text:
    TRICIA SCALZI v. JOSEPH HESSE ET AL.
    (AC 22911)
    Foti, Bishop and Dupont, Js.
    Submitted on briefs March 21
    officially released April 8, 2003
   Per Curiam.

The judgment is affirmed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    LEDELL JEFFERSON v. COMMISSIONER OF CORRECTION
    (AC 22932)
    Lavery, C. J., and Dranginis and Flynn, Js.
    Submitted on briefs March 21
    officially released April 8, 2003
   Per Curiam.

The judgment is affirmed.


text:
    AUDLEY WATSON v. COMMISSIONER OF CORRECTION
    (AC 22994)
    Foti, Bishop and Dupont, Js.
    Submitted on briefs March 21
    officially released April 8, 2003
   Per Curiam.

The judgment is affirmed.


text:
    ASHOK MAZUMDAR v. ABHA MAZUMDAR
    (AC 23098)
    Lavery, C. J., and Dranginis and Flynn, Js.
    Submitted on briefs March 21
    officially released April 8, 2003
   Per Curiam.

The judgment is affirmed.


text:
    GILBERT R. GAUVIN v. RALPH MARCARELLI
    (AC 23100)
    Schaller, West and Hennessy, Js.
    Submitted on briefs March 21
    officially released April 8, 2003
   Per Curiam.

The judgment is affirmed.


text:
    TERRY RICHARDSON v. COMMISSIONER OF CORRECTION
    (AC 23126)
    Foti, Bishop and Dupont, Js.
    Submitted on briefs March 21
    officially released April 8, 2003
   Per Curiam.

The judgment is affirmed.


text:
    THEODORE LENCZYK v. VINCENT SABATINI
    (AC 23156)
    Foti, Bishop and Dupont, Js.
    Submitted on briefs March 21
    officially released April 15, 2003
   Per Curiam.

The judgment is affirmed.


text:
    ANTHONY DENNISTON v. DOROTHY TONUCCI
    (AC 23207)
    Schaller, West and Hennessy, Js.
    Submitted on briefs March 21
    officially released April 15, 2003
   Per Curiam.

The judgment is affirmed.


text:
    THOMAS SMITH v. COMMISSIONER OF CORRECTION
    (AC 23352)
    Schaller, West and Hennessy, Js.
    Submitted on briefs March 21
    officially released April 15, 2003
   Per Curiam.

The appeal is dismissed.


text:
    KEVIN L. STROBEL v. ROSE LI-HWA STROBEL
    (AC 22871)
    Lavery, C. J., and Dranginis and Flynn, Js.
    Submitted on briefs March 21
    officially released April 15, 2003
   Per Curiam.

The judgment is affirmed.


text:
    CITY FISH MARKET, INC. v. LEON VARIPAPA
    (AC 23113)
    Foti, West and Dupont, Js.
    Argued March 26
    officially released April 15, 2003
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. KAREN PETROSKY
    (AC 22256)
    Lavery, C. J., and Foti and Peters, Js.
    Argued March 25
    officially released April 15, 2003
   Per Curiam.

The judgment is affirmed.


text:
    ANTHONY DENNISTON v. CASH HOME CENTER, INC.
    (AC 22424)
    Schaller, Flynn and Dupont, Js.
    Argued March 27
    officially released April 15, 2003
   Per Curiam.

The judgment is affirmed.


text:
    WILLIAM H. HONAN ET AL. v. JOSEPH DIMYAN ET AL.
    (AC 22587)
    Foti, Bishop and Hennessy, Js.
    Argued April 28
    officially released May 20, 2003
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. JOSE RAMOS
    (AC 23327)
    Foti, Bishop and Hennessy, Js.
    Argued April 28
    officially released May 20, 2003
   Per Curiam.

The judgment is affirmed.


text:
    STELLA CHERTKOVA v. CONNECTICUT GENERAL LIFE INSURANCE COMPANY
    (AC 23305)
    Lavery, C. J., and West and Stoughton, Js.
    Argued April 28
    officially released May 20, 2003
   Per Curiam.

The judgment is affirmed.


text:
    MYROSLAW DRAGAN ET AL. v. STAMFORD HOSPITAL
    (AC 17272)
    Lavery, C. J., and West and Stoughton, Js.
    Argued April 28
    officially released May 20, 2003
   Per Curiam.

The judgment is affirmed.


text:
    NANCY LEWIS v. STATE OF CONNECTICUT
    (AC 23536)
    Schaller, West and Dupont, Js.
    Submitted on briefs May 2
    officially released May 20, 2003
   Per Curiam.

The judgment is affirmed.


text:
    GEORGE HAWKINS v. COMMISSIONER OF CORRECTION
    (AC 22662)
    SchaUer, West and Dupont, Js.
    Submitted on briefs May 2
    officially released May 20, 2003
   Per Curiam.

The appeal is dismissed.


text:
    STANLEY ARRINGTON v. COMMISSIONER OF CORRECTION
    (AC 22716)
    Schaller, West and Dupont, Js.
    Submitted on briefs May 2
    officially released May 20, 2003
   Per Curiam.

The appeal is dismissed.


text:
    STATE OF CONNECTICUT v. RAFAEL MARTINEZ
    (AC 22510)
    Dranginis, Bishop and West, Js.
    Argued May 5
    officially released May 20, 2003
   Per Curiam.

The judgment is affirmed.


text:
    JULIA E. REYES v. COMMISSIONER OF CHILDREN AND FAMILIES ET AL.
    (AC 22620)
    Dranginis, Bishop and Hennessy, Js.
    Submitted on briefs May 2
    officially released May 20, 2003
   Per Curiam.

The judgment is affirmed.


text:
    GABRIEL KENNETH SIMMONS v. COMMISSIONER OF CORRECTION
    (AC 23044)
    Lavery, C. J., and Bishop and Hennessy, Js.
    Submitted on briefs May 2
    officially released May 20, 2003
   Per Curiam.

The appeal is dismissed.


text:
    SOTAVENTO CORPORATION v. MORNINGSIDE PARTNERS LIMITED PARTNERSHIP
    (AC 23204)
    Lavery, C. J., and Dranginis and Peters, Js.
    Argued May 1
    officially released May 20, 2003
   Per Curiam.

The judgment is affirmed.


text:
    THOMAS D. LEE v. AXIOM LABORATORIES, INC., ET AL.
    (AC 21622)
    Dranginis, Bishop and Hennessy, Js.
    Submitted on briefs May 2
    officially released May 20, 2003
   Per Curiam.

The judgment is affirmed.


author: FOTI, J.

text:
    IN RE THOMAS J.

    (AC 23301)
    Foti, Dranginis and Freedman, Js.
    Argued February 10
    officially released May 27, 2003

      James J. Connolly, supervisory assistant public defender, with whom, on the brief, was Christine Perra Rapillo, supervisory assistant public defender, for the appellant (respondent).

      Stephen G. Vitelli, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Susan T. Pearlman, assistant attorney general, for the appellee (petitioner).

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79-3, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Opinion

FOTI, J.

The respondent, Thomas J., appeals from the judgment rendered by the trial court denying his motion for review. On appeal, the respondent claims that the court improperly interpreted General Statutes § 17a-16, thereby depriving him of his right to due process.

The following facts underlie the respondent’s appeal. The respondent, having been adjudicated a delinquent child, was committed to the custody of the commissioner of the department of children and families (department) and placed at Long Lane School on March 28, 2001. In October, 2001, he was transferred to the Connecticut Juvenile Training School. In December, 2001, the department’s special investigation unit began investigating an allegation that a department police officer had slammed the respondent’s head into a glass wall. On January 22, 2002, the department found that the claim was unsubstantiated. On June 28, 2002, the respondent filed his motion for review, which the court denied on July 8, 2002.

The sole issue to be determined in this appeal is whether the court properly denied the motion for review in that it lacked statutory authority either to adjudicate or to provide the relief sought pursuant to § 17a-16.

There is no dispute that § 17a-16 sets forth the rights of children who are under the supervision of the commissioner of the department and allows an aggrieved child whose rights are violated to petition the Superior Court for appropriate relief, including injunctive relief, and that the petition must be treated as a juvenile matter. What is in question is whether the “motion for review” that was filed in this matter is such a “petition” as is authorized under § 17a-16 (i). We conclude that it is not.

As a preliminary matter, we set forth our standard of review. Because the claim involves one of statutory authority and raises a question of law requiring our interpretation of § 17a-16, our review is plenary. See State v. Dash, 242 Conn. 143, 146-47, 698 A.2d 297 (1997). Our duty, when the legal conclusions of the court are challenged, is to determine whether those conclusions are legally and logically correct and find support in the facts appearing in the record. Ford v. Ford, 68 Conn. App. 173, 177, 789 A.2d 1104, cert. denied, 260 Conn. 910, 796 A.2d 556 (2002).

Our review of § 17a-16 leads us to conclude that its language is clear and unambiguous. That being so, we do not construe the statute by looking to its history or purpose; “we need look no further than the words themselves because we assume that the language expresses the legislature’s intent" American Universal Ins. Co. v. DelGreco, 205 Conn. 178, 193, 530 A.2d 171 (1987). “[The] legislative intent is to be determined by an analysis of the language actually used in the legislation”; Vaillancourt v. New Britain Machine/Litton, 224 Conn. 382, 391, 618 A.2d 1340 (1993); it is found not in what the legislature perhaps meant to say, “but in the meaning of what it did say.” Dana-Robin Corp. v. Common Council, 166 Conn. 207, 221, 348 A.2d 560 (1974). Further, in considering statutory construction including legislative intent, we must recognize that “the legislature is presumed to have intended a reasonable, just and constitutional result.” Sanzone v. Board of Police Commissioners, 219 Conn. 179, 187, 592 A.2d 912 (1991).

A Juvenile Court is not precluded from exercising its authority under § 17a-16 to entertain a petition from an aggrieved child or youth. Such exercise of authority may include issuing orders that impose injunctive or other appropriate relief to protect such child or youth from harm while under state supervision. Such a court, however, must act under the authority of the statute, which is preconditioned on the filing of a petition by the aggrieved child and the setting forth of a claim of a violation of subsections (a) to (h) of § 17a-16.

The respondent argues that his motion for review is a petition, as required under § 17a-16. We do not agree. The motion for review was not made under oath, did not invoke a judicial hearing and sought relief not contemplated under the statute. The filing of the motion did not allow interested parties, i.e., the department and the employee accused of abuse, to participate, by providing notice and the opportunity to appear, as would a petition filed properly under § 17a-16. The respondent sought to have the court review certain documents “and reverse the Department’s determination that the respondent was not abused by [a department] Police Officer.” See footnote 1. No evidentiary or adversarial type of hearing was requested or required, as the matter was presented to the trial court. The motion was, in effect, an appeal from an agency’s determination and sought a reversal of that determination in an almost ex parte fashion. It also sought to have the court substitute its judgment for that of the agency on the basis of that limited review.

Having reached this point in our analysis, we now consider whether the court properly declined to grant the respondent the relief he sought. “Although related, the court’s authority to act pursuant to a statute is different from its subject matter jurisdiction. The power of the court to hear and determine, which is implicit in jurisdiction, is not to be confused with the way in which that power must be exercised in order to comply with the terms of the statute.” (Internal quotation marks omitted.) Amodio v. Amodio, 247 Conn. 724, 728, 724 A.2d 1084 (1999). The issues in this case do not raise any claim with respect to the court’s subject matter jurisdiction. We note, nonetheless, that the court did not lack subject matter jurisdiction. Rather, we conclude that the court lacked the authority to act under the statute; it could neither appropriately review the department’s decision nor grant the relief sought in the respondent’s motion. If the court, acting on the present motion for review, had granted relief under the authority conferred on it by § 17a-16, it would have applied an incorrect rule of law to the situation. It would not have acted “without jurisdiction, but in the erroneous exercise of its jurisdiction.” Artman v. Artman, 111 Conn. 124, 130, 149 A. 246 (1930). The court lacked authority to entertain the motion for review pursuant to § 17a-16.

The form of the judgment is improper, the order denying the motion for review is reversed and the case is remanded with direction to render judgment dismissing the motion.

In this opinion the other judges concurred.

       The motion for review stated as follows: “The aforementioned respondent pursuant to the Connecticut General Statutes section 17a-16 (a) and (i), Article First, Sections Eight and Ten of the Constitution of the State of Connecticut and the Fifth, Eighth and Fourteenth Amendments to the United States Constitution, hereby moves this Honorable Court to review the Department of Children and Families investigation of reported abuse against the respondent.
      “In support of this motion the respondent represents the following:
      “(1) That on December 11, 2001, a Connecticut Juvenile Training School/ [department of children and families] employee contacted the D.C.F. Hotline to report that she witnessed an Agency Police Officer slamming the respondent’s head into a glass wall.
      “(2) That on December 12, 2001, James Funaro, an investigator with the Special Investigations Unit at D.C.F. began an investigation into the allegations.

        “(3) That over the next 37 days, Mr. Funaro interviewed six individuals in connection with this case.
      “(4) At the conclusion of the investigation, despite clear evidence to the contrary, Mr. Funaro did not substantiate that the respondent was abused by the Agency Police Officer.
      “The respondent moves this Court to review the attached documents and reverse the Department’s determination that the respondent was not abused by the Agency Police Officer.”

       General Statutes § 17a-i6, entitled “Rights of children and youths under the supervision of the Commissioner of Children and Families,” provides:
      “(a) No child or youth placed or treated under the direction of the Commissioner of Children and Families in any public or private facility shall be deprived of any personal, property or civil rights, except in accordance with due process of law.
      “(b) Each child or youth placed or treated under the direction of the Commissioner of Children and Families in any public or private facility shall receive humane and dignified treatment at all times, with full respect for his personal dignity and right to privacy, consistent with his treatment plan as determined by the commissioner.
      “(c) (1) Each child and youth shall be permitted to communicate with any individual, group or agency, consistent with his treatment objectives as determined by the Commissioner of Children and Families.
      “ (2) Each public or priva! e facility under the direction of the C ommissioner of Children and Families shall furnish writing materials and postage to any child or youth desiring them.
      “(3) A child or youth shall be permitted to make or receive telephone calls to or from his attorneys at any reasonable time. Public telephones shall be made available in appropriate locations.
      “(d) (1) The Commissioner of Children and Families shall adopt regulations, in accordance with chapter 54, with respect to each facility or institution under his jurisdiction, to specify the following: (A) When a child or youth may be placed in restraint or seclusion or when force may be used upon a child or youth; (B) when the head of a facility may limit the use or receipt of mail by any child or youth and a procedure for return of unopened mail; and (C) when the head of a facility may restrict the use of a telephone by any child or youth.
      “(2) A copy of any order placing a child or youth in restraint or seclusion in accordance with the regulations adopted in subdivision (1) of this subsection shall be made a part of the child’s or youth’s permanent clinical record. Any special restriction on the use or receipt of mail or telephone calls made in accordance with the regulations adopted in subdivision (1) of this subsection, shall be noted in writing, signed by the head of the facility, and made a part of the child’s or youth’s permanent clinical record.

        “(e) (1) Each child or youth shall be permitted to receive visitors subject to reasonable restrictions consistent with the child’s or youth’s treatment objectives. The head of each facility shall establish visiting hours and inform all children and youth and their families and other visitors of these hours. Any special restriction shall be noted in writing, signed by the head of the facility, and made a part of the child’s or youth’s permanent clinical record.
      “(2) Each child or youth may receive his clergyman and attorney at any reasonable time.
      “(f) No person shall be denied employment, housing, civil service rank, any license or permit, including a professional license, or any other civil or legal right, solely because of a present or past placement with the Commissioner of Children and Families except as otherwise provided by statute.
      “(g) Each child or youth under the supervision of the Commissioner of Children and Families shall have the right to counsel of his own choosing, and the right to receive visits from physicians and mental health professionals as may be arranged by his counsel.
      “(h) Each child or youth shall have a right to a hearing pursuant to procedures adopted by the commissioner, in accordance with sections 4-176e to 4-181a, inclusive, before he is involuntarily transferred by the Commissioner of Children and Families to any facility outside the state of Connecticut.
      “(i) Any child or youth aggrieved by a violation of subsections (a) to (h), inclusive, of this section, may petition the superior court for the venue district provided in section 46b-142 within which the child or youth is or resides for appropriate relief, including temporary and permanent injunctive relief. Such petition shall be treated as a juvenile matter.”

       We note that the propriety of the department, in effect, investigating itself against an allegation of that nature, is not an issue before us.

       In denying the motion, the court concluded: “This isn’t the appropriate vehicle. This motion is not the appropriate vehicle to address any deprivation of [1he respondent’s] rights or injury that he suffered and that he should pursue his civil remedies . . . .”

       The respondent, who was sixteen years of age at the time that he filed the motion, is no longer in the custody of the commissioner of the department. We do not, however, consider the appeal moot, as practical relief can be provided the respondent; a reversal of the department’s determination may be of some consequence in a successful civil action resulting in monetary damages.

       “[W]e will ... in a given case, follow what may be regarded as the plain meaning of the language, namely, the meaning that, when the language is considered without reference to any extratexual sources of its meaning, appears to be the meaning and that appears to preclude any other likely meaning.” (Emphasis in original.) State v. Courchesne, 262 Conn. 537, 577, 816 A.2d 562 (2003) (en banc).

       Practice Book (1998) § 26-1 (i), now (j), defines “petition” in juvenile matters as follows: “ ‘Petition’ means a formal pleading, executed under oath alleging that the respondent is within the court’s authority to adjudicate the matter which is the subject of the petition by reason of cited statutory provisions and seeking a disposition. . . . [S]uch petitions invoke a judicial hearing . . . .” (Emphasis added.)

       At the hearing on the motion, the respondent’s counsel, in requesting a limited judicial record of review of the department’s decision, stated: “We certainly don’t expect the court to begin from the beginning in interviewing witnesses, and I don’t think any of that is necessary. I think everything that the court needs is provided in the documents that I submitted with the motion. I think it’s clear because the report identifies the witnesses, their statements, what they complained happened, and I would ask [the court] to review those documents and, I guess, reverse the department’s position.”

       “ ‘There is no absolute right of appeal to the courts from a decision of an administrative agency.’ Lewis v. Gaming Policy Board, 224 Conn. 693, 699, 620 A.2d 780 (1993); accord Fairfield v. Connecticut Siting Council, 238 Conn. 361, 368, 679 A.2d 354 (1996). ‘Appeals to the courts from administrative [agencies] exist only under statutory authority . . . .’ Tazza v. Planning & Zoning Commission, 164 Conn. 187, 190, 319 A.2d 393 (1972); accord Office of Consumer Counsel v. Dept. of Public Utility Control, 234 Conn. 624, 640, 662 A.2d 1251 (1995); Charles Holdings, Ltd. v. Planning & Zoning Board of Appeals, 208 Conn. 476, 479, 544 A.2d 633 (1988). ‘Appellate jurisdiction is derived from the . . . statutory provisions by which it is created, and can be acquired and exercised only in the manner prescribed.’ . . . Charles Holdings, Ltd. v. Planning & Zoning Board of Appeals, supra, 479; see also Connecticut Resources Recovery Authority v. Commissioner of Environmental Protection, 233 Conn. 486, 498, 659 A.2d 714 (1995) (‘The right of appeal [from the decision of an administrative agency] is purely statutory. It is accorded only if the conditions fixed by . . . statute . . . are met.’ . . . ).” Brookridge District Assn. v. Planning & Zoning Commission, 259 Conn. 607, 611-12, 793 A.2d 215 (2002).

       Because the court lacked the authority to consider the respondent’s motion under our rules of practice, the courtproperly should have dismissed, rather than have denied, the motion for review. Cf. State v. Rogelstad, 73 Conn. App. 17, 37, 806 A.2d 1089 (2002).


author: BISHOP, J.

text:
    MARIO S. ROSATO v. BEATRICE M. ROSATO
    (AC 22951)
    Foti, Bishop and Hennessy, Js.
    Argued March 19
    officially released May 27, 2003

      Mark M. Wrenn, for the appellant (plaintiff).

      Beatrice M. Rosato, pro se, the appellee (defendant).
   Opinion

BISHOP, J.

In this marital dissolution action, the plaintiff, Mario S. Rosato, appeals from the court’s judgment (1) concerning the payment of an arrearage on the distribution of his retirement pension to the defendant, Beatrice M. Rosato, and (2) concerning the order that the defendant’s share of his pension pass to the parties’ adult children upon the death of the defendant. We affirm the judgment of the trial court in part and reverse it in part.

This case has followed several paths since the marital dissolution judgment was rendered on July 11, 1988. In 1994, the defendant filed a motion to clarify a portion of the judgment concerning the plaintiffs pension. At issue in that motion was whether the court initially had awarded the defendant only a survivorship interest in the plaintiffs pension or had awarded her a portion of the plaintiffs pension to be received during her lifetime. In response to the motion, the court issued an order purportedly clarifying the initial judgment by making explicit its intention that the defendant receive a fixed portion of the plaintiffs pension during her lifetime. In 1996, the court’s “clarification” was, in turn, found by this court to be an improper modification of a property assignment. See Rosato v. Rosato, 40 Conn. App. 533, 536, 671 A.2d 838 (1996).

Following our decision, the defendant attempted to secure payment of pension benefits derived from the plaintiffs pension through the federal Office of Personnel Management (OPM). Unsuccessful in that administrative process, the defendant appealed to the United States Court of Appeals for the Federal Circuit, which, in 1997, reversed the ruling of the administrative law judge. See Rosato v. Office of Personnel Management, 132 F.3d 55 (Fed. Cir. 1997). Thereafter, however, the federal court reversed itself due to a procedural infirmity regarding its initial determination. Rosato v. Office of Personnel Management, 165 F.3d 1377 (Fed. Cir. 1999). In that later decision, the federal court urged the defendant to request that we reconsider our decision, which, the federal court found stood as an impediment to the defendant’s receipt of a portion of the plaintiffs pension. Id., 1381-82.

On the basis of the Federal Circuit’s decision, the defendant petitioned us to reconsider our earlier decision. We, in response, dismissed the defendant’s motion as untimely. Rosato v. Rosato, 53 Conn. App. 387, 389, 731 A.2d 323 (1999). Thereafter, to pursue a state appellate remedy, the defendant filed in our Supreme Court a motion for permission to file a late petition for certification to appeal from our initial decision. That petition was granted in 2000. Rosato v. Rosato, 252 Conn. 930, 746 A.2d 793 (2000). Consequently, the Supreme Court reversed our 1996 decision and directed us to remand the matter to the trial court for a new hearing on the financial orders. Rosato v. Rosato, 255 Conn. 412, 425, 766 A.2d 429 (2001). In doing so, the court opined:

“It is clear to us that without the benefit of a definite resolution of the questions surrounding all the relevant pension information, we cannot be absolutely certain whether the Appellate Court correctly concluded that the trial court improperly had modified its original award order. Keeping in mind that we ultimately are charged with the responsibility of doing justice in the extraordinary circumstances of this case, we conclude that: (1) we cannot determine with certainty whether the trial court’s original order granted the defendant an interest in the plaintiffs lifetime pension, or only a survivorship interest upon the plaintiffs death; (2) we cannot reconcile clearly whether the clarification order by the trial court was intended to award 55 percent of the plaintiffs lifetime pension benefits or survivorship rights; (3) the trial court should determine whether the plaintiffs pension benefits vested, and if they did vest, when did they vest; (4) we must set aside the Appellate Court’s judgment because its interpretation of the trial court’s order may well be flawed; and (5) for us to resolve all of the preceding issues might well cast us, to a great degree, in the role of a fact finder.

“Thus, for the reasons set forth in this opinion, we find it necessary to reverse the judgment of the Appellate Court and remand the case for a new hearing to establish a new set of comprehensive financial orders, including a new alimony award. We recognize that this unique case provides very little precedential value, and we hope not to see another of its kind again. Finally, given the longevity of these proceedings and with recognition of the patience of the parties involved, we strongly urge that this matter be given an expeditious reassignment for rehearing.” Id., 424-25.

Thereafter, on August 27, 2001, the trial court, Hon. Sidney Axelrod, judge trial referee, conducted a further hearing and entered new financial orders effective as of July 11, 1988. Included in that judgment are the court’s orders concerning a distribution to the defendant of a portion of the plaintiffs pension effective as of July 11, 1988. Although the plaintiff does not challenge the assignment to the defendant of a fixed portion of his pension during her lifetime, he claims that the court incorrectly found an arrearage of $81,074.20 on the distribution and claims that the court’s order that this arrearage be discharged by equal monthly payments of $675.62 over a ten year period was an abuse of discretion. Additionally, he claims that the court’s order that the defendant’s share of his pension be assigned to the parties’ adult children upon her death was legally impermissible.

Each of the plaintiff’s two claims implicates a different standard of review. As to the finding of an arrearage on the pension payments and the court’s orders for monthly payments on that arrearage, we review the court’s order to determine whether it constitutes an abuse of discretion. “The standard of review in family matters is that this court will not disturb the trial court’s orders unless it has abused its legal discretion or its findings have no reasonable basis in fact. ... It is within the province of the trial court to find facts and draw proper inferences from the evidence presented. . . . [E]very reasonable presumption will be given in favor of the trial court’s ruling, and [n]othing short of a conviction that the action of the trial court is one which discloses a clear abuse of discretion can warrant our interference.” (Citation omitted; internal quotation marks omitted.) Bleuer v. Bleuer, 59 Conn. App. 167, 169, 755 A.2d 946 (2000); see also Parley v. Parley, 72 Conn. App. 742, 751-52, 807 A.2d 982 (2002). “In determining whether there has been an abuse of discretion, the ultimate issue is whether the court could reasonably conclude as it did.” (Internal quotation marks omitted.) Sands v. Sands, 188 Conn. 98, 101, 448 A.2d 822 (1982), cert. denied, 459 U.S. 1148, 103 S. Ct. 792, 74 L. Ed. 2d 997 (1983). Accordingly, it is only in rare instances that the court’s decision will be disturbed. See Simmons v. Simmons, 244 Conn. 158, 175, 708 A.2d 949 (1998); Milbauer v. Milbauer, 54 Conn. App. 304, 320, 733 A.2d 907 (1999).

Here, the plaintiff does not claim that the court’s award to the defendant of a fixed portion of his pension constituted an abuse of discretion. He also does not claim that the court was incorrect to value the parties’ assets as of July 11,1988, the original date of the marital dissolution. See Sunbury v. Sunbury, 216 Conn. 673, 676, 583 A.2d 636 (1990). Rather, the plaintiff claims that the court abused its discretion in dividing the pension as of July 11, 1988, and thereby finding that an arrearage had accrued between the date of the original hearing and the hearing on remand. The plaintiff claims, as well, that the court abused its discretion in its order for monthly payments.

As to the finding of an arrearage, at the hearing on remand, the court heard evidence concerning the date on which the plaintiffs pension became vested, his date of retirement and the gross amount of pension payments he had received between August, 1988, and the date of the hearing on remand. On the basis of that information, and in light of the court’s order that the defendant receive 50 percent of the plaintiff’s pension, the court calculated the total amount the defendant should have received if she had been receiving payments equal to 50 percent of the pension since the date of the original hearing in 1988. From that sum, the court credited the plaintiff with the amounts the defendant had, in fact, received during that time period to arrive at an adjusted arrearage figure of $81,074.20.

In assessing the correctness of that order, we are mindful that a distribution of pension in conjunction with a marital dissolution is part of a property distribution. Bender v. Bender, 258 Conn. 733, 750, 785 A.2d 197 (2001); Krafick v. Krafick, 234 Conn. 783, 792-94, 663 A.2d 365 (1995). That observation is significant because the assignment of property may only be made at the time of the marital dissolution and it is not thereafter subject to modification as are periodic orders. See General Statutes § 46b-81. “Dispositions of property made at the time of the decree under § 46b-81 are not subject to modification, even if there should be a change of circumstances. See General Statutes § 46b-86 (a) . . . .” (Citation omitted.) Magowan v. Magowan, 73 Conn. App. 733, 742, 812 A.2d 30 (2002), cert. denied, 262 Conn. 934, 815 A.2d 134 (2003).

As the parties agree, under the unusual circumstances of this case, it was the task of the court on remand to issue financial orders as of 1988, the original date of the marital dissolution hearing. In rendering its pension order, therefore, the court divided the pension as of that date. As an asset, however, the pension is distributed not in one payment, but in a series of monthly payments, several of which were made subsequent to 1988 and before the August, 2001 hearing. Thus, for the defendant to realize the full benefit of the 2001 order, issued as of 1988, that she receive 50 percent of the plaintiff’s pension, it was proper for the court to calculate the total pension amount received by the plaintiff between the first hearing and the remand hearing, to determine one half of that amount as the defendant’s entitlement and, finally, to give the plaintiff credit for any pension amounts actually received by the defendant during that time period.

If the court had not determined an amount due to the defendant from the effect of the 1988 order, but simply had ordered payments prospectively from 2001, the court; would have been in violation of § 46b-81, which requires that property orders be made at the time of the marital dissolution. Section 46b-81 (a) provides in relevant part: “At the time of entering a decree . . . dissolving a marriage . . . the Superior Court may assign to either the husband or wife all or any part of the estate of the other. . . .” In sum, assignments of property may be made only at the time of the marital dissolution hearing. Under the unusual circumstances of this case, the court’s methodology of determining the full value of the defendant’s awarded share of the plaintiff’s pension, the amount of that paid out between 1988 and 2001, and the shortfall consequently due to the defendant was reasonable and correct in light of its obligation to value assets as of 1988.

The plaintiff next claims that even if the court’s finding of an arrearage was correct, its order for monthly payments over a ten year period to the defendant was an abuse of discretion. We are not persuaded. The following additional facts are relevant to the plaintiffs claim.

At the time of the original hearing in 1988, the plaintiff was employed by the United States Postal Service with a vested right to the future receipt of a defined benefit pension. In 1992, the plaintiff, then age sixty-two, retired and began to receive monthly lifetime pension benefits pursuant to the federal Civil Service Retirement System. On remand, the court ordered that the defendant receive 50 percent of the plaintiffs gross monthly annuity. Additionally, as noted, the court considered that for the time period 1988 to 2001, because the defendant had received some portion of the plaintiffs pension, the plaintiff should receive a credit for the amounts received by the defendant. Therefore, the difference between the amount credited and the amount equal to 50 percent of the gross payments between 1988 and 2001, less any payments made to the defendant, constituted an arrearage fairly due to the defendant. Consequently, the court ordered the arrearage paid in equal monthly installments over a period of ten years.

The plaintiff, who is now seventy-two years old and fully retired, asserts that as a result of the arrearage order, he is left with approximately 25 percent of his pension as his monthly financial sustenance when the court’s order is combined with the ongoing pension distribution order. Although that argument is facially compelling, we find no less compelling the fact that the amount of the arrearage represents a sum the court found the defendant did not have the benefit of receiving between the years 1988 and 2001. “In view of the court’s distinct advantage in handling domestic relations matters, awards of financial settlement ancillary to a marital dissolution are within the sound discretion of the trial court acting in accordance with the standards and guidelines provided in the General Statutes. Murphy v. Murphy, 180 Conn. 376, [379] 429 A.2d 897 [1980]; Fucci v. Fucci, 179 Conn. 174, [181] 425 A.2d 592 [1979]; Ridolfi v. Ridolfi, 178 Conn. 377, [379] 423 A.2d 85 [1979]; Jacobsen v. Jacobsen, 177 Conn. 259, [263] 413 A.2d 854 [1979]. In determining whether the trial court abused its discretion ‘the ultimate issue is whether the court could reasonably conclude as it did.’ Grinold v. Grinold, 172 Conn. 192, 194, 374 A.2d 172 [1976]; Corbin v. Corbin, 179 Conn. 622, [624] 427 A.2d 432 [1980].” Miller v. Miller, 181 Conn. 610, 611, 436 A.2d 279 (1980). We are not persuaded that the court’s order for payment on the arrearage was unreasonable.

The plaintiff next claims that the court incorrectly ordered that the defendant’s share of the plaintiffs monthly pension be assigned to the parties’ children upon the defendant’s death. The court’s order in relevant part was as follows: “If [the defendant] dies before [the plaintiff], the United States Office of Personnel Management is directed to pay [the defendant’s] share of [the plaintiffs] Civil Service Retirement Benefits to surviving children of the marriage including any adopted children, in equal shares. Upon the deaths of any child, that child’s share will be distributed amongst the other surviving children.” We agree with the plaintiffs claim that this was a legally impermissible order.

Because the plaintiff challenges the legal authority of the court to issue the order, his claim raises a question of law that is subject to our plenary review. See In re Jonathan M., 255 Conn. 208, 217, 764 A.2d 739 (2001); Olson v. Accessory Controls & Equipment Corp., 254 Conn. 145, 156, 757 A.2d 14 (2000).

From the record, we glean the additional relevant fact that during the parties’ marriage, four children were bom, all of whom, by 1988, had reached the age of majority. We begin our analysis of the plaintiffs claim by recognizing that the authority of the court to transfer property incidental to a marital dissolution awards is statutory.

“The failure to interpret property broadly pursuant to § 46b-81 could result in substantial inequity . . . and would not be in keeping with the equitable nature of dissolution proceedings . . . .” Lopiano v. Lopiano, 247 Conn. 356, 371, 752 A.2d 1000 (1998). “Although it is well established that trial courts have broad equitable remedial powers regarding marital dissolutions ... it is equally well settled that [cjourts have no inherent power to transfer property from one spouse to another; instead, that power must rest upon an enabling statute. Passamano v. Passamano, 228 Conn. 85, 88 n.4, 634 A.2d 891 (1993). Thus, the court’s authority to transfer property appurtenant to a dissolution proceeding requires an interpretation of the relevant statutes. Statutory construction, in turn, presents a question of law over which our review is plenary.” (Citation omitted; internal quotation marks omitted.) Smith v. Smith, 249 Conn. 265, 272, 752 A.2d 1023 (1999); Costa v. Costa, 57 Conn. App. 165, 169-70, 752 A.2d 1106 (2000).

Section 46b-81 (a) provides: “At the time of entering a decree annulling or dissolving a marriage or for legal separation pursuant to a complaint under section 46b-45, the Superior Court may assign to either the husband or wife all or any part of the estate of the other. The court may pass title to real property to either party or to a third person or may order the sale of such real property, without any act by either the husband or the wife, when in the judgment of the court it is the proper-mode to carry the decree into effect.” It is plain from that statute that while the court has the authority to pass title of real property from one spouse to another or to a third party at the time of marital dissolution, the court’s authority to transfer any part of each spouse’s estate is limited to transfers between spouses. It also is apparent that to the extent that the defendant’s right to receive pension benefits during her lifetime can be said to be a part of her estate for purposes of § 46b-81, this estate is comprised in no part of real property.

The defendant claims, nevertheless, that the court has the authority to transfer her lifetime interest in the plaintiffs pension to the parties’ children as a result of federal legislation. In that assertion, the defendant is mistaken. While it is true, as noted by the court, that § 838.237 of the Code of Federal Regulations provides that the United States Office of Personnel Management will honor an order to continue payments of a former spouse’s share of a retirement annuity to a child or children of a retiree after the former spouse’s death, this federal regulation does not serve to enlarge the trial court’s statutory authority pursuant to § 46b-81.

Additionally, the defendant has not pointed to any federal authority that preempts our state law limiting the authority of the court to order a transfer of personal property from one spouse to another incidental to a marital dissolution. “There is indeed a presumption against pre-emption in areas of traditional state regulation such as family law. See, e.g., Hisquierdo v. Hisquierdo, 439 U.S. 572, 581 [99 S. Ct. 802, 59 L. Ed. 2d 1] (1979).” Egelhoff v. Egelhoff 532 U.S. 141, 151, 121 S. Ct. 1322, 149 L. Ed. 2d 264 (2001).

We conclude, on the basis of state law, that the court was without the authority to direct the United States Office of Personnel Management to pay the defendant’s share of the plaintiffs retirement benefits to the children upon the death of the defendant should she predecease the plaintiff.

As a last matter, having determined that the court was incorrect in ordering the United States Office of Personnel Management to continue pension payments to the parties’ children, we decline, on the basis of the particular circumstances of this case, to return this matter to the trial court for a hearing anew on all financial orders.

Normally, when aportion of the court’s financial order is found to be flawed, we return the matter to the trial court for a new hearing on the ground that in marital dissolution jurisprudence, financial orders often are interwoven. “[I]ssues involving financial orders [in dissolution cases] are entirely interwoven. The rendering of judgment in a complicated dissolution case is a carefully crafted mosaic, each element of which may be dependent on the other. . . . Hopfer v. Hopfer, 59 Conn. App. 452, 458-59, 757 A.2d 673 (2000).” (Internal quotation marks omitted.) Parley v. Parley, supra, 72 Conn. App. 754 (Foti, J., dissenting). A remand, however, is not inevitable if we discern that a particular financial order is not so interwoven as to rend the entire fabric of a marital dissolution decision. As stated in Parley, “[o]ur Supreme Court . . . has stated that a financial order in a dissolution case is severable when it is not in any way interdependent with other orders and is not improperly based on a factor that is linked to other factors. Smith v. Smith, [supra, 249 Conn. 277].” (Internal quotation marks omitted.) Parley v. Parley, supra, 754. This is such a case.

The judgment is reversed only as to the order directing the United States Office of Personnel Management to designate the children as beneficiaries of the plaintiffs retirement plan upon the death of the defendant and the case is remanded with direction to render judgment as on file except as modified to delete that order.

In this opinion the other judges concurred.

       The court subsequently revised that judgment on March 26, 2002, to state with exactitude the amount of the pension arrearage and monthly payments due on it. For purposes of clarity and accuracy, we refer to the date of the judgment on remand as August 27, 2001.

       From the record, it appears that the plaintiffs monthly gross pension is approximately $2443, 50 percent of which is $1221.50. Additionally, the effect of the arrearage order is that the defendant is to receive an additional $675.62 a month for a period of ten years, leaving the plaintiff with a gross monthly receipt of $545.88 a month.


text:
    AETNA LIFE INSURANCE COMPANY v. CITY OF MIDDLETOWN
    (AC 22826)
    Foti, West and Peters, Js.
    Argued February 18
    officially released May 27, 2003

      Barbara A. Frederick, with whom were Trina A. Solecki, city attorney, and, on the brief, Robert M. DeCrescenzo, for the appellant-appellee (defendant).

      Marjorie S. Wilder, with whom were Julie A. Morgan and, on the brief, Elliott B. Pollack, for the appellee-appellant (plaintiff).
   Opinion

FOTI, J.

The defendant, the city of Middletown, appeals from the judgment of the trial court rendered in accordance with its decision in this real estate tax appeal brought pursuant to General Statutes § 12-117a by the plaintiff, Aetna Life Insurance Company (Aetna). Aetna has filed a cross appeal. The city claims that the court should have dismissed Aetna’s property tax appeal because the city believes Aetna failed to meet its threshold burden of proving that the city’s appraiser had overvalued the subject property. On its cross appeal, Aetna claims that although the court properly determined that the city had overvalued the subject property, the court nevertheless improperly determined the property’s correct value. As to both the appeal and cross appeal, we affirm the judgment of the court.

The record reveals the following facts and procedural histoiy. The subject properly is Aetna’s corporate facility at 1000 Middle Street in Middletown, which consists of 263 acres of land improved with a 1,490,000 square foot main building and a 120,000 square foot computer center that is connected to the main building by a tunnel, as well as a 7570 square foot maintenance building and two parking structures totaling approximately 215,000 square feet. The construction of the facility began in March, 1981, and was completed on a “fast track” basis in April, 1984. That “fast track” construction resulted in many change orders and other construction cost increases. The total historical cost of the land and the improvements was $167,261,318. The main building consists of three, seven story core sections or “pods” that surround a large, central skylit atrium. The design was intended to segment the extremely large building into sections and to provide light to interior portions of the building. The main building is used primarily for office space, but it also contains many special features for the use of the approximately 5000 employees working there.

In 1985, Aetna entered into a sale-leaseback transaction with the trustees of Middletown Trust (trust). Specifically, Aetna first leased to the trust 54.49 acres of the subject property on which sits all of the property’s improvements for a term of twenty-five years with an option to extend the lease for ten additional, consecutive five year terms. Along with granting the lease of the 54.49 acres of land, Aetna sold the improvements to the trust for $225,000,000. Aetna then took back a sublease of the 54.49 acres together with a lease of the improvements. Aetna retained the obligation to pay all property taxes associated with the leased property.

As of the October 1,1987 grand list, the city’s assessor set the total fair market value of the subject property at $250,665,000. Reduced property tax assessments pursuant to an earlier incentive agreement ended with the October 1, 1990 grand list. Subsequently, Aetna paid, without protest, the property taxes assessed on the subject property for the grand lists of October 1, 1991 to 1994. In May, 1996, however, Aetna appealed to the city’s board of assessment appeals (board), challenging the city’s valuation of the subject property and the assessments for the grand lists of October 1, 1995,1996 and 1997. The board dismissed the appeal and Aetna sought review of the board’s decision from the court pursuant to § 12-117a. Contrary to the board’s decision, the court concluded that the city, in fact, had overvalued Aetna’s property by $17,133,451 and that the true and actual value of the subject property as of the October 1, 1987 grand list should have been $233,531,549. This appeal and cross appeal followed.

Before addressing the merits of the parties’ claims, we first set forth the well settled legal principles underlying a § 12-117a tax appeal, as well as our applicable standard of review. “In § 12-117a tax appeals, the trial court tries the matter de novo and the ultimate question is the ascertainment of the true and actual value of the [taxpayer’s] property. . . . At the de novo proceeding, the taxpayer bears the burden of establishing that the assessor has overassessed its property. . . . Once the taxpayer has demonstrated aggrievement by proving that its property was overassessed, the trial court [will] then undertake a further inquiry to determine the amount of the reassessment that would be just. . . . The trier of fact must arrive at [its] own conclusions as to the value of [the taxpayer’s property] by weighing the opinion of the appraisers, the claims of the parties in light of all the circumstances in evidence bearing on value, and his own general knowledge of the elements going to establish value ....

“We review the trial court’s conclusion in a tax appeal pursuant to the well established clearly erroneous standard of review. Under this deferential standard, [w]e do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached. Rather, we focus on the conclusion of the trial court, as well as the method by which it arrived at that conclusion, to determine whether it is legally correct and factually supported. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Citations omitted; internal quotation marks omitted.) United Technologies Corp. v. East Windsor, 262 Conn. 11, 22-23, 807 A.2d 955 (2002).

Keeping those principles in mind, we now turn to our resolution of the claims raised in the present appeal.

I

The city’s sole claim on appeal is that the court should have dismissed Aetna’s appeal because Aetna failed to satisfy its burden of proving that the city’s appraiser had overvalued the subject property. We disagree.

The city argues that the only evidence of valuation that Aetna offered at trial was the expert testimony of Aetna’s appraiser, Arnold J. Grant, and that the court rejected each of the three intermediate determinations of value that Grant utilized in reaching his final conclusion that the correct value of the subject property was $167,700,000. The city further argues that the only other evidence before the court of the true and actual value of the subject property was the city assessor’s original valuation of $250,665,085 and the $260,000,000 valuation made by the city’s expert, John Leary. The city concludes that the evidence before the court that the property was overvalued was therefore insufficient to satisfy Aetna’s burden of proof and that the court should have dismissed the appeal as a matter of law. Specifically, the city asserts in its principal brief: “The trial court’s findings regarding Aetna’s evidence therefore establish, as a matter of law, that Aetna failed to meet its threshold burden of proving an overassessment.” That assertion, however, is incorrect.

The city is correct that the only evidence of valuation that Aetna presented at trial was the testimony of its expert, Grant. After cross-examination of Grant, at the close of Aetna’s case-in-chief, if the city believed, as it now claims, that Aetna’s evidence failed to establish by a preponderance of the evidence that there was an overvaluation, the city could have sought a dismissal pursuant to Practice Book § 15-8. See Sears, Roebuck & Co. v. Board of Tax Review, 241 Conn. 749, 752 n.6, 699 A.2d 81 (1997). It chose not to do so. Instead, the city elected to present the court with its own witnesses and other evidence regarding what it believed to be the proper valuation of the subject property. Although Aetna had the burden of proof as to the court’s determination whether the city had overvalued the subject property; see United Technologies Corp. v. East Windsor, supra, 262 Conn. 22; Ireland v. Wethersfield, 242 Conn. 550, 556, 698 A.2d 888 (1997); Xerox Corp. v. Board of Tax Review, 240 Conn. 192, 204, 690 A.2d 389 (1997); the city’s characterization of the evidence that the court could have considered in making that determination is misguided.

The city’s claim on appeal is similar to one raised in Sears, Roebuck & Co. v. Board of Tax Review, supra, 241 Conn. 749. In that case, the defendant town also claimed that the plaintiff had failed to meet its burden of proof, arguing that the court had not credited the testimony of the plaintiffs principal witness concerning overvaluation of the subject property, but instead improperly relied on the opinion of the town’s expert, whose testimony the town conceded explicitly supported the court’s finding of overvaluation. Id., 755. In rejecting that argument, our Supreme Court noted: “Because a tax appeal is heard de novo, a trial court judge is privileged to adopt whatever testimony he reasonably believes to be credible. . . . This principle applies not only to the trial court’s determination of the true and actual value of taxable property, but also to its determination of whether the plaintiff has satisfied the burden of establishing overvaluation.” (Citations omitted; emphasis added; internal quotation marks omitted.) Id., 755-56.

In this case, the court, therefore, in determining whether Aetna had met its burden of showing an overvaluation of the subject property, properly could have considered all the evidence presented at trial, including the testimony of Leary and any other evidence presented by the city. “Because the burden of proving overvaluation rested on the plaintiff, the [city] was under no obligation to submit expert evidence in support of its valuation. Having submitted such evidence, however, the [city] cannot circumscribe its significance or prevent the trial court from relying on it for substantive purposes.” Id., 756.

Examination of the court’s memorandum of decision reveals that it did not accept fully the valuation of either party’s expert. It certainly was a proper exercise of the court’s discretion to credit whatever testimony it reasonably believed to be credible. Although the court rejected some of Grant’s analysis, it also agreed with him in part. For example, the court credited Grant’s testimony that the subject property was one of the largest office buildings in the state and that comparable structures were seldom for sale on the open real estate market. Consequently, the court found that there were, in effect, no appropriate comparable sales or comparable market rents because other properties either were not close in size, were multitenant buildings or the leases were relatively short term compared with the Aetna lease. Accordingly, the court agreed with Grant’s analysis that the sales comparison and income capitalization approaches to valuation were of limited use in determining fair market value and that the most credible approach to valuing the subject property was, as Grant suggested, the cost approach.

In considering a cost approach to valuing the subject property, the court chose to credit Leary’s reproduction cost approach over Grant’s replacement cost approach and, in general, adopted Leary’s computations, agreeing that the reproduction cost for the subject property without the computer center as of October 1, 1987, was $207,839,870. The court, however, rejected Leary’s selection of 7.5 percent to 12.5 percent as the proper measure of entrepreneurial profit in favor of Grant’s selection of 2 percent or $4,156,797. Additionally, the court credited Grant’s analysis of the cost of the land at $40,000 per acre to be more credible than Leary’s value of $60,000 per acre, resulting in a total value for the subject land of $10,520,000. Accepting Leary’s $9,650,353 depreciation deductions and adding in a similarly calculated value of $20,485,235 for the computer center, the court reasonably determined, solely on the basis of the evidence presented, that the true and actual value of the subject property was $233,531,549 or $17,133,451 less than the city’s valuation.

The city has provided no legal support, nor do we find any, for its implicit proposition that a court, in considering evidence of valuation, must either wholly reject or wholly adopt the analysis of an expert witness. Although Leary’s ultimate conclusion as to valuation did not directly support a finding of overvaluation as did the town’s expert in Sears, Roebuck & Co. v. Board of Tax Review, supra, 241 Conn. 749, the court, nevertheless, was free to accept and reject any portion of his or Grant’s analyses in reaching its conclusion that the city had in fact overvalued the subject property. Therefore, on the basis of our review of the record, we conclude that the court properly determined that the plaintiff had met its burden of showing that the city’s assessor had overvalued the subject property and that such a finding was legally and logically correct and supported by the evidence before the court.

II

We next address Aetna’s cross appeal, which challenges the court’s determination of the true and actual value of the subject property. In its principal brief, Aetna generally claims that in valuing the subject property, the court “utilized the incorrect legal standard.” Specifically, Aetna claims that the court improperly utilized a reproduction cost approach instead of a replacement cost approach, and determined the subject property’s “use value” to Aetna and its employees rather than its “fair market value.” Mindful of our deferential standard of review, we find Aetna’s arguments unpersuasive and conclude that the court’s determination of the value of the subject property was not clearly erroneous.

Aetna first claims that the court improperly utilized a reproduction cost approach instead of a replacement cost approach in determining the fair market value of the subject property. Aetna makes the following argument in support of that claim. Because Aetna leased the subject property from the trust, it is rental income property, and its valuation is governed by General Statutes § 12-63b. That statute provides that when an assessment on the basis of comparable sales is not feasible, the city’s assessor or board of assessors should conduct an appraisal, “which shall include to the extent applicable with respect to such property, consideration of each of the following methods of appraisal: (1) Replacement cost less depreciation, plus the market value of the land, (2) the gross income multiplier method as used for similar property and (3) capitalization of net income based on market rent for similar property. . . .” (Emphasis added.) General Statutes § 12-63b (a). The statute does not mention reproduction cost as one of the appraisal methods that the court must consider. Therefore, Aetna contends that the court should not have adopted Leary’s reproduction cost approach, but instead should have utilized Grant’s replacement cost approach. We disagree.

The court’s ultimate goal is to establish the true and actual value of the subject property and, “[o]n appeal, the scope of our review is limited because it is a question of fact for the trier as to whether the method used for valuation appears in reason and logic to accomplish a just result.” First Bethel Associates v. Bethel, 231 Conn. 731, 738, 651 A.2d 1279 (1995). Section 12-63b provides guidance to the appraiser and, thus, to the court in determining that value. Id. It only requires, however, that the court give consideration to the enumerated methods to the extent applicable with respect to such property. It does not mandate that a particular method must be utilized or otherwise serve to limit the court’s discretion to choose the method that it believes will result in the fairest approximation of the subject property’s value. It is clear from the court’s memorandum of decision that it gave serious consideration to several methods of valuation in reaching its final conclusion, including the comparable sales, income capitalization, reproduction and replacement cost approaches.

After making a well reasoned determination, largely on the basis of the opinion of Aetna’s own expert, that no comparable properties existed in which to compare sales or market rent, the court chose the cost approach as the best method for valuing the subject property. It gave ample consideration to the replacement cost approach but, ultimately, given the particular circumstances presented in this case, it chose to adopt reproduction cost as the fairest and most accurate method of determining the subject property’s value under the cost approach. “We do not examine the record to determine whether the [court] could have reached a conclusion other than the one reached. Rather, we focus on the [court’s] conclusion ... as well as the method by which it arrived at that conclusion, to determine whether it is legally correct and factually supported.” (Internal quotation marks omitted.) Id., 744. We conclude that the court’s decision to utilize a reproduction cost approach is not clearly erroneous because it is supported adequately by the facts and is not contrary to § 12-63b (a).

Aetna next claims that the court did not determine “fair market value” as required by General Statutes § 12-63, but rather determined the subject property’s value wholly on the basis of its value to Aetna and its employees. Despite Aetna’s arguments to the contrary, the record and the court’s memorandum of decision do not support that claim.

In determining the true and actual value of real property, the court must arrive at its own conclusion as to value by “weighing the opinion of the appraisers, the claims of the parties in light of all the circumstances in evidence bearing on value, and his own general knowledge of the elements going to establish value including his own view of the property.” (Internal quotation marks omitted.) Konover v. West Hartford, 242 Conn. 727, 735, 699 A.2d 158 (1997). Excluding farm, forest and open space land, the true and actual value of real property for the purpose of taxation is determined on the basis of its “fair market value . . . .” General Statutes § 12-63 (a). Section 12-63, however, does not provide a definition of fair market value or a method for its calculation. We therefore look to our case law.

Our courts often have defined fair market value as the price that would result from the fair negotiations of a willing seller and a desirous buyer. Uniroyal, Inc. v. Board of Tax Review, 174 Conn. 380, 390, 389 A.2d 734 (1978). That method of valuation, of course, presumes that a reasonable market for the property exists. “Where this method is unavailable, however, other means are to be found by which to determine value. ... A variety of such alternative methods for calculation of ‘true and actual value’ have been approved by [our Supreme Court]: use of the cost of reproduction with an adjustment for depreciation . . . use of the original property cost less depreciation . . . and the capitalization of actual income approach . . . .” (Citations omitted.) Id., 386. “A property’s highest and best use is commonly accepted by real estate appraisers as the starting point for the analysis of its true and actual value. . . . The highest and best use conclusion necessarily affects the rest of the valuation process because, as the major factor in determining the scope of the market for the property, it dictates which methods of valuation are applicable.” (Citations omitted.) United Technologies Corp. v. East Windsor, supra, 262 Conn. 25-26.

In reaching its conclusion as to valuation, the court considered, along with other evidence, Grant’s and Leary’s testimony and written reports as to the highest and best use of the subject property, and the approaches to valuation that flowed from those opinions. The parties agreed that the highest and best use of the subject property was a continuation of its present use; they differed, however, in how they characterized that use. Grant’s analysis presumed a present use comparable to that of a typical office building. Grant suggested that, as such, the property contained design flaws and inefficiencies that limited the functional utility of the subject property and, consequently, acted to lessen its fair market value. For example, the main building has large corridors and excessive common space as well as numerous special amenities that are absent from many typical office buildings. In contrast, Leary based his analysis on the subject property’s continued use as a corporate headquarters, not as an inefficient office building. Leary’s opinion was that many of the design features and extras that Aetna chose to incorporate in its original design are typical for a corporate headquarters type facility.

Contrary to Aetna’s argument that the court excluded market evidence and ignored market objectives, the court considered Grant’s market based inefficiency theory and specifically chose to reject it. That was consistent with the court’s adoption of Leary’s opinion that “the highest and best use is a continuation of the present use by Aetna as a corporate headquarters.” We refuse Aetna’s invitation to read into that statement of highest and best use the court’s intention to value the subject property exclusively on the basis of its “use value” to Aetna and Aetna’s employees because such an interpretation is inconsistent with the court’s decision when read as a whole. See id., 25-28 (approving trial court’s finding that subject property’s highest and best use was “ ‘its continued use ... as presently used by [the plaintiff]’ ”). Aetna’s use of the subject property and its value to Aetna are clearly representative of the subject property’s general market value as a corporate headquarters and were considered properly by the court along with all the additional relevant evidence.

Aetna further supports its argument by noting that the court recognized Aetna’s choice to “fast track” the construction, which increased the property’s construction cost due to cost overruns and the need to redesign aspects of the project. Aetna argues that in reproducing the subject property, a corporation likely would not duplicate those costs and that the court improperly neglected to account for that in making its determination of value. Aetna, however, has not provided us with any binding authority that holds that a court must account for such “functional obsolescence” or that a failure to do so is clearly erroneous. Further, there was evidence that Leary’s reproduction cost analysis, on which the court relied in part for its calculation, compared both the actual construction costs and the original contract plans, and found no significant increase in the overall cost per square foot despite the change orders. We therefore conclude that the court’s determination of the subject property’s true and actual value as of the October 1, 1987 grand list reflects its fair market value, does not ignore relevant market data, and is legally correct and supported by the facts.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 12-117a provides in relevant part: “Any person . . . claiming to be aggrieved by the action of the board of tax review or the board of assessment appeals, as the case may be, in any town or city may, within two months from the date of the mailing of notice of such action, make application, in the nature of an appeal therefrom, with respect to the assessment list for the assessment year commencing October 1, 1989, October 1, 1990, October 1,1991, October 1,1992, October 1, 1993, October 1, 1994, or October 1, 1995, and with respect to the assessment list for assessment years thereafter, to the superior court for the judicial district in which such town or city is situated, which shall be accompanied by a citation to such town or city to appear before said court. . . . The court shall have power to grant such relief as to justice and equity appertains, upon such terms and in such manner and form as appear equitable, and, if the application appears to have been made without probable cause, may tax double or triple costs, as the case appears to demand; and, upon all such applications, costs may be taxed at the discretion of the court. If the assessment made by the board of tax review or board of assessment appeals, as the case may be, is reduced by said court, the applicant shall be reimbursed by the town or city for any overpayment of taxes, together with interest and any costs awarded by the court, or, at the applicant’s option, shall be granted a tax credit for such overpayment, interest and any costs awarded by the court. Upon motion, said court shall, in event of such overpayment, enter judgment in favor of such applicant and against such city or town for the whole amount of such overpayment, together with interest and any costs awarded by the court. The amount to which the assessment is so reduced shall be the assessed value of such property on the grand lists for succeeding years until the tax assessor finds that the value of the applicant’s property has increased or decreased.”

       In 1980, Aetna purchased 269.7 acres of undeveloped land in Middletown for $5,448,000. In 1982, Aetna conveyed 6.7 acres to the city, leaving a balance of approximately 263 acres.

       The building contains a health and fitness center, a 700 seat auditorium, a 115 seat lecture hall, eighteen conference rooms, a convenience store, a hair salon, executive and employee dining areas, a. cafeteria with seating for 2100 persons and a large granite fountain in the atrium. In addition to paved roads and landscaping, the subject property also has covered walkways, an outdoor recreation area with two softball fields and a jogging-hiking trail, as well as a helipad.

       As the court noted in its memorandum of decision, “[t]he result of this transaction . . . was that the trust owned the improvements with a stepped-up basis from the historical building cost of $161,846,318 to $225,000,000, together with a lease of the 54.49 acres. Aetna ended up owning the balance of the 263 acres of land with a reported gain of $61,500,000 on the sale of the improvements to the trust.”

       The city had entered into an incentive development agreement with Aetna in 1981. The incentive agreement provided that as of the October 1, 1987 grand list, on the basis of an agreed on fair market value of $6,714,285, the assessed value of the land would be $4,700,000. The incentive agreement further provided that the improvements to the property would be assessed at 40 percent of the agreed on value and that this assessment would run for seven years from the date of the grand list following the issuance of the certificate of occupancy. A final certificate of occupancy for the facility was issued on August 28, 1984. The parties agreed that the fair market value of the improvements would be $243,950,800. As of October 1, 1987, the total valuation for the subject property under the terms of the agreement was $250,665,085.
      The city later completed a statutorily mandated revaluation of all property in the city for the October 1, 1987 grand list. To lessen the impact of the revaluation on its property owners, the city approved a phase in of the new assessments for property tax purposes. For the October 1, 1987 grand list, property was taxed on 30 percent of the property’s value. The phase in increased yearly by 10 percent increments until 1991, at which time all property in the city was assessed at 70 percent of fair value. Therefore, as of the October 1,1991 grand list, the subject property no longer was subject to the incentive agreement, but was instead assessed at 70 percent of the valuation set by the city assessor as of October 1, 1987.

       Originally, the appeal was taken only from the 1995 assessment, but Aetna later amended the appeal to include the 1996 and 1997 grand lists.

       We note that the court’s memorandum of decision contains an apparent typographical error in the summation of the court’s computation of the total fair market value, which total should have read $233,351,549 not $233,531,549. The consequence of that error is a $180,000 overstatement of the true and actual value as determined by the court. This error was then, unfortunately, carried over into the judgment. Neither party raised that issue on appeal in either their appellate briefs or at oral argument. Because the error does not affect our disposition of the claims as raised on appeal, we affirm the judgment and leave it to the parties to seek a correction of that clerical error. See Cusano v. Burgundy Chevrolet, Inc., 55 Conn. App. 655, 659-60, 740 A.2d 447 (1999) (General Statutes § 52-212a, Practice Book § 17-4 do not bar court from opening judgment at any time to correct clerical error), cert. denied, 252 Conn. 942, 747 A.2d 519 (2000); see also Goldreyer v. Cronan, 76 Conn. 113, 115-16, 55 A. 594 (1903) (“[o]ver its recorded judgments the court may exercise . . . the power to correct and amend the record so that it shall truly show what the judicial action in fact was”).

       Although the court’s memorandum of decision does not contain an express finding as to whether the plaintiff met that burden, on the basis of its memorandum of decision and its conclusion that the subject property was in fact overvalued, one reasonably can infer, and we do so, that the court answered that question in the positive.

       Practice Book § 15-8 provides: “If, on the trial of any issue of fact in a civil action tried to the court, the plaintiff has produced evidence and rested his or her cause, the defendant may move for judgment of dismissal, and the judicial authority may grant such motion, if in its opinion the plaintiff has failed to make out a prima facie case. The defendant may offer evidence in the event the motion is not granted, without having reserved the right to do so and to the same extent as if the motion had not been made.”

       We note that any reliance by the defendant on the Supreme Court’s holding in Ireland v. Wethersfield, supra, 242 Conn. 550, decided a few weeks after Sears, Roebuck & Co., is misplaced, as the holding in Ireland is inapplicable to the present action. Ireland addressed whether a town or city has any burden to produce evidence in support of its valuation of a taxpayer’s property when that valuation is challenged.
      Our Supreme Court stated: “If the trial court finds that the taxpayer has failed to meet his burden . . . the trial court may render judgment for the town on that basis alone. On appeals by the taxpayer, we have regularly affirmed such judgments without a showing that the town adduced affirmative evidence sufficient to demonstrate that the assessor’s determination of market value was not unjust. . . .
      “If, however, the trial court finds that the taxpayer . . . has demonstrated an overvaluation of his property, the trial court must then undertake a further inquiry to determine the amount of the reassessment that would be just. . . . It is in the context of such cases, namely, cases in which the taxpayer has met his initial burden of proving overvaluation, that we have noted the trial court’s discretionary authority to find value and have declined to assign presumptive validity to the town’s assessment figure.” (Citations omitted; internal quotation marks omitted.) Id., 557-58.

        Ireland is distinguishable from the present case because the court in this case did not explicitly find that Aetna had failed to meet its burden of proof. See footnote 8. Despite the city’s arguments implying the contrary, therefore, it would have been improper for the court to give presumptive validity to the city’s valuation because the court was required to make a de novo determination of value, considering all the evidence of valuation that was presented.

       The court noted the difference between replacement cost and reproduction cost in its memorandum of decision: “The cost to construct an improvement on the effective appraisal date may be developed as the reproduction or replacement cost of the improvement. The theoretical base for the cost approach is reproduction costs, but replacement cost may also be used. An important distinction must be made between the terms.
      “Reproduction cost is the estimated cost to construct, at current prices as of the effective appraisal date, an exact duplicate or replica of the building being appraised, using the same materials, construction standards, design, layout, and quality of workmanship, and embodying all the deficiencies, superadequacies, and obsolescence of the subject building.
      “Replacement cost is the estimated cost to construct, at current prices as of the effective appraisal date, a building with utility equivalent to the building being appraised, using modem materials and current standards, design, and layout. Appraisal Institute, The Appraisal of Real Estate (10th Ed. 1992) pp. 318-19.” (Internal quotation marks omitted.)

       General Statutes § 12-63b provides in relevant part: “Valuation of rental income real property, (a) The assessor or board of assessors in any town, when determining the present true and actual value of real property as provided in section 12-63, which property is used primarily for the purpose of producing rental income . . . and with respect to which property there is insufficient data in such town based on current bonafide sales of comparable property which may be considered in determining such value, shall determine such value on the basis of an appraisal which shall include to the extent applicable with respect to such property, consideration of each of the following methods of appraisal: (1) Replacement cost less depreciation, plus the market value of the land, (2) the gross income multiplier method as used for similar property and (3) capitalization of net income based on market rent for similar property. . . .”

       General Statutes § 12-63 (a) provides: “The present true and actual value of land classified as farm land pursuant to section 12-107c, as forest land pursuant to section 12-107d, or as open space land pursuant to section 12-107e shall be based upon its current use without regard to neighborhood land use of a more intensive nature, provided in no event shall the present true and actual value of open space land be less than it would be if such open space land comprised a part of a tract or tracts of land classified as farm land pursuant to section 12-107c. The present true and actual value of all other property shall be deemed by all assessors and boards of assessment appeals to be the fair market value thereof and not its value at a forced or auction sale.”

       “At least four methods exist for determining the fair market value of property for taxation purposes: (1) analysis of comparable sales; (2) capitalization of gross income; (3) capitalization of net income; and (4) reproduction cost less depreciation and obsolescence. . . . Each of these is an approved method of ascertaining the actual value of real estate for purposes of taxation.” (Citations omitted; internal quotation marks omitted.) Second Stone Ridge Cooperative Corp. v. Bridgeport, 220 Conn. 335, 342, 597 A.2d 326 (1991).