author: Lavery, J.

text:
    In re Sean H. et al.

    (9096)
    O’Connell, Lavery and Cretella, Js.

      Argued October 29, 1990
    decision released February 19, 1991

      David B. Rozwaski, for the appellant (respondent).

      Linda Pearce Prestley, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Susan T. Pearlman and Mary-Anne Ziewacz Mulholland, assistant attorneys general, for the appellee (petitioner).

      Melissa A. Buckley, for the minor children.

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 2026, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Lavery, J.

This is an appeal from the judgment of the trial court terminating the parental rights of the respondent father. The respondent claims that the trial court was incorrect (1) in admitting into evidence hearsay statements made by the respondent’s deceased ex-wife to her attorney and (2) in concluding that the respondent’s parental rights should be terminated pursuant to General Statutes §§ 17-43a (b) (3) and 45-61f (f) (2) even though the respondent was not the legal guardian or custodian of the minor children at the time. We disagree and affirm the judgment of the trial court.

The respondent and Amma H. intermarried on May 11, 1976. They had five children: Sean, born June 3, 1976; Joshua, born March 16, 1979; Samuel, born March 29, 1981; Melissa, born December 3, 1982; and Rachel, born August 7,1984. The marriage deteriorated and Amma commenced an action for dissolution on the grounds of irretrievable breakdown, claiming that the respondent physically abused her and the children, did not support them and had a chronic alcohol and drug problem. On August 31, 1987, Amma was granted a dissolution and full custody of the children with limited rights of supervised visitation granted to the respondent.

On September 9, 1987, Amma brought four of her children to the Chapel Square Mall in New Haven to buy shoes for school. The fifth child, Sean, was in inpatient psychiatric care at the time, due to acute psychological problems stemming from physical abuse inflicted by the respondent. The respondent accompanied Amma and Ricky Lewis, a family friend who drove them to the mall in his pickup truck.

After buying the shoes, Amma, the respondent and the children returned to Lewis’ pickup truck. Joshua, Samuel and Melissa sat in the bed of the pickup truck and Rachel, the youngest child, sat in the cab of the truck, sharing the passenger seat with her mother. As the older children watched through an open window separating the bed of the truck from the cab of the truck, their parents had a brief argument after which the respondent began repeatedly stabbing Amma in the head, torso and arms. At least one of the children’s pants and Melissa’s mouth were spattered with their mother’s blood. When Lewis attempted to come to Amma’s aid, he became a target of the attack. He was pursued by the respondent down a street, and was stabbed repeatedly. The respondent then returned to the truck and continued to stab Amma, leaving two knives embedded in her skull. The attack on Lewis left him grievously injured. The attack on Amma resulted in her death.

Witnesses to the attack ushered the four children from the truck into the mall. Security guards on the scene took the respondent into custody after he followed Lewis into the mall and continued to threaten him. That night, the children were placed in emergency foster care by the department of children and youth services (DCYS).

On September 11, 1987, the petitioner, DCYS, filed ex parte neglect petitions and requests for orders of temporary custody. These petitions were based, in part, on the fact that the four younger children had witnessed the lethal attack on their mother and Lewis, and, in part, on the fact that at the time of the attack, the eldest child, Sean, was hospitalized at the children’s psychiatric inpatient service due to emotional trauma resulting from earlier incidents of abuse by the respondent.

On October 22, 1987, the petitioner withdrew the prior petitions and filed coterminous petitions seeking an adjudication of neglect and termination of the respondent’s parental rights pursuant to General Statutes §§ 17-43a and 45-61f. The basis of the termination petitions was that the five minor children had been denied, by reason of an act or acts of commission or omission, the care, guidance or control necessary for their physical, educational, moral or emotional well-being.

After a trial held over sixteen days in 1988 and 1989, the trial court found by clear and convincing evidence that the respondent had committed acts of spousal abuse and homicide and that as a result of those acts, each of the children had been denied the care, guidance and control necessary for their emotional, physical, educational, moral and emotional well-being. The court held that it was, therefore, in the best interests of the children to terminate the respondent’s parental rights and to waive the one year statutory waiting period. The respondent seeks our review of that decision.

I

The respondent first claims that the court should not have admitted Amma’s hearsay statements into evidence through the testimony of Robin Murphy, her attorney in the earlier divorce proceeding. The appellant asserts that Anima’s statements to her attorney, detailing the past incidents of abuse perpetrated by the respondent, were inadmissible hearsay not subject to any recognized hearsay exception. In the alternative, the respondent argues that the testimony was a violation of the attorney-client privilege and should have been excluded on those grounds. We disagree and find that the statements were properly admitted under the residual hearsay exception.

The facts relevant to this claim follow. Murphy represented Amma in the dissolution, contempt and restraining order proceedings. During the hearings on the DCYS petitions, Murphy testified on March 18 and on April 6 and 7,1988. Her testimony was that Amma told her that the respondent had regularly threatened, battered and sexually assaulted her; that he had beaten Sean with a belt leaving bruises on his face, arms and legs; that he had violated a restraining order twice; that he had abused alcohol and drugs and did not provide for the children. The respondent objected to this testimony at the time it was adduced claiming only that it was hearsay not subject to any recognized exception. His objections were overruled and the respondent took an exception. The respondent’s request for a continuing objection was specifically denied by the trial judge. Upon review of the transcripts, it is clear to this court that the modicum of hearsay testimony objected to and properly preserved at trial for our review lies squarely within the residual catchall exception to the hearsay rule adopted by our Supreme Court.

“Though generally inadmissible, hearsay may be admitted if there is a sufficient probability that the statement is reliable and trustworthy, if the evidence contained in the statement is necessary to the resolution of the case, and if the trial court concludes that admitting the statement is in the interests of justice. . . . Some types of admissible hearsay occur frequently enough that certain defined exceptions to the general rule of inadmissibility have come to be recognized.” (Citations omitted.) State v. Stepney, 191 Conn. 233, 249-50, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772 (1984). In cases where the challenged hearsay testimony does not fall into one of these recognized exceptions to the hearsay rule, we must focus our analysis on two issues: “(1) whether there was a reasonable necessity for the admission of the statement, and (2) whether the statement was supported by the equivalent guarantees of reliability and trustworthiness essential to other evidence admitted under the traditional hearsay exceptions.” State v. Sharpe, 195 Conn. 651, 664, 491 A.2d 345 (1985); see also State v. Erhardt, 17 Conn. App. 359, 368, 553 A.2d 188 (1989).

The necessity requirement is satisfied when facts necessary to the just resolution of the case contained in the hearsay statements may be lost due to the death or unavailability of the declarant or because the assertion is of such a nature that evidence of the same value cannot be otherwise obtained. State v. Sharpe, supra, 665; C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. & 1990 Sup.) § 11.25.

The trustworthiness component is met when the factual circumstances are such that there is an adequate basis to assure the court that the statement meets the same qualitative standards for reliability and trustworthiness as statements admitted under otherwise established exceptions to the hearsay rule. State v. Sharpe, supra, 664; State v. Acquin, 187 Conn. 647, 680, 448 A.2d 163 (1982), cert. denied, 463 U.S. 1229, 103 S. Ct. 3570, 77 L. Ed. 2d 1411 (1983); see also Fed. R. Evid. 803 (24) and 804 (b) (5).

This assurance of trustworthiness may be found in any factual circumstances where a “ ‘sincere and accurate statement would naturally be uttered, and no plan of falsification be formed.’ Such a statement is considered sufficiently trustworthy to be admissible despite the inability to cross-examine the declarant in the traditional sense.” State v. Sharpe, supra, 665.

The statements testified to by Murphy were made by Amma in the context of their attorney-client relationship. Statements made in the confines of the attorney-client relationship have a particular degree of reliability and trustworthiness. The client is presumed to be looking after her own interest by giving full and truthful information to her attorney. In this case, the great bulk of the statements made to the attorney were also made by affidavit and testified to at least three times in court and cross-examined twice and, thus, may be considered reliable despite the lack of opportunity to cross-examine the declarant during this hearing.

The witness was unavailable in that she was deceased. The testimony was material, relevant and probative. The admission of all material, relevant and probative evidence, if trustworthy and reliable, was admissible in the interests of justice for a full and fair hearing.

At the hearing on April 6, 1988, the court found (1) that the declarant was deceased, (2) that the declarant would have been a competent witness at the time of the hearing, (3) that the declarant made the statements before the matter in controversy, (4) that the declarant had no interest to misrepresent. Accordingly, the statements were properly admitted under the catchall residual exception to the hearsay rule.

The respondent raises an alternate objection to this testimony based on attorney-client privilege. By doing so, he seeks to assert a privilege that he does not hold. The policy behind protecting attorney-client confidentiality is designed to encourage clients to make a full disclosure of facts to their counsel. Goddard v. Gardner, 28 Conn. 172, 174 (1859). Clients will be encouraged to do so only if they alone remain the masters of those secrets that they share with their counsel. The privilege is therefore reserved for those whose interests it is designed to protect and not adverse parties or the general population. To extend the protection beyond those whose interests it was conceived to protect would accomplish only the suppression of relevant evidence without promoting the purpose of the privilege. It is therefore well settled that the client alone is the holder of the privilege. C. McCormick, Evidence (3d Ed.) § 92.

This axiom leads us to agree with McCormick in concluding that “if an asserted privilege is erroneously sustained, the aggrieved party may of course complain on appeal of the exclusion of the testimony, the erroneous denial of the privilege [however] can only be complained of by the client whose privilege has been infringed. This opens the door to appellate review by the client if he is also a party and suffers adverse judgment. If he is not a party, the losing party in the cause, by the better view is without recourse.” (Emphasis added.) Id. Further, it is absurd to think that the law would give standing to the respondent to assert the attorney-client privilege because it was his homicidal act that prevented Amma from either asserting the privilege or testifying herself.

II

The respondent’s second claim is that the statutory basis for the petitions, “the acts of commission or omission” ground contained in General Statutes §§ 45-61f (f) (2) and 17-43a (b) (3) is not applicable to this case because the respondent was not the custodial parent at the time he killed Amma in the presence of the children. Further, the respondent asserts that he never seriously abused the four younger children. We find no merit to these claims because the plain language of the statutes and their legislative history are devoid of any support for the respondent’s position that the acts of commission or omission ground is applicable only against a custodial parent.

The language of those statutes is identical to that used in the petitions and provides that the court may approve the petitions terminating the parental rights “if it finds, upon clear and convincing evidence that the termination is in the best interest of the child and that . . . with respect to any nonconsenting parent . . . the child has been denied, by reason of an act or acts of parental commission or omission, the care, guidance or control necessary for his physical, educational, moral or emotional well-being. Nonaccidental or inadequately explained serious physical injury to a child shall constitute prima facie evidence of acts of parental commission or omission sufficient for the termination of parental rights . . . .” (Emphasis added.)

There is nothing in this clear statutory language that limits the acts of commission or omission to the serious physical injury of a child, rather than the serious emotional injury of a child. The language regarding prima facie evidence shifts the burden from the petitioner to the parent to show why a child with clear evidence of physical injury that is unexplained should not be permanently removed from that parent’s care. The language does not limit the grounds to acts resulting in physical injury.

The respondent cites a Superior Court decision, In re Luke G., 40 Conn. Sup. 316, 498 A.2d 1054 (1985), to support his position that the statutes on commission and omission can be invoked only against a custodial parent. Luke involved a termination petition brought by a custodial parent against her ex-husband so that her new husband could adopt the children. The father had been denied visitation with the children by court order for eighteen months and his attempts to contact the children by telephone and through the mail had been frustrated and sabotaged by the mother and the stepfather. The mother then alleged, through the introduction of testimony, that the father was an irresponsible parent.

The factual setting in Luke is clearly distinguishable from the case before us. The defendant father in Luke never presented any threat to the physical and emotional safety of his children. In In re Luke G., supra, 324, the court stated that “[t]his ground [acts of commission or omission] is clearly inapplicable where a custodial parent seeks to terminate the rights of a noncustodial parent. . . .” In this case, the petitioner is the state (DCYS) and not a custodial parent.

The respondent stabbed Amma to death in full view of four of his children, leaving the children homeless, with no caregiver and with permanent emotional injury. In addition, the respondent had emotionally and physically abused his child Sean and his wife, Amma, in front of the other children over a long period of time. This resulted in Sean’s placement in psychiatric inpatient treatment and contributed to the emotional injury of the other four children.

In a thorough and thoughtful memorandum of decision, the trial court correctly applied the statutes to the evidence admitted. The trial court summed up its determination with the following remarks taken from In re Juvenile Appeal (84-6), 2 Conn. App. 705, 712, 483 A.2d 1101 (1984), cert. denied, 195 Conn. 801, 487 A.2d 564 (1985). “In striking at the heart of the family, the respondent demonstrated total disregard for the impact of his actions upon the emotional well-being of his children.”

We conclude that the statutory language “acts of commission and omission” applies to custodial and noncustodial parents alike and thus the respondent’s claim has no legal basis.

The judgment is affirmed.

In this opinion the other judges concurred.

       The petitioner also asserted that circumstances were such that a waiver of the one year waiting requirement was in the best interests of each child. General Statutes § 17-43a provides in relevant part: “(b) The superior court upon hearing and notice, as provided in sections 45-61d and 45-61f, may grant such petition if it finds, upon clear and convincing evidence, that the termination is in the best interest of the child and that, with respect to any consenting parent, such parent has voluntarily and knowingly consented to termination of his parental rights with respect to such child or that, with respect to any nonconsenting parent, over an extended period of time, which, except as provided in subsection (c) of this section, shall not be less than one year: (1) the child has been abandoned by the parent in the sense that the parent has failed to maintain a reasonable degree of interest, concern or responsibility as to the welfare of the child; or (2) the parents of a child who has been found by the superior court to have been neglected or uncared for in a prior proceeding have failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, they could assume a responsible position in the life of the child; or (3) the child has been denied, by reason of an act or acts of parental commission or omission, the care, guidance or control necessary for his physical, educational, moral or emotional well-being. Nonaccidental or inadequately explained serious physical injury to a child shall constitute prima facie evidence of acts of parental commission or omission sufficient for the termination of parental rights; or (4) there is no ongoing parent-child relationship, which means the relationship that ordinarily develops as a result of a parent having met on a day to day basis the physical, emotional, moral and educational needs of the child and to allow further time for the establishment or reestablishment of such parent-child relationship would be detrimental to the best interest of the child. If the court denies a petition for consent termination of parental rights, it may refer the matter to an agency to assess the needs of the child, the care the child is receiving, and the plan of the parent for the child.
      “(c) The court may waive the requirement that one year expire prior to the termination of parental rights if it finds from the totality of the circumstances surrounding the child that such a waiver is necessary to promote the best interest of the child.”


source: Caselaw Access Project

author: Daly, J.

license: Public Domain

text:
    State of Connecticut v. Martin McCulloch
    (8827)
    Dupont, C. J., Daly and Landau, Js.
    Argued December 11, 1990
    decision released February 19, 1991

      Sheila M. Prats-Berger, deputy assistant public defender, for the appellant (defendant).

      Carolyn K. Longstreth, assistant state’s attorney, with whom were Eva Lenczewski, deputy assistant state’s attorney, and John A. Connelly, state’s attorney, for the appellee (state).
   Daly, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (1) and risk of injury to a child in violation of General Statutes § 53-21. The defendant claims that the trial court should have (1) granted the defendant’s motion for continuance, (2) conducted a pretrial competency hearing for the minor complainant, and (3) excluded constancy of accusation testimony. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. The complainant was visiting at her grandmother’s house on her sixth birthday in May of 1989. The complainant’s father lived in the grandmother’s house along with the defendant, the complainant’s uncle. During the evening’s birthday festivities the defendant was absent. Later that night, the complainant lay down on a blanket spread on the floor of the living room watching a television program and fell asleep. While the child was asleep, the defendant came home and sexually molested her. The complainant awoke, experienced pain from the molestation and afterward fell back to sleep.

The next morning, the child reported the incident to her mother. Her mother examined her and saw some symptoms of molestation. The following day, the complainant’s mother called the police and brought the child for examination to Waterbury Hospital where the child was seen by a physician and later interviewed by a police officer. Two weeks later, the mother brought her daughter to a clinical psychologist for evaluation. Subsequently, the defendant was arrested and convicted. This appeal followed.

The defendant first claims that the trial court abused its discretion when it denied his request for a continuance. The following chronology is germane to this issue. The defendant was arrested in May of 1989 and a pretrial hearing was scheduled for September 8,1989, at which time his present counsel took over the case from preceding counsel. That same day, the trial court, Sullivan, J., refused to accept a plea agreement that had been made, the case was placed on the firm jury list and continued to September 22,1989. On September 22,1989, defense counsel requested a further continuance. The trial court, Heiman, J., directed the parties to select a jury but allowed a continuance until October 5,1989. On September 26,1989, defense counsel requested another continuance which the trial court, Heiman, J., denied after reviewing the case history. On October 5, 1989, defense counsel renewed her request for a continuance claiming that she needed more time to prepare the case properly. In denying her motion, the trial court noted that the state had an open file policy.

The decision to grant or deny a motion for a continuance lies within the discretion of the trial court. State v. Myers, 193 Conn. 457, 463, 479 A.2d 199 (1984); State v. Jones, 22 Conn. App. 303, 306, 577 A.2d 293 (1990). There are no clear tests to decide when a denial of a continuance is an abuse of discretion or a violation of due process. State v. McKnight, 191 Conn. 564, 576, 469 A.2d 397 (1983). The issue is decided on a case by case basis in view of the circumstances at the time the request is made. Id. This court, however, must make every reasonable presumption in favor of the trial court’s discretion. Id., 577. Moreover, the defendant must show that the trial court acted arbitrarily and substantially impaired his ability to defend himself, before this court will conclude that an abuse of discretion has occurred. State v. Damon, 214 Conn. 146, 160, 570 A.2d 700 (1990); State v. Myers, supra.

Although the defendant was facing serious charges and there was no evidence that counsel requested a continuance for the purposes of delay, these circumstances in and of themselves do not lead to the conclusion that there was an abuse of discretion. The defendant has not alleged any specific prejudice to his defense that resulted from the trial court’s denial of a further continuance. Defense counsel had nearly a month from the time she first appeared until the presentation of evidence. Defense counsel had access to the state’s file because of the open file policy. Furthermore, defense counsel presented a thorough, well prepared defense and fully cross-examined the state’s witnesses. Therefore, under these circumstances, we find no merit to the defendant’s first claim. See, e.g., State v. Walker, 215 Conn. 1, 7-11, 574 A.2d 188 (1990).

The defendant next claims that the trial court should have granted his motion to conduct a child competency hearing before allowing the complainant to testify. This claim is without merit because the trial court did conduct a competency hearing of the complainant before she was allowed to testify. The child was thoroughly questioned during the voir dire, counsel presented arguments and the trial court fully articulated its basis for allowing the complainant to testify.

The defendant’s claim arises from a conflict between General Statutes § 54-86h and Public Acts 1989, No. 89-177, which amended General Statutes § 54-86g. In denying her motion, the court relied on General Statutes § 54-86h, allowing a child victim of sexual assault to testify without prior qualification. After this denial, the trial court appeared to reverse its decision after more consideration of both statutes and then conducted the competency hearing.

Even if we assume, arguendo, that General Statutes § 54-86g, as then amended, did require that a child witness in an assault case first be found competent prior to testifying, the trial court did so in this case. This action constructively reversed the trial court’s earlier decision denying the defendant’s motion. Therefore, the defendant’s claim is without basis.

The defendant finally challenges the testimony of the victim’s mother, a detective and two health experts under the constancy of accusation exception. At trial, the defendant objected to this evidence on hearsay grounds and was overruled. On appeal, the defendant claims that the prejudicial effect of this evidence outweighed its probative value. The defendant further claims that this evidence should not have been admitted because the trial court should have conducted a competency hearing. Without such a hearing, the defendant argues, there was no proper basis for constancy of accusation testimony. See State v. Segerberg, 131 Conn. 546, 547, 41 A.2d 101 (1945) (requiring the victim to testify before allowing constancy of accusation testimony).

Here, the trial court found the complainant competent to testify after a traditional competency hearing, and she did so. The challenged witnesses were properly permitted to testify regarding the complainant’s statements to them under the long-standing constancy of accusation exception. State v. Ouellette, 190 Conn. 84, 96-100, 459 A.2d 1005 (1983), and cases cited therein. Furthermore, this testimony was more probative than prejudicial because such testimony goes to a complainant’s credibility. See State v. Brigandi, 186 Conn. 521, 526, 442 A.2d 927 (1982); see also State v. Bethea, 24 Conn. App. 13, 17-21, 585 A.2d 1235 (1991).

The judgment is affirmed.

In this opinion the other judges concurred.

       After the voir dire of the complainant and counsels’ arguments, the court explained its ruling:
      “The Court: Obviously, the court has had an opportunity to view the witness from some three or four feet and would also like to point out there are approximately ten or eleven people in the courtroom and there were that many when she came into the courtroom. And I know a lot of adults that couldn’t testify as well as she did on being brought into a place with people looking and watching, and she being the sole eye of attention. And she answered the questions put to her as distinctly as anybody that would want to testify in court. I’m impressed with her ability to understand the questions that were asked of her and the ability to recollect and tell her answers in a manner that one might expect of somebody her age.
      “Certainly she has an understanding as to the consequences of not telling the truth, not only as to herself, but of people .... So that the court feels that she does have the capacity to understand where she is, understands the nature of the facts that she’s testified to so far and the ability to recollect and narrate intelligently the questions that have been asked of her and also to understand that there are consequences both from a personal and a third party point of view from not telling the truth. . . . [T]he court finds that this youngster is qualified to testify.”

       General Statutes § 54-86h provides in relevant part: “No witness shall be automatically adjudged incompetent to testify because of age and any child who is a victim of assault, sexual assault or abuse shall be competent to testify without prior qualification.”

       General Statutes § 54-86g, as amended by Public Acts 1989, No. 89-177, provides in relevant part: “(b) In any criminal prosecution of an offense involving assault, sexual assault or abuse of a child twelve years of age or younger, the court may, upon motion of the attorney for any party, order that the following procedures be used when the testimony of the child is taken .... The question of the competency of the child as a witness shall be resolved prior to the time of the trial.’’(Emphasis added.)
      The legislature has subsequently repealed the last sentence of this amendment in Public Acts 1990, No. 90-230, § 94.


text:
    Emisael Tirado v. Commissioner of Correction
    (9070)
    Spallone, Daly and Lavery, Js.
    Argued October 31, 1990
    decision released February 19, 1991

      Edwin C. Pearson, for the appellant (petitioner).

      Jack W. Fischer, deputy assistant state’s attorney, with whom, on the brief, were JohnM. Bailey, state’s attorney, and James E. Thomas, senior assistant state’s attorney, for the appellee (respondent).
   Lavery, J.

The petitioner appeals following the trial court’s granting of the respondent’s motion for summary judgment and the concurrent denial of the petitioner’s motion for summary judgment in a habeas corpus proceeding. The petitioner claims that the habeas court was incorrect in its finding that his second successive application for a writ of habeas corpus presented no new material issue of fact and that the grounds raised in it were the same as those raised in an earlier habeas petition decided against the petitioner in 1986. We affirm the trial court’s judgment.

The following facts are pertinent to the resolution of this case. In August of 1982, after a trial to a jury, the petitioner was convicted of the crimes of robbery in the first degree in violation of General Statutes § 53a-134 (a) (3) and assault in the first degree in violation of General Statutes § 53a-59 (a) (1). The jury found that the crimes were committed on March 18, 1982, between 6:30 and 6:45 p.m. in New Britain. At trial, the petitioner testified, on his own behalf, that at the time the crimes were committed he was in Warwick, Rhode Island, attempting to recover from his drug dependency while staying with his girl friend’s brother, Amilio Torres. At the time of petitioner’s trial, Torres was residing in Rhode Island and was not subpoenaed by the petitioner’s trial counsel to corroborate the petitioner’s alibi.

The petitioner appealed his conviction to our Supreme Court claiming, inter alia, ineffective assistance of counsel in that his trial attorney failed to employ the statutory procedure to compel out-of-state alibi witnesses to testify at trial. The Supreme Court affirmed the defendant’s conviction. The court based its decision on the fact that the record was inadequate for appellate review. State v. Tirado, 194 Conn. 89, 478 A.2d 606 (1984). The court also concluded that the claim was more appropriately pursued on a petition for a new trial or a writ of habeas corpus. In 1985, the defendant filed a petition for a writ of habeas corpus, again raising the claim of ineffective assistance of counsel. A full evidentiary hearing on that petition was held in the Superior Court at Somers on May 23,1986. During that proceeding, the court, O’Neill, J., heard testimony from the petitioner’s trial counsel, the petitioner’s girl friend and her brother, Torres. Their testimony indicated that although Torres had been willing to testify at the petitioner’s trial, trial counsel made a tactical decision not to subpoena him because he did not find him to be a credible witness. The habeas court concluded that the defendant had not met his burden of proving, by a preponderance of the evidence, that his trial counsel had been ineffective and the habeas petition was denied. The petitioner did not appeal that decision.

On April 29, 1987, the petitioner filed this second petition for a writ of habeas corpus based on a claim that new evidence, discovered at the first habeas hearing from the testimony of alibi witnesses, would have probably resulted in a different outcome had it been presented at the original trial. The petition asserted that because the three year statute of limitations to petition for a new trial had lapsed the habeas petition was the sole collateral remedy available to the petitioner. On November 17,1988, the respondent moved to dismiss the petition claiming, inter alia, that the defendant stated no new facts but rather had restated facts adduced at the first habeas proceeding.

On April 19,1989, the habeas court, Axelrod, J., dismissed the second petition on a finding that the grounds raised were the same as those raised in the first habeas petition. After the defendant filed a motion for reconsideration of the dismissal, Judge Axelrod vacated the prior dismissal and reinstated the petition. This reversal was based on the court’s doubts as to whether the grounds raised in the second petition were different from those raised in the 1986 habeas proceeding. The respondent made a motion on August 7,1989, to have the petition dismissed because the petitioner’s attempt to raise his claim in a second petition after his failure to raise it in his 1986 petition constituted an abuse of the writ. That motion was denied.

Thereafter, both parties moved for summary judgment. On January 4, 1990, the habeas court, Kaplan, J., denied the petitioner’s motion for summary judgment and granted the respondent’s motion. In the memorandum of decision, the court ruled that the issues raised by the petitioner in his second habeas petition were the same as those raised before the court in the first habeas petition in 1986. The court reiterated that those issues were decided against the defendant after a full evidentiary hearing and that the petitioner proffered no new evidence in his second petition. Thus, the second petition raised no new material issue of fact that would justify the granting of the petition. Thereafter, the petitioner moved for reconsideration, which motion was denied. On February 28, 1990, Judge Kaplan granted the defendant’s petition for certification to appeal.

On appeal, the defendant claims that the habeas court was incorrect (1) in granting the respondent’s motion for summary judgment, (2) in denying the petitioner’s motion for summary judgment and (3) in denying the petitioner’s January 4,1990 motion to reconsider. The dispositive issue is whether the petitioner’s second successive petition was founded on the same grounds and the same facts as those raised in his first petition in 1986 and thus presented no new grounds or evidence on which to grant the relief sought.

Under federal and state constitutional law, a determination of whether a hearing on the merits is required on a successive habeas application is within the sound discretion of the court. Sanders v. United States, 373 U.S. 1, 18, 83 S. Ct. 1068, 10 L. Ed. 2d 148 (1963); Negron v. Warden, 180 Conn. 153, 158-59 n.3, 429 A.2d 841 (1980); Iasiello v. Manson, 12 Conn. App. 268, 271, 530 A.2d 1075, cert. denied, 205 Conn. 811, 532 A.2d 586 (1987). On appeal, the petitioner bears the two tiered burden of demonstrating that the habeas court abused its broad discretion, and thereby created “a miscarriage of justice beyond a mere error that might have entitled him to relief on direct appeal.” Iasiello v. Manson, supra; State v. Marra, 195 Conn. 421, 437-38, 489 A.2d 350 (1985); D’Amico v. Manson, 193 Conn. 144, 154-57, 476 A.2d 543 (1984).

When a petitioner brings a successive application for a writ of habeas corpus and that application is brought on the same grounds as the previous application, the pending petition may be summarily dismissed without a hearing provided that it is not based on new facts or new evidence not reasonably available at the hearing on the prior application. Practice Book § 531; Negron v. Warden, supra, 158-59. In this context, a “ground” has been defined as “sufficient legal basis for granting the relief sought.” Sanders v. United States, supra, 16. A successive petition may not go forward if the grounds asserted in support of that petition are merely a verbal reconstitution of the claim asserted in a previous unsuccessful petition. Williams v. United States, 731 F.2d 138, 141 (2d Cir. 1984); Negron v. Warden, supra, 158-61; Iasiello v. Manson, supra, 272.

When we apply these standards to the factual setting of this case, it is clear that the plaintiff has not carried his burden of proving that the habeas court abused its discretion by summarily dismissing the petitioner’s second application. During both the trial and the 1986 habeas hearing the petitioner introduced evidence of his alibi. Although the petitioner’s trial counsel made a tactical decision not to invoke the interstate subpoena to secure witnesses who could corroborate the petitioner’s alibi, there is no question that such evidence was reasonably available at the time of trial. The claim that the petitioner now brings to this court is, in essence, based on the same facts that were both provable and at issue at trial. The fact that the alibi witness actually testified for the first time at the first habeas proceeding does not provide a basis for the view that the testimony was new evidence not reasonably available at trial.

The testimony of the alibi witness was available at the time of trial. The petitioner and his counsel both were aware of the existence of those people who could potentially offer corroboration of the alibi. At the first hearing, the testimony of the alibi witness was central to the issue of counsel's effective assistance. Thus, the sole ground raised in the petitioner’s second habeas petition is that a witness who could verify his alibi did not testify at his trial and that there is a strong probability that the verdict would have been different had that testimony been heard.

This assertion does not create the legal basis required for the court in a second habeas hearing to grant the relief sought. Rather, this is a reformulation of the grounds heard and decided in the first petition directed toward the issue of failure of counsel to call a potential alibi witness.

The contention here that the petitioner is entitled to a new trial based on a witness’ testimony ascertained at the first habeas petition does not raise any different ground than his claim that his counsel was ineffective for failing to call that same witness.

The potentially exculpatory testimony was known to this defendant prior to his trial, at the time of his appeal, at the time of the first habeas hearing and during the statutory period allowed for bringing a petition for a new trial.

We are aware that in cases where doubts exist as to whether the grounds asserted in the subsequent petition are the same or different from those raised on the first petition, those doubts should be resolved in favor of the applicant. Negron v. Warden, supra, 165-66. Nevertheless, in this case, where there is a mere reformulation of the same facts and the grounds, no such doubt exists.

The judgment is affirmed.

In this opinion the other judges concurred.

       While the petitioner in his brief asserts the claims outlined above, he has approached this appeal as if it is a petition for a new trial. This claim is unavailable to him due to the fact that the three year statutory limit on such a claim has lapsed. General Statutes § 52-582.


author: Cretella, J.

text:
    State of Connecticut v. Carl Nesmith
    (9026)
    Spallone, O’Connell and Cretella, Js.
    Argued December 5, 1990
    decision released February 26, 1991

      James N. Crane, special public defender, with whom, on the brief, was Suzanne Zitser, assistant public defender, for the appellant (defendant).

      Richard F. Jacobson, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and John Smriga, assistant state’s attorney, for the appellee (state).
   Cretella, J.

The defendant appeals from a judgment of conviction, rendered after a jury trial, of possession of narcotics in violation of General Statutes § 21a-279 (a). On appeal, the defendant raises only one issue, namely, whether the trial court improperly refused to instruct the jury as to the doctrine of nonexclusive possession of drugs. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. On May 5,1989, two experienced narcotics officers of the Bridgeport police department, together with two officers in training, went to apartment 104 in building thirty-one of Father Panik Village. This apartment was known to the police as a shooting gallery and drug trafficking area. The officers knew that apartment 104 had been documented by the Bridgeport housing authority to be vacant, and that drugs were bought, sold and used there. Officer Joseph Sherbo, who directed this investigation, had previously arrested people in this vacant apartment for drug violations. Sherbo’s partner, Officer Adam Radzimirski, described the area as “a haven for drug traffic.”

The apartment was abandoned and had no locks on the doors. The officers walked up three or four steps and were able to enter the open door of apartment 104. Once inside, they observed between six and eleven persons in the front room, several used and empty glassine bags, vials and other common drug vessels on the floor, as well as shoestrings that are commonly applied as turniquets by drug users, cookers that are used for boiling powdered drugs into a liquid form, and lit candles. There was no indication that anyone was living in this apartment, i.e., the apartment contained only a sofa and a few other items that were used to sit on, and no clothing or other signs of habitation.

As Sherbo entered the apartment, he observed the defendant standing alone in the interior apartment hall, heading for a rear bedroom. Sherbo pursued the defendant into the back bedroom. The defendant was the sole occupant of this empty room. When he turned and noticed that Sherbo had followed him, the defendant, who was holding cash in his hand, dropped something to the floor. Without leaving the room himself, Sherbo ordered the defendant into the front room, where the remaining officers were holding the other occupants of the apartment. The defendant followed Sherbo’s orders. Sherbo then investigated the spot where he had seen the defendant drop something, and found fifty-six glassine envelopes and ten plastic vials, all containing a white powdery substance that field-tested as a narcotic. At this point, the defendant was arrested. Later testing proved that some of the envelopes contained heroin and the vials contained cocaine.

The defendant submitted a written request to charge the jury on the doctrine of nonexclusive possession of premises where drugs are found. The trial court refused to give this instruction. In order to support the defendant’s contention that the charge should have been given, it must be established that the charge correctly states the law, is supported by the evidence and is relevant to the issues. State v. Casey, 201 Conn. 174, 178, 513 A.2d 1183 (1986); State v. Cato, 21 Conn. App. 403, 410, 574 A.2d 240, cert. denied, 215 Conn. 819, 576 A.2d 547 (1990).

To establish possession of a narcotic substance, the prosecution must establish only that the defendant knew the character of the substance, knew of its presence, and exercised dominion and control over it. State v. Somerville, 214 Conn. 378, 390, 572 A.2d 944 (1990); State v. Reddick, 207 Conn. 323, 328, 541 A.2d 1209 (1988); State v. Brunori, 22 Conn. App. 431, 435-36, 578 A.2d 139, cert. denied, 216 Conn. 814, 580 A.2d 61 (1990).

It is true that in situations where an offender is not in exclusive possession of the premises where narcotics are found, it may not be inferred that he knew of the presence of the narcotics, or that he had control over them, without other incriminating statements or circumstances to support such an inference. Evans v. United States, 257 F.2d 121, 128 (9th Cir.), cert. denied, 358 U.S. 866, 79 S. Ct. 98, 3 L. Ed. 2d 99 (1958); State v. Alfonso, 195 Conn. 624, 633, 490 A.2d 75 (1985). The doctrine of nonexclusive possession as set forth in Evans has been applied in Connecticut in situations where motor vehicles or apartments contain several occupants. See State v. Somerville, supra; State v. Delossantos, 211 Conn. 258, 277, 559 A.2d 164, cert. denied, 493 U.S. 866, 110 S. Ct. 188, 107 L. Ed. 2d 142 (1989). The common factor in cases that have applied the principle enunciated in Evans, however, is the fact that the narcotic substances were accessible to others and were found in areas that were also occupied by others. The distinction that sets the present case apart is that here we lack nonexclusiveness.

In short, where there exists access by two or more people to the drugs in question, there must be something more than the mere fact that narcotics were found to support the inference that the drugs were in the possession or control of the defendant. In this case, the evidence produced at the trial indicated that the defendant was charged only for possession of the narcotics that were found in the back bedroom, and that he was the only person who occupied that room. There was no evidence adduced at trial to show that any other person was present in the back room. Thus, this was not a situation of nonexclusivity that would have called for the Evans charge.

The defendant argues that his testimony contradicted that of the officers. He testified that he was never in the back room of the vacant apartment, but was brought into the apartment from the outside hall by one of the officers, and ordered to sit on the floor of the front room in a circle with eleven other detainees. He further stated that while sitting in the circle the man next to him dropped three or four glassine bags on the floor.

The mere fact that a conflict existed between the testimony of the police officers and the defendant does not permit us to assess the credibility of the state’s witnesses or to refind those facts that were determined by the jury. In this case, the defendant’s argument that his version of the facts warranted the requested jury charge fails for two reasons. First, he was not charged with the possession of narcotics found in the front room. Second, the court did charge the jury that “the state must prove beyond a reasonable doubt that the defendant exercised dominion and control over the cocaine and/or heroin, had knowledge of its presence, and had knowledge of its character.” In this way, the court covered every essential element of the crime of possession as required by State v. Somerville, supra. Had the jury found the defendant’s testimony to be more credible than that of the police officers, following the directive of the charge given, it could not have found the defendant guilty of the crime of possession.

In light of the evidence that was presented, we conclude that it was proper for the trial court to refuse to give the requested charge. This court cannot retry the case or substitute its judgment for that of the trier of fact. State v. Almeda, 211 Conn. 441, 450, 560 A.2d 389 (1989); State v. Reddick, supra.

We conclude that the instructions as given were accurate and consistent with the evidence, and that the trial court was correct in refusing to give the requested charge.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant was acquitted of the charge of possession with intent to sell a narcotic substance in violation of General Statutes § 21a-278 (b), and convicted under the lesser included offense of possession of narcotics.


author: Norcott, J.

text:
    Joseph A. Wilkinson et al. v. Inland Wetlands and Watercourses Commission of the Town of Killingworth et al.
    (9030)
    O’Connell, Norcott and Landau, Js.
    Argued December 4, 1990
    decision released February 26, 1991

      Margery W. Smith, town attorney, for the appellant (named defendant).

      Thomas A. Cloutier, with whom, on the brief, were Jeffrey C. Eddy and R. Scott Patterson, for the appellees (plaintiffs).
   Norcott, J.

The defendant Killingworth inland wetlands and watercourses commission (IWWC) appeals from the judgment of the trial court in favor of the plaintiffs, Joseph A. Wilkinson and Carol P. Wilkinson. The dispositive issue on appeal is whether a court or an administrative agency should be the first to decide whether that agency has jurisdiction over a particular subject matter.

The following facts are relevant to the resolution of this appeal. The plaintiffs own five and one-half acres of land on Route 148 in Killingworth. The plaintiffs’ property includes both a pond and wetlands. In the fall of 1988, the plaintiffs applied to the Killingworth planning and zoning commission for a permit to construct a horse barn and indoor riding arena on their property. Pursuant to General Statutes § 8-3c, the plaintiffs filed a copy of the application with the IWWC with an application for wetlands review and a copy of the plot plan. The plaintiffs also requested that the IWWC issue a declaratory ruling that their proposed activities constituted “farming” and were therefore permitted as of right under General Statutes § 22a-40 (a) (l) and § 3.1.1 of the IWWC regulations.

At its meeting on January 11, 1989, the IWWC decided to require the plaintiffs to submit an application for a permit. The necessary forms were given to the plaintiffs. On January 25,1989, the plaintiffs again argued to the IWWC that no permit was needed because their proposed use was allowed as of right. The IWWC agreed to reconsider its decision and asked the plaintiffs to produce additional information, in particular a site plan sealed by a licensed engineer or surveyor. At the IWWC’s February 22,1989 meeting, the plaintiffs presented the definition of farming found in General Statutes § 1-1 (q). They failed, however, to submit a sealed site plan as requested by the IWWC. The IWWC determined, therefore, that the plaintiffs had not proven that their proposed activities were farming and once again voted to require the plaintiffs to file an application for a permit.

The plaintiffs appealed the IWWC’s February 22 ruling to the Superior Court pursuant to General Statutes § 22a-43. In their appeal, the plaintiffs challenged the IWWC’s authority to make such an order in light of the exemption for farming operations. The trial court found that the plaintiffs’ proposed activities were farming and, as such, were exempt from “any of the [IWWC’s] regulations.” From that determination, the IWWC appealed to this court.

Our decision in this case is controlled by the Supreme Court’s recent ruling Cannata v. Department of Environmental Protection, 215 Conn. 616, 577 A.2d 1017 (1990). The plaintiffs in Cannata informed the department of environmental protection (DEP) that they intended to cut down trees in an area regulated by that agency in order to expand their agricultural crop land. The commissioner of the DEP issued an ex parte cease and desist order, directing the plaintiffs to stop cutting trees because they had failed to apply for a permit as provided in General Statutes § 22a-342. A hearing officer upheld the commissioner’s order pending the plaintiffs’ permit application and the DEP’s final action on it. The plaintiffs appealed that decision to the Superior Court, claiming that the DEP could not force them to apply for a permit because their proposed agricultural use was exempt from regulation under General Statutes § 22a-349. The trial court found that it lacked jurisdiction because the plaintiffs had failed to exhaust their administrative remedies and dismissed the appeal.

The Supreme Court upheld the trial court’s dismissal, holding that the exhaustion requirement mandated that the administrative agency be the first to determine its jurisdiction. The court noted the general rule that, when a mechanism for adequate judicial review exists, an administrative agency must determine whether it has jurisdiction in a particular situation. In addition, “ ‘ “[wjhen a particular statute authorizes an administrative agency to act in a particular situation it necessarily confers upon such agency authority to determine whether the situation is such as to authorize the agency to act—that is, to determine the coverage of the statute—and this question need not, and in fact cannot, be initially decided by a court.”. . .’ ” (Citations omitted.) Cannata v. Department of Environmental Protection, supra, 623.

The Cannata court also found that requiring the plaintiffs to submit to the permit process was not a futile or inadequate remedy. “Issuance of a permit would provide the plaintiffs with the relief they seek. If the commissioner denies the plaintiffs a permit, they can then pursue an appeal to the Superior Court . . . challenging the commissioner’s jurisdiction and her decision denying them a permit. Therefore, the permit process ... is an adequate remedy available for the requested relief and is within the agency’s authority to grant.” Id., 629.

In the present case, the IWWC, like the DEP, must be given the first opportunity to determine its jurisdiction. Requiring the plaintiffs to apply for a permit is neither futile nor inadequate. If the IWWC finds that the plaintiffs’ proposed use is exempt from regulation under General Statutes § 22a-40 (a) (1), the plaintiffs will be allowed to conduct their activities without a permit. If the commission determines that the plaintiffs’ proposed use is not exempt, it must then decide whether to issue a permit. Like the plaintiffs in Cannata, the plaintiffs in the present case can appeal from an adverse ruling, challenging both the IWWC’s jurisdiction and its decision denying them a permit. If, conversely, a permit is granted, the plaintiffs will have received the underlying relief sought, i.e., permission to build horseback riding facilities on their property.

The plaintiffs contend, however, that the IWWC has in fact already determined that it has jurisdiction by virtue of its declaratory ruling. Our review of the record reveals, however, that the IWWC reserved its decision on whether the plaintiffs’ proposed use was farming because the plaintiffs had failed to present, as required, a sealed site plan. Postponing the resolution of this issue until the plaintiffs have applied for a permit because the plaintiffs themselves refused to cooperate with the IWWC was well within the IWWC’s discretion. See Cannata v. Department of Environmental Protection, supra, 632.

The judgment is reversed and the case remanded to the trial court with direction to render judgment dismissing the plaintiffs’ appeal.

In this opinion the other judges concurred.

       The individual members of the IWWC and the commissioner of the department of environmental protection were also named as defendants in this action.

       General Statutes § 8-3c provides: “special permits, exceptions and EXEMPTIONS. HEARINGS. FILING REQUIREMENTS, (a) If an application for a special permit or special exception involves an activity regulated pursuant to sections 22a-36 to 22a-45, inclusive, the applicant shall submit an application to the agency responsible for administration of the inland wetlands regulations no later than the day the application is filed for a special permit or special exception.”

       Section 5.2 of the IWWC regulations provides in pertinent part: “Any person at any time may request the Commission to issue a declaratory ruling as to whether a proposed activity is within the Commission’s jurisdiction under these Regulations, and is, therefore, subject to the permit application requirements contained herein. If the Commission finds, on the basis of submitted evidence (including any such site plan as the Commission may require), that a proposed activity or use does not involve a regulated activity in a regulated area, no application for a permit for such activity shall be required. Any such ruling shall be subject to limitation or revocation if it is later shown that a regulated activity in a regulated area is a consequence of that proposed activity or use.”
      Although it is not clear from the record before us whether the plaintiffs in fact explicitly asked for a declaratory judgment, both the IWWC and the trial court treated their application for review as containing such a request.

       General Statutes § 22a-40 provides: “permitted operations and uses. (a) The following operations and uses shall be permitted in wetlands and watercourses, as of right: (1) Grazing, farming, nurseries, gardening and harvesting of crops and farmponds of three acres or less . . . . ”

       Section 3.1.1 of the IWWC regulations, using language identical to that of General Statutes § 22a-40 (a) (1), also allows farming as of right in inland wetlands and watercourses.

       The plot plan previously submitted by the plaintiffs was not sealed by a licensed professional.

       That statute defines farming, in pertinent part, as, “raising or harvesting any agricultural or horticultural commodity, including the raising, shearing, feeding, caring for, training and management of livestock, including horses . . . .”

       General Statutes § 22a-43 provides in pertinent part: “appeals, (a) The commissioner or any person aggrieved by any regulation, order, decision or action made pursuant to sections 22a-36 to 22a-45, inclusive, by the commissioner, district or municipality or any person owning or occupying land which abuts any portion of land or is within a radius of ninety feet of the wetland or watercourse involved in any regulation, order, decision or action made pursuant to said sections may . . . appeal to the superior court . . . in accordance with the provisions of section 4-183 . . .”
      General Statutes § 4-183, in turn, allows such appeals only when all administrative remedies have been exhausted.


author: Per Curiam.

text:
    The Chase Manhattan Bank, N.A. v. Stephanie W. Shea
    (9181)
    O’Connell, Foti and Heiman, Js.
    Argued January 9
    decision released February 26, 1991

      Steven R. Humphrey, with whom were Katherine B. Larson and, on the brief, David W. Bogan, for the appellant (plaintiff).

      JohnL. Altieri, Jr., pro hac vice, with whom were Brian Fitzpatrick, pro hac vice, and, on the brief, Michael Gene Clear, for the appellee (defendant).
   Per Curiam.

The plaintiff appeals from the order of the trial court granting the defendant’s motion, filed pursuant to General Statutes § 52-278e (c), to dissolve an ex parte prejudgment attachment of her real estate in the amount of $9,000,000. The only significant issue on appeal is whether the trial court improperly found that the plaintiff failed to establish that probable cause existed to support the validity of the plaintiffs claim. We affirm the judgment of the trial court.

The plaintiff, The Chase Manhattan Bank, N.A. (Chase), loaned $8,275,000 to a corporation in the form of a series of bankers’ acceptance drafts, repayment of which was guaranteed by a second corporation. Both corporations are controlled by the same individuals, the defendant being the president and a director of both, and another individual being principal officer and chairman of both companies. Both companies are in bankruptcy, and the loan has not been repaid. Chase commenced this action against the defendant alleging that she made fraudulent misrepresentations that induced it to make the loan. The defendant signed all documents in her capacity as a corporate officer.

The standard for appellate review of a decision denying a prejudgment remedy is very circumscribed. In the absence of clear error, this court should not overrule the thoughtful decision of the trial court, which has had the opportunity to assess the legal issues and weigh the credibility of the witnesses. See New England Land Co., Ltd. v. DeMarkey, 213 Conn. 612, 620-21, 569 A.2d 1098 (1990). We need decide only whether the trial court’s conclusions were reasonable under the “clear error” standard; Solomon v. Aberman, 196 Conn. 359, 364, 493 A.2d 193 (1985); and we may not duplicate the trial court’s weighing process. Green v. Holy Trinity Church of God in Christ, 16 Conn. App. 700, 703, 549 A.2d 281 (1988).

The role of the trial court in deciding a motion to dissolve a prejudgment attachment is to determine whether probable cause exists, which requires only that it weigh the evidence presented and determine probable success by weighing probabilities. Lovesky v. Zeligzon, 20 Conn. App. 139, 142, 565 A.2d 1 (1989). “Probable cause is a flexible common sense standard. It does not demand that a belief be correct or more likely true than false.” Anderson v. Nedovich, 19 Conn. App. 85, 88, 561 A.2d 948 (1989). “The legal idea of probable cause is a bona fide belief in the existence of the facts essential under the law for the action and such as would warrant a man of ordinary caution, prudence and judgment, under the circumstances, in entertaining it.” Wall v. Toomey, 52 Conn. 35, 36 (1884); Banks v. Vito, 19 Conn. App. 256, 260-61, 562 A.2d 71 (1989).

After thirteen days of trial including nine witnesses and fifty-three exhibits, the court filed a concise and well reasoned memorandum of decision, concluding that the plaintiff had failed to sustain its burden of showing probable cause. The court analyzed each of the ways that Chase has alleged that it was defrauded by Shea—that she misrepresented that a merger of the two companies had taken place, that in several cases there was no collateral for the loan, that there was no matching of purchases and sales as promised, and that several sales had been financed by another bank. The court properly considered the law of false misrepresentation, as governed by the law of the state of New York, and applied that law to the facts it had found. Our review of the record causes us to conclude that the determinations of the trial court are amply supported by the evidence, or lack of evidence, and are reasonable. See Sweet v. Sumnerbrook Mill Development Corporation, 21 Conn. App. 191, 196, 572 A.2d 385 (1990).

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff has raised three additional issues, contending that the trial court improperly (1) failed to find that the defendant had waived her fifth amendment privilege, (2) refused to draw an adverse inference from her refusal to testify, and (3) refused to compel the defendant to produce certain corporate documents. We have reviewed these issues and find that the plaintiff’s claims have no merit.

       The alleged fraud is claimed to have occurred in New York.


author: Landau, J.

text:
    E. Janice Augeri v. Planning and Zoning Commission of the City of Middletown et al.
    (8869)
    Dupont, C. J., O’Connell and Landau, Js.
    Argued November 5, 1990
    decision released February 26, 1991

      Gerald L. Garlick, for the appellant (plaintiff).

      Trina A. Solecki, city attorney, for the appellee (named defendant).

      John H. Hanks, for the appellee (defendant Thaddeus P. Bysiewicz).
   Landau, J.

The parties previously appeared before this court in Augeri v. Planning & Zoning Commission, 18 Conn. App. 722, 560 A.2d 985 (1989). That case determined that the plaintiffs motion to open should not have been denied and the case was remanded to the trial court to consider whether the trial court originally should have dismissed the appeal from the planning and zoning commission (commission) for the plaintiffs failure to attach the sheriffs return to the appeal documents. On remand, the trial court found that the plaintiffs appeal should not have been dismissed. Thereafter, the trial court held a hearing on the plaintiff’s petition to open, filed on August 30,1989, and based on Public Acts 1988, No. 88-79. The trial court denied the plaintiff’s petition finding that the defendant Thaddeus Bysiewicz had obtained approval for a five lot subdivision conditioned on his providing public water and sewer service to each lot. On the basis of Bysiewicz’ expenditure of “thousands of dollars in connection with the construction and supplying of water and sewer service” to his approved subdivision, the court determined that opening the original judgment on the plaintiff’s appeal from the commission’s approval would substantially infringe upon Bysiewicz’ property rights in contravention of Public Acts 1988, No. 88-79.

The plaintiff appeals claiming that the trial court (1) misinterpreted the phrase “a substantial infringement of property rights” in denying the plaintiff’s petition to open under § 3 (b) of No. 88-79 of the 1988 Public Acts, (2) failed to explain, in its memorandum of decision, the basis of its finding that Bysiewicz’ expenditures were “substantial,” (3) improperly held that the applicable time period in which Bysiewicz could have relied on the prior dismissal of this action was between April 7 and June 10,1988, and (4) improperly granted Bysiewicz’ motion for a protective order prohibiting the plaintiff from deposing him. We disagree with the plaintiff and affirm the decision of the trial court.

I

This action arises out of Public Acts 1988, No. 88-79, which amended General Statutes (Rev. to 1987) § 8-8 (b) in response to the line of cases stemming from Simko v. Zoning Board of Appeals (Simko I), 205 Conn. 413, 533 A.2d 879 (1987). Section 3 (b) of Public Act No. 88-79 specifically addressed and redressed those appeals taken on or after October 1, 1985, and prior to December 1, 1987, that failed to be tried on their merits due to dismissals for failure to name the town clerk as a party to the appeal. This act allowed parties in those cases ninety days after the effective date of the act to open the judgments of dismissal and further provided, in pertinent part, that the party petitioning to reopen an appeal “shall have the right to have such reopened unless the court finds that (1) there has been a substantial infringement of property rights . . . .” The statute does not define the phrase a substantial infringement of property rights.

The plaintiff asserts that this phrase is unambiguous and therefore urges us to adopt a constitutional definition. The defendants, however, prompt this court to find that the meaning of this phrase is ambiguous and unclear and thus requires us to consider the legislative intent behind the act. We agree with the defendants.

“ ‘Although it is axiomatic that, where the statutory language is clear and unambiguous, construction of the statute by reference to its history and purpose is unnecessary; Manchester v. Manchester Police Union, 3 Conn. App. 1, 6, 484 A.2d 455 (1984); that axiom only applies in full force “[wjhere . . . the language of a statute is . . . absolutely clear” on its face and where no ambiguity is disclosed by reference to its background. (Emphasis in original.) Anderson v. Ludgin, 175 Conn. 545, 552-54, 400 A.2d 712 (1978).’ ” Dugas v. Lumbermens Mutual Casualty Co., 22 Conn. App. 27, 33, 576 A.2d 165 (1990). “ ‘A word or statute is ambiguous when capable of being interpreted by reasonably well-informed persons in either of two or more senses.’ ” Federal Aviation Administration v. Administrator, 196 Conn. 546, 554, 494 A.2d 564 (1985) (Healey, J., dissenting), citing Vernon v. Waukesha County, 99 Wis. 2d 472, 477, 299 N.W.2d 593 (1980), aff’d, 102 Wis. 2d 686, 307 N.W.2d 227 (1981); 73 Am. Jur. 2d, Statutes § 258 (1974). The phrase “a substantial infringement of property rights” is susceptible to two different meanings. One is the constitutional definition describing a situation in which a property’s value is destroyed or nullified or by which the owner’s right to its use or enjoyment is to a substantial degree abridged or destroyed. This definition historically applies in situations involving state action. There is also the alternative possibility that the words mean that there must have been an expenditure of a significant sum of money spent in reliance on Simko I.

Because this phrase is ambiguous, we must turn for guidance to the legislative history and the purpose the statute is to serve. State v. Mattioli, 210 Conn. 573, 576, 556 A.2d 584 (1989). The legislative history reveals that both the House and the Senate held discussions on the meaning of “a substantial infringement of property rights . . . .” In these discussions, a substantial infringement of property rights was described as occurring when subsequent action that involved the investing of “significant sums of money” had been taken in good faith reliance on the Simko I decision. 31 S. Proc., Pt. 4,1988 Sess., p. 1129, remarks of Senator Steven Spellman. This review also reveals that the existence of such an infringement is to be determined on a case by case basis by the court; 31 H.R. Proc., Pt. 4, 1988 Sess., p. 1354, remarks of Representative Richard D. Tulisano; and that this legislation specifically sought to address “an economic detriment.” 31 H.R. Proc., Pt. 4, 1988 Sess., p. 1355, remarks of Representative William J. Cibes, Jr.

Therefore, the existence of “a substantial infringement of property rights” is to be established by the court on a case by case basis with the court evaluating the equities of each case in light of the parties’ reliance on the Simko I decision. The trial court, upon finding that the defendant had spent thousands of dollars in reliance on the approval of the subdivision, properly concluded that the reopening of the plaintiff’s appeal would constitute “a substantial infringement” of Bysiewicz’ property rights.

On appeal, it is the function of this court, when legal conclusions are challenged, to determine whether the decision of the trial court was legally and logically correct. Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980). A review of the record reveals that the findings of the trial court were legally and logically correct.

II

In her second claim, the plaintiff argues that, even if the “substantial infringement of property rights” exception was applicable, there is an insufficient basis in the trial court’s memorandum of decision to support its finding that the money expended by Bysiewicz was “substantial.”

The trial court stated in its memorandum of decision that “[b]etween April 7, 1988, and June 10, 1988, the defendant Thaddeus P. Bysiewicz, acting in good faith, expended thousands of dollars in connection with the construction and supplying of water and sewer service to his five lot subdivision on Ridgewood Road, Middle-town, Connecticut.” In particular, the plaintiff takes issue with the amount of money that constitutes “thousands” of dollars.

“[W]hen a party seeks a further articulation of the factual basis of the trial court’s decision or the inclusion in the memorandum of decision of the trial court’s rulings on claims of law properly presented, he should file a motion with the trial court under Practice Book § [4051] setting forth the specific factual issues he seeks to have resolved and the claims of law he seeks to have included.” Pandolphe’s Auto Parts, Inc. v. Manchester, supra, 222 n.5. The plaintiff in this case failed to file a motion for further articulation with the trial court. It is the responsibility of the appellant to provide an adequate record for review. Practice Book § 4061; DeMilo v. West Haven, 189 Conn. 671, 681, 458 A.2d 362 (1983). “ ‘[U]nder normal circumstances we will not remand a case to correct a deficiency the appellant should have remedied’ ” especially when the appellant herself claims that the trial court is unclear. J. M. Lynne Co. v. Geraghty, 204 Conn. 361, 376-77, 528 A.2d 786 (1987), citing Carpenter v. Carpenter, 188 Conn. 736, 739 n.9, 453 A.2d 1151 (1982). Therefore, we will not consider the plaintiff’s second claim.

The plaintiff also claims that the court improperly determined the length of time during which Bysiewicz could have relied on the prior dismissal of the action. In essence, the plaintiff claims that, regardless of the time period used, the court had no basis on which to determine when Bysiewicz made his expenditures, and, therefore, the court could not calculate what amount would constitute a substantial infringement of property rights. Because the plaintiff has failed to seek articulation as to the basis for the court’s finding that the defendant’s expenditures were substantial, we need not consider the plaintiff’s third claim.

Ill

In her final claim, the plaintiff asserts that the trial court improperly denied her the opportunity to depose Bysiewicz. On August 18, 1989, the plaintiff filed a notice of deposition of Bysiewicz to be taken on August 29,1989. On August 24,1989, Bysiewicz filed a motion for protective order preventing the plaintiff from taking his deposition. In response, the plaintiff filed an objection to Bysiewicz’ motion. No ruling on this motion was made, other than its being assigned to another judge. The plaintiff therefore argues that the court in effect granted Bysiewicz’ motion for a protective order. This case must be decided on the record. State v. Gilnite, 202 Conn. 369, 379, 521 A.2d 547 (1987). The record presented is devoid of a ruling on Bysiewicz’ motion for a protective order and this court cannot review a nonexistent ruling.

The judgment is affirmed.

In this opinion the other judges concurred.

       Public Acts 1988, No. 88-79, §§ 3 (b) and 4, provide: “If any appeal of a decision of a zoning commission, planning commission, planning and zoning commission or zoning board of appeals taken on or after October 1, 1985 and prior to December 1,1987, has failed to be tried on its merits because the appeal has been dismissed by the superior court for want of jurisdiction due to the failure of the party taking such appeal to name the clerk of the municipality as a party to the appeal in the appeal citation, the party taking such appeal may, within ninety days after the effective date of this act, petition the court to reopen such appeal. Notwithstanding the provisions of section 52-212a of the general statutes, such party shall have the right to have such appeal reopened unless the court finds that (1) there has been a substantial infringement of property rights or (2) the judgment of the superior court has been appealed and a final judgment has been rendered on that appeal.
      “Sec. 4. This action shall take effect from its passage.
      “Approved April 20, 1988.”

       The defendant Bysiewicz is the owner of the subject property and originally submitted the application for approval of the subdivision that is the underlying subject of this appeal. Pursuant to General Statutes § 8-8, his motion to intervene was granted.

       General Statutes (Rev. to 1989) § 8-8 (b) was further amended by Public Acts 1989, No. 89-356. Section 1 (e) of that act is presently General Statutes § 8-8 (e).
      “Service of legal process for an appeal under this section shall be directed to a proper officer and shall be made by leaving a true and attested copy of the process with, or at the usual place of abode of, the chairman or clerk of the board, and by leaving a true and attested copy with the clerk of the municipality. Service on the chairman or clerk of the board and on the clerk of the municipality shall be for the purpose of providing legal notice of the appeal to the board and shall not thereby make the chairman or clerk of the board or the clerk of the municipality a necessary party to the appeal.”

       It is possible that there might have been some implicit understanding reached between the court and the parties. Immediately prior to the hearing on the plaintiffs petition to open pursuant to Public Acts 1988, No. 88-79, the court stated:
      “The Court: . . . You’ll [the plaintiff still have—you’ll still have an opportunity later on, if you choose to, to take depositions. Depending on how this thing goes, later on downstream, but I can’t imagine there [is] anything that would be of great surprise or unusual to you as to the type of evidence that he’s going to put on.
      “Mr. Hanks: If I may, most of the evidence will concern extending twelve hundred feet of sewer line.
      “The Court: Well, all right, call your first witness then.”
      This exchange was subsequent to a colloquy between the attorney for the plaintiff and the court concerning the protective order. The plaintiff’s attorney never pressed the court for a ruling on the protective order or the objection.


author: Dupont, C. J.

text:
    Anna C. Tatro v. Maurice C. Tatro, Jr.
    (8980)
    Dupont, C. J., Daly and Foti, Js.
    Argued November 8, 1990
    decision released February 15, 1991

      John A. Brennan, with whom was Shirani B. Ponnambalam, for the appellant (plaintiff).

      Karen Fox, for the appellee (defendant).

      Bridget G. Jenkins, for the minor child.
   Dupont, C. J.

The plaintiff appeals from a judgment finding her in contempt of trial court orders relating to her failure to apply for United States citizenship for her minor child and her failure to cause the child to be returned to the United States. The trial court, Dranginis, J., ordered the plaintiff “to remain in jail until the child is brought before [the] court.” No sanctions were imposed by the trial court for the plaintiffs failure to apply for citizenship. The plaintiff claims that the trial court incorrectly found her in contempt when she had no ability at the time to purge herself of contempt of one of the orders and when the necessity for the other order no longer existed. She also claims that attorney’s fees should not have been awarded to the defendant pursuant to General Statutes § 46b-87, and that the trial court acted in a biased manner toward the plaintiff, which denied her a fair hearing.

This appeal arises out of an acrimonious dissolution of marriage action, with custody and visitation rights in dispute. The plaintiff and the defendant were married on April 17, 1975, in Taipei, Taiwan, Republic of China. In 1982, the parties adopted Faye Ning Ch’u in accordance with the laws of both Taiwan and Connecticut. She is the biological child of the plaintiff’s sister, and a citizen of Taiwan by birth. At the time of the adoption, the child was five years old. The natural mother’s legal rights to the child in both countries were terminated in the course of the adoption proceedings.

The Tatros’ marriage was dissolved on October 8, 1985. Custody of the minor child was awarded to the plaintiff. The defendant was awarded liberal visitation. The dissolution and subsequent proceedings were marked by a myriad of motions, many of them for allegedly contemptuous behavior, and by accusations of abuse by both parties.

On February 11, 1988, after a hearing on a motion to restrain, the court, Gill, J., granted the plaintiff permission to travel to Taiwan with the child for the Chinese New Year and the wedding of an uncle. Recognizing the defendant’s fear that the plaintiff would try to remove the child from the jurisdiction permanently, the court imposed several conditions on this permission, including ordering the plaintiff to file an application for American citizenship on behalf of the child. The court’s order stated that any failure to adhere to these conditions might result in a finding of contempt.

No appeal was taken by the plaintiff from the order requiring her to apply for United States citizenship for her daughter but she did not comply with the order regarding citizenship. The plaintiff did return the child to Connecticut by the date set by the court, namely, March 12, 1988. It is this order of the court that was found by the trial court, Dranginis, J., to be the basis of one of the contempt orders involved in this appeal. The plaintiff claims that, upon the return of the child to Connecticut, the necessity for the condition ceased to exist and, therefore, cannot be the subject of contempt.

Another barrage of litigation ensued after the plaintiff and her daughter returned from Taiwan. On July 11, 1988, the defendant filed a motion for contempt based on the plaintiffs failure to file the application for citizenship. The parties eventually agreed that the plaintiffs attorney would begin the application process, but, for reasons that remain unclear, this was, in fact, never done. Matters next reached a head in December, 1988, when the defendant tried to assert his right to holiday visitation, the subject of an order issued by the court on December 22, 1988. When the defendant went to the plaintiff’s home, pursuant to the court order, to pick up the child on Christmas day, he found no one at the family residence. He then filed a motion for contempt on January 3, 1989, because of the plaintiffs failure to comply with the court ordered Christmas visitation. A hearing was held on January 9, 1989, to dispose of five motions, including modification of custody and various contempt motions. The motions did not include the contempt motion for failure to comply with the December 22 court order for visitation. It was revealed at the January 9, 1989 hearing that the plaintiff had sent the child to visit her natural mother in Switzerland on December 23, 1988.

The plaintiff claimed to be unaware of the December 22,1988 order granting the defendant Christmas day visitation, even though both parties had been present at a December 19,1988 hearing, at which time the court, Dranginis, J., said it would rule on the defendant’s motion for visitation on December 22 in the absence of an agreement between the parties.

Upon learning on January 9,1989, that the child was out of the country, the court continued the proceedings until January 23, 1989, and ordered the plaintiff to bring the child back to Connecticut. At the January 23,1989 hearing, the plaintiff testified that the child had not returned to the state. The child had, in fact, been taken by her natural mother to Taipei, Taiwan. The court found that its order of January 9,1989 had been violated by the plaintiff and, sua sponte, on January 23, 1989, awarded custody of the child to the defendant. The court also ordered the defendant to bring the child before the court as soon as possible and ordered the plaintiff not to communicate with the child’s natural mother.

In February, 1990, while the child was still out of the country, the defendant filed several more motions for contempt. On March 5,1990, the court found the plaintiff in contempt for failing to file an application for the child’s citizenship and for failing to return the child to this jurisdiction. The court ordered the plaintiff incarcerated until she purged herself of contempt by bringing the child before the court. Another hearing was held on March 8, 1990. At that time, the court-appointed counsel for the plaintiff represented to the court that the plaintiff’s brother, who was now living in Connecticut with the plaintiff, had been able to contact the child’s natural mother in Taipei, and that she had promised to have the child in Connecticut within two weeks of the hearing. The plaintiff’s counsel further asserted that it would take at least two weeks to obtain the necessary visas and airline tickets for the child and her natural mother. He asked that the plaintiff be released from incarceration pending the arrival of the child and her natural mother, so that the plaintiff could care for her infant daughter, born since the dissolution of the marriage. The court, citing the plaintiffs history of noncooperation, refused to release the plaintiff.

On March 9, 1990, an article appeared in the Hartford Courant quoting the plaintiffs counsel, who said that he had just received a fax transmission from the plaintiffs family in Taiwan indicating that the family did not intend to return the child to the United States. The court then suspended all proceedings on this matter and ordered the plaintiff to remain in jail until the child was returned to the United States. The plaintiff now appeals from the orders of civil contempt entered on March 5 and March 8, 1990.

Appellate review of a contempt adjudication is limited to determining questions of jurisdiction such as whether the act for which the penalty was imposed could constitute contempt, and whether the punishment imposed was within the authority of the court. Dunham v. Dunham, 217 Conn. 24, 29, 584 A.2d 445 (1991); Mays v. Mays, 193 Conn. 261, 265, 476 A.2d 562 (1984).

Courts distinguish between civil and criminal contempt. Dunham v. Dunham, supra, 28 n.3; Marcil v. Marcil, 4 Conn. App. 403, 405, 494 A.2d 620 (1985); 17 Am. Jur. 2d, Contempt § 4. Civil contempt is conduct directed against the rights of the opposing party. McTigue v. New London Education Assn., 164 Conn. 348, 352, 321 A.2d 462 (1973). Furthermore, “ ‘[a] contempt is considered civil when the punishment is wholly remedial, serves only the purposes of the complainant, and is not intended as a deterrent to offenses against the public.’ McCrone v. United States, 307 U.S. 61, 64, 59 S. Ct. 685, 83 L. Ed. 1108 [1939].” McTigue v. New London Education Assn., supra.

We conclude that the trial court incorrectly found the plaintiff in contempt for not bringing the child within its jurisdiction. The inability of a contemnor to obey a court order through no fault of her own is a defense to a claim of contempt. Turgeon v. Turgeon, 190 Conn. 269, 283, 460 A.2d 1260 (1983); Tobey v. Tobey, 165 Conn. 742, 746, 345 A.2d 21 (1974). In other words, the act for which the penalty was imposed cannot constitute contempt if the actor was unable to obey the order. Dunham v. Dunham, supra, 29. The plaintiff here was subject to a number of orders that rendered her ability to obtain the physical custody of the child ineffectual. First, the court had ordered her not to communicate with her sister, the person who had physical possession of the child. Second, the plaintiff’s passport was impounded as a condition of the stay of the March 5,1990 contempt. Thus, under the orders of the trial court, the plaintiff was stripped of the means to obtain the child’s presence by either persuasion or pursuit.

In addition, the trial court had, on January 23,1990, removed custody of the child from the plaintiff, awarded it to the defendant and ordered the defendant to bring the child before the court. After the entry of these orders, the plaintiff could have reasonably concluded that she was no longer legally obligated to pursue the child, and her failure to do so should not be construed as wilful disobedience of a court order. See Connolly v. Connolly, 191 Conn. 468, 483, 464 A.2d 837 (1983); Turgeon v. Turgeon, supra.

In the absence of the ability to purge herself of the failure to bring her child before the court, the punishment imposed by the court ceased to be coercive and became wholly punitive, which is not in the character of civil contempt. Mays v. Mays, supra, 266; McTigue v. New London Education Assn., supra, 352-53. Since this is so, the punishment imposed by the court was not within its authority. The sanction of imprisonment, therefore, cannot stand in this case. See Dunham v. Dunham, supra.

The court also found the failure of the plaintiff to apply for United States citizenship on behalf of her adopted daughter a contemptuous act. The plaintiff does not on appeal, nor did she at any time in the trial court since the entry of the order by Judge Gill, claim that the order was beyond the power of the trial court to issue. There are many reasons why such an order may be beyond the power of a court. Even if it were ultimately determined that the order requiring the plaintiff to file an application for citizenship was void, however, the plaintiff would still be obligated to obey the order until it was reversed. Department of Health Services v. Commission on Human Rights & Opportunities, 198 Conn. 479, 486 n.7, 503 A.2d 1151 (1986); Cologne v. Westfarms Associates, 197 Conn. 141, 147, 496 A.2d 476 (1985). A contempt proceeding does not allow reconsideration of the legal and factual bases of the order alleged to have been disobeyed, which would amount to a retrying of the original controversy. Cologne v. Westfarms Associates, supra, 148. The standard of review of contempt proceedings “precludes a collateral attack on the validity of the underlying order, including an attack on its constitutionality.” Hartford Federal Savings & Loan Assn. v. Tucker, 192 Conn. 1, 8, 469 A.2d 778 (1984).

Here, the only reasons the plaintiff offers for noncompliance with the order to file the application for citizenship are her alleged difficulty with the English language and her unilateral determination that the conditions requiring the order had lapsed. The plaintiffs opinion about the necessity for this order does not excuse her disobedience in the absence of court review. Cologne v. Westfarms Associates, supra. In addition, considering the plaintiffs employment history, which was in evidence, the length of time she has resided in this country, and the fact that she was represented by an attorney when this order was entered, the court could have reasonably concluded that the plaintiff had the ability to comply with the order to file an application for citizenship, and that her failure to do so was simple disobedience. We find, therefore, that the judgment of contempt for failure to apply for citizenship was properly rendered.

The plaintiff also claims that the trial court denied her a fair hearing because of the court’s bias. The plaintiff, however, made no motion for recusal until after the judgments of contempt had been rendered. On appeal, this court generally will not consider the issue of judicial bias where the party failed to make the proper motion for disqualification at trial. See Practice Book § 4185; Barca v. Barca, 15 Conn. App. 604, 607, 546 A.2d 887, cert. denied, 209 Conn. 824, 552 A.2d 430 (1988). “A litigant must raise the question of disqualification in a timely and appropriate manner; Pavel v. Pavel, 4 Conn. App. 575, 576 n.2, 495 A.2d 1113 (1985); Jazlowiecki v. Cyr, 4 Conn. App. 76, 78, 492 A.2d 516 (1985); Szypula v. Szypula, 2 Conn. App. 650, 654, 482 A.2d 85 (1984); or the claim will be deemed to have been waived. Verissimo v. Verissimo, 3 Conn. App. 222, 224, 486 A.2d 85 (1985).” Logical Communications, Inc. v. Morgan Management Corporation, 4 Conn. App. 669, 670, 496 A.2d 239 (1985).

One exception to this general rule exists where the claim of bias is that the trial court’s comments strike at the core of judicial integrity and undermine public confidence in the judiciary. Cameron v. Cameron, 187 Conn. 163, 168, 444 A.2d 915 (1982). The plaintiff’s claims of judicial bias here allow us to review them under the doctrine of plain error. Id. We conclude that the court’s comments did not deprive the defendant of a fair hearing, and that, unlike the remarks of the court in Cameron, they did not constitute a departure from impartiality that would shake the public’s trust in the judiciary.

The plaintiff’s last claim is that the court incorrectly ordered her to pay the defendant’s counsel’s fees for prosecuting various motions for contempt. Her assertion is based on her bald statement that such an award is premature.

General Statutes § 46b-87 clearly contemplates an award of attorney’s fees upon a finding of contempt. Furthermore, the award of attorney’s fees in contempt proceedings is within the discretion of the trial court. Friedlander v. Friedlander, 191 Conn. 81, 86-87, 463 A.2d 587 (1988). In this case, as in Friedlander, the defendant was forced to go to court many times to assert his rights. We conclude that the trial court did not abuse its discretion in awarding attorney’s fees to the defendant.

The judgment granting the defendant’s motion to hold the plaintiff in contempt for failing to bring the child before the court is set aside and the case is remanded with direction to deny that motion, and the judgments holding the plaintiff in contempt for failure to file an application for citizenship and awarding attorney’s fees to the defendant are affirmed.

In this opinion the other judges concurred.

       The plaintiff was also found in contempt for violating the court’s orders regarding visitation of the child by the defendant father and for failing to place the marital residence on the market pursuant to the judgment of dissolution of the parties’ marriage. No appeal has been taken from these judgments.

       General Statutes § 46b-87 provides: “When any person is found in contempt of an order of the superior court entered under section 46b-60 to 46b-62, inclusive, 46b-81 to 46b-83, inclusive, or 46b-86, the court may award to the petitioner a reasonable attorney’s fee and the fees of the officer serving the contempt citation, such sums to be paid by the person found in contempt, provided if any such person is found not to be in contempt of such order, the court may award a reasonable attorney’s fee to such person. The costs of commitment of any person imprisoned for contempt of court by reason of failure to comply with such an order shall be paid by the state as in criminal cases.”

       The defendant filed his motion for visitation on December 5,1988. He also filed three more motions for contempt all dated December 21, 1988.

       The defendant had in May, 1987, moved to modify custody, claiming that the plaintiff had mentally and physically abused the child. This motion was one of the motions calendared for January 9, 1989.

       The plaintiff, who was incarcerated, did not attend this hearing.

       On March 14, 1990, the plaintiff filed an application for a stay of civil contempt pending appeal. The plaintiff’s appeal to this court was filed on March 15, 1990. On March 23,1990, the trial court, finding that the plaintiff had not complied with its orders, denied the application for a stay. The plaintiff filed another application for a stay pending a decision by this court on her motion to review the trial court’s denial of her first application for a stay. This court granted the plaintiff’s motion for review and ordered her release pending the outcome of this appeal.

       An order to apply for citizenship directs a change in status, not just a change in behavior. Changes of status, such as marriage, divorce, adoption, citizenship, or religious affiliation usually implicate fundamental personal rights that cannot be the subject of a court order. See Zablocki v. Redhail, 434 U.S. 374, 98 S. Ct. 673, 54 L. Ed. 2d 618 (1978).
      Furthermore, naturalization by coercion does not necessarily terminate a child’s citizenship. See Zaubi v. Hoejme, 530 F. Sup. 831, 834 (W.D. Pa. 1980).

       The plaintiffs motion for disqualification of the trial judge was filed on May 1,1990, almost two months after the judgments of contempt were rendered. The motion was never acted on. The motion will continue to lie dormant because, by this decision, we have set aside the plaintiffs judgment of contempt for failing to return the child to Connecticut. We need not review any sanctions imposed against the plaintiff for failing to file the application for citizenship because there were none. Thus, no further proceedings in the Superior Court are necessary.