trial court has only two options. It may render judgment pursuant to the terms of the stipulation, or it may decline to enter such judgment. The trial court, however, lacks the authority to do what the court did here, render judgment pursuant to a stipulation that it has altered without the consent of the parties. While a court is not obligated to accept a stipulation if it considers its terms to be unreasonable, oppressive or contrary to public policy, the court may not reject or modify portions of a stipulation and then render judgment pursuant to the stipulation as modified by the court. “[A] court has no more power to partially modify or vacate a consent judgment or decree than it would have to modify a contract between the parties, and . . . hence if such a judgment was not in fact consented to by some of the parties it must be wholly vacated, inasmuch as a partial vacation as to the nonconsenting parties would leave a judgment to which the other parties had not consented." Annot., 139 A.L.R. 421, 443-44. Consequently, when presented with a request to render judgment in accordance with a stipulation of the parties, the court must either accept the agreement in whole or reject the agreement in whole, without modification.

Here, however, the trial court improperly exercised its discretion to reject the agreement of the parties by failing first to notify the parties of its concerns and then afford them an opportunity to be heard. A trial court need not hold a hearing if it exercises its discretion to render judgment in accordance with a stipulation of the parties. Under such circumstances, the lack of a hearing does not implicate due process concerns. “If, [however], the court cannot adopt the stipulation of the parties, it should state its disapproval of the stipulation and the reasons for its disapproval on the record. The court should not [refuse to accept a proposed stipulated judgment] without offering the parties an opportunity to present evidence relevant to that judgment.” Central Connecticut Teachers Federal Credit Union v. Grant, supra. Such a procedure will promote the parties’ rights to constitutional due process; id.; and will permit the trial court to have before it a record on which to exercise its discretion. It will also permit the court to state its reasons for rejecting the parties’ agreement on the record and directly to the parties. Such action will not only facilitate our review should a party claim, on appeal, that the rejection constituted an abuse of discretion, but will also give the parties an opportunity thereafter to modify their agreement, should they believe such is appropriate, to meet the concerns expressed by the court. Consequently, the requirement of a court hearing may also serve to promote the judicial policy of encouraging the settlement of litigation without trial. Because the trial court here did not provide the parties with notice of its concerns regarding the terms of the proposed judgment and an opportunity to be heard, I believe that a remand for that purpose is required. See id.

I, too, would reverse the judgment of the trial court. For the reasons stated above, however, I would remand the case to the trial court for a hearing on the stipulation, at which time the court could hear from the parties and either accept the stipulation and render judgment pursuant to its terms or reject the agreement and indicate its reasons on the record.

       Neither the plaintiff’s motion to modify nor its appellate brief addressed the trial court’s adjustment of the interest rate on the principal. Regardless, the reduction of the interest rate from 11 percent to 10 percent per annum will not and could not be altered by this court because the maximum rate of 10 percent is established by statute. General Statutes § 37-3a provides in pertinent part that “interest at the rate of ten percent a year, and no more, may be recovered and allowed in civil actions or arbitration proceedings under chapter 909, including actions to recover money loaned at a greater rate, as damages for the detention of money after it becomes payable. . . .”


author: Heiman, J.

text:
    First Federal Savings and Loan Association of Rochester v. Gail Connelly Pellechia et al.
    (11285)
    O’Connell, Landau and Heiman, Js.
    Argued March 24
    decision released May 11, 1993

      Mary C. Duffy, with whom was Stuart D. Rosen, for the appellant (plaintiff).

      David Eric Ross, with whom was Lucia J. Wolgast, for the appellee (defendant).
   Heiman, J.

The plaintiff appeals from the denial of its motion for deficiency judgment following the granting of its motion for strict foreclosure and the expiration of the law day. On appeal, the plaintiff asserts that “the trial court improperly found that it had not timely moved for a deficiency judgment pursuant to General Statutes § 49-14 because its motion bore an incorrect docket number.” We reverse the judgment of the trial court.

The following facts are necessary for a proper resolution of this appeal. The plaintiff brought an action for strict foreclosure after the defendant defaulted on a mortgage and note. On December 2, 1991, the trial court granted the plaintiffs motion for strict foreclosure and set a law day of December 23, 1991, for the owners of the equity of redemption and December 24,1991, as to the date for title to vest in the plaintiff. The defendants failed to redeem on December 23, 1991, and on December 24,1991, title vested absolutely in the plaintiff.

On January 23,1992, the plaintiff submitted a motion for deficiency judgment that was date-stamped by the trial court clerk’s office. Although the caption of the motion for deficiency judgment correctly set forth the names of the parties, the docket number was incorrect. On January 28,1992, the plaintiff’s attorney received the January 23 motion in the mail with a notation that it was returned by the clerk’s office because it bore an incorrect docket number. The plaintiff resubmitted the motion for deficiency judgment with the correct docket number in the caption on January 28,1992. On February 7, 1992, the defendant filed her opposition to the motion for deficiency judgment asserting that regardless of whether the plaintiff filed the motion for deficiency judgment on January 23 or January 28, either date exceeded the time period set forth in General Statutes § 49-14 (a) requiring that a motion for deficiency judgment be filed within thirty days after the time limited for redemption has expired. In the alternative, the defendant asserted that the plaintiff’s failure to include the proper docket number on its January 23 motion was a substantial defect and that the motion was thus not filed until January 28, exceeding the thirty day period provided for in § 49-14 (a).

On March 27, 1992, the trial court issued a memorandum of decision sustaining the defendant’s objection to the motion for deficiency judgment. After “adopting a rule of strict compliance” with General Statutes § 49-14 and Practice Book § 118, the trial court found that “an incorrect docket number on a pleading is a substantive defect which precludes filing.” In reaching this conclusion, the trial court held that the January 28 “filing” date far exceeded the thirty day statutorily mandated period. The trial court failed to address the defendant’s claim that even if the plaintiff had filed its motion on January 23, it was still filed beyond the thirty day period. This appeal ensued.

The plaintiff asserts that the trial court “improperly found that the plaintiff had not timely moved for a deficiency judgment pursuant to General Statutes § 49-14 because its January 23,1992 motion for deficiency judgment bore an incorrect docket number.” The plaintiff argues that the mistake in the docket number was a “circumstantial error” within the meaning of General Statutes § 52-123 and therefore not subject to abatement. We agree.

Our courts have refrained from interpreting rales and statutes in so strict a manner as to deny a litigant the pursuit of its complaint for mere circumstantial defects. Hartford National Bank & Trust Co. v. Tucker, 178 Conn. 472, 477-78, 423 A.2d 141 (1979), cert. denied, 445 U.S. 904, 100 S. Ct. 1079, 63 L. Ed. 2d 319 (1980); see also Practice Book § 6. General Statutes § 52-123 protects against just such consequences by providing that no proceeding shall be abated for circumstantial errors as long as there is sufficient notice to the parties. Hartford National Bank & Trust Co. v. Tucker, supra, 478. “[Section 52-123] is used to provide relief from defects in the text of the writ itself but is not available to cure irregularities in the service or return of process.” (Internal quotation marks omitted.) Hillman v. Greenwich, 217 Conn. 520, 527, 587 A.2d 99 (1991).

“Circumstantial defects not subject to abatement by reason of § 52-123 or its predecessors have included the mistaken use of a Practice Book form; Chestnut Realty, Inc. v. Commission on Human Rights & Opportunities, 201 Conn. 350, 357, 514 A.2d 749 (1986); failure to designate an apartment number in a writ; Hartford National Bank & Trust Co. v. Tucker, [supra, 477-79]; an erroneous reference in appeal papers to ‘next term’ instead of ‘next return day’; New Haven Loan Co. v. Affinito, 122 Conn. 151, 154, 188 A. 75 (1936); a copy of the affidavit attached to the writ served upon the defendant that did not bear the signature of the affiant; Matthai v. Capen, Trustee, 65 Conn. 539, 33 A. 495 (1895); an erroneous reference in the return to ‘the City Court held at New Haven in and for the city of New Haven’ instead of ‘The City Court of New Haven’; New England Mfg. Co. v. Sta-rin, 60 Conn. 369, 370[-71], 22 A. 953 (1891); an erroneous prayer for relief on the writ and declaration rather than on the writ alone; Draper v. Moriarty, 45 Conn. 476[, 478] (1878); and a defendant who had signed his name in the body of a plea in abatement signed ‘defendant’ at the end of the plea instead of again signing his name. Wilcox v. Chambers, 34 Conn. 179[, 180-81] (1867).” Rogozinski v. American Food Service Equipment Corporation, 211 Conn. 431, 434, 559 A.2d 1110 (1989).

In contrast, substantive defects are those that are subject to abatement. Id., 435. They involve defects or irregularities in the service or return of process and other matters that implicate the court’s subject matter jurisdiction. Id., 434-35 (failure to file the return of process at least six days prior to the return date was a substantive defect subjecting the plaintiff’s action to a motion to dismiss); Van Mecklenburg v. Pan American World Airways, Inc., 196 Conn. 517, 494 A.2d 549 (1985); see also Shapiro v. Carothers, 23 Conn. App. 188, 190-91, 579 A.2d 583 (1990). In Van Mecklenburg v. Pan American World Airways, Inc., supra, 518-19, our Supreme Court concluded that the plaintiff’s failure to include with its motion to open a mandatory filing fee required by General Statutes § 52-259c was a substantive defect. When the plaintiff finally did pay the fee, the motion was considered to have been filed on that date and was untimely under the four month rule.

The scrivener’s error or misstatement of a single digit of the docket number in this case was a circumstantial defect and does not abate the plaintiff’s claim for a deficiency judgment. The defendant was not prejudiced by the incorrect docket number because she received notice and a copy of the January 23, 1992 motion for deficiency judgment and subsequently filed an objection to the motion. The court improperly concluded in its memorandum of decision that the scrivener’s error or misstatement of the docket number was analogous to an irregularity in the service or return of process and therefore amounted to a substantive defect.

The denial of the motion for a deficiency judgment is reversed and the case is remanded for further proceedings not inconsistent with this opinion.

In this opinion the other judges concurred.

       For purposes of this opinion, the term defendant refers to Gail Connelly Pellechia.

       General Statutes § 49-14 (a) provides: “At any time within thirty days after the time limited for redemption has expired, any party to a mortgage foreclosure may file a motion seeking a deficiency judgment. Such motion shall be placed on the short calendar for an evidentiary hearing. Such hearing shall be held not less than fifteen days following the filing of the motion, except as the court may otherwise order. At such hearing the court shall hear the evidence, establish a valuation for the mortgaged property and shall render judgment for the plaintiff for the difference, if any, between such valuation and the plaintiff’s claim. The plaintiff in any further action upon the debt, note or obligation, shall recover only the amount of such judgment.”

       The plaintiff’s prayer for relief in its complaint sought the following: a foreclosure of the subject mortgage; immediate possession of the premises; a judgment of strict foreclosure; money damages; interest and costs; attorney’s fees; the appointment of a receiver of rents; a deficiency judgment; and such other and further relief as to which equity may pertain. The plaintiff also noted that the amount in demand was in excess of $15,000 exclusive of interest and costs and it included a notice pursuant to General Statutes § 49-3 le notifying the homeowner of the relief provisions provided for by General Statutes §§ 49-31d through 49-Sli.

       The docket number of the case is CV-91-117252-S. The docket number of the January 23 motion for deficiency judgment was erroneously printed as CV-91-177252-S. The plaintiff attributes the incorrect docket number to a scrivener’s error.

       Practice Book § 118 provides: “All papers shall be typed or printed on legal size paper, until January 1,1979, when size 8 1/2” x 11” paper shall thenceforth be used, and shall have no back or cover sheet. Those subse

        quent to the complaint shall be headed with the title and number of the case, the name of the court, and the date and designation of the particular pleading, in conformity with the applicable form in the Practice Book.

      “At the bottom of the first page of each paper, a blank space of approximately two inches shall be reserved for notations of receipt or time of filing by the clerk and for statements by counsel pursuant to Sec. 211 (B), and at the top of each page a blank space of two inches shall be reserved. Papers shall be punched with two holes two and twelve-sixteenths inches apart, each centered seven-sixteenths of an inch from the upper edge, one being two and fourteen-sixteenths inches from the left-hand edge and the other being the same distance from the right-hand edge, and each four-sixteenths of an inch in diameter.
      “The clerk may require a party to correct any filed paper which is not in compliance with this section by substituting a paper in proper form.
      “This section shall not apply to forms supplied by the judicial department.” (Emphasis added.)

       The defendant attempts to raise an alternative ground for affirmance. She asserts that the trial court properly sustained the defendant’s objection to the plaintiffs deficiency motions because the plaintiff did not file either motion within the thirty day limitation prescribed by General Statutes § 49-14 (a). We decline, however, to review this alternate ground because the defendant has not filed a preliminary statement of issues and thus has failed to comply with Practice Book § 4013. State v. One 1981 BMW Automobile, 15 Conn. App. 589, 598-99, 546 A.2d 879 (1988). Section 4013 (a) (1) provides in pertinent part: “If any appellee wishes to (A) present for review alternate grounds upon which the judgment may be affirmed . . . that appellee shall file a preliminary statement of issues within fourteen days from the filing of the appellant’s preliminary statement of the issues. Whenever the failure to identify an issue in a preliminary statement of issues prejudices an opposing party, the court may refuse to consider such issue.” The defendant has thus failed to preserve properly this issue for appellate review. See Practice Book § 4013 (a) (1). Moreover, while the defendant addressed this alternative ground in her objection to the plaintiff’s motions for deficiency judgment, the facts on which this claim is based have not been determined by the trial court. See State v. St. Pierre, 17 Conn. App. 100, 102, 549 A.2d 1090, cert. denied, 209 Conn. 828, 552 A.2d 1216 (1988). This court is thus left without the benefit of the trial court’s judgment on the issue of the computation of the thirty day period and whether that statutory time for filing the motion for deficiency judgment expired. See generally Infante v. Porath, 29 Conn App. 465, 615 A.2d 1073 (1992).

         General Statutes § 52-123 provides: “No writ, pleading, judgment or any kind of proceeding in court or course of justice shall be abated, suspended, set aside or reversed for any kind of circumstantial errors, mistakes or defects, if the person and the cause may be rightly understood and intended by the court.”