author: BEACH, J.

text:
    EDWARD BOCK v. LUCILLE BOCK
    (AC 32151)
    Gruendel, Beach and Bear, Js.
    Submitted on briefs October 15, 2010
    officially released March 29, 2011

      Lucille Bock, pro se, the appellant (defendant), filed a brief.

      Thomas M. Shanley filed a brief for the appellee (plaintiff).
   Opinion

BEACH, J.

The defendant, Lucille Bock, appeals from the dismissal of her postjudgment motion for contempt in which she alleged that the plaintiff, Edward Bock, had failed to provide funds in accordance with postmajority educational support agreements. On appeal, the defendant claims that the trial court erred in dismissing the motion for lack of subject matter jurisdiction. We affirm the judgment of the trial court.

The following undisputed facts and procedural history are relevant to our resolution of the defendant’s appeal. On August 15, 2006, the court rendered judgment dissolving the marriage of the parties. The judgment stated that “[tjhe court shall retain jurisdiction pursuant to General Statutes § 46b-56c to enter an educational support order.” The judgment also directed that “[b]oth parties shall be named joint custodians of the children’s [Connecticut Uniform Transfers to Minors Act (UTMA)] accounts, and said monies shall be utilized for the payment of each child’s college education expenses for four (4) years of college.” The parties have three children, to wit, Matthew Bock, bom November 12, 1987, John Bock, bom April 10, 1989, and Dana Bock, bom December 11, 1992.

On January 29, 2007, the parties submitted a written stipulation modifying the dissolution decree, which was made an order of the court. Paragraph nine of the stipulation contained a postmajority educational support agreement, stating in relevant part: “The parties shall be equally responsible, subject to Matthew’s compliance as a student with all the terms and conditions set forth in ... § 46b-56c, for one-half of Matthew’s college expenses up to the cost of the University of Connecticut, which amount the parties agree is [$7500] per year. The [$7500] agreed upon shall include payment for tuition, room and board, books, required computers, a reasonable spending allowance and a reasonable travel allowance for up to four round trips per calendar year from college to the principal home of the [defendant. [The] [p]laintiff shall send [$7500] to Ashland University forthwith for the 2006-2007 school year. Thereafter, each of the parties shall be responsible for [$7500] for Matthew’s college expense [s], made by July [1] of each year, which payment shall be made directly to the school.”

On February 14, 2008, the defendant filed a motion to modify the educational support agreement based on an increase in the price of tuition for the University of Connecticut. As a result, the parties submitted another written stipulation on June 2, 2008, modifying the original educational support agreement and adding a reference to John’s college costs; he had enrolled in the University of New Haven in August, 2007. The stipulation provides in relevant part: “(1) [The] [p]laintiff shall pay [$9700] plus $500 for each child’s 2008-2009 college costs. He shall deposit $10,200 into each child’s [UTMA] account by July 1, 2008. [The] [defendant shall pay an equal amount of college costs. (2) [The] [defendant, upon issuing checks for college costs, shall send copies of checks and, if applicable, invoices from the provider, confirming what costs are being paid. Copies shall be sent forthwith to the [pjlaintiff. (3) If a child does not attend college for a term for which [the] [pjlaintiff has paid, the payment shall be held for no more than [one] year, and if the child does not return to college within [one] year, the payment shall be refunded to [the] [pjlaintiff. (4) For [the] 2009-2010 and subsequent academic years, each party shall pay [one-half] the published cost, including books, of an in-state resident attending [the University of Connecticut]. Payments shall be deposited to the child’s [UTMA] account on the same terms and conditions as set forth in [p]ara-graphs 1, 2 and 3, supra. (5) For John’s college costs for 2007-2008, [the] [pjlaintiff shall deposit [$9700] into John’s [UTMA account] by June 15, 2008.” This stipulation was approved and made an order of the court.

Matthew attended Ashland University from the fall 2006 semester through the spring 2008 semester. At the time the June 2, 2008 agreement was made an order of the court, Matthew was registered to be a full-time student at Ashland University for the 2008-2009 school year. On June 4, 2008, in accordance with the June 2, 2008 educational support agreement, the plaintiff deposited a check in the amount of $10,200 into Matthew’s UTMA account for the 2008-2009 academic school year.

Unbeknownst to the plaintiff, Matthew actually attended Norwalk Community College for the 2008-2009 academic school year while living at home. Upon discovering this fact, on August 20, 2009, the plaintiff filed a motion to modify the June 2,2008 educational support agreement, seeking to reduce his required payments because Matthew had changed postsecondary schools and was attending a community college at a reduced cost. Thereafter, on August 22,2009, the plaintiff deposited a check into Matthew’s UTMA account in the amount of $1500 for the 2009-2010 academic school year. In response, on September 4, 2009, the defendant filed a postjudgment motion for contempt, alleging that there was an arrearage of $8903.

After conducting evidentiary hearings on the motion for modification and the motion for contempt, the court issued a memorandum of decision on March 23,2010, in which it dismissed both motions for lack of jurisdiction. The court reasoned that, in these circumstances, there are only two relevant statutory provisions that provide jurisdiction to a court over postmajority support orders, and the parties’ educational support agreements did not satisfy either. First, the court held that the agreements were not properly incorporated by reference into the dissolution decree pursuant to General Statutes § 46b-66 because “a written agreement to support a child postmajoiity . . . must be presented to the court at the time of entry of the original order for incorporation therein.” (Emphasis added.) Second, the court held that the parties’ agreements were not valid educational support orders under § 46b-56c because they did not contain all the necessary provisions mandated by the statute. The court thus dismissed both motions for lack of jurisdiction. This appeal followed.

On appeal, the defendant claims that the court erred in dismissing her motion for contempt for lack of subject matter jurisdiction. The defendant agrees with the portion of the court’s judgment holding that the educational support agreements entered into by the parties were not valid educational support orders pursuant to § 46b-56c. She argues, rather, that the educational support agreements were validly entered into pursuant to § 46b-66 and that the court erred in concluding that they were not validly incorporated by reference into the dissolution decree pursuant to § 46b-66. We disagree.

Here, the record demonstrates that the agreements entered into by the parties were intended to be educational support agreements pursuant to § 46b-56c, not postmajority support orders pursuant to § 46b-66. The original dissolution decree rendered by the court expressly retained jurisdiction to enter educational support orders pursuant only to § 46b-56c. The parties’ January 29, 2007 educational support agreement expressly refers to § 46b-56c and makes no mention of § 46b-66. Furthermore, the parties’ June 2, 2008 modification does not make any reference to § 46b-66. The plaintiffs August 14, 2009 motion to modify also referred to the court’s jurisdiction pursuant specifically to § 46b-56c. Both parties expressly agree on appeal, however, that the court’s judgment holding that the educational support agreements did not comply with the requirements of § 46b-56c was proper. Although the defendant claims that the court had jurisdiction pursuant to § 46b-66 to incorporate by reference the educational support agreements into the dissolution decree, she has not provided any evidence that the agreements were entered into pursuant to § 46b-66. Rather, the record demonstrates that at the time the judgment of dissolution was rendered and at the time the agreements were made, the only statute mentioned by the parties or by the court was § 46b-56c. Accordingly, the defendant cannot prevail on her claim that the educational support agreements were validly incorporated by reference pursuant to § 46b-66.

The judgment is affirmed.

In this opinion the other judges concurred.

       The judgment incorporated an agreement between the parties regarding the allocation of their personal property.

       General Statutes § 46b-56c provides in relevant part: “(a) For purposes of this section, an educational support order is an order entered by a court requiring a parent to provide support for a child or children to attend for up to a total of four full academic years an institution of higher education or a private occupational school for the puipose of attaining a bachelor’s or other undergraduate degree, or other appropriate vocational instruction. An educational support order may be entered with respect to any child who has not attained twenty-three years of age and shall terminate not later than the date on which the child attains twenty-three years of age.
      “(b) (1) On motion or petition of a parent, the court may enter an educational support order at the time of entry of a decree of dissolution, legal separation or annulment, and no educational support order may be entered thereafter unless the decree explicitly provides that a motion or petition for an educational support order may be filed by either parent at a subsequent date. . . .
      “(f) The educational support order may include support for any necessary educational expense, including room, board, dues, tuition, fees, registration and application costs, but such expenses shall not be more than the amount charged by 'The University of Connecticut for a full-time in-state student at the time the child for whom educational support is being ordered matriculates, except this limit may be exceeded by agreement of the parents. An educational support order may also include the cost of books and medical insurance for such child. . . .”

       These are accounts in which funds are set aside for children pursuant to General Statutes § 45a-557 et seq.

       The plaintiff based this figure on an approximation of one half of the costs associated with one year of enrollment at Norwalk Community College. The total actual costs incurred for Matthew’s 2009-2010 academic school year were $3477.56.

       The defendant alleges that, based on the estimated cost of attending the University of Connecticut for the 2009-2010 academic year, the plaintiff owed $10,403 for Matthew’s 2009-2010 academic school year pursuant to the June 2, 2008 educational support agreement. Because the plaintiff paid only $1500, the defendant claims that there is an arrearage of $8903.

       General Statutes § 46b-66 provides in relevant part: “(a) In any case under this chapter where the parties have submitted to the court an agreement concerning the custody, care, education, visitation, maintenance or support of any of their children or concerning alimony or the disposition of property, the court shall inquire into the financial resources and actual needs of the spouses and their respective fitness to have physical custody of or rights of visitation with any minor child, in order to determine whether the agreement of the spouses is fair and equitable under all the circumstances. If the court finds the agreement fair and equitable, it shall become part of the court file, and if the agreement is in writing, it shall be incorporated by reference into the order or decree of the court. ... If the agreement is in writing and provides for the care, education, maintenance or support of a child beyond the age of eighteen, it may also be incoiporated or otherwise made a part of any such order and shall be enforceable to the same extent as any other provision of such order or decree, notwithstanding the provisions of section 1-ld. . . .”

       The agreements are not limited by the age of the children attending college, and they fail to limit the parties’ obligations to a total of four full academic years. See Kelman v. Kelman, 86 Conn. App. 120, 125-26, 860 A.2d 292 (2004), cert, denied, 273 Conn. 911, 870 A.2d 1079 (2005).

       In her reply brief, the defendant specifically states that she “is in strong agreement with the plaintiff that . . . ‘the trial court rightly held that the [educational support agreements] of the parties entered by the court did not comply with [§] 46b-56c, and were thus not educational support orders’ ” pursuant to § 46b-56c.

       Because the defendant does not contest this determination, we do not consider this aspect of the court’s judgment on appeal. We note, however, that the omission of some of the required statutory provisions does not necessarily invalidate an educational support order pursuant to § 46b-56c. See Sander v. Sander, 96 Conn. App. 102, 899 A.2d 670 (2006). In Sander, this court held that the trial court’s failure to make the necessary finding, required by § 46b-56c, that it is more likely than not that the parties would have provided support for their daughter’s college education had the family remained intact, was harmless error. Id., 115-18. This court also held that the trial court’s establishment of a trust for the purpose of educational support pursuant to § 46b-56c “impliedly included the statutory limitations on the type and cost of expenses the parties are obligated to provide for, as well as circumstances that terminate the parties’ obligation.” (Emphasis added.) Id., 121 n.18.

       In her brief to this court, the defendant argued that it is permissible for a party to incorporate by reference an agreement for postmqjority educational support into a divorce decree after the decree is entered, pursuant to § 46b-66, notwithstanding the fact that the court does not explicitly retain jurisdiction by referring to § 46b-66 in the decree. Because we determine that the agreements at issue in the present case were not intended to be agreements pursuant to § 46b-66, we do not address this aspect of the defendant’s claim.

       We note that the defendant is not foreclosed from attempting to enforce the educational support agreements through an independent contract action. Additionally, as noted by the trial court, the parties may submit to the court another agreement that conforms to the requirements of § 46b-56c.


source: Caselaw Access Project

author: BISHOP, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. RYAN A. RAMEY
    (AC 32585)
    Bishop, Gruendel and Robinson, Js.

      Argued January 19
    officially released March 29, 2011

      Annacarina Jacob, senior assistant public defender, with whom, on the brief, was Kent Drager, senior assistant public defender, for the appellant (defendant).

      Michele C. Lukban, senior assistant state’s attorney, with whom, on the brief, were John A. Connelly, former state’s attorney, and Terence D. Mariani, senior assistant state’s attorney, for the appellee (state).
   Opinion

BISHOP, J.

The defendant, Ryan A. Ramey, appeals from the judgment of conviction, rendered after a jury trial, of arson in the first degree in violation of General Statutes § 53a-lll (a) (1), arson in the first degree in violation of General Statutes § 53a-lll (a) (4) and interfering with an officer in violation of General Statutes § 53a-167a. On appeal, the defendant claims that the evidence adduced at trial was insufficient to prove beyond a reasonable doubt that he (1) intentionally started the fire, (2) specifically intended to destroy or damage the building and (3) had reason to believe that the building was or may have been occupied or inhabited at the time the fire started. We affirm the judgment of the trial court.

On the basis of the evidence presented at trial, the jury reasonably could have found the following facts. The defendant lived in a first floor apartment in Nauga-tuck from March, 2004, to October, 2006. All six apartments in the building had tenants at the time. In the late morning of October 13, 2006, the defendant telephoned Samantha Squires, his former fiancee and the mother of his two children, and indicated a desire to commit suicide. In response, Squires called the police and asked them to check on him. When the police arrived at the apartment building, they saw that a window on the first floor had been punched out and broken glass was hanging from it. Rather than entering the building, the police decided to attempt to make telephone contact with the defendant. At 11:25 a.m., the police telephoned the defendant at a number provided by Squires. The defendant answered but immediately hung up once the police officer identified himself. At 11:31 a.m., the other first floor tenant, who was nervous because she had heard breaking noises coming from the defendant’s apartment for several hours, left the premises in her car. The police continued to call the defendant’s telephone number, but he would not converse with them.

A police officer reported seeing a person moving back and forth inside the defendant’s apartment at 12:04 p.m. At 12:15 p.m., the defendant answered a telephone call from a police officer, threatened to jump out a window if the police called again, and then hung up. The officer telephoned again at 12:20 p.m., but the call went straight to voice mail, as did all subsequent calls. Another police officer reported seeing smoke inside the building at 12:22 p.m. At 12:25 p.m., he saw the defendant, who was coughing, climb onto the fire escape through aback window. After the officer asked him to come down, the defendant reentered the building and closed the blinds and one of the windows. The officer then reported at 12:31 p.m. that the fire had died down. At 12:38 p.m., however, he reported that the fire had regained force. Thereafter, the fire became progressively worse, melting the blinds and roaring. Rescue workers waited outside the building because they did not know the defendant’s location and they feared for their own safety. At 1:37 p.m., the defendant fell from a third story window, at which time the police had to physically restrain Mm wMle placing Mm under arrest. Firefighters immediately began to suppress the fire. WMle they were inside the house, however, part of the roof collapsed, forcing them to retreat. Ultimately, they were able to extinguish the fire only after the building sustained severe structural damage.

During Ms subsequent jury trial, at the end of the state’s case, the defendant moved for a directed verdict on the ground that the state had adduced insufficient evidence to prove beyond a reasonable doubt that he started the fire, that he specifically intended to damage the building and that he had reason to believe that the building may have been occupied. The court demed the motion. Following the trial, the defendant was convicted of arson in the first degree in violation of § 53a-111 (a) (1), arson in the first degree in violation of § 53a-111 (a) (4) and interfering with an officer in violation of § 53a-167a. The defendant then moved for a judgment of acquittal on the ground that the evidence failed to establish that he acted with the specific intent to destroy or damage the building. The court demed tMs motion. At sentencing, the court imposed a total effective sentence of twelve years incarceration with eight to serve and three years of probation. TMs appeal followed. Additional facts will be set forth as necessary.

As a preliminary matter, we set forth the principles that govern our review of the defendant’s claims. “[W]e have consistently employed a two-part analysis in appellate review of the sufficiency of the evidence to sustain a criminal conviction. . . . First, we construe the evidence in the light most favorable to sustaining the verdict.” (Internal quotation marks omitted.) State v. Taylor, 126 Conn. App. 52, 57, 10 A.3d 1062 (2011). In other words, “we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the [jury’s] verdict of guilty.” (Internal quotation marks omitted.) State v. McGee, 124 Conn. App. 261, 272, 4 A.3d 837, cert, denied, 299 Conn. 911, 10 A.3d 529 (2010).

In the second part of this analysis, “we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . . That the evidence is circumstantial rather than direct does not diminish the probative force of that evidence. . . . We must be mindful, however, that [although the jury may draw reasonable, logical inferences from the facts proven, [it] may not resort to speculation and conjecture.” (Internal quotation marks omitted.) State v. Taylor, supra, 126 Conn. App. 57.

Section 53a-lll (a) provides in relevant part: “A person is guilty of arson in the first degree when, with intent to destroy or damage a building, as defined in section 53a-100, he starts a fire or causes an explosion, and (1) the building is inhabited or occupied or the person has reason to believe the building may be inhabited or occupied ... or (4) at the scene of such fire or explosion a peace officer or firefighter is subjected to a substantial risk of bodily injury.” The defendant claims that there was insufficient evidence to prove beyond a reasonable doubt that he (1) intentionally started the fire, (2) specifically intended to destroy or damage the building and (3) had reason to believe that the building was or may have been occupied or inhabited at the time the fire started. We disagree.

The defendant notes that there was a lack of direct evidence that he intentionally started the fire. Our deci-sional law makes clear, however, that intent may be inferred even in the absence of direct evidence. “The use of inferences based on circumstantial evidence is necessary because direct evidence of the accused’s state of mind is rarely available. . . . Intent may be gleaned from circumstantial evidence such as . . . the events leading up to and immediately following the incident.” (Internal quotation marks omitted.) State v. McGee, supra, 124 Conn. App. 273. The underlying facts of the case at hand fit squarely into our law as it relates to permissible inferences.

In regard to the origin of the fire, the fire marshal testified that he found no accidental cause of the fire, having discovered no ignition sources such as candles, appliances, accelerants or electrical system failures. Because no accelerants were detected at the scene and the marshal did not definitively conclude that the fire was intentional, the defendant contends that the jury could not have inferred reasonably that the fire was intentional. We note, however, that the marshal also testified that a person can light a fire without acceler-ants. Moreover, definitive expert testimony that a fire was started intentionally is not required for a conviction under § 53a-lll. See, e.g., State v. Ancona, 256 Conn. 214, 222-23, 772 A.2d 571 (2001) (circumstantial evidence sufficient to prove fire started intentionally despite expert testimony that cause “ ‘inconclusive’ ”). The lack of evidence of accidental causes, therefore, may contribute to a reasonable inference that the fire was started intentionally, particularly when supported by the cumulative force of other circumstantial evidence bearing on intent.

Here, there was an abundance of additional circumstantial evidence to support the jury’s findings. The marshal testified that the fire began in the defendant’s front room. That is where the police observed someone pacing during the time in question. The jury logically could have inferred that the person observed by the police was the defendant, based on evidence that he was the only person seen leaving the building after the fire started. From this evidence, the jury reasonably could have inferred that no one other than the defendant had the opportunity to start the fire. See State v. Famig-lietti, 219 Conn. 605, 614, 595 A.2d 306 (1991).

Additionally, the defendant’s behavior raised the reasonable inference of his destructive emotional instability. The downstairs neighbor heard the noises of banging, hammering and dragging of furniture from 1 a.m. until she left for work at 4 a.m. Other neighbors also heard banging or breaking noises between 4 a.m. and 5 a.m. on the morning of the fire, noises that continued throughout the morning hours. As noted, the defendant also called Squires to express his desire to commit suicide and to say “goodbye” to her. Once the fire had begun, he sought no emergency assistance and, in fact, resisted persistent efforts by the police to reach him by telephone. Instead, after stepping onto the fire escape and seeing a police officer, he reentered the building and pulled down the blinds, thus preventing the police from seeing into the front room. Although, on appeal, the defendant now suggests other explanations for his behavior that are consistent with innocence, for example, that the fire could have been lit by a stray cigarette while he was anxiously pacing, “[w]e do not sit as a [seventh] juror who may cast a vote against the verdict based upon our feeling that some doubt of guilt is shown by the cold printed record.” (Internal quotation marks omitted.) State v. Kowalyshyn, 118 Conn. App. 711, 724, 985 A.2d 370, cert, denied, 295 Conn. 903, 989 A.2d 602 (2010). Based on this record, we conclude that there was sufficient evidence to support the jury’s verdict that the defendant intentionally started the fire.

The defendant next claims that, even assuming that he started the fire with a suicidal purpose, his conduct indicated recklessness or indifference to the damage it would cause, not specific intent to damage or destroy the building. The state, however, adduced ample circumstantial evidence from which the jury reasonably could have inferred that the defendant possessed the requisite intent to damage the building at the time that he started the fire. Even if suicide was his primary goal, the jury reasonably could have inferred that he intended to damage the building as a means to that goal, particularly in light of the evidence that the fire started on the floor of his front room and that he did not seek emergency assistance to extinguish it. Consequently, his claim in this regard is unavailing.

The defendant’s final claim is that he had no reason to believe that the building may have been occupied at the time he started the fire. It is undisputed that the defendant was the only person in the building when he started the fire; however, the evidence that this was a multiresident apartment building, together with evidence that there was some likelihood at the time that another tenant may have actually been there, provides a sufficient basis for the jury’s determination that the defendant had reason to believe that the building may have been occupied at the time. One first floor resident, who left the building shortly before the fire started, testified that she usually stayed home during the day. Additionally, the car of another resident, who normally drove to work but had been picked up by a coworker that day, was parked in the building’s lot at the time the fire started. Both of these residents testified that they were friendly with the defendant, who had lived in the apartment for over two and one-half years. On the basis of this testimony, the jury reasonably could have inferred that the defendant had reason to believe that one or more tenants may have been in the building during the incident.

After a thorough review of the evidence adduced at trial and the reasonable inferences it permitted, we conclude that there was sufficient evidence to support the defendant’s conviction.

The judgment is affirmed.

In this opinion the other judges concurred.

       “In determining the sufficiency of the evidence in arson cases, we look to the time that the defendant started the fire to ascertain whether the elements of § 53a-lll (a) (1) were met.” State v. Finley, 34 Conn. App. 823, 826, 644 A.2d 371, cert, denied, 231 Conn. 927, 648 A.2d 880 (1994).

       The defendant’s brief asserts that the language of § 53a-lll (a) (1), which requires the state to prove whether “the person ha[d] reason to believe the building may be inhabited or occupied,” is a subjective standard. We do not agree. Rather, we believe that the state must prove what the defendant objectively had reason to believe under the circumstances, regardless of whether he subjectively held that belief. See, e.g., State v. Fausel, 295 Conn. 785, 795, 993 A.2d 455 (2010) (“reason to believe” is an objective and not a subjective test). The characterization of the phrase “reason to believe” in Fausel is equally applicable to the context at hand.


author: HARPER, J.

text:
    PAMELA BLASS v. RITE AID OF CONNECTICUT, INC.
    (AC 31563)
    Harper, Beach and Bear, Js.
    Argued December 3, 2010
    officially released March 29, 2011

      Peter M. Van Dyke, for the appellant (plaintiff).

      Charles L. Howard, with whom was Laurie A. Sullivan, for the appellee (defendant).
   Opinion

HARPER, J.

The plaintiff, Pamela Blass, appeals from the judgment of the trial court, granting the motion of the defendant, Rite Aid of Connecticut, Inc., to dismiss her complaint alleging improper collection of sales tax in violation of the Sales and Use Taxes Act, General Statutes § 12-406 et seq., and a violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. The plaintiff claims that the trial court improperly concluded that it lacked subject matter jurisdiction over her claim because she failed to exhaust her administrative remedies. We disagree and affirm the judgment of the trial court.

The record, including the findings set forth in the trial court’s memorandum of decision, reveals the following facts and procedural history that are relevant to our resolution of the plaintiffs claim. On May 15, 2008, the defendant collected from the plaintiff twenty-four cents in sales tax. The sales tax was based on the gross purchase price of $3.96 for four items costing ninety-nine cents each and was calculated prior to deducting the full value of two coupons the plaintiff had submitted, which were valued at $1 each. On January 22, 2009, the plaintiff filed her complaint, seeking to represent herself and similarly situated plaintiffs in a class action lawsuit. It is undisputed that the plaintiff did not avail herself of any administrative remedies prior to filing her complaint. The plaintiff claimed that by charging her twenty-four cents in sales tax based on the precou-pon total sale price of $3.96, rather than charging her twelve cents in sales tax based on the postcoupon sale price of $1.96, the defendant violated General Statutes §§ 12-408, 12-411, and 12-407 (a) (8) (A) and (9) (A). The plaintiff further alleged that by calculating sales tax before deducting the value of the coupons, and thereby collecting from her a larger amount of tax than allowed by law, the defendant engaged in an unfair and deceptive trade practice in violation of CUTPA. On February 5,2009, the defendant filed a motion to dismiss on the ground that the court lacked subject matter jurisdiction over the claim because the plaintiff failed to exhaust her administrative remedies. The court, Sheldon, J., granted the defendant’s motion to dismiss on August 7, 2009. In its memorandum of decision, the court concluded that the Sales and Use Taxes Act provides an adequate administrative remedy that the plaintiff was required to exhaust before bringing her action to the trial court. Moreover, the court concluded that the plaintiff did not have recourse to an independent cause of action under CUTPA for the defendant’s alleged miscalculation of sales tax.

On appeal, the plaintiff essentially renews the arguments made before the trial court. After a thorough review of the record, we conclude that the judgment of the trial court should be affirmed. Moreover, because the court’s thorough and well reasoned memorandum of decision correctly and concisely addresses the issues raised in the present appeal, we adopt it as a proper statement of the law and applicable facts on the issues. See Blass v. Rite Aid of Connecticut, Inc., 51 Conn. Sup. 622, 16 A.3d 855 (2009). It would serve no useful purpose for this court to engage in further discussion of the issues. See, e.g., National Waste Associates, LLC v. Travelers Casualty & Surety Co. of America, 294 Conn. 511, 515, 988 A.2d 186 (2010).

The judgment is affirmed.

       At the time the motion to dismiss was granted, no class had been certified.

       General Statutes § 12-408 (1) provides in relevant part that “a tax is hereby imposed on all retailers at the rate of six per cent of the gross receipts of any retailer from the sale of all tangible personal property sold at retail . . . .” The term “gross receipts,” as it is used in § 12-408 (1), is defined in General Statutes § 12-407 (9) (A) as “the total amount of the sales price from retail sales of tangible personal property by a retailer . . . .” The term “sales price” is defined as excluding “the full face value of any coupon used by a purchaser to reduce the price paid to a retailer for an item of tangible personal property . . . .” General Statutes § 12-407 (8) (B). The basis of the plaintiffs claim is that these statutes require a retailer to calculate the sales tax as 6 percent of the price paid for the item after deducting the full face value of the coupons. The plaintiff alleges that the defendant calculated the sales tax before deducting the value of the coupon in violation of the procedure set forth in these statutes.


author: PER CURIAM.

text:
    SCOTT BOULANGER ET AL. v. TOWN OF OLD LYME
    (AC 31956)
    Beach, Alvord and SchaHer, Js.
    Argued February 3
    officially released March 29, 2011

      Vincent F. Sabatini, for the appellants (plaintiffs).

      Michael T. Ryan, with whom, on the brief, was Clari-sse N. Thomas, for the appellees (defendants).
   Opinion

PER CURIAM.

The plaintiffs, Scott Boulanger, Kathleen Boulanger and Eugene Gallo, appeal from the partial summary judgment rendered by the trial court in favor of the defendants, the town of Old Lyme and Timothy C. Griswold, its first selectman. The plaintiffs claim that the court erred in granting the defendants’ motion for summary judgment as to the count or counts of their complaint alleging (1) that they were entitled to a declaratory judgment, (2) multiple violations of title 42 of the United States Code, § 1983 (substantive due process, procedural due process and equal protection), and (3) violations of the due process and equal protection clauses of the Connecticut constitution. We affirm the judgment of the trial court.

The trial court’s memorandum of decision sets forth the following facts and procedural history. “The plaintiffs . . . own a parcel of land located at 73 Portland Ave., in the Sound View section of Old Lyme, Connecticut. Prior to 2002, the plaintiffs operated the lot as a private parking lot for their own use. In 2002, the plaintiffs filed an application for a Zoning Compliance Permit so that they could operate their lot as a privately owned public parking lot where the general public could park their cars, for a fee, and visit the Sound View area. This permit was denied with the notation that the requested use was ‘not permitted’ per § 6.3.9 of the town zoning regulations. In 2003, the plaintiffs again filed for a Zoning Compliance Permit seeking to use their property as a public parking lot. This permit application was again denied with the notation that the use sought was prohibited by § 6.3.9 of the town zoning regulations. On April 7, 2004, the plaintiffs once more sought a Zoning Compliance Permit for their property; again, it was denied because of the prohibitions found in § 6.3.9 of the town zoning regulations.

“On April 7, 2004, the plaintiffs also filed an application for a variance with the Old Lyme Zoning Board of Appeals (Zoning Board) seeking permission from the board to use their lot as a public parking lot and claiming that because of the lot’s small size, and the fact that it is surrounded by other parking lots, denying the variance would place an undue hardship on the plaintiffs. On June 8, 2004, the Zoning Board held a regular meeting where it discussed the plaintiffs’ proposed variance. At that hearing, the plaintiffs were given the opportunity to discuss why they should be granted a zoning variance that would allow them to operate their property as a public parking lot. The Zoning Board declined to grant the plaintiffs’ requested variance. The plaintiffs did not appeal the 2004 Zoning Board decision to the Superior Court, as was permissible under General Statutes § 8-8.

“On September 25, 2006, the plaintiffs’ attorney sent Timothy Griswold, the First Selectman of Old Lyme, a letter indicating that the town’s repeated refusal to allow the plaintiffs to use their property as a public parking lot violated their constitutional rights. By letter dated November 7, 2006, the plaintiffs, through their attorney, gave notice to the defendant [t]own of their claim that they had been injured by the denial of their use of their property and that their United States and Connecticut Constitutional Rights had been violated. By letter dated January 25, 2007, the plaintiffs, through their attorney, applied for a parking permit pursuant to § 161-10 of the town ordinances. No permit was issued. On July 26, 2007, the plaintiffs commenced the present action in the New London Superior Court by filing a summons and eight count complaint alleging violations of the plaintiffs’ due process rights under 42 U.S.C. § 1983, takings clause violations under the United States Constitution, violations of the plaintiffs’ rights under the Connecticut Constitution and violations of the takings clause of the Connecticut Constitution. The plaintiffs also seek a writ of mandamus ordering the town to provide them with a parking lot permit and declaratory relief stating that the plaintiffs have the right to use their property as a public parking lot.” The defendants filed a motion for summary judgment, which the court granted in part. This appeal followed.

“Practice Book § 17-49 provides that summary judgment shall be rendered forthwith 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. . . . Our review of the court’s decision to grant the defendants’ motion for summary judgment is plenary.” (Citation omitted; internal quotation marks omitted.) Lopes v. Farmer, 118 Conn. App. 355, 356, 984 A.2d 71 (2009).

After examining the record on appeal and considering the briefs and the arguments of the parties, we conclude that the judgment of the trial court should be affirmed. Because the court’s memorandum of decision resolves properly the issues raised in this appeal, we adopt the court’s well reasoned decision as a statement of the facts and the applicable law on the issue. See Boulanger v. Old Lyme, 51 Conn. Sup. 636, 16 A.3d 889 (2010). Any further discussion by this court would serve no useful purpose. See, e.g., Woodruff v. Hemingway, 297 Conn. 317, 321, 2 A.3d 857 (2010).

The judgment is affirmed.

       Although the trial court’s decision did not dispose of all of the counts of the complaint, the plaintiffs filed a motion for an immediate appeal pursuant to Practice Book § 61-4, which the trial court granted. Practice Book § 61-4 (a) provides in relevant part that, in cases in which a trial court,’s judgment does not dispose of all of the counts against the party seeking to appeal, “[s]uch a judgment shall be considered an appealable final judgment only if the trial court makes a written determination that the issues resolved by the judgment are of such significance to the determination of the outcome of the case that the delay incident to the appeal would be justified, and the chief justice or chief judge of the court having appellate jurisdiction concurs. . .


text:
    RICHARD JANULAWICZ v. COMMISSIONER OF CORRECTION
    (AC 31760)
    Bishop, Lavine and Pellegrino, Js.

      Argued January 13
    officially released March 29, 2011

      Michael Proto, assistant state’s attorney, with whom, on the brief, were Kevin T. Kane, chief state’s attorney, and Kelly A. Masi, assistant state’s attorney, for the appellant (respondent).

      Martin Zeldis, chief of legal services, with whom, on the brief, was Kent Drager, senior assistant public defender, for the appellee (petitioner).
   Opinion

BISHOP, J.

The respondent, the commissioner of correction, appeals following the habeas court’s denial of his petition for certification to appeal from its judgment granting the petition for a writ of habeas corpus filed by the petitioner, Richard Janulawicz. The respondent claims that the habeas court abused its discretion in denying the petition for certification to appeal and that the court improperly granted the petition for a writ of habeas corpus on the basis that the petitioner’s appellate counsel failed to seek certification for review by the Supreme Court. We agree and reverse the judgment of the habeas court.

The following factual and procedural history is pertinent to this appeal. On January 20, 2004, following the trial court’s denial of his motion to suppress certain evidence, the petitioner entered conditional pleas of nolo contendere, pursuant to General Statutes § 54-94a, to two counts of criminal possession of a firearm in violation of General Statutes § 53a-217 (a) (1), two counts of carrying a dangerous weapon in violation of General Statutes § 53-206 (a) and one count of threatening in the second degree in violation of General Statutes § 53a-62 (a) (1). The petitioner was subsequently sentenced to a total effective term of ten years incarceration, execution suspended after seven years, and three years of probation. On the petitioner’s direct appeal to this court, based on the denial of his motion to suppress, this court affirmed the judgment of the trial court. State v. Janulawicz, 95 Conn. App. 569, 897 A.2d 689 (2006). At trial and on appeal, the petitioner was represented by attorney Deron Freeman, who did not seek certification to appeal this court’s adverse opinion to the Supreme Court.

On August 5, 2009, the petitioner filed an amended petition for a writ of habeas corpus claiming that he was deprived of the effective assistance of counsel on the basis that Freeman failed to seek certification to the Supreme Court following his unsuccessful direct appeal to this court. After trial, the habeas court found that Freeman’s failure to seek certification to appeal this court’s decision to the Supreme Court constituted deficient representation and that the petitioner was prejudiced by that deficiency. Accordingly, the habeas court restored the petitioner’s right to file a petition for certification to appeal to the Supreme Court. The habeas court subsequently denied the respondent’s petition for certification to appeal to this court. This appeal followed.

“In a habeas appeal, although this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, our review of whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is plenary. . . . Faced with a habeas court’s denial of a petition for certification to appeal, a petitioner can obtain appellate review of the dismissal of his petition for habeas corpus only by satisfying the two-pronged test enunciated by our Supreme Court in Simms v. Warden, 229 Conn. 178, 640 A.2d 601 (1994), and adopted in Simms v. Warden, 230 Conn. 608, 612,646 A.2d 126 (1994). First, he must demonstrate that the denial of his petition for certification constituted an abuse of discretion. . . . Second, if the petitioner can show an abuse of discretion, he must then prove that the decision of the habeas corut should be reversed on its merits. . . .

“To prove an abuse of discretion, the petitioner must demonstrate that the [resolution of the underlying claim involves issues that] are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further. . . .

“A criminal defendant’s right to the effective assistance of counsel extends through the first appeal of right and is guaranteed by the sixth and fourteenth amendments to the United States constitution and by article first, § 8, of the Connecticut constitution. . . . To succeed on a claim of ineffective assistance of counsel, a habeas petitioner must satisfy the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Strickland requires that a petitioner satisfy both a performance prong and a prejudice prong. To satisfy the performance prong, a claimant must demonstrate that counsel made errors so serious that counsel was not functioning as the counsel guaranteed ... by the [s]ixth [a]mendment. ... To satisfy the prejudice prong, a claimant must demonstrate that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. . . . The claim will succeed only if both prongs are satisfied. ... It is well settled that [a] reviewing court can find against a petitioner on either ground, whichever is easier. . . .

“In cases involving claims of ineffective assistance of appellate counsel, our Supreme Court has instructed that, in determining whether a petitioner has satisfied the prejudice prong, the question is whether there is a reasonable probability that but for the error of counsel, the petitioner would have prevailed on his appeal. . . . We therefore undertake an analysis of the merits of the underlying claims. . . . Additionally, we note that the task before us is not to conclude definitively whether the petitioner, on appeal, would have prevailed on his claim .... Rather, the task before us is to determine, under Strickland, whether there is a reasonable probability that the petitioner would have prevailed on appeal.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Synakorn v. Commissioner of Correction, 124 Conn. App. 768, 771-73, 6 A.3d 819 (2010).

Here, the habeas court determined that the petitioner had advised Freeman that he wished to seek certification to the Supreme Court, that Freeman had a continuing duty to preserve the petitioner’s right to request certification, that Freeman did not file a petition for certification and that there was no evidence that Freeman had reviewed this court’s opinion to determine whether there were any issues worthy of review by the Supreme Court. On that basis, the habeas court concluded that Freeman’s failure to file a petition for certification constituted deficient performance. Although we agree with the habeas court that Freeman had a continuing duty to represent the petitioner in regard to the filing of a petition for certification to the Supreme Court, we do not agree that the failure to seek certification alone constitutes deficient performance absent evidence that issues worthy of pursuit could have been raised in such a petition. In short, we agree with the habeas court’s determination that Freeman had a continuing duty to the petitioner to review this court’s opinion in order to determine whether he could present any issues worthy of the Supreme Court’s consideration in a petition for certification. We believe, as well, that if Freeman had conducted such a review, and determined that the petitioner’s claims did not warrant review by the Supreme Court, his failure to seek certification would not have been deficient. See Fuller v. Commissioner of Correction, 66 Conn. App. 598, 605, 785 A.2d 1143 (2001) (appellate counsel’s performance not deficient when decision was made not to file petition for certification to appeal to Supreme Court because it would have been futile); Gipson v. Commissioner of Correction, 67 Conn. App. 428, 434, 787 A.2d 560 (2001) (appellate counsel's performance not deficient when petitioner failed to establish that his claims were worthy of consideration by Supreme Court).

The evidence adduced at trial supports the habeas court’s finding that Freeman failed to undertake such a review. The petitioner introduced into evidence a letter that he had received from Freeman dated June 26, 2006, over two weeks after the twenty day period to seek certification had expired, in which Freeman informed the petitioner that his appeal to this court was unsuccessful and that if he wished to appeal to a higher court, he should seek counsel to assist him. The petitioner testified that Freeman never indicated to him that he had reviewed the claims; nor was there any direct evidence adduced at the habeas hearing that Freeman actually made a determination that there were no issues in this court’s opinion worthy of further review by the Supreme Court. Thus, although Freeman’s representation of the petitioner was not necessarily ineffective based on his failure to seek certification to the Supreme Court, he was deficient in failing to timely review the petitioner’s claims to determine if a petition for certification should be filed.

Although we conclude that Freeman’s representation of the petitioner was deficient, satisfying the first prong of Strickland, the petitioner failed to introduce any evidence that he was prejudiced by Freeman’s deficiency. Rather, the petitioner and the habeas court, relied on the fact that he was denied his opportunity to file a petition for certification to appeal to the Supreme Court as conclusive proof of prejudice in itself. Although we acknowledge that appellate decisional law regarding trial or appellate counsel's failure to preserve various posttrial procedural avenues of further relief does not present a neat mosaic of jurisprudence, our decisional law in this particular context has been consistent in requiring a habeas petitioner to demonstrate that, absent counsel’s deficient performance in failing to file a petition for certification to appeal to the Supreme Court, it is reasonably probable that he would have prevailed on appeal. See Strickland v. Washington, supra, 466 U.S. 694; Reeves v. Commissioner of Correction, 119 Conn. App. 852, 863-64, 989 A.2d 654 (petitioner failed to satisfy both prongs of Strickland because it was unlikely that the Supreme Court would have granted certification to review his case and “he could not prove to a reasonable probability that had the Supreme Court considered his appeal, the outcome would have been different”), cert, denied, 296 Conn. 906, 992 A.2d 1135 (2010).

The petitioner did not offer any evidence that this case presents any issues worthy of certification to the Supreme Court. Absent such evidence, the petitioner has failed to prove that it is reasonably probable that he would have prevailed in obtaining further review of his direct appeal had counsel not been deficient. His claim of ineffective assistance of counsel, therefore, must fail. Accordingly, we conclude that the respondent has demonstrated that his appeal is not frivolous, and, therefore, the habeas court abused its discretion in denying the respondent’s petition for certification to appeal to this court and incorrectly granted the petition for a writ of habeas corpus.

The judgment is reversed and the case is remanded with direction to render judgment denying the petition for a writ of habeas corpus.

In this opinion the other judges concurred.

       Practice Book § 84-1 provides: “An appeal may be taken to the supreme court upon the final determination of an appeal in the appellate court where the supreme court, upon petition of an aggrieved party, certifies the case for review.”
      Practice Book § 84-2 provides: “Certification by the supreme court on petition by a party is not a matter of right but of sound judicial discretion and will be allowed only where there are special and important reasons therefor. The following, while neither controlling nor fully measuring the court’s discretion, indicate the character of the reasons which will be considered:
      “(1) Where the appellate court has decided a question of substance not theretofore determined by the supreme court or has decided it in a way probably not in accord with applicable decisions of the supreme court.
      “(2) Where the decision under review is in conflict with other decisions of the appellate court.
      “(3) Where the appellate court has so far departed from the accepted and usual course of judicial proceedings, or so far sanctioned such a departure by any other court, as to call for an exercise of the supreme court’s supervision.
      “(4) Where a question of great public importance is involved.
      “(5) Where the judges of the appellate panel are divided in their decision or, though concurring in the result, are unable to agree upon a common ground of decision.”

       General Statutes § 54-94a provides: “When a defendant, prior to the commencement of trial, enters a plea of nolo contendere conditional on the right to take an appeal from the court’s denial of the defendant’s motion to suppress or motion to dismiss, the defendant after the imposition of sentence may file an appeal within the time prescribed by law provided a trial court has determined that a ruling on such motion to suppress or motion to dismiss would be dispositive of the case. The issue to be considered in such an appeal shall be limited to whether it was proper for the court to have denied the motion to suppress or the motion to dismiss. A plea of nolo contendere by a defendant under this section shall not constitute a waiver by the defendant of nonjuiisdictional defects in the criminal prosecution.”

       The petition contained other allegations which were withdrawn by the petitioner prior to trial.

       The parlies do not contest the well settled principle that a criminal defendant has a right to the assistance of counsel in connection with the filing of a petition for certification to appeal to the Supreme Court. See Gipson v. Commissioner of Correction, 257 Conn. 632, 634, 778 A.2d 121 (2001).

       Counsel obviously cannot be required to pursue claims wholly lacking in merit. See Rules of Professional Conduct 3.1.

       At the habeas hearing, Freeman testified that he could not recall what, if any, review he conducted in this regard. His testimony that it would have been his usual practice is inconsistent with the contents of his untimely letter to the petitioner in which he indicated that this court’s decision “may be appealed” by the petitioner and that if he wished to do so, he should seek counsel.

       In different procedural contexts, this court and the Supreme Court have found that proof of counsel’s failure to file for certain posttrial relief is, by itself, adequate to satisfy both Strickland prongs. In Iovieno v. Commissioner of Correction, 242 Conn. 689, 707-708, 699 A.2d 1003 (1997), the Supreme Court found that the failure of habeas counsel to file a petition for certification to appeal from an adverse habeas decision establishes both deficient performance and prejudice without requiring proof of the probability of success on appeal. We believe, however, that Iovieno may fairly be distinguished from the present case. Inlovieno, the court concluded that when the failure of counsel to petition for certification to appeal from a habeas judgment within the statutorily defined limitation period results in a complete denial of the petitioner’s opportunity to appeal the habeas judgment, no further showing of prejudice is required under the Strickland analysis. The court in Iovieno concluded that “it serves no useful purpose to require the petitioner, who has been deprived of the opportunity to seek review of a habeas judgment due solely to the ineffective assistance of appellate counsel, to prove actual prejudice. The prejudice that results by virtue of being barred from the right to seek certification to appeal is obvious. We therefore hold that the petitioner was not required to establish actual prejudice or the likely success of his certification to appeal.” Id. In reaching its conclusion, the court in Iovieno referred to cases in which “a direct appeal has been foreclosed.” Id., 706. When appealing from a judgment of the habeas court, although a petitioner’s right to appeal pursuant to General Statutes § 52-470 (b) is not absolute, an unsuccessful habeas petitioner nevertheless has the right to appeal the habeas court’s denial of a petition for certification on the basis of an abuse of discretion. See Simms v. Warden, supra, 230 Conn. 612. In this attenuated way, we can say that a petitioner has been given a common-law right to appeal from an adverse determination of the habeas court. On review, in assessing whether the habeas court abused its discretion in denying a petition for certification, this court, by necessity, assesses the merits of a petitioner’s underlying habeas claim. However, when seeking certification to the Supreme Court from an Appellate Court ruling, a petitioner has no statutory right of substantive review by the Supreme Court. Although a habeas court’s denial of a petition for certification to appeal is subject to our review as an abuse of discretion, the Supreme Court’s decision whether to grant an appeal from a decision of this court is not subject to further review. Thus, we have not found the reasoning of Iovieno applicable to the procedural facts that this appeal presents.
      We recognize, as well, that our Supreme Court has affirmed a decision of the habeas court to restore the sentence review rights of a habeas petitioner without requiring proof of the likelihood of success before the sentence review division. James L. v. Commissioner of Correction, 245 Conn. 132, 712 A.2d 947 (1998). However, in James L., although the habeas court specifically found that prejudice was established on the basis that the petitioner had been denied the access to sentence review; id., 145; it does not appear that the issue of prejudice was litigated before the Supreme Court. Rather, the questions before the Supreme Court related to successive petitions and whether the habeas court had the jurisdiction to restore a right which, by statute, was time limited. Id., 136. In affirming the habeas court’s action in restoring the right to sentence review, the focus of the Supreme Court’s opinion was on the jurisdictional question and not on the habeas court’s summary treatment of the issue of prejudice. Id., 145-48. Nevertheless, after James L., this court has held that a petitioner was denied the effective assistance of counsel when his attorney failed to ensure that his application for sentence review was properly filed, even in the absence of evidence of any likelihood of success before the sentence review division. Rather, this court held that the petitioner was prejudiced solely on the basis that he was denied the right to have his sentence reviewed. Andrades v. Commissioner of Correction, 108 Conn. App. 509, 515-16, 948 A.2d 365, cert, denied, 289 Conn. 906, 957 A.2d 868 (2008).
      We leave to the Supreme Court to determine whether the thread of this court’s cases requiring habeas petitioners to establish prejudice when counsel has failed to seek certification to appeal from our decisions is fairly distinguishable from those opinions regarding the right to seek certification to appeal an adverse habeas decision and those cases regarding sentence review. In the absence of a contrary ruling from the Supreme Court, we believe that a fair distinction can be made because cases involving sentence review and petitions for certification from habeas court judgments involve the loss of a right of substantive review while cases involving petitions for review to the Supreme Court from this court involve only the right to a discretionary review. Because the present case does not entail an automatic right to a further substantive review, we continue to adhere to the requirement that a habeas petitioner who claims that appellate counsel failed to file apetition for certification to the Supreme Court from an adverse decision of this court must prove prejudice by establishing a reasonable likelihood of success upon further review.


author: ALVORD, J.

text:
    KRYSTYNA W. v. JANUSZ W.

    (AC 32323)
    Graendel, Alvord and Stoughton, Js.

      Argued January 11
    officially released March 29, 2011

      Jacek I. Smigelski, for the appellant (defendant).

       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

ALVORD, J.

The defendant, Janusz W., appeals from the judgment of the trial court granting the application for a restraining order filed by the plaintiff, Krystyna W., pursuant to General Statutes § AQb-15. He claims that the court (1) abused its discretion because no factual basis existed to support the requisite finding that he presented a continuous threat of present physical pain or physical injury to the plaintiff or their minor son, (2) exceeded its statutory authority under § 46b-15 by ordering the defendant to participate in alcohol abuse counseling and (3) exceeded its statutory authority under § 46b-15 by extending the protection of the restraining order to their adult daughter. We affirm the judgment of the trial court.

The record reflects the following facts and procedural history. On May 20, 2010, the plaintiff filed an application for relief from abuse against the defendant, her husband. That application sought, inter alia, to protect the plaintiff, their minor son and their adult daughter from the defendant by imposing certain restraints, including an order that he not assault, threaten, abuse, harass, follow, interfere with or stalk them. On May 28, 2010, the court held a hearing on the application. The plaintiff testified that she believed that she and the children were in danger and repeated the allegations contained in her affidavit. See footnote 3 of this opinion. The plaintiff, during cross-examination, testified that the defendant had never struck her or the children in the past. The defendant also testified that he had never struck the plaintiff or the children.

At the conclusion of the May 28, 2010 hearing, after the testimony of the parties and argument of counsel, the court granted the application for the restraining order. The court expressly found that there was a continuous threat of present and serious physical harm to the plaintiff and the children. The court ordered the defendant to stay away from the home and prohibited him from having any further contact with the plaintiff and the children for a period of six months. The court additionally ordered the defendant to attend counseling for alcohol abuse. This appeal followed.

I

The defendant first claims that there was no factual basis from which the court could have found that the defendant presented a continuous threat of present physical pain or physical injury to the plaintiff or their minor son within the meaning of § 46b-15. Specifically, he argues that “[t]here was absolutely insufficient evidence [presented at the hearing to support such a finding] absent conjecture or fear of what might happen . . . because of the defendant’s alcoholism . . . .”

We begin with the applicable standard for this court’s review. “[T]he standard of review in family matters is well settled. An appellate court will not disturb a trial court’s orders in domestic relations cases unless the court has abused its discretion or it is found that it could not reasonably conclude as it did, based on the facts presented. . . .

“In determining whether a trial court has abused its broad discretion in domestic relations matters, we allow every reasonable presumption in favor of the correctness of its action. . . . Appellate review of a trial court’s findings of fact is governed by the clearly erroneous standard of review. ... 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.” (Internal quotation marks omitted.) Joni S. v. Ricky S., 124 Conn. App. 170, 172-73, 3 A.3d 1061 (2010).

The plain language of § 46b-15 clearly requires a continuous threat of present physical pain or physical injury before a court can grant a domestic violence restraining order. Immediately prior to the court’s finding that such a threat had been established, the court indicated that the record reflected that the defendant had threatened to seek revenge on the children because they had hospitalized him, that he walked around the house with knives, that he had made a sharp and pointy object with a metal rod, that his threatening conduct occurred when he was intoxicated, that he did not remember his actions when sober, that he verbally abused the children and denied that he was doing so, that he had utilized carefully planned techniques to upset them, that he prevented the family from sleeping by purposely making loud noises, that he had asked their minor son to kill him with a hammer and knife, that he had threatened to kill himself because of his family’s attempts to help him get treatment for his alcoholism, that he blamed their son for his alcoholism and his disruptive behavior, that the family had lived in fear for over a year and that he had threatened to bum the house down. As the court noted: “I don’t know how close you can get to the statute [§ 46b-15] without actually burning the house down.”

We repeat what has become a tired refrain: “[W]e do not retry the facts or evaluate the credibility of witnesses.” (Internal quotation marks omitted.) Noonan v. Noonan, 122 Conn. App. 184, 197, 998 A.2d 231, cert, denied, 298 Conn. 928, 5 A.3d 490 (2010). The trial court based its decision on its assessment of the credibility of the plaintiff. The record establishes that there was sufficient evidence to support a finding that the plaintiff and the children were subjected to a continuous threat of present physical pain or physical injury. Accordingly, the court did not abuse its discretion in granting the plaintiffs application for a restraining order against the defendant.

H

The defendant next claims that the court exceeded its statutory authority under § 46b-15 by ordering him to participate in alcohol abuse counseling. He argues that, although he may have serious alcohol related problems, the statute does not provide a remedy for such problems.

Section 46b-15 (b) provides, in relevant part, that “[t]he court, in its discretion, may make such orders as it deems appropriate for the protection of the applicant and such dependent children or other persons as the court sees fit. . . .” From the plaintiffs testimony and the record, the court reasonably could have concluded that the defendant’s behavior had become increasingly more violent and threatening as the direct result of his alcohol abuse. The court stated that the situation at the parties’ home had spiraled out of control because of the defendant’s alcohol consumption, that the entire family had been impacted by his drinking and that he blamed others for his alcoholism and disruptive behavior.

For those reasons, the court, in the exercise of its broad discretion, did not exceed its statutory authority when it ordered the defendant to participate in alcohol abuse counseling. Because the behavior leading to the issuance of the restraining order could have been considered the direct result of the defendant’s alcohol abuse, the court reasonably could have concluded that such counseling was necessary for the protection of the plaintiff and the children. Accordingly, this claim of the defendant is without merit.

Ill

The defendant’s final claim is that the court exceeded its statutory authority under § 46b-15 by extending the protection of the restraining order to the adult daughter. The defendant argues that the daughter, because she was not a minor, was required to make her own application for a restraining order under the statute in order to be afforded such protection. We disagree.

As previously noted, the express language of § 46b-15 (b) provides in relevant part that “[t]he court, in its discretion, may make such orders as it deems appropriate for the protection of the applicant and such dependent children or other persons as the court sees fit. . . .” (Emphasis added.) The daughter, then twenty years old, lived in the home with the plaintiff, the defendant and her brother. According to the plaintiffs testimony and affidavit, the daughter was attending college at that time. As discussed in part I of this opinion, the defendant’s threatening behavior was directed at the plaintiff and the children. The court specifically found that his alcohol consumption had impacted the entire family. Accordingly, the court acted within the statutoiy authority of § 46b-15 when it extended the protection of the order to the adult daughter.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 46b-15 (a) provides: “Any family or household member as defined in section 46b-38a who has been subjected to a continuous threat of present physical pain or physical injury by another family or household member or person in, or has recently been in, a dating relationship who has been subjected to a continuous threat of present physical pain or physical injury by the other person in such relationship may make an application to the Superior Court for relief under this section.”

       The plaintiff has not responded to the defendant’s claims on appeal, having failed to file a brief with this court. We, therefore, have considered the appeal on the basis of the record and the defendant’s brief and oral argument. See Schettino v. Labarba, 82 Conn. App. 445, 446 n.2, 844 A.2d 923 (2004).

       The plaintiff attached an affidavit to her application, in which she stated in relevant part: “I am [a] 43 year old mother with two children ages 15 and 20. My husband is a chronic alcoholic who refuses to seek help. . . . His verbal abuse towards my children and me became unbearable. We attempted to seek help for his alcoholism. ... He was admitted to the hospital for about a week. Since his return his verbal abuse and threats became even stronger. He told us he will seek revenge on my children and me because we hospitalized him. He would keep us up all night; yelling, making loud noises, banging the furniture, and overall being very disruptive and dangerous because we did not know what to expect from him. At one point he began to walk around the house with knives. He also made a sharp and pointy object from a metal rod of some sorts that could be used for stabbing. ... As he sobered up he denied everything that [he] had said and done the day before .... From there the situation became even more threatening. . . . Our household is filled with his constant screams and his careful planned out techniques to break us down. ... At one point he came up to my son and put a large knife and hammer in front of him and told my son to murder him. He also threatens us that he will kill himself because of what ‘we have done to him’ meaning the times we tried to be supportive and helpful in order to help him stop drinking. ... We have been living in fear for over a year now. We don’t know what his next move will be. He has told us he will bum the house down and that he will ‘crush’ us so we are left with nothing. . . . [T]he house is filled with constant fighting and fear. . . . Even when my son is staying away, my husband keeps harassing him and blaming him for the alcoholism and the disruptive behavior, . . . At this point my children and I cannot pul up with his alcoholism, constant verbal abuse, and the fact that he could snap and hurt us at any given moment. . . .”

       The plaintiff was self-represented at the hearing. The defendant was represented by counsel.

       We note that the order of protection that the defendant challenges in this appeal expired November 28, 2010. Nevertheless, the appeal is not moot. See Putman v. Kennedy, 279 Conn. 162,164-65, 900 A.2d 1256 (2006) (“expiration of a domestic violence restraining order does not render an appeal from that order moot because it is reasonably possible that there will be significant collateral consequences for the person subject to the order”).

       We note that the defendant agreed to participate in alcohol abuse counseling. At the hearing, a letter from a counseling center dated May 25, 2010, was given to the court by the defendant’s counsel and was accepted as part of the record. That letter confirmed that the defendant had been readmitted to a substance abuse program and that he intended to attend group therapy sessions. When his counsel asked him whether he was willing to address his drinking problem through counseling, the defendant responded in the affirmative.

       We note that the plaintiffs application for the restraining order expressly requested that the court order the defendant to have no contact with the daughter. The defendant never argued before the trial court that the statutory language of § 46b-15 would not extend to her without her own application for relief from abuse.


author: GRUENDEL, J.

text:
    THOMAS I. KNOX v. ROBERT M. SMITH, M.D., LLC, ET AL. ROBERT M. SMITH, M.D., LLC, ET AL. v. THOMAS I. KNOX
    (AC 31608)
    Bishop, Gruendel and West, Js.

      Argued February 3
    officially released March 29, 2011

      Jeffrey J. Mirman, for the appellants (defendants in the first case, plaintiffs in the second case).

      Michael T. McCormack, for the appellee (plaintiff in the first case, defendant in the second case).
   Opinion

GRUENDEL, J.

The defendants, Robert M. Smith, M.D., LLC, and Robert M. Smith, appeal from the judgments of the trial court denying their amended application to vacate an arbitration award and confirming the award in favor of the plaintiff, Thomas I. Knox. On appeal, the defendants claim that the court improperly confirmed the award because the arbitrator acted with manifest disregard of the law in contravention of General Statutes § 52-418 (a) (4). We affirm the judgments of the trial court.

The record reveals the following relevant facts and procedural history. On January 20, 2008, the plaintiff commenced arbitration proceedings pursuant to the parties’ operating agreement alleging, inter alia, breach of contract and breach of fiduciary duty. Thereafter, extensive hearings were held over the course of three days in April, 2009, before attorney Thomas J. Groark, an arbitrator appointed by the American Arbitration Association. Posthearing briefs and other supplemental materials were submitted to the arbitrator for consideration through June 8, 2009. Then, on July 1, 2009, the arbitrator awarded the plaintiff approximately $325,000, plus interest, as damages for the plaintiffs claims.

On August 5, 2009, the defendants filed an amended application to vacate the arbitration award. In support thereof, the defendants argued that the arbitrator’s award exhibited a manifest disregard of the governing law applicable to the plaintiffs claims and, therefore, should be vacated pursuant to § 52-418. Specifically, the defendants maintained that, in light of the evidence presented, the arbitrator could not reasonably have concluded that the plaintiff had proven his claims for breach of contract and breach of fiduciary duty. On October 16,2009, the court denied the defendants’ application to vacate and rendered judgment confirming the award in favor of the plaintiff. This appeal followed.

The defendants now claim that the court improperly denied their application to vacate the award, as the award, when considered together with the “overwhelming evidence” in their favor, demonstrates a manifest disregard of the law in violation of § 52-418 (a) (4). We are not persuaded.

“Judicial review of arbitral decisions is narrowly confined. . . . When the parties agree to arbitration and establish the authority of the arbitrator through the terms of their submission, the extent of our judicial review of the award is delineated by the scope of the parties’ agreement. . . . When the scope of the submission is unrestricted, the resulting award is not subject to de novo review even for errors of law so long as the award conforms to the submission. . . . Because we favor arbitration as a means of settling private disputes, we undertake judicial review of arbitration awards in a manner designed to minimize interference with an efficient and economical system of alternative dispute resolution.” (Internal quotation marks omitted.) Harty v. Cantor Fitzgerald & Co., 275 Conn. 72, 80, 881 A.2d 139 (2005).

“Even in the case of an unrestricted submission, we have, however, recognized three grounds for vacating an award: (1) the award rules on the constitutionality of a statute ... (2) the award violates clear public policy ... or (3) the award contravenes one or more of the statutory proscriptions of § 52-418.” (Citations omitted.) Garrity v. McCaskey, 223 Conn. 1, 6, 612 A.2d 742 (1992). Pursuant to § 52-418 (a) (4), “an award that manifests an egregious or patently irrational application of the law is an award that should be set aside . . . because [in that case] the arbitrator has exceeded [his] powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made. We emphasize, however, that the manifest disregard of the law ground for vacating an arbitration award is narrow and should be reserved for circumstances of an arbitrator’s extraordinary lack of fidelity to established legal principles.” (Internal quotation marks omitted.) Garrity v. McCaskey, supra, 10.

Here, the defendants’ claims can be summarized as an attack on the arbitrator’s interpretation and analysis of the evidence presented during and after the arbitration hearings. As the defendants argue, because “the overwhelming evidence” was in their favor, there “can be no doubt” that the arbitrator manifestly disregarded the law in awarding the plaintiff damages for breach of contract and breach of fiduciary duty. One need only look to the arbitrator’s award, however, to see that the arbitrator thoroughly considered the defendants’ arguments in the context of the plaintiffs claims and, nonetheless, awarded damages in favor of the plaintiff. Further, in rejecting the same claims raised by the defendants on appeal, the trial court, in confirming the award, correctly explained that the arbitrator “has [the] right to interpret, or not interpret . . . the facts based upon not just credibility of the witnesses, but the documents, other exhibits, and . . . testimony . . . .” See Bridgeport v. Kasper Group, Inc., 278 Conn. 466, 474— 76, 899 A.2d 523 (2006) (explaining broad discretion afforded arbitrators in weighing evidence and issuing awards thereon); see also Nussbaum v. Kimberly Timbers, Ltd., 271 Conn. 65, 76, 856 A.2d 364 (2004) (“after parties have signified their willingness to submit to arbitration, arbitrators have the authority to interpret the provisions of the agreement which are involved in, or applicable to, the facts of the dispute submitted” [internal quotation marks omitted]). In reversing the judgments of the trial court, the defendants would have this court review the conclusions reached by the arbitrator based on his thorough, firsthand analysis of the evidence presented by both parties; that we cannot do. See Comprehensive Orthopaedics & Musculoskeletal Care, LLC v. Axtmayer, 293 Conn. 748, 754, 980 A.2d 297 (2009) (“[u]nder an unrestricted submission, the arbitrators’ decision is considered final and binding; thus the courts will not review the evidence considered by the arbitrators nor will they review the award for errors of law or fact” [internal quotation marks omitted]); National Association of Government Employees v. Bridgeport, 99 Conn. App. 54, 61, 912 A.2d 539 (2007) (“[courts] are not at liberty to set aside an [arbitrator’s] award because of an arguable difference regarding the meaning or applicability of laws urged upon it” [internal quotation marks omitted]). In this case, the arbitrator was tasked with the unrestricted responsibility of resolving the plaintiffs claims for breach of contract and breach of fiduciary duty; that he did, notwithstanding the defendants’ arguments to the contrary. See Saturn Construction Co. v. Premier Roofing Co., 238 Conn. 293, 304, 680 A.2d 1274 (1996) (“a party cannot object to an award which accomplishes precisely what the arbitrators were authorized to do merely because that party dislikes the results” [internal quotation marks omitted]). Moreover, our review of the record reveals no “extraordinary lack of fidelity to established legal principles”; Garrity v. McCaskey, supra, 223 Conn. 10; that would justify vacatur of the award pursuant to § 52-418 (a) (4). Accordingly, the defendants’ claim fails.

The judgments are affirmed.

In this opinion the other judges concurred.

       On July 17,2009, Thomas I. Knox filed a motion to confirm the arbitration award in a separate action that was already pending at that time. The trial court consolidated the proceedings. For convenience, we refer in this opinion to Robert M. Smith, M.D., LLC, and Robert M. Smith as the defendants and Thomas I. Knox as the plaintiff.

       General Statutes § 52-418 provides in relevantpart: “(a) Upon the application of any party to an arbitration, the superior court . . . shall make an order vacating the award if it finds ... (4) [that] the arbitrators have exceeded their powers . ...” An arbitrator is said to “have exceeded [his or her] powers” in violation of § 52-418 (a) (4) when his or her award either does not conform to the submission for arbitration or the award demonstrates a manifest disregard of the law. See Harty v. Cantor Fitzgerald & Co., 275 Conn. 72, 88, 881 A.2d 139 (2005). Here, there is no dispute that the submission to Groark was unrestricted and that the award conformed to the submission.


text:
    OSMAN ASIF v. COMMISSIONER OF CORRECTION
    (AC 31368)
    Gruendel, Robinson and Peters, Js.
    Argued February 7
    officially released March 29, 2011

      Michael D. Day, for the appellant (petitioner).

      James A. Kitten, senior assistant state’s attorney, with whom, on the brief, were Kevin D. Lawlor, state’s attorney, and Erika L. Brookman, assistant state’s attorney, for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, Osman Asif, appeals following the denial of his petition for certification to appeal from the judgment of the habeas court denying his amended petition for a writ of habeas corpus. The petitioner claims that the court abused its discretion in denying certification to appeal and improperly rejected his claim that his trial counsel rendered ineffective assistance. We disagree and dismiss the appeal.

The record reveals the following relevant facts and procedural history. On June 14, 2005, the petitioner pleaded guilty under the Alford doctrine to two counts of larceny in the third degree in violation of General Statutes § 53a-124. On September 2,2005, in accordance with a plea agreement, the court, Carroll, J., rendered judgment and imposed a total effective sentence of ten years incarceration, execution suspended after four years, with five years of probation.

The petitioner subsequently filed an amended petition for a writ of habeas corpus in which he alleged that his trial counsel, Thomas McKirdy, rendered ineffective assistance. Specifically, the petitioner alleged, inter alia, that McKirdy failed to advise him adequately with respect to the consequences of accepting the plea agreement. Following a hearing, the court, Nazzaro, J., denied the habeas petition and the subsequent petition for certification to appeal. This appeal followed.

We first set forth our standard of review. “Faced with the habeas court’s denial of certification to appeal, a petitioner’s first burden is to demonstrate that the habeas court’s ruling constituted an abuse of discretion. Abuse of discretion is the proper standard because that is the standard to which we have held other litigants whose rights to appeal the legislature has conditioned upon the obtaining of the trial court’s permission. . . . If the petitioner succeeds in surmounting that hurdle, the petitioner must then demonstrate that the judgment of the habeas court should be reversed on its merits.” (Citations omitted.) Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). To determine whether the court abused its discretion, the petitioner must demonstrate “that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.” (Internal quotation marks omitted.) Id., 616, quoting Lozada v. Deeds, 498 U.S. 430, 432, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991). As to reversal on the merits, “[t]he standard of review of a habeas court’s denial of a petition for a writ of habeas corpus that is based on a claim of ineffective assistance of counsel is well settled. To prevail on a claim of ineffective assistance of counsel, a habeas petitioner generally must show that counsel’s performance was deficient and that the deficient performance prejudiced the defense. See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).” Ortiz v. Commissioner of Correction, 92 Conn. App. 242, 243-44, 884 A.2d 441, cert, denied, 276 Conn. 931, 889 A.2d 817 (2005).

With that standard in mind, we turn to the petitioner’s claims on appeal. The petitioner claims that McKirdy was ineffective because McKirdy never advised him as to both his right to appeal from the Alford plea and the effect that the plea would have on his immigration status. As the habeas court found and the petitioner concedes, however, these specific claims of ineffective assistance were not explicitly raised in the amended petition, and, as such, the habeas court properly declined to rule definitively on them. See Practice Book § 23-22 (“[a] petition for a writ of habeas corpus shall state: (1) the specific facts upon which each specific claim of illegal confinement is based” [emphasis added].) As we repeatedly have advised litigants, “[t]his court is not bound to consider claimed errors unless it appears on the record that the question was distinctly raised . . . and was ruled upon and decided by the court adversely to the appellant’s claim.” (Emphasis in original; internal quotation marks omitted.) Ankerman v. Commissioner of Correction, 104 Conn. App. 649, 653-54 n.3, 935 A.2d 208 (2007), cert, denied, 285 Conn. 916, 943 A.2d 474 (2008). In the present case, we conclude that the petitioner’s claims of ineffective assistance of counsel were not “distinctly raised” in his amended petition, nor were they ruled on and decided by the habeas court. See id. Accordingly, the petitioner has failed to sustain his burden of demonstrating that the denial of certification to appeal constituted an abuse of discretion.

The appeal is dismissed.

       See North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970). “The Alford doctrine allows a defendant to plead guilty without admitting guilt. In pleading guilty, however, the defendant acknowledges that the state’s evidence against him is so strong that he is prepared to accept the entry of a guilty plea.” (Internal quotation marks omitted.) State v. Boscarino, 86 Conn. App. 447, 451 n.4, 861 A.2d 579 (2004).

       At ihe time the petitioner entered his plea, he was not a citizen of the United States and was subject to deportation pursuant to 8 U.S.C. § 1227 (a) (2) (A) On).


text:
    JAVIER SANTOS, SR. v. MELISSA S. MORRISSEY
    (AC 30349)
    Bishop, Alvord and West, Js.

      Argued February 4
    officially released March 29, 2011

      Javier Santos, Sr., pro se, the appellant (plaintiff).

      Patricia A. O’Neil, with whom, on the brief, was P. Jo Anne Burgh, for the appellee (defendant).

      Justine C. Rakich-Kelly, guardian ad litem for the minor child.
   Opinion

PER CURIAM.

The plaintiff, Javier Santos, Sr., appeals from the trial court’s August 26, 2008 judgment denying his motion for modification of an existing visitation order. The defendant, Melissa S. Morrissey, moved to dismiss the present appeal as moot because on January 4, 2011, the trial court issued an order on the plaintiffs new motion for modification of visitation and custody, and that ruling supersedes the judgment appealed in the present case. We agree and, accordingly, dismiss the plaintiffs appeal as moot.

The following facts and procedural history are relevant to this appeal. The parties’ minor child was bom in 2001. Since July 22,2003, the parties have been disputing the nature, frequency and duration of the plaintiffs parenting time.

In a motion filed November 22, 2006, the plaintiff alleged that his then current incarceration was a substantial change in circumstances and sought, inter alia, a decrease in his child support, joint legal custody and supervised visitation for four hours per week. Initially, the court ordered a psychologist to opine as to the best interest of the minor child. On August 26, 2008, the court denied the motion to modify, finding that, inter aha, it would not be in the child’s best interest to order visitation with the plaintiff and ordered, inter aha, that the defendant be granted sole custody with visitation only at her discretion (August, 2008 order). The plaintiff appeals from that order.

While this appeal was pending, on February 4, 2010, the plaintiff filed another motion for modification of visitation and custody. The plaintiff claimed therein that the circumstances concerning the matter had changed substantially because he was no longer incarcerated, and he requested joint custody and that the court “[a]ddress/[d]iscuss [visitation.” Pursuant to that motion, on January 4, 2011, the court ordered that sole custody and primary residence of the minor child remain with the defendant but that the plaintiff be granted supervised visits as recommended by a licensed clinical psychologist.

On January 13, 2011, the defendant filed a motion to dismiss this appeal as moot because the January, 2011 order superseded the August, 2008 order. As directed by this court, the parties addressed the underlying issues of the motion to dismiss during oral argument. Before considering the merits of this appeal, we first determine whether the case has been rendered moot.

“Mootness is a question of justiciability that must be determined as a threshold matter because it implicates [a] court’s subject matter jurisdiction .... Because courts are established to resolve actual controversies, before a claimed controversy is entitled to a resolution on the merits it must be justiciable. Justiciability requires (1) that there be an actual controversy between or among the parties to the dispute ... (2) that the interests of the parties be adverse ... (3) that the matter in controversy be capable of being adjudicated by judicial power . . . and (4) that the determination of the controversy will result in practical relief to the complainant. . . .

“[A]n actual controversy must exist not only at the time the appeal is taken, but also throughout the pendency of the appeal. . . . When, during the pendency of an appeal, events have occurred that preclude an appellate court from granting any practical relief through its disposition of the merits, a case has become moot. . . . [I]t is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow.” (Citation omitted; internal quotation marks omitted.) Reveron v. Board of Firearms Permit Examiners, 123 Conn. App. 475, 477-78, 1 A.3d 1272 (2010).

The January, 2011 order addressed the plaintiffs custody and visitation, the same issues that were decided by the court in its August, 2008 order, and, hence, the January, 2011 order supersedes the August, 2008 order. Thus, we conclude that there is no practical relief that this court can afford the plaintiff, and, therefore, the appeal is moot. See Zampano v. L.G. DeFelice, Inc., 30 Conn. App. 801, 802, 622 A.2d 1022 (1993); Carpenter v. Carpenter, 7 Conn. App. 112, 113 n.2, 507 A.2d 526 (1986). Because the appeal is moot, subject matter jurisdiction is lacking. Reveron v. Board of Firearms Permit Examiners, supra, 123 Conn. App. 477-78. Accordingly, we grant the defendant’s motion to dismiss.

The appeal is dismissed.