text:
    Karen Cugini v. Mark R. Cugini
    (4825)
    (4891)
    (5231)
    Borden, O’Connell and Stoughton, Js.
    Submitted on briefs January 6 —
    decision released February 22, 1988

      Mark R. Cugini, pro se, the appellant (defendant), filed a brief.
   Stoughton, J.

This is an appeal by the defendant from the judgment of the trial court dissolving the marriage between the parties. The defendant has also appealed from the granting of a motion to continue a restraining order for an indefinite period and from a decision denying his motion for modification and change of a custody order.

The parties were married in Las Vegas, Nevada, on November 7,1982. The plaintiff commenced this action by writ, summons and complaint dated June 21,1985, and made returnable on July 30, 1985. At the time of the commencement of the action, the defendant was confined at the Adult Correctional Institution in Cranston, Rhode Island, and notice was given by service upon the defendant by registered mail. The defendant filed a pro se appearance and a series of motions, pleadings and counterclaims.

On February 13, 1986, the court held a hearing at which it found (1) that the marriage of the parties has “irretrievably broken down,” and (2) that Mark R. Cugini “is found to have no rights to or of the children of a previous marriage.” The court also restored the plaintiffs previous married name. On February 28, 1986, the defendant filed a notice of appeal. He also filed a number of motions, including a motion for clarification of the judgment, motions for permission to proceed in forma pauperis, motions for appointment of counsel, motions for transcript, and a motion to enlarge the time for filing an appeal. The motions for permission to appeal in forma pauperis were granted and an appeal was filed on May 27, 1986.

The defendant has taken this appeal pro se. He is still incarcerated in Rhode Island and did not appear for oral argument. The plaintiff also filed a pro se appearance in this court but did not file a brief. We decide this appeal upon the appellate record which the defendant has caused to be presented, the transcripts he has filed, and upon his brief. Although we will not entirely disregard our rules of procedure, we do give great latitude to pro se litigants in order that justice may both be done and be seen to be done. Cersosimo v. Cersosimo, 188 Conn. 385, 393, 449 A.2d 1026 (1982); LaBow v. LaBow, 13 Conn. App. 330, 336, 537 A.2d 157 (1988). We have thoroughly and carefully reviewed the entire record and the defendant’s brief with this end in view.

The defendant has included no statement of issues in his brief, but he did present a “preliminary filing” which states the issues he wishes to raise.

I

Judgment of Dissolution

(5231)

In this appeal, the defendant argues (1) that the trial court lacked subject matter jurisdiction in the dissolution action, (2) that the trial court abused its discretion in dissolving the parties’ marriage while a paternity claim was pending in Probate Court and in permitting an amendment to the dissolution complaint to allege his conviction of an infamous crime as an additional ground, and (3) that the defendant was deprived of his property without due process of law.

The defendant’s essential claim in his attack upon the judgment is that the plaintiff had not resided in Connecticut for one year next before the commencement of the action, that her allegation that she had done so was false and a fraud upon the court, and that the trial court thus lacked subject matter jurisdiction. He has included in the record a number of copies of documents such as a Rhode Island motor vehicle registration issued to the plaintiff in March, 1985, showing a Rhode Island address, Massachusetts school records for one of the plaintiffs children for a period prior to April of 1985, and Western Union money orders dated in May, 1984, payable to the plaintiff in California, and two dated in June, 1984, one of which was payable in Massachusetts and the other in New Hampshire.

A complaint for dissolution of a marriage may be filed at any time after either party has established residence in this state, and a decree may be entered if one of the parties to the marriage has been a resident of this state for at least the twelve months next preceding the date of the filing of the complaint or next preceding the date of the decree. General Statutes § 46b-44. Jurisdiction to grant a dissolution is founded upon domicil; Taylor v. Taylor, 168 Conn. 619, 621, 362 A.2d 795 (1975); and the statute requires domicil plus substantially continuous physical residence. LaBow v. LaBow, 171 Conn. 433, 437, 370 A.2d 990 (1976). A person may have simultaneously two or more residence addresses, but only one domicil at any one time. Taylor v. Taylor, supra, 621. The burden of proving an allegation of lack of jurisdiction under these circumstances falls upon the party making the claim; Id., 620-21; and the trial court was not compelled to conclude that the plaintiff had not met the jurisdictional requirement. See Smith v. Smith, 174 Conn. 434, 440, 389 A.2d 756 (1978).

The plaintiff alleged that one of the parties would have been a resident of this state for at least twelve months next preceding the date of the decree to be entered. The trial court was aware of the claims made by the defendant, as evidenced by the transcript showing its questioning of the plaintiff on this subject. The plaintiff testified that she had lived in this state for more than a year before the date of the complaint, which was June 21, 1985, that she came to Connecticut more than a year before that with her three children, and that she was fleeing from the defendant. The trial court believed this testimony, as it was free to do, and we may not disturb its finding of fact. Credibility of witnesses is for the trier of fact. The documents presented by the defendant, even if assumed to be valid, do not establish that the defendant did not reside in Connecticut. One may have more than one residence, and it is the fact of residence coupled with the intent to remain in Connecticut which is the foundation for jurisdiction.

The defendant next claims an abuse of discretion by the trial court in dissolving the marriage while a paternity claim was pending in the Probate Court. This involved one of the plaintiffs children concerning whom the defendant filed an acknowledgment of paternity. This child was born during the previous marriage of the plaintiff, and the trial court found that the defend- ' ant had no rights in this child or any child born of the plaintiffs previous marriage. Moreover, the defendant has furnished this court with a copy of a motion to dismiss his paternity claim dated March 21, 1986, citing “biological evidence” that the plaintiffs previous husband was the father of the child.

The defendant also claims an abuse of discretion by the trial court in permitting an amendment to the complaint to allege as an additional ground for dissolution that he had been convicted of an infamous crime. This is one of the grounds upon which dissolution may be sought; General Statutes § 46b-40 (c) (9); and, in any event, it was not the ground upon which dissolution was granted in this case.

The defendant claims, in addition, that he was deprived of his property without due process of law because the trial court was without jurisdiction to issue a writ of habeas corpus to bring him to Connecticut from the institution in Rhode Island for the trial and refused to appoint counsel to represent his interests. The defendant had filed a counterclaim seeking parental rights, visitation rights, attorneys fees, support, an order for the return of personal items, and payment of a loan made by his parents. He also sought the return of personal items by way of a motion. A motion to proceed by depositions was denied, and no depositions were submitted. The court made no financial orders whatsoever, so that the defendant remains free to pursue his claims for personal property. It was clearly within the court’s discretion to refuse to make any financial orders. We find no due process violations. We are also unpersuaded by the claim that the trial judge evidenced prejudice against the defendant.

II

Continuance of Ex Parte Restraining Order

(4825)

The defendant has also appealed from the granting by the trial court of the plaintiff’s motion for a continuance of a restraining order which she had obtained ex parte. The order and the continuance were prejudgment orders and have merged in the judgment and therefore have become moot. Furthermore, the only claim respecting this issue in the defendant’s brief is that the plaintiff continued to visit him after the order had been issued and thus herself violated its terms. Claims of error not briefed are considered abandoned. Czarnecki v. Plastics Liquidating Co., 179 Conn. 261, 262 n.l, 425 A.2d 1289 (1979).

III

Denial of Motion for Modification and Change in Custody Order

(4891)

Finally, the defendant has appealed from the denial of his motion for modification and change in the custody order respecting the plaintiff’s children. The plaintiff had been granted custody of the three children bom of her marriage to her previous husband when that marriage was dissolved in 1982. The defendant, obviously not a party to that action, sought to have the court modify that order. The trial court properly found that the defendant had no standing. This issue has not been briefed and is deemed abandoned. Czarnecki v. Plastics Liquidating Co., supra.

There is no error.

In this opinion the other judges concurred.


source: Caselaw Access Project

author: Norcott, J.

license: Public Domain

text:
    State of Connecticut v. Val Roman
    (6098)
    Spallone, O’Connell and Norcott, Js.
    Argued February 3 —
    decision released March 15, 1988

      M. Daniel Friedland, for the appellant (defendant).

      Timothy J. Sugrue, deputy assistant state’s attorney, with whom, on the brief, were James G. Clark and Rosita Creamer, assistant state’s attorneys, for the appellee (state).
   Norcott, J.

The defendant appeals from the judgment of the trial court revoking his probation. We find no error.

The defendant was originally charged with evading responsibility in violation of General Statutes § 14-224. This charge stemmed from an automobile accident with one Pamela Anderson. As a result of a plea bargain, however, the defendant pleaded guilty to the crime of failure to appear in the second degree in violation of General Statutes § 53a-173. The defendant received a sentence of three months, execution suspended, and was placed on probation for one year with the special condition that he make restitution of $750 to Anderson “per small claims court.” The defendant never paid any of the restitution despite the efforts of his probation officer and the victim. Ultimately, the defendant was arrested for being in violation of probation in violation of General Statutes § 53a-32.

On May 8, 1987, a hearing was held to determine whether the defendant’s probation should be revoked. At the conclusion of the probation revocation hearing, the trial court found that the defendant had violated the special condition of his probation and sentenced him to serve thirty days of his three month suspended sentence. The defendant then filed a motion for rehearing. At oral argument on the defendant’s motion for rehearing, the defendant claimed for the first time that he was unable to pay the entire amount of restitution at once. The trial court, however, found that the defendant was not indigent and had willfully violated the terms of his probation. The court denied the motion.

“ ‘The standard of appellate review in a probation revocation hearing distills to a review of the reasonableness of two findings.’ State v. Cooley, 3 Conn. App. 410, 413, 488 A.2d 1283, cert. denied, 196 Conn. 805, 492 A.2d 1240 (1985). Those findings are whether the defendant violated the conditions of probation, and whether the defendant should be incarcerated because the rehabilitative purpose of probation cannot continue to be served. Gagnon v. Scarpelli, 411 U.S. 778, 784, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973).” State v. Navikaukas, 12 Conn. App. 679, 682, 533 A.2d 1214 (1987). In this case, there is no question that the defendant violated the conditions of his probation. The only question is whether the defendant should be incarcerated because the rehabilitative purpose of probation cannot continue to be served.

In Bearden v. Georgia, 461 U.S. 660, 672, 103 S. Ct. 2064, 76 L. Ed. 2d 221 (1983), the United States Supreme Court held that when attempting to determine whether the rehabilitative purpose of probation can continue to be served, the sentencing court must inquire into the reasons for the failure to pay restitution. “If the probationer willfully refused to pay or failed to make sufficient bona fide efforts legally to acquire the resources to pay, the court may revoke probation and sentence the defendant to imprisonment within the authorized range of its sentencing authority. If the probationer could not pay despite sufficient bona fide efforts to acquire the resources to do so, the court must consider alternative measures of punishment other than imprisonment.” Id.; State v. Martinik, 1 Conn. App. 70, 71-72, 467 A.2d 1247 (1983).

In this case, the court concluded that the defendant’s failure to pay was willful and that the rehabilitative purpose of probation could no longer be served. Such a conclusion is adequately supported by the record. We will not substitute our judgment for that of the trial court. State v. Navikaukas, supra, 683.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 53a-32 provides in pertinent part: “violation of PROBATION OR CONDITIONAL DISCHARGE: ARREST; PROCEDURE, (a) At any time during the period of probation . . . the court or any judge thereof may issue a warrant for the arrest of a defendant for violation of any of the conditions of probation .... Any probation officer may arrest any defendant on probation without a warrant or may deputize any other officer with power to arrest to do so by giving him a written statement setting forth that the defendant has, in the judgment of the probation officer, violated the conditions of his probation. . . . (b) If such violation is established, the court may . . . revoke the sentence of probation . . . and, if such sentence is revoked, require the defendant to serve the sentence imposed or impose any lesser sentence.”


text:
    Douglas S. Lloyd, Commissioner of Health Services v. Rosa Gerl
    (5378)
    Spallone, Daly and Norcott, Js.

      Argued January 20 —
    decision released March 15, 1988

      Richard Altschuler, with whom, on the brief, was Donald Altschuler, for the appellant (defendant).

      Paul J. Lahey, assistant attorney general, with whom were Richard J. Lynch, assistant attorney general, and, on the brief, Joseph I. Lieberman, attorney general, for the appellee (plaintiff).
   Norcott, J.

The defendant, a licensee of a home for the elderly, appeals from the trial court’s assessment of a $9000 civil penalty imposed pursuant to General Statutes § 19a-526 for the failure to manage the patients’ personal funds properly.

The facts underlying this case are not in dispute. On September 19, 1984, the plaintiff issued a citation to the defendant pursuant to General Statutes § 19a-524 alleging violations of General Statutes § 19a-551 regarding record keeping of the patients’ personal funds. In accordance with General Statutes § 19a-525 (b), the defendant was given an opportunity to respond to the citation at an informal conference on September 26, 1984. The defendant did not appear.

On October 3, 1984, a formal contested hearing was held at the department of health services. No one appeared on behalf of the defendant at the hearing. On December 27, 1984, the plaintiff issued a decision in which he found that the defendant had committed the violations alleged in the citation. Pursuant to General Statutes § 19a-528, the plaintiff ordered a civil penalty of $1000 per diem to be assessed against the defendant. The order for the penalty was to commence thirty days from the date of the decision.

Thereafter, on August 28, 1985, the plaintiff filed an application in the trial court seeking an order enforcing the civil penalty. Shortly thereafter, the defendant notified the plaintiff that she had corrected the violations. In October, 1985, the defendant unsuccessfully attempted to file an appeal to the Superior Court from the plaintiffs December 27, 1984 ruling. The appeal was dismissed as being untimely filed. No further appeal was taken on this action.

On May 15, 1986, the plaintiff filed a motion in the Superior Court pursuant to General Statutes § 19a-526 (a) for determination of the number of days the civil penalty should be enforced. On July 14,1986, the trial court found that the violation had continued for nine days and ordered that a civil penalty of $9000 be assessed against the defendant. On August 8,1986, the defendant filed the present appeal from the assessment of the civil penalty.

In this appeal, the defendant claims that the statutes she was found to have violated are unconstitutional on their face for several reasons and that they were improperly applied to her in this case. She also claims that the trial court erred in not allowing her to assert these claims at the hearing at which the penalty was imposed. We find that the trial court properly refused to consider these claims at the hearing at which the penalty was imposed, and, accordingly, we refuse to consider them on appeal.

Under General Statutes § 19a-526 (a), after the plaintiff filed its finding that the defendant had failed to correct the violations of General Statutes § 19a-527 (c), the trial court was limited to making a simple mathematical determination of the number of days for which the civil penalty should be enforced, said violation already having been established by the administrative agency. The court was not authorized to hear, at that time, challenges to the constitutionality of the statutes or the application of those statutes to this case. Had the defendant desired to raise these claims, she should have done so at the administrative hearing or upon direct appeal from that hearing as is provided for by General Statutes § 19a-529.

“ ‘[Our Supreme Court] . . . has repeatedly affirmed the principle that when an adequate administrative remedy is provided by law, it should be exhausted.’ Connecticut Life & Health Ins. Guaranty Assn. v. Jackson, 173 Conn. 352, 357, 377 A.2d 1099 (1977).” Laurel Park, Inc. v. Pac, 194 Conn. 677, 689, 485 A.2d 1272 (1984). An exception to that doctrine has been created allowing a party to raise issues concerning the constitutional propriety of an administrative ruling, but only when the party can show (1) that he or she did not deliberately bypass the administrative process, and (2) that his or her opponent did not argue the foreclosing effect of the failure to follow the administrative process. Connecticut Light & Power Co. v. Norwalk, 179 Conn. 111, 117, 425 A.2d 576 (1979). In this case, the defendant fails both tests. Her unexcused failure to appear before the administrative agency and her subsequent failure to appeal from the original administrative determination shows a complete disregard for the administrative process. Further, the plaintiff argued in the trial court the foreclosing effect of the defendant’s failure to exhaust her administrative remedy. Accordingly, we will not review the defendant’s claims.

There is no error.

In this opinion the other judges concurred.

       The citation alleged that the defendant failed to provide documentation (1) that each patient was provided with a written statement explaining his rights regarding his personal funds and listing the charges which may be deducted, (2) that written consent had been obtained to manage the patients’ personal funds, (3) that signed receipts for each expenditure had been obtained, and (4) that an individual itemized record of income and expenditures was provided to patients.

       The penalty was imposed pursuant to General Statutes § 19a-528. The citation issued to the defendant classified the violation as a Class C violation. General Statutes § 19a-527 (c) provides that Class C violations shall have a civil penalty imposed of not less than $500 nor more than $1000 dollars per diem.

       Additionally, the defendant raises a claim of judicial bias. The defendant did not raise this claim below and hence, we refuse to consider it on appeal. Pagni v. Corneal, 13 Conn. App. 468, 472-73, 537 A.2d 520 (1988).


author: Dupont, C. J.

text:
    Norman Dorsen et al. v. Stuart Andrew Kay
    (5601)
    Dupont, C. J., Borden and O’Connell, Js.
    Argued December 4, 1987 —
    decision released March 15, 1988

      Stephen A. Wise, for the appellant (defendant).

      Catherine G. Roraback, for the appellees (plaintiffs).
   Dupont, C. J.

The defendant appeals from the judgment rendered by the trial court in favor of the plaintiffs, upon the findings of an attorney trial referee. The referee found that the defendant was individually liable under an enforceable purchase and sale agreement, in the amount of $23,800 plus costs, for the defendant’s refusal to purchase the plaintiffs’ real estate. The defendant raises six claims of error on appeal. Five of the claims of error challenge the factual findings and conclusions of the referee. We are unable to reach the merits of these claims because none of the five claims of error was properly preserved at trial by the defendant for appellate review. The remaining claim of error challenges the enforcement of the contract of sale as against public policy. We find no error.

I

We first discuss the defendant’s claims challenging the factual findings and legal conclusions of the attorney trial referee. It is axiomatic that in order for a party to receive appellate review of an attorney trial referee’s findings, that party ordinarily must file with the court either a motion to correct the referee’s report, pursuant to Practice Book § 438, or an objection to the acceptance of the referee’s report, pursuant to Practice Book § 440. Seal Audio, Inc. v. Bozak, Inc., 199 Conn. 496, 518, 508 A.2d 415 (1986); LiVolsi v. Pylypchuk, 12 Conn. App. 527, 528, 532 A.2d 593 (1987).

On March 19, 1985, the attorney trial referee rendered his finding of facts and memorandum of law. The plaintiffs filed a timely motion to correct. On April 9, 1985, the defendant filed with the court an objection to the plaintiffs’ motion to correct and a cross motion to correct. On March 10,1986, the defendant filed an objection to the plaintiffs’ motion for judgment.

Although the defendant filed a cross motion to correct, that motion cannot support the factual claims of error now raised on appeal because it did not address any of the factual findings challenged on appeal. Furthermore, the substance of the defendant’s statement in objection to the plaintiffs’ motion to correct does not support his factual claims of error which he now raises on appeal. In his objection, the defendant states that “the status of [the defendant] as individual or trustee is totally irrelevant.” On appeal, the defendant argues that the finding of individual liability is erroneous. We note that this claim of error, if successful on appeal, would be dispositive of all of the other issues on appeal. If this court were to conclude that the finding of individual liability was clearly erroneous, judgment would have to be rendered in favor of the defendant on the plaintiffs’ complaint, and there would be no need to address the remaining claims of error. The claim, however, that the status as individual or trustee is irrelevant is not sufficient under Practice Book § 438 to constitute a request to correct a finding. Pursuant to § 438, a movant must clearly set forth the correction desired, and make a statement of the grounds of the correction requested together with suitable references to the testimony. The defendant has done none of these with respect to the issue of individual liability. The claim that a particular factual finding is irrelevant is not synonymous with the claim that a particular factual finding is erroneous and therefore needs correction.

The defendant did file with the trial court an objection to the plaintiffs’ motion for judgment. This motion, however, cannot in substance be treated as an objection to the acceptance of the report of the referee. First, the objection to the motion for judgment addresses only one of the claims of error raised by the defendant on appeal. Second, there are substantial differences between an objection to a motion for judgment pursuant to Practice Book § 442 and an objection to acceptance of the referee’s report pursuant to Practice Book § 440. Although our rules of practice do not specifically provide that a party may file an objection to an opponent’s motion for judgment; Practice Book § 442; it seems that such an objection is proper where exceptions or objections to the report have been seasonably filed, yet not disposed of by the court. In such a case, the court may hold a hearing on the exceptions or objections and, “upon its decision as to them, forthwith direct judgment to be rendered.” Practice Book § 442. On the other hand, the purpose of the exceptions or objections, themselves, is to demonstrate that the conclusions on ultimate facts are not supported by the subordinate facts. Practice Book § 440. It is apparent, then, that an objection to a motion for judgment and an objection to acceptance of a referee’s report serve two entirely different purposes.

Furthermore, the objection to the motion for judgment could not procedurally be characterized as an objection to acceptance of the referee’s report because of its failure to comply with the time provisions set forth in Practice Book § 441. Section 441 provides: “Objections to the acceptance of a report shall be filed within two weeks after the filing of the report or finding, or if a motion to correct the report or finding has been made, within two weeks from the filing of the decision on the motion.” The attorney trial referee rendered his findings of facts, conclusions of law and memorandum of law on March 19, 1985. The defendant’s objection to the plaintiffs’ motion for judgment was filed on March 10,1986, almost twelve months after the filing of the referee’s report. Accordingly, the defendant’s motion for judgment cannot be characterized, substantively or procedurally, as a § 440 motion.

“With respect to the various claims of error relating to the merits of the factual findings made by the attorney referee, as well as the judgment rendered by the trial court based thereon, the defendant is precluded from effective appellate review by its failure to file a motion to correct the report of the referee pursuant to Practice Book § 438 or an objection to the acceptance thereof pursuant to Practice Book § 440. . . . A litigant cannot wholly ignore established procedures for the protection of [his] rights, as this defendant has done, and hope to receive on appeal the same treatment accorded to those who follow the rules of practice. We therefore decline to review further the judgment of the trial court.” Seal Audio, Inc. v. Bozak, Inc., supra, 518.

II

The defendant’s claim that this court should refuse to enforce any purchase and sale agreement drafted by a real estate broker as against public policy is without merit. The circumstances here do not present a case of overreaching by a more sophisticated party, requiring the conclusion that the element of bargaining was absent.

There is no error.

In this opinion the other judges concurred.

       Four of the claims challenge the following factual findings of the referee: (1) the finding that the parties entered into a contract when they signed the “Offer to Purchase and Acceptance”; (2) the finding that the claimed omissions of the plaintiffs were not such as to defeat their right to enforce the contract; (3) the finding that the defendant was individually liable on the contract; and (4) the finding as to the plaintiffs’ damages. The claim of error challenging a legal conclusion of the referee provides that because the referee found that the plaintiffs had not sufficiently proved monetary damages, he erred in his conclusion that “[i]f the decision is to award monetary damages, it is recommended that . . . the matter be referred back for a hearing in specific damages.”

       Practice Book § 438, entitled “Motion to Correct,” provides: “If either party desires to have the report or the finding corrected by striking out any of the facts found, or by adding further facts, or by stating the claims of the parties made before the committee, or by setting forth rulings upon evidence or other rulings of the committee, he shall within two weeks after the filing of the report or finding file with the court a motion to correct setting forth the changes and additions desired by him. He shall accompany the motion with a brief statement of the grounds of each correction asked, with suitable references to the testimony. The file shall then be returned to the committee for consideration of the motion to correct. As soon as practicable the committee shall file with the court the motion to correct, together with his decision thereon.”

       Practice Book § 440, entitled “Objections to Acceptance of Report,” provides: “A party may file objections to the acceptance of a report on the ground that conclusions of facts stated in it were not properly reached on the basis of the subordinate facts found, or that the committee erred in rulings on evidence or other rulings or that there are other reasons why the report should not be accepted.
      “If an objection raises an issue of fact the determination of which may require the consideration of matters not appearing in the report or stenographic notes of proceedings before the committee, the adverse party shall, within two weeks after the filing of the objection, plead to it by a motion to strike, answer or other proper pleading.”


text:
    Carol A. Sunbury v. Donald C. Sunbury
    (4914)
    Dupont, C. J., Bieluch and Norcott, Js.
    Argued October 7, 1987 —
    decision released March 15, 1988

      Zbigniew S. Rozbicki, for the appellant (plaintiff).

      Sherman M. Tonkonow, for the appellee (defendant).
   Norcott, J.

The plaintiff wife appeals challenging

the financial orders rendered by the trial court incident to the judgment dissolving the marriage between the parties. The plaintiff claims that the trial court erred (1) in denying her motion for arrest of judgment and a new trial, (2) in finding that the plaintiff bore a greater percentage of fault for the breakdown of the marriage than did the defendant and in dividing the marital assets in accordance with that finding, (3) in ordering her to transfer to the deféndant her interest in the marital residence, and (4) in finding that the proceeds of a particular annuity fund were not a joint asset of the marriage. We find error in part.

The plaintiff and the defendant were married on November 8,1958. There were three children born of the marriage, the youngest of whom was eighteen years of age at the time judgment was rendered dissolving the marriage between the parties. The record reveals that the plaintiff was forty-eight years old and was in reasonably good health at the time of judgment. She is a registered nurse and has received advanced training in the field of oncology. Although she has been employed as a nurse for much of her adult life, she has no retirement benefits, pension plans, health insurance, or other associated benefits. At the time of trial, she was working at a convalescent home earning a gross of approximately $339 per week and a net of $274 per week. The only personal assets the plaintiff possessed were two cars that were registered in her name and $400 on deposit in a joint savings account with the defendant.

The defendant was forty-nine years old and had a high school education. For the previous seventeen years he had worked at Sears, Roebuck and Company. The defendant reported in his financial affidavit that he earned a gross of $718 per week but that after taxes, insurance, and contributions to an IRA account and a profit sharing plan he netted $342 per week. He had a profit sharing plan with Sears, Roebuck and Company in which he had invested $18,776. He also had a retirement plan with the company to which he had three years of service credited. The defendant owned one car and had a savings account that contained $30,000, money that had recently been transferred to that account from an annuity held in the defendant’s name. Before the money had been withdrawn, the annuity was valued at over $39,000. The plaintiff testified that the money in the annuity consisted of $20,000 that had come from the sale of property owned by the parties plus the interest that had accrued on that amount.

The principal asset of this marriage was the jointly held land and residence, a five room single family dwelling. In a financial affidavit given in May of 1985, the plaintiff indicated that the property was worth $75,000. Later, in a sworn financial affidavit dated November 22, 1985, the plaintiff indicated that the property was worth $89,500. At trial, an expert for the plaintiff testified that the property was worth from $89,000 to $90,000. The defendant testified that the property was worth $75,000. Both parties acknowledged that the property was encumbered by a mortgage of approximately $4400 at the time of trial.

The marriage between the parties was relatively stable until the death of the parties’ oldest child in 1979. The record indicates that both parties suffered from emotional trauma as a result of their child’s death. The trial court found that after the death of their child the plaintiff became increasingly hostile, especially with respect to the parties’ second child. The plaintiff began to frequent drinking establishments, staying out until 1 a.m. She also developed a relationship with another man. The plaintiff claimed that the defendant often engaged in drunken behavior, had many illicit affairs with women, and physically abused her.

During the trial to the court on this matter, the judge called the parties into his chambers. There is no record of what was said in chambers. When the parties returned to the courtroom, no mention was made of what occurred in chambers.

After the close of the trial, the court rendered judgment, finding that the marriage had broken down irretrievably and that the plaintiff bore a greater percentage of fault for the breakdown than did the defendant. Pursuant to this finding, the court ordered the defendant to pay the plaintiff periodic alimony in the amount of $75 per week for a period of two years. The court also ordered the defendant to make a lump sum alimony payment of $35,000 to the plaintiff; such payment was due and payable two years from the date of the issuance of the order or upon the sale of the marital residence, whichever came first. The plaintiff was required to transfer her interest in the marital residence to the defendant. As an additional term, the court ordered the defendant to pay the plaintiff $1000 as an allowance for counsel fees.

Following the imposition of judgment, the plaintiff filed a motion for arrest of judgment and new trial alleging that the trial court had been prejudiced by information it received during the in-chambers conference held during trial. This motion was denied by the court.

I

The plaintiff’s first claim is that the trial court erred in denying her motion for arrest of judgment and new trial. She argues that during the in-chambers conference a discussion was had concerning the merits of the underlying action as well as the settlement offers proposed by the parties. She argues that the trial judge, being privy to these matters, was unduly prejudiced and should have disqualified himself.

As our Supreme Court noted in Krattenstein v. G. Fox & Co., 155 Conn. 609, 614, 236 A.2d 466 (1967), a judge should not become involved “in a chambers conference looking to the settlement of a case which he is about to try as a court and in which he will be called upon to decide the issues of liability and damages . . . .” If a judge does sit or continues to sit on a case after becoming involved in a settlement discussion “[i]t is then impossible to avoid questions as to whether the judge can disregard, on the trial, matters disclosed in conference but unmentioned during the trial and whether a preliminary judgment, formed at the conference and predicated on unsubstantiated claims of proof, may have some subtle influence on a final judgment after a full hearing. It is inevitable that the basis is laid for suspicion, no matter how unfounded or unjustified it may be, and that failure to concur in what the judge may consider an adequate settlement may result in the imposition, upon a litigant or his counsel, of some retributive sanction or the incurrence of judicial displeasure.” Id., 614-15.

Once a judge has become involved in settlement discussions, the proper procedure is for the judge to disqualify himself from the remainder of the case. Id., 615. General Statutes § 51-39 (c), however, provides that “[w]hen any judge is disqualified to act in any proceeding before him, he may act if the parties thereto consent in open court.” Therefore, as a general rule, our courts will not review a claim of judicial bias on appeal unless that claim was properly presented to the trial court by means of a motion for disqualification or a motion for mistrial. Krattenstein v. G. Fox & Co., supra, 616; Cameron v. Cameron, 187 Conn. 163, 168, 444 A.2d 915 (1982). In this case, however, we find it necessary to review the plaintiffs claim of judicial bias despite the fact that no motion was made during trial.

We review the claim of bias in this case because it is the plaintiffs contention that the court manifested its bias not only in its judgment, but also in the very words it used in its memorandum of decision. This claim was properly presented to the trial court in the plaintiffs motion for new trial.

In its memorandum of decision, the court noted: “The court is cognizant of the parties’ negotiations to achieve an equitable division of the assets, thereby to avoid what may be described in retrospect as a bitterly contested dissolution hearing. During his testimony, the defendant repeated his willingness to abide by his earlier settlement proposal. Whatever her reason, the plaintiff, perhaps unwisely, chose not to accept the offer of compromise.” The plaintiff contends that this language clearly demonstrated the court’s bias.

With regard to the in-chambers conference, we have no way of knowing exactly what was discussed. The plaintiff asserts that during the conference the court exhibited hostility towards the plaintiff. The court, however, denies that such hostility existed. The plaintiff has not met her burden of establishing a record about whether there has been any impropriety. State v. Fullwood, 194 Conn. 573, 581, 484 A.2d 435 (1984).

We find, further, that the plaintiff’s claim of judicial bias is not supported by the words used in the memorandum of decision. The words used indicate that the court was aware of negotiations to settle the case, and that the defendant was willing to abide by them. They do not indicate that the court knew of the content of the negotiations or that, if it did, that awareness was a factor in its determination of the case.

II

The second issue raised on appeal is that the trial court erred in finding that the plaintiff bore a greater percentage of fault for the breakdown of the marriage than did the defendant and in dividing the marital assets in accordance with that finding. We find no error.

One of the several factors that must be considered by the court in fixing the financial awards in a dissolution case is the cause of the dissolution. General Statutes §§ 46b-81 (c) and 46b-82. In determining the cause of the breakdown of the marriage, the trial court is given great discretion to weigh and interpret the evidence before it and to pass upon the credibility of witnesses. Figlar v. Figlar, 174 Conn. 151, 153, 384 A.2d 1 (1978). Our review of the trial court’s determination as to the cause of the breakdown of the marriage is limited to questions of whether the court correctly applied the law and could reasonably have concluded as it did. We do not retry the facts. Mailly v. Mailly, 13 Conn. App. 185, 188-89, 535 A.2d 385 (1988); Palazzo v. Palazzo, 9 Conn. App. 486, 488, 519 A.2d 1230 (1987).

In assigning to the plaintiff a greater percentage of fault for the breakdown of the marriage than to the defendant, the trial court was clearly making a finding as to the cause of the breakdown of the marriage. In making that finding, the court clearly gave greater weight to the evidence produced by the defendant than that produced by the plaintiff. The evidence produced by the defendant indicated that since the death of the parties’ child in 1979 the plaintiff had become increasingly hostile to both him and their remaining children. The evidence also indicated that the plaintiff had begun drinking more heavily after the child’s death and had begun frequenting drinking establishments. The defendant testified that the plaintiff had become involved in a relationship with another man and had voluntarily left the parties’ home in January, 1985. Given this evidence, we cannot say that the trial court abused its discretion in finding that the actions of the plaintiff were more responsible for the breakdown of the marriage than the actions of the defendant.

Ill

The plaintiff’s third claim of error is that the trial court erred in ordering her to transfer to the defendant her interest in the marital residence. She claims that the court’s award was an invalid order to provide child support to the parties’ eighteen year old son and not a valid transfer of marital property to the defendant. We disagree.

In ordering the wife to transfer to the defendant her interest in the marital residence, the trial court used the following words: “In order to assure the defendant’s continued residency along with his son and to effectuate an orderly sale of the premises should the defendant so choose, the plaintiff is ordered to transfer to the defendant forthwith her interest in the hereinbefore described real estate and improvements.” We note, however, that the court also ordered the defendant to pay the plaintiff lump sum alimony in the amount of $35,000, such amount to be due and payable two years after the rendition of judgment or upon the sale of the house, whichever came first.

As we have noted before, “[w]e must read the language of a trial court in the context of its entire memorandum of decision, declining to find reversible error solely because of what may be an inappropriate choice of words. Coe-Park Donuts, Inc. v. Robertshaw Controls Co., 1 Conn. App. 84, 87-89, 468 A.2d 292 (1983). We apply this principle to the trial court’s memorandum of decision in this case.” Fisher v. Fisher, 4 Conn. App. 97, 100, 492 A.2d 525 (1985). We conclude that, reading its language fairly and in the context of the entire memorandum of decision, the court did not enter an order to provide child support. The language of the trial court, while not free of ambiguity, is susceptible of a reading that the court intended the transfer of the marital residence to be an award to the defendant. This reading is supported by our reading of the record. Given the facts of this case, the trial court, in exercising its discretion, could reasonably have concluded that such an award was appropriate. Papageorge v. Papageorge, 12 Conn. App. 596, 599-600, 533 A.2d 229 (1987).

IV

The plaintiff finally claims that the trial court erred in finding (1) that the value of the marital residence was only $75,000, (2) that a particular annuity fund was created solely by the defendant’s employment earnings, and (3) that the defendant had a weekly income of only $350.

“ ‘ “The well settled standard of review in domestic relations cases is that this court will not disturb trial court orders unless the trial court has abused its legal discretion or its findings have no reasonable basis in the facts. Gallo v. Gallo, 184 Conn. 36, 50, 440 A.2d 782 (1981).”McGuinness v. McGuinness, 185 Conn. 7, 13, 440 A.2d 804 (1981). “As has often been explained, the foundation for this standard is that the trial court is in a clearly advantageous position to assess the personal factors significant to a domestic relations case, such as demeanor and attitude of the parties at the hearing. . . McPhee v. McPhee, 186 Conn. 167, 177, 440 A.2d 274 (1982).” (Citations omitted.) Ehrenkranz v. Ehrenkranz, 2 Conn. App. 416, 420, 479 A.2d 826 (1984).

With regard to the valuation of the marital residence, we hold that the trial court’s finding was solidly based on the evidence produced at trial. The defendant testified that the fair market value of the home was $75,000. The court was entitled to accept this testimony, especially in light of the fact that the only evidence produced by the plaintiff as to the value of the home was the testimony of an expert who did not know how many rooms the house had. As we have said before, “[djetermination of the value of the properties is a matter properly left up to the trial court. . . . The trier may accept or reject the testimony of an expert, offered by one party or the other, in whole or in part. ... ‘It is the sole province of the trial court to weigh and interpret the evidence before it and to pass upon the credibility of witnesses.’ Smith v. Smith, 185 Conn. 491, 493, 441 A.2d 140 (1981) .... We will not retry the facts.” (Citations omitted.) Ferrucci v. Ferrucci, 11 Conn. App. 369, 373-74, 527 A.2d 1027, cert. denied, 205 Conn. 805, 531 A.2d 935 (1987).

The plaintiff next challenges the trial court’s finding that a particular annuity fund was created solely from the defendant’s employment earnings. She claims that there was no evidence to support the court’s findings. We disagree.

The defendant filed a financial affidavit with the court in which he acknowledged the existence of the asset in dispute. In that affidavit, the defendant indicated that the asset was derived from “proceeds from business.” In addition, the defendant denied at trial the plaintiff’s contention that the annuity was created from the proceeds from the sale of jointly owned property. A judgment rendered will not be reversed unless a conclusion has been reached, or an inference drawn, from a fact, many facts, or the facts found, which affects the judgment rendered in material degree and is legally or logically inconsistent with that or those facts, or is so illogical or unsound, or so violative of the plain rules of reason, as to be unwarranted in law. Edens v. Kole Construction Co., 188 Conn. 489, 497-98, 450 A.2d 1161 (1982); Goold v. Goold, 11 Conn. App. 268, 284, 527 A.2d 696, cert, denied, 204 Conn. 810, 528 A.2d 1156 (1987). On the basis of the record before us, we cannot say that the conclusion reached by the trial court was not reasonable and logical.

The plaintiff’s final claim is that the court erred in finding that the defendant’s net weekly income was $350. In finding the defendant’s net weekly income, the court clearly relied on the defendant’s financial affidavit. In that affidavit, the defendant indicated that his weekly gross income was $718. He claimed deductions for taxes, group life insurance, medical insurance, an IRA account and a profit sharing plan. The plaintiff asserts that the payments to the profit sharing plan and the IRA should not have been excluded from the defendant’s net income. We agree.

General Statutes §§ 46b-81 and 46b-82 require the court to consider, inter alia, the amount and sources of income of the parties when making an award of alimony or a property assignment in a dissolution action. “The available net income, however, rather than gross income is the criterion for the establishment of an appropriate figure for periodic alimony. Collette v. Collette, 177 Conn. 465, 469, 418 A.2d 891 (1979).” Bronson v. Bronson, 1 Conn. App. 337, 340, 471 A.2d 977 (1984). In general accounting practice, net income would ordinarily consist of total income received by a party from all sources, less the legitimate expenses of realizing it. Sturtevant v. Sturtevant, 146 Conn. 644, 648, 153 A.2d 828 (1959). For the purposes of General Statutes §§ 46b-81 and 46b-82, however, we hold that net earned income for a wage earner is the gross amount of salary, wages or commissions, less all deductions by the employer for obligatory statutory or contractual obligations of the employee. Withholding of income taxes, FICA, and wage garnishment are examples of deductions required by law. Union dues, insurance premiums and some deductions for pension plans are examples of deductions authorized by contract. Optional deductions, such as for IRAs, profit sharing plans, stock purchases, and credit union deposits are not proper deductions for a determination of net earned income for alimony or other financial orders. The latter deductions are optional and inure to the benefit of the employee. They are basically within the control of the employee and would allow him to establish the amount of his own net income were he allowed to deduct them from gross income.

In the case under consideration, therefore, the court’s finding that the defendant’s net earnings were approximately $350 per week is in error. To that amount, the court should have added the IRA deduction and the profit sharing deduction, thereby increasing net earnings of the defendant to approximately $500 per week, an increase of approximately 46 percent.

There is error in part, the judgment of the trial court is set aside with respect to its order of periodic alimony only and the case is remanded for further proceedings in accordance with this opinion.

In this opinion the other judges concurred.

       We further note that the plaintiff never sought clarification of the court’s memorandum of decision by means of a motion for articulation. See Practice Book § 4051. Had such a motion been filed, the court could have clarified what the award was intended to be. Absent such a motion, however, we are limited to reviewing the record in an attempt to determine what the court intended.

       The plaintiff also claims that the trial court erred in considering certain debts owed by the defendant to his mother. After affording this claim the appropriate scope of review, we find it to be completely without merit.


author: Foti, J.

text:
    Donna Monachelli v. Mechanics and Farmers Savings Bank
    (5614)
    Dupont, C. J., Bieluch and Foti, Js.

      Argued January 13 —
    decision released March 22, 1988

      Earl I. Williams, with whom, on the brief, was Randy Lynn Cohen, for the appellant (plaintiff).

      Edward J. Holahan, for the appellee (defendant).
   Foti, J.

The plaintiff appeals from the judgment for the defendant rendered by a state trial referee. We find no error.

The plaintiff brought this action in three counts. The first count alleged that the defendant bank violated its agreement with the plaintiff to return to the plaintiff at maturity the sum of $15,000. The second count alleged that the defendant bank negligently permitted the plaintiffs husband to withdraw the proceeds from the account prior to maturity, that it knew or should have known that the joint account was never formally established and that it did not have a signature card with the husband’s name on it. The third count alleged that the defendant negligently and wrongfully approved the early withdrawal of the funds by her husband in violation of the agreement between the plaintiff and the defendant.

The facts relevant to this appeal are not in dispute. On April 21, 1981, the plaintiff deposited with the defendant bank the sum of $15,000 in the form of a six month certificate of deposit payable to the plaintiff or her husband, Robert Monachelli. The funds used to open that account were in the form of a bank check made payable to the order of either Donna or Robert Monachelli. The plaintiff originally received these funds as the beneficiary of her mother’s life insurance policy in 1977.

When opening the account in question, the plaintiff signed a signature card given to her by the bank. She was told to take the card home, have it signed by her husband and to return it. A copy was left with the bank but the signature was illegible. The plaintiff was given a passbook and a copy of the bank’s deposit account rules. She placed the passbook in a drawer and on May 11,1981, her husband presented the passbook to the bank and withdrew all of the funds, accepting the penalty for early withdrawal after signing the withdrawal forms. Robert Monachelli was known to the bank’s manager who confirmed his identity at the time of the withdrawal.

The plaintiff claims the court erred in concluding that the conduct of the bank was insulated from her claim of negligence by General Statutes § 36-3. In particular, the plaintiff claims that the court’s interpretation of § 36-3 failed to fully consider the second clause of the statute, which she claims provides a rebuttable presumption that funds from a joint account may be paid to either named owner of the account, in actions respecting ownership of such an account. She claims that she presented clear and convincing evidence that the depositor did not intend to vest title in Robert Monaehelli, and that the court failed to make such a finding. We cannot agree.

“The presumption created by the second sentence of subsection (1) of the statute has no application to an action between the parties when all of them are alive.” Grodzicki v. Grodzicki, 154 Conn. 456, 463, 226 A.2d 656 (1967). “The first sentence of subsection (1) of the statute permits the payment by the bank to any of the codepositors during the life time of all of them or to survivor or survivors after death of one or more of them ‘and the receipt or acquittance of the person or persons to whom such payment is made shall be a valid and sufficient release and discharge for all payments so made.’ This portion of the .statute is obviously for the protection of the banks.” Id., 462-63. The trial court was not in error in concluding that the bank was insulated from liability by § 36-3 under the circumstances here. The conduct of the plaintiff gave every indication that she intended to create a joint account.

The plaintiff further contends that the trial court erred in failing to consider the fiduciary relationship between the bank and its depositor, the duties which flow from that relationship and whether the defendant bank negligently breached these duties.

“The fact that a bank is indebted to its account holders for the amount of the funds that they have deposited . . . imposes no special duty of care for the safekeeping of the funds on deposit.” (Citations omitted.) Frigon v. Enfield Savings & Loan Assn., 195 Conn. 82, 87, 486 A.2d 630 (1985). The account was an active account as soon as the deposit was made and the plaintiff signed the signature card. It was in the form of an “either/or” account payable to either the plaintiff or her husband. The deposit account contract covered both the plaintiff and her husband and in part stated that “I agree to be bound by the rules in this contract for the account.” That deposit account contract did not require the funds on deposit to be kept until the maturity date nor did it require a depositor’s signature on the signature card before honoring that depositor’s withdrawal request. The signature on the signature card was primarily for identification and when Robert Monachelli presented the passbook with proper withdrawal forms, the defendant was required, under the terms of the deposit account contract to honor that request.

Since the agreement between the parties imposed no duty of care on the defendant bank beyond that which it exercised, and the plaintiff introduced no evidence to establish any further duty of care, the trial court properly found that the plaintiff had not proven her claim of negligence.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 36-3 (1) provides: “joint deposits and accounts. When a deposit has been made in this state in any state bank and trust company, national banking association, savings bank or industrial bank or an account has been issued in this state by any savings and loan association or federal savings and loan association or credit union, in the names of two or more persons and in form to be paid to any one or the survivor, or survivors, of them, such deposit or account and any additions thereto made by any of such persons after the making or issuance thereof, together with all dividends or interest or increases credited thereon, shall be held for the exclusive use of such persons and may be paid to any of them during the lifetime of all of them or to the survivor or survivors after the death of one or more of them, and such payment and the receipt or acquittance of the person or persons to whom such payment is made shall be a valid and sufficient release and discharge for all payments so made. The making of a deposit or issuance of an account in such form shall, in the absence of fraud or undue influence, or other clear and convincing evidence to the contrary, be prima facie evidence, in any action or proceeding respecting the ownership of, or the enforcement of the obligation created or represented by such deposit or account, of the intention of all of the named owners thereof to vest title to such deposit or account, including all additions and increments thereto, in such survivor or survivors.”


author: Stoughton, J.

text:
    State of Connecticut v. Arthur Davis, Jr.
    (5252)
    Dupont, C. J., Stoughton and Foti, Js.
    Argued November 6, 1987 —
    decision released March 22, 1988

      Joette Katz, public defender, with whom, on the brief, was Joseph G. Bruckmann, assistant public defender for the appellant (defendant).

      Carolyn K. Longstreth, deputy assistant state’s attorney, for the appellee (state).
   Stoughton, J.

The defendant was convicted after a trial to the court. He appeals from the judgment rendered.

The defendant raises two issues on appeal: (1) that his conviction of risk of injury to a minor caused him to be twice punished for the same crime because, as charged, it is a lesser included offense of both assault in the third degree and unlawful restraint in the first degree; and (2) that his waiver of his right to a jury trial was invalid under the federal and state constitutions, the Connecticut rules of practice and our statutes. We find no error.

The defendant was tried on a four count information charging him: (1) with risk of injury to a minor in violation of General Statutes § 53-21; (2) with assault in the third degree in violation of General Statutes § 53a-61 (a) (l); (3) with unlawful restraint in the first degree in violation of General Statutes § 53a-95 (a); and (4) with interfering with an officer in violation of General Statutes § 53a-167a (a). The trial court, after hearing sharply conflicting testimony, found the defendant guilty on the first three counts and not guilty on the fourth count.

I

The trial court heard testimony that the victim was a ten year old female child at the time of the trial in April of 1986. On the morning of August 30,1985, the victim was at home alone in her mother’s apartment. The defendant, an acquaintance of the victim’s mother, knocked at the door. The victim opened the door and told the defendant that her mother was at work. The defendant called the victim a liar, walked into the apartment and attempted to open the door to the mother’s bedroom. Finding the door locked, he slapped the victim, punched her in the stomach and choked her. The victim screamed, bit the defendant, broke free and ran out of the apartment and knocked at the door of a neighbor’s apartment. The defendant dragged the victim back to her mother’s apartment where he struck her and choked her. He swore at the victim and told her to remain quiet. A neighbor came to the apartment door, and the victim persuaded the defendant to allow her to answer the knock. When the victim opened the door, the neighbor tried to pull her out of the apartment. The defendant resisted and tried to pull the victim back into the apartment. A dog belonging to the victim, which had been outside, got through the doorway and bit the defendant, and the victim was thereafter released. The police had been called, and on their arrival the defendant was arrested and the victim was taken to a hospital. The victim sustained scratches, bruises on her face and contusions on her neck.

The trial court found from the evidence that the defendant unlawfully caused a child under sixteen years of age to be placed in a situation that was likely to injure her health, that he committed an act likely to injure her health and that he was guilty of risk of injury. The trial court also found from the testimony of the neighbor and from the hospital records introduced into evidence that there was an intent to cause physical injury and that physical injury was caused. It, therefore, found the defendant guilty of assault in the third degree. The trial court further found from the testimony of the victim that she was restrained, and from the neighbor’s testimony that she was trying to get the victim out of the apartment and that the defendant held the victim back. The court then found the defendant guilty of unlawful restraint in the first degree. The court found that the state had not met its burden of proof on the charge of interfering with an officer and found the defendant not guilty as to that charge. The defendant moved orally to set aside the verdict on assault in the third degree on the ground that conviction for that charge and for risk of injury to a minor based upon the same conduct would constitute double jeopardy.

Subsequently, the defendant moved the trial court to articulate its findings pertaining to the risk of injury charge. The defendant posed four questions by which he sought to determine whether he had committed an act likely to injure the health of the victim, whether he had caused or permitted a child under sixteen years of age to be placed in a situation likely to injure her health, and what he had done in each instance. The court responded affirmatively and referred to pages in the transcript containing the victim’s testimony about the various assaults on her person and the restraint of her person, and to testimony by the neighbor and a policeman describing the restraint of the victim and the marks visible on the person of the victim.

The defendant acknowledges that he did not raise the issue of double jeopardy before or at trial by way of a motion to dismiss or consolidate. Nevertheless, he asserts that this claim is reviewable under State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973). A claim that a conviction violates a defendant’s right not to be punished twice for the same offense as guaranteed by the double jeopardy clause involves a fundamental right which is wholly reviewable on the record. State v. McCall, 187 Conn. 73, 89-90, 444 A.2d 896 (1982).

In any double jeopardy analysis, the first issue to be resolved is whether the acts involved arise out of the “same act or transaction.” If this issue is answered in the affirmative, we then address the question of whether the crimes constitute the “same offense.” State v. Goldson, 178 Conn. 422, 424, 423 A.2d 114 (1979). Looking only at the information, and not to the evidence adduced at trial, we accept the defendant’s contention that all of the charges arose out of the same act or transaction, as the charges of risk of injury to a minor, assault in the third degree, and unlawful restraint in the first degree all allege the same time, date and place for all of the charges. The relevant question which remains, then, is whether risk of injury to a minor is a lesser included offense of assault in the third degree and of unlawful restraint in the first degree. A crime is a lesser included offense if “it is not possible to commit the greater offense, in the manner described in the information or bill of particulars, without having first committed the lesser.” State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980).

With respect to the claim that risk of injury to a minor, as charged, is a lesser included offense of assault in the third degree, State v. Trujillo, 12 Conn. App. 320, 334-36, 531 A.2d 142 (1987), is dispositive. In Trujillo, the defendant was charged with assault in the second degree, in violation of General Statutes § 53a-60, and risk of injury to a minor in violation of General Statutes § 53-21. Although the defendant in this case was charged with assault in the third degree, the distinction is not important for this purpose because both assault in the second degree as charged in Trujillo and assault in the third degree as charged here require proof of intent to cause injury to another and proof of injury to another. The analysis in Trujillo is therefore apposite. Even if the assault charge and the risk of injury charge arose out of the same act, a fact which is not conceded by the state, the elements of the two charges are distinct and dissimilar and are not the same offense for double jeopardy purposes. State v. Trujillo, supra, 336; State v. Martin, 189 Conn. 1, 7 n.2, 454 A.2d 256, cert, denied, 461 U.S. 933, 103 S. Ct. 2098, 77 L. Ed. 2d 306 (1983).

We apply a similar analysis with respect to the claim that risk of injury to a minor, as charged, is a lesser included offense of unlawful restraint in the first degree. To convict the defendant of risk of injury to a minor, as charged, the state was required to prove that the defendant did acts likely to impair the health of a child under the age of sixteen. To convict the defendant of unlawful restraint in the first degree as charged, the state was required to prove that the defendant restrained the victim under circumstances which exposed her to a substantial risk of physical injury and that the defendant entertained the specific intent to restrain the victim. General Statutes § 53a-91 (1). It is apparent that each of these offenses, as charged, required proof of elements which the other did not require.

We find no error as to the double jeopardy claim.

II

The defendant did not raise his claim in the trial court that his waiver of his right to a trial by jury was invalid on the grounds that it was not knowingly and voluntarily made. He asserts that this claim is reviewable under State v. Evans, supra. He also argues on appeal that his waiver was invalid because the trial court did not follow the procedure set forth in General Statutes § 54-82 (b) and Practice Book § 839.

We agree that a claim of an ineffective waiver of the right to a trial by jury implicates a fundamental constitutional right. State v. Marino, 190 Conn. 639, 642, 462 A.2d 1021 (1983). Accordingly, we review the record to determine whether the defendant has been deprived of this right. We do not consider the defendant’s claim as it implicates our rules of practice and statutes. Deviations from the procedure set forth therein do not alone constitute a claim of error eligible for appellate review sufficient to overcome our general prohibition against raising on appeal issues never presented to the trial court. State v. Crump, 201 Conn. 489, 499, 518 A.2d 378 (1986).

The record indicates that on October 9, 1985, the defendant was arraigned on the four charges on which he was ultimately tried. He was represented by counsel, and through counsel not guilty pleas were entered and a jury trial was elected. Pursuant to an agreement with the state’s attorney, the defendant again appeared in court on January 9, 1986, and entered pleas of nolo contendere to a substituted information which charged him with assault in the third degree, unlawful restraint in the second degree, and interfering with a police officer. The defendant was again represented by counsel, a partner of the attorney who had been present at his arraignment.

At this proceeding, the court canvassed the defendant in a manner consistent with such a plea, asking whether he understood that he was giving up his right not to incriminate himself and whether he knew he was giving up his right to a trial by the court or by a jury. The defendant responded in the affirmative. Moreover, the record indicates that notwithstanding reservations of his defense attorney, the defendant insisted on entering the plea so that the matter would be resolved. It further indicates that in addition to informing the defendant of his right to a trial by jury, the court inquired as to whether the defendant had adequately discussed this choice with counsel. Finding the pleas to have been voluntary and knowing, the court accepted them and postponed sentencing pending the outcome of a presentence investigation and report.

Subsequently, the defendant changed his mind and decided that he wished to withdraw his pleas of nolo contendere. On March 25, 1986, the defendant again appeared in court. The attorney who represented the defendant during his pleas of nolo contendere was present as was an attorney affiliated with new counsel who the defendant had retained to assume representation of the case. The defendant was allowed to withdraw these pleas. The four original charges were reinstated. The colloquy between the court and the defendant proceeded as follows:

“The Court: Now, for the record, sir, I’m going to ask the clerk to put you to plea on those four charges all over again today and you’ll be allowed to answer not guilty or guilty and I’ll ask your counsel for your election to be tried by Court or jury. Put him to plea on that.
“The Clerk: To the charge of risk of injury in violation of 53a-21; how do you plea?
“The Defendant: Not guilty.
“The Clerk: Assault in the third degree in violation of § 53a-61 on August 30, 1985; how do you plea?
“The Defendant: Not guilty.
“The Clerk: Unlawful restraint in the first degree in violation of 53a-95 on August 30th, 1985; how do you plea?
“The Defendant: Not guilty.
“The Clerk: Interfering with an officer, 53a-167a (a) on March 30th, 1985; how do you plea?
“The Defendant: Not guilty.
“The Court: Election, counselor?
“Mr. Johnson: Court trial, your Honor.
“The Court: Court or jury?
“Mr. Johnson: Court.”

Waiver of a person’s right to a trial to a jury “must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and the likely consequences.” Brady v. United States, 397 U.S. 742, 748, 90 S. Ct. 1463, 25 L. Ed. 2d 747 (1970); State v. Reed, 174 Conn. 287, 293, 386 A.2d 243 (1978). Moreover, every reasonable presumption against such a waiver must be indulged and acquiescence will not be presumed from a silent record. Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938); State v. Shockley, 188 Conn. 697, 707, 453 A.2d 441 (1982). The defendant contends that the record below is close to silent as to whether he knowingly and intelligently relinquished his right to a jury trial. We disagree.

Personal interrogation of the defendant by the court is not an indispensible prerequisite to a valid waiver under the federal constitution. See State v. Marino, supra; State v. Crump, supra, 502. The real issue is whether the election was in fact intelligently and voluntarily made and whether the record so demonstrates. State v. Shockley, supra, 710. An appellate court can look to many factors when evaluating whether a record indicates a defendant’s waiver was knowingly and voluntarily made. For example, in one recent case our Supreme Court found that “the trial court’s express mention of waiver of the right to trial [rather than right to trial by court or jury], combined with the defendant’s prior election for a jury trial, his experience with criminal proceedings and apparently adequate representation by counsel, satisfy the constitutional requirement.” (Emphasis in original.) State v. Badgett, 200 Conn. 412, 420, 512 A.2d 160 (1986).

After close examination of the record, we are not presented with a picture of a defendant “bewildered by court processes strange and unfamiliar to him . . . .” Smith v. Grady, 312 U.S. 329, 334, 61 S. Ct. 572, 85 L. Ed. 859 (1941); State v. Shockley, supra. Rather, we see a defendant who actively participated in the decision making process with defense counsel, even to the point of disagreement concerning his pleas of nolo contendere in January. When he changed his mind concerning his pleas, he took it upon himself to retain new counsel and the court allowed him to withdraw his prior pleas. In each of his three court appearances, which occurred within a period of six months, the question of a jury trial arose. The defendant, through counsel, elected a jury trial initially. He also personally indicated his understanding that he was waiving this right through his plea of nolo contendere in January. When he again elected to enter not guilty pleas, he was informed by the court one more time that a jury trial was still an option. On these facts, we find that the record manifests an intelligent and voluntary waiver by the defendant.

There is no error.

In this opinion the other judges concurred.

       “[General Statutes] Sec. 53-21. injury or risk of injury to, or impairing morals OF, children. Any person who willfully or'unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that its life or limb is endangered, or its health is likely to be injured, or its morals likely to be impaired, or does any act likely to impair the health or morals of any such child, shall be fined not more than five hundred dollars or imprisoned not more than ten years or both.”

       General Statutes § 53a-61 (a) provides in pertinent part: “A person is guilty of assault in the third degree when: (1) With intent to cause physical injury to another person, he causes such injury to such person or to a third person ....”■

       General Statutes § 53a-95 (a) provides: “A person is guilty of unlawful restraint in the first degree when he restrains another person under circumstances which expose the latter to a substantial risk of physical injury.”

       The discussion between the court, the defendant and defendant’s counsel.
      “Mr. Mirsky: Mr. Davis is of age. I have spoken with him and he wants his Honor to know he moves to withdraw prior pleas and elections, he’s going to plead nolo contendere to three misdemeanors. I want it on the record. I don’t often do it, in other words, this plea is voluntary on his part, of course and let him make the decision and gave him certain of my views and have given him certain of my opinions. I want it for the record and I do this, because I’m practicing the defense of law and I don’t often do this, maybe I should give him the best trial 1, as a defense counsel can do. He wants to conclude it. So, therefore, I mentioned if he were to go to plea, and I think he has a right to plea, of nolo contendere would be best. I want it on the record.
      “The Court: Prior pleas and election withdrawn. May be put to plea.
      “Mr. Sedensky: The State’s filing a substitute information, your Honor, Unlawful Restraint, second degree, Assault, third and Interfering with a Police Officer.
      “Mr. Mirsky: Your Honor, he pleads nolo contendere. My understanding, your Honor, these are the three misdemeanors and you still want a P.S.I. I explained to him and we will put the arrangement that was made between the parties on the record and do this again. I want to make sure it is voluntary and ask him the questions and never let it be said I pushed him in this case. There are certain cases I do push.
      “Thank you sir.”

       The court canvassed the defendant as follows:
      “The Court: Pleading nolo, you are giving up the right to a trial by a judge or jury, giving up your right to confront your accusers, giving up your right to present evidence on your own behalf, giving up the right not to be compelled to incriminate yourself in any way or testify if there was a trial. You are giving up your right to remain silent and your right to take an appeal if you were found guilty at the end of a trial. When you plead guilty you give up or waive those rights, do you understand that?
      “The Accused: Yes.
      “The Court: Has anyone forced or threatened you in any way to cause you to plead guilty to the substituted — or plead nolo contendere to the substituted misdemeanor charges?
      “The Accused: No.
      “The Court: Are you doing that freely and voluntarily and is it your decision to enter the pleas at this time, subsequent to discussions with your attorney, Mr. Mirsky and overall consideration of your situation in light of the cases?
      “The Accused: Yes.”


text:
    Louis A. Carta v. Michael Marino et al.
    (5640)
    Borden, O’Connell and Stoughton, Js.
    Argued January 6 —
    decision released March 22, 1988

      James F. Ripper, with whom was Frederick M. Vollono, for the appellant (plaintiff).

      Lester Katz, with whom, on the brief, was Steven L. Seligman, for the appellee (defendant Salvatore Mazzotta).

      H. Valentine Holz, for the appellee (named defendant).
   Stoughton, J.

The plaintiff appeals from a summary judgment in favor of the defendant Salvatore Mazzotta. We find no error.

The plaintiff and the named defendant, Michael Marino, entered into an agreement under which the plaintiff was to purchase from Marino certain real property in Middletown. The agreement provided for payment of the purchase price of $100,000 as follows: “(1) $5000 deposit paid herewith, receipt whereof is acknowledged, the same to be held in escrow by Buyer’s attorney; (2) the balance, to wit, $95,000 to be paid as follows: (a) $55,000 by cash, bank or certified check at the closing on transfer of title; (b) the sum of forty thousand ($40,000) dollars shall be payable by a purchase money mortgage and deed from the Buyer to the Seller secured by the premises described in Exhibit A. Interest shall accrue on the unpaid principal balance remaining on said mortgage note at the rate of ten (10%) percent per annum and payments thereon shall commence ninety (90) days after the date of the promissory note and be payable monthly thereafter until two (2) years following the date of said note at which point the remaining principal together with accrued interest shall be due and payable in full. Said mortgage note and deed shall contain a provision permitting the release of said mortgaged premises or approved building lots therefrom on payment of a lot release amount determined by dividing a number one less than the number of approved building lots into $40,000. Said mortgage note and deed shall contain provisions typical to said instruments including the requirement to subordinate the lien of said mortgage to a Land Development loan in an amount not in excess of $140,000.00”

On July 9,1984, Marino conveyed the real property to the defendant Salvatore A. Mazzotta.

The plaintiff instituted this action, claiming that Marino breached his contract and that Mazzotta knowingly and maliciously interfered with the contract between the plaintiff and Marino. He sought damages, that the conveyance to Mazzotta be set aside, that Marino be directed specifically to perform the contract with him, and such other relief as the court deemed proper. After the pleadings had been closed, Mazzotta moved for summary judgment upon the ground that the contract failed to comply with the requirements of the statute of frauds, General Statutes § 52-550, and therefore was unenforceable. The trial court granted the motion and rendered judgment in favor of Mazzotta. The plaintiff appeals, claiming that the trial court erred in granting the motion for summary judgment.

Summary judgment should be rendered if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Practice Book § 384. See DiMaggio v. Makover, 13 Conn. App. 321, 536 A.2d 595 (1988). The written agreement between the plaintiff and Marino was attached to and made a part of the complaint and no affidavits or other proof were submitted to the court. Since there was no issue of fact, the question was simply whether as a matter of law summary judgment should enter.

In order to satisfy the statute of frauds, an agreement must state the contract with such certainty that its essentials can be known from the memorandum itself, without the aid of parol proof, or from a reference contained therein to some other writing or thing certain; and these essentials must at least consist of the subject of the sale, the terms of it and the parties to it, so as to furnish evidence of a complete agreement. Montanaro v. Pandolfini, 148 Conn. 153, 157, 168 A.2d 550 (1961). Mazzotta claimed that the agreement did not satisfy the statute of frauds because the section concerning the purchase price did not specify a specific monthly amount, nor did it clearly state whether the payment was to be all interest, interest or principal, equal or unequal, or based upon amortization. The trial court agreed, as do we.

All of the terms and conditions of payment of the principal sum of the mortgage over the period during which it was to run should have been set out in the agreement so that parol evidence would not be required to establish the undertaking of the parties. Montanaro v. Pandolfini, supra, 158. The contract is insufficient if it fails to specify the terms of payment of any part of the purchase price. Lynch v. Davis, 181 Conn. 434, 439, 435 A.2d 977 (1980).

It is not possible to know from the quoted section of the agreement the amount of each monthly payment, or whether the payments are to be of interest only or interest and principal. The defendants claim that the agreement might be said to contemplate a first payment for ninety days’ interest or no payment for ninety days and then interest for two years payable in twenty-one payments, and that it is ambiguous as to whether the monthly payments include principal. The plaintiff maintains that the agreement is clear and that the payments are to be of interest, to commence ninety days after the signing of the note and end two years later when the entire remaining principal and interest become due, and that payments during the two year period are made monthly. He points to the provision permitting release of approved building lots to account for a final payment of “remaining principal and accrued interest.” “That the provision in question is susceptible to at least two interpretations is evidenced by the construction which has been placed upon it by each of the parties.” Montanaro v. Pandolfini, supra, 155.

There is no error.

In this opinion the other judges concurred.

       “[General Statutes] Sec. 52-550. statute of frauds; written agreement or MEMORANDUM, (a) No civil action may be maintained in the following cases unless the agreement, or a memorandum of the agreement, is made in writing and signed by the party, or the agent of the party, to be charged: (1) Upon any agreement to charge any executor or administrator, upon a special promise to answer damages out of his own property; (2) against any person upon any special promise to answer for the debt, default or miscarriage of another; (3) upon any agreement made upon consideration of marriage; (4) upon any agreement for the sale of real property or any interest in or concerning real property; or (5) upon any agreement that is not to be performed within one year from the making thereof.
      “(b) This section shall not apply to parol agreements for hiring or leasing real property, or any interest therein, for one year or less, in pursuance of which the leased premises have been or are actually occupied by the lessee, or any person claiming under him, during any part of the term.”


author: Daly, J.

text:
    Beullah M. Brochu v. Andrew M. Brochu
    (4957)
    Dupont, C. J., Daly and Norcott, Js.

      Argued November 17, 1987 —
    decision released March 22, 1988

      Susan M. Cormier, with whom were Wesley W. Horton and, on the brief, Bruce Morris, for the appellant (defendant).

      Charles G. Karanian, with whom, on the brief, was Martin M. Rizzi, for the appellee (plaintiff).
   Daly, J.

The plaintiff instituted this action for breach of contract and an accounting against the defendant, her former husband, who counterclaimed for monies expended on behalf of the plaintiff. From a judgment rendered in favor of the plaintiff in the amount of $30,000, the defendant has appealed.

The state trial referee found the following facts. The parties were married on October 16, 1954. Five children were born to the parties during the course of the marriage. Their marriage was dissolved on June 26, 1970, pursuant to a complaint filed by the plaintiff. Judgment was rendered pursuant to a stipulation of the parties whereby the plaintiff quitclaimed her one-half interest in the family home and the defendant agreed to pay $15 per week for support of each of the minor children. After the dissolution, the plaintiff and the parties’ children continued to live in the family home, while the defendant lived elsewhere.

In October, 1970, the parties began living together again. The parties orally agreed to live together as husband and wife, to raise the five children as a family unit, and to resume cohabitation in the family residence. It was agreed that their joint income would be used for the family unit. Remarriage was discussed on several occasions. Neither party, however, arranged another marriage ceremony. During this period, the defendant agreed to provide life insurance for the plaintiff along with a health insurance policy and promised, additionally, to transfer one-half interest in the family residence to the plaintiff and to support her for the rest of her life. The parties filed joint income tax returns as husband and wife.

During June, 1980, the parties separated, and each party subsequently married another spouse. The children have grown and left the family residence. The defendant discontinued all contributions to the plaintiffs support, terminated all insurance policies, and refused to share any assets with the plaintiff.

The trial court improperly treated this case as an action for dissolution of the marriage. The plaintiff’s complaint specifically states that the marriage was dissolved on June 26, 1970, and asks the court for relief based on a breach of contract theory. Specifically, the plaintiff argues that the parties’ oral agreement to live together was breached by the defendant. In its memorandum of decision, the trial court clearly stated its dissatisfaction with the financial award stipulated to by the parties in the 1970 dissolution. Moreover, in its rectification memorandum, the trial court stated that the sole basis of the $30,000 award was fraud in the settlement of the original dissolution. Although the plaintiff did not move to open or to modify the original judgment, the trial court, in essence, opened and modified that judgment. Our Supreme Court has held, however, that the trial court has no authority to open and modify property awards. General Statutes § 46b-86 (a); Bunche v. Bunche, 180 Conn. 285, 289, 429 A.2d 874 (1980); see also Croke v. Croke, 4 Conn. App. 663, 665, 496 A.2d 235 (1985).

The trial court’s decision to render judgment for the plaintiff on the basis of the inadequacy of the financial awards incident to the 1970. dissolution award is erroneous because it exceeds the scope of the complaint. The complaint clearly asked the court to decide whether an oral agreement to provide certain financial benefits for a promise to live together was enforceable, yet the court decided the issue on dissolution grounds. “ ‘ “It is fundamental in our law that the right of a plaintiff to recover is limited to the allegations of his complaint. Nash Engineering Co. v. Norwalk, 137 Conn. 235, 239, 75 A.2d 496 [1950]” ’ Matthews v. F.M.C. Corporation, 190 Conn. 700, 705, 462 A.2d 376 (1983).” Krattenstein v. Thomas, 7 Conn. App. 604, 610, 509 A.2d 1077 (1986). By deciding the case on the grounds of its dissatisfaction of the 1970 dissolution, rather than on the allegations of the complaint, the trial court clearly exceeded the scope of the complaint.

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

In this opinion the other judges concurred.

       The decision on the counterclaim seems to be implied in the award for the plaintiff on the complaint.

       The memorandum of decision stated in relevant part: “In the divorce action which was granted to the plaintiff, the evidence disclosed that the plaintiff received none of the family assets and that the defendant husband walked away with all of the spoils of the marriage including the main asset, the home.”

       The court should have decided this issue of a promise to live together. In Burns v. Koellmer, 11 Conn. App. 375, 381, 527 A.2d 1210 (1987), this court stated: “Thus, a contract, express or implied, or some other tacit understanding between persons who are not married to one another which does not rely upon their sexual behavior is enforceable in the courts of this state.” (Citation omitted.)


author: Per Curiam.

text:
    State of Connecticut v. Willie A. Douglas State of Connecticut v. Richard Bush, Jr.
    (3989)
    (4182)
    Dupont, C. J., Borden and Bieluch, Js.
    Argued January 14 —
    decision released March 22, 1988

      Richard F. Jacobson, assistant state’s attorney, for the appellant (state).

      Leopold P. De Fusco, special public defender, for the appellee (defendant in the first case).

      James M. Connolly, for the appellee (defendant in the second case).
   Per Curiam.

This opinion follows oral argument on this court’s own motion to determine whether it should have set aside the judgments in State v. Douglas, 10 Conn. App. 103, 124, 522 A.2d 302 (1987). After hearing, we conclude that the judgments should not have been set aside and we hereby reinstate them.

Further, the case is remanded to the trial court to conduct an in camera examination to determine whether the transcript in the earlier trial of co-accused, Herbert Johnson, contained material prior inconsistent statements of witnesses sufficient to have affected the outcome of the trials of either or both of these defendants. If there is no material inconsistency found, then there is no error and the judgments remain undisturbed. If a sufficient material' inconsistency is found, then there is error and the trial court must determine whether the error was harmful or harmless. If the trial court concludes that the state has met its burden as to either defendant in proving the error harmless beyond a reasonable doubt, then the judgment of conviction of that defendant remains undisturbed, subject to any further appeal to this court concerning the trial court’s ruling on that issue. If the trial court finds harmful error as to either defendant, that judgment of conviction is set aside and a new trial is hereby ordered as to that defendant.

The judgments of the trial court are reinstated and the cases are remanded for further proceedings in accordance with this opinion.