author: Foti, J.

text:
    Richard Nielsen et al. v. Stanley R. Wisniewski et al.
    (11371)
    O’Connell, Foti and La very, Js.
    Argued April 27
    decision released July 20, 1993

      Geoffrey S. Brandner, with whom, on the brief, was John Lino Ponzini, for the appellants (defendants).

      David J. Ordway, for the appellees (plaintiffs).
   Foti, J.

The defendants appeal from the judgment rendered in favor of the plaintiffs, Richard Nielsen and Joy Nielsen. Following a six day trial before an attorney trial referee; see General Statutes § 52-434 (a) (4); Practice Book § 428 et seq.; the trial court accepted the reported findings and rendered judgment. On appeal, the defendants claim that the trial court improperly (1) awarded punitive damages, (2) awarded interest retroactively, and (3) allowed the attorney trial referee to rule on a motion to correct. We agree with the defendants’ second claim and reverse in part.

The evidence introduced at trial supports the following facts. In November, 1983, the plaintiffs entered into an oral contract with the defendants to lease a third floor apartment at 256 Washington Boulevard in Stamford. The defendants owned that building and several other residential properties and were in the business of renting residential properties. The plaintiffs, along with their four young children, took possession of the apartment. At the time, the plaintiffs were aware that the premises needed substantial renovation. For a long period before and after the plaintiffs moved in, the condition of the leased premises had been in substantial violation of health and safety codes, despite numerous written warnings to the defendants. Among the numerous violations was the lack of smoke detectors on the premises.

The plaintiffs paid a $450 security deposit under the lease. The parties agreed on an initial rent of $250 a month until the defendants completed repairs within approximately three months, after which the parties agreed that the rent would increase and rent subsidies would supplement the plaintiffs’ payments.

In February, 1984, after the defendants had failed to perform the agreed repairs, the parties entered into a new agreement by which the plaintiffs were to perform much of the repair work using materials supplied by the defendants. These repairs would not include electrical work. The plaintiffs performed such repairs as they were able through June, 1984. The defendants failed, however, to supply necessary materials and skilled labor. By August, 1984, the relationship between the parties had broken down, and the defendants served the plaintiffs a notice to quit possession because of nonpayment of rent. A summary process trial in November, 1984, resulted in judgment being rendered for the plaintiffs; the defendants in the present case were found not to be entitled to collect rent because of the substandard condition of the premises. During the entire period of the plaintiffs’ occupancy, from November, 1983, through February, 1985, the leased premises was in substantial violation of Stamford’s health and safety code, lacked a certificate of apartment occupancy, and was not an apartment that the defendants were legally entitled to rent. The condition of the apartment was not improved significantly after August, 1984.

Following the judgment in the summary process action, the defendants engaged in a continuing pattern of wrongful conduct with respect to the plaintiffs and the apartment they occupied. Among other actions, the defendants shut off the plaintiffs’ gas and electricity, which they used for heat, hot water and cooking. The defendants also cut an electric line that the plaintiffs had installed for substitute electrical service after the defendants had shut off the regular service. The defendants locked the utility control area of the basement thereby preventing the plaintiffs from taking any action to restore the utility services. None of the utility shutoffs resulted from any failure of the plaintiffs to pay their utility bills.

In addition to being deprived of essential utilities, the plaintiffs were deprived of their quiet enjoyment of the apartment and suffered distress and anxiety about their welfare. The named plaintiff sustained a reduction of his income as a result of the time he spent dealing with the defendants’ wrongful conduct.

In February, 1985, the building at 256 Washington Boulevard was condemned, and the plaintiffs were relocated. At no time did the defendants return the plaintiffs’ security deposit or pay them interest on it; the defendants never notified the plaintiffs as to any disposition of the security deposit. At all times, the defendants had actual knowledge of an address to which they could send mail to the plaintiffs after they had vacated the apartment.

The court adopted the attorney trial referee’s corrected report, hTwhich the referee found violations of General Statutes § 42-110a et seq., the Connecticut Unfair Trade Practices Act (CUTPA); General Statutes § 47a-21, which controls the handling of security deposits; and General Statutes § 47a-4 et seq., which controls the acceptance of rent for an uninhabitable apartment lacking a certificate of apartment occupancy. The trial court awarded the plaintiffs damages in the amount of $13,566, punitive damages in the amount of $60,000, counsel fees in the amount of $25,000, interest on the damages and punitive damages at the legal rate from February 28, 1985, to the date that the judgment is fully satisfied, interest on counsel fees at the legal rate from October 4, 1991, to the date the judgment is fully satisfied, and costs of the action.

I

The defendants first claim that the trial court improperly awarded punitive damages pursuant to General Statutes § 42-1 lOg because there was no specific finding of malicious or evil motive or that the defendants’ conduct was reckless, indifferent, intentional, wanton or violent. They argue that the conduct found to have taken place is insufficient to justify punitive damages without a specific finding that uses the words reckless, indifferent, intentional, wanton or violent. They further argue that the trial court’s failure to specify what standard of proof it was applying, and the attorney trial referee’s application of an elevated “clear and convincing evidence” standard somehow reflects on the requirement of a specific finding. We disagree.

Clear and convincing proof is not the appropriate standard of proof whenever claims of tortious conduct have serious consequences or require the proof of willful, wrongful or unlawful acts. Our Supreme Court has stated that “[ajbsent evidence of legislative intent to the contrary, we continue to presume that when a statutory private right of action includes multiple damages, the plaintiff’s burden of proof is the same as that in other tort cases.” Freeman v. Alamo Management Co., 221 Conn. 674, 683, 607 A.2d 370 (1992). The ordinary preponderance of the evidence standard was thus appropriate here. Id., 678. The attorney trial referee’s application of a higher burden of proof than was required is not relevant to the issue presented on appeal; nor is it relevant that the trial court, in adopting the report and incorporating the referee’s findings, did not indicate the standard of proof it employed.

“Awarding punitive damages and attorney’s fees under CUTPA is discretionary; General Statutes § 42-110g (a) and (d) . . . and the exercise of such discretion will not ordinarily be interfered with on appeal unless the abuse is manifest or injustice appears to have been done.” (Citation omitted.) Gargano v. Heyman, 203 Conn. 616, 622, 525 A.2d 1343 (1987). “Punitive damages are awarded when the evidence shows a reckless indifference to the rights of others or an intentional and wanton violation of those rights.” Vandersluis v. Weil, 176 Conn. 353, 358, 407 A.2d 982 (1978). The “flavor of the basic requirement to justify an award of punitive damages is described in terms of wanton and malicious injury, evil motive and violence.” Venturi v. Savitt, Inc., 191 Conn. 588, 592, 468 A.2d 933 (1983).

Our Supreme Court has perceived the disparity of power between landlords and tenants, and has recognized that the chances of deterring landlords’ abuses of power are materially increased by subjecting them to the payment of punitive damages. Freeman v. Alamo Management Co., supra, 683-84. The facts found in this case show such an abuse of the power held by the defendants as landlords and directed toward the vulnerable plaintiffs as tenants. Punitive damages are appropriate because the circumstances of this case satisfy the basic requirements that justify such an award. The facts found lead inescapably to the conclusion that the defendants were recklessly indifferent to the rights of the plaintiffs, and that they intentionally and wantonly violated those rights. See Pullman, Com- ley, Bradley & Reeves v. Tuck-it-away, Bridgeport, Inc., 28 Conn. App. 460, 464, 611 A.2d 435, cert. denied, 223 Conn. 926, 614 A.2d 825 (1992) (use of talismanic words is not required where memorandum of decision contains all necessary subordinate findings to support trial court’s conclusion). Under the circumstances, we conclude that the absence of a specific finding other than “wrongful conduct” did not impair the court’s ultimate conclusion regarding punitive damages. The trial court did not abuse its discretion in finding that the defendants’ outrageous conduct warranted invoking the punitive provisions of CUTPA.

II

The defendants next argue that the trial court improperly awarded interest retroactive to 1985 on the punitive damages awarded to the plaintiffs pursuant to General Statutes § 42-110g. We agree.

The purpose of an award of interest is to compensate a party for a wrong. Neiditz v. Morton S. Fine & Associates, Inc., 199 Conn. 683, 691-92, 508 A.2d 438 (1986). Such an allowance is primarily an equitable determination within the discretion of the trial court. Milgrim v. Deluca, 195 Conn. 191, 201, 487 A.2d 522 (1985); Bertozzi v. McCarthy, 164 Conn. 463, 467, 323 A.2d 553 (1973). Under General Statutes § 37-3a, interest “may be recovered and allowed in civil actions ... as damages for the detention of money after it becomes payable.” For example, interest is awarded at the maturity of a debt from the time the money becomes due. Marcus v. Marcus, 175 Conn. 138, 146, 394 A.2d 727 (1978). Since punitive damages do not become payable before judgment, however, § 37-3a is inapplicable.

Where prejudgment interest is expressly allowed by statute, a rate of interest is generally specified in the statute. See, e.g., General Statutes §§ 49-41a (b) and 49-42. Under CUTPA, however, prejudgment interest is not expressly allowed and, therefore, no rate of interest is stated. The relevant part of General Statutes § 42-1 lOg (a), on which the trial court relied in awarding interest on the punitive damages, states only that “[t]he court may, in its discretion, award punitive damages and may provide such equitable relief as it deems necessary or proper ” (Emphasis added.) We are unwilling to conclude that the trial court may award retroactive interest on punitive damages under the guise of “equitable relief” because this would also require us to conclude that the trial court may determine the proper rate of interest. The trial court awarded interest “at the legal rate.” The “legal rate” cannot be determined, however, because there is no statute expressly providing for prejudgment interest in this case. We cannot accept the plaintiffs’ argument that the inherent equitable powers of the trier under § 42-1 lOg, together with the provisions of § 37-3a, support an award of interest at the rate of 10 percent from the date their apartment was condemned until satisfaction of the judgment. We agree with the defendants that the trial court lacked the power, statutorily or equitably, to award prejudgment interest on punitive damages.

Ill

The defendants’ final claim is that the trial court improperly permitted the attorney trial referee to rule on the motion to correct after the referee had brought to the court’s attention a possible conflict of interest.

The facts relevant to this claim are as follows. The attorney trial referee filed a report of his findings on October 4, 1991. The parties thereafter filed their respective motions to correct the report. On October 28,1991, the referee indicated by letter to the clerk of the Superior Court that the law partner of the defendants’ counsel was handling a dissolution action on behalf of the referee’s son-in-law. Other than this fact, there was no connection between any individual involved in the present action and those involved in the divorce action of the referee’s daughter. No party in either action had any interest in the outcome of the other action. The referee indicated in his letter: “I feel these developments will not affect any action I may take in completing my duties as [attorney trial referee].” The writ for the dissolution had been filed by defense counsel’s partner on October 9,1991, five days after the referee’s report was filed.

At no time did the defendants file a motion asking to have the referee recused. By its rectification and articulation, the trial court concluded that there was “no reason to deem the original report tainted by improper influence” and found that the attorney trial referee’s corrected report “does not substantially differ from the original report and incorporates some of the corrections proposed by the defendants.”

The defendants now argue that no evidentiary hearing was held, and that the trial court, sua sponte, should have disqualified the referee and either appointed another state trial referee to decide the motions to correct or revoked the reference and ordered that a new trial be held. This claim has no merit.

When a party raises a claim involving alleged bias on the part of a trial court judge, as a general rule we will not consider that issue on appeal unless the party has made a proper motion for disqualification at trial. “ ‘Failure to request recusal or move for a mistrial can be construed as the functional equivalent of consenting to the judge’s presiding over the trial.’ ” Statewide Grievance Committee v. Friedland, 222 Conn. 131, 146-47, 609 A.2d 645 (1992). Failure to raise a timely objection to the participation of an attorney state trial referee faces similar consequences on appeal. See Rowan Construction Corporation v. Hassane, 17 Conn. App. 71, 76-77, 549 A.2d 1085 (1988), aff'd, 213 Conn. 337, 567 A.2d 1210 (1990). The defendants did not seek to disqualify the referee, move for a mistrial, or request an evidentiary hearing for that purpose. Instead, they waited to see the results of both their motion to correct and that of the plaintiffs, and now seek relief on appeal. Parties are not permitted to anticipate a favorable decision, reserving a right to set it aside for reasons known to them before the rendering of that decision if their anticipation is incorrect. See Diamond Fertiliser & Chemical Corporation v. Commodities Trading International Corporation, 211 Conn. 541, 553, 560 A.2d 419 (1989); Seal Audio, Inc. v. Bozak, Inc., 199 Conn. 496, 517, 508 A.2d 415 (1986); Krattensteinv. G. Fox & Co., 155 Conn. 609, 616, 236 A.2d 466 (1967); Fiddelman v. Redmon, 31 Conn. App. 201, 213, 623 A.2d 1064 (1993); Naftzger v. Naftzger & Kuhe, Inc., 26 Conn. App. 521, 526, 602 A.2d 606 (1992). Our review of the record here shows no abuse of the trial court’s discretion.

The judgment is reversed in part and the case is remanded with direction to render judgment as on file except as modified to eliminate the award of prejudgment interest on the punitive damages.

In this opinion the other judges concurred.

       The defendants are Stanley R. Wisniewski, Frederick H. Wisniewski and Richard Wisniewski.

       Prior to June, 1984, the parties were on friendly terms, and the plaintiffs even invited the defendants to dinner at their apartment on at least one occasion.

       The plaintiffs paid the defendants a total of $1715 in rent in addition to the $450 security deposit during this period of occupancy.

       The court fully accepted the attorney trial referee’s recommendation as to damages, interest and counsel fees.

       After the referee filed a corrected report of findings, the defendants lodged several objections to its acceptance, including an objection based on the referee’s alleged conflict of interest. The plaintiffs promptly filed an answer in which they specifically opposed the latter objection.


source: Caselaw Access Project

author: Freedman, J.

license: Public Domain

text:
    New England Savings Bank v. FTN Properties Limited Partnership et al.
    (11865)
    Dupont, C. J., O'Connell and Freedman, Js.
    Argued June 4
    decision released July 20, 1993

      Edward J. Botwick, pro se, the appellant (defendant).

      Deborah L. Dorio, with whom was Beth S. Becker, for the appellee (plaintiff).
   Freedman, J.

The defendant Edward J. Botwick appeals from a deficiency judgment rendered against him in this mortgage foreclosure action in the amount of $1,000,00o. Botwick contends that (1) he has no liability for the deficiency and (2) the plaintiff failed to establish the amount of his liability. We affirm the judgment of the trial court.

In connection with the conveyance of the property that is the subject of this foreclosure action to the defendant FTN Properties Limited Partnership, FTN entered into a mortgage assumption agreement with the plaintiff. Under the assumption agreement, FTN agreed to be bound by the terms of the original note and mortgage secured by the property. Contemporaneously with the execution of the assumption agreement, Botwick and the defendant STN Properties, Inc., entered into a substitute guarantee agreement. Under the terms of the substitute guarantee agreement, the original individual guarantor, Michael S. Franford, was relieved of his liability on the note. Botwick and STN agreed to be bound by the terms of the original note and mortgage. The substitute guarantee agreement, however, provided that “the liability of Edward J. Bot-wick shall be limited to the same extent as [the] liability of the original guarantor, Michael S. Franford, under the terms of the original guaranty [agreement].”

After title to the subject premises vested in the plaintiff pursuant to a judgment of strict foreclosure, the plaintiff sought a deficiency judgment against FTN, STN and Botwick. Botwick never disputed the amount of the deficiency, only the question of his liability for any portion of the deficiency. At the hearings on the motion for deficiency judgment, the plaintiff did not introduce the original guarantee agreement into evidence. That agreement apparently limited the liability of Michael S. Franford, as a guarantor, to $1,000,000. The trial court found a deficiency in the amount of $1,928,421 and found that Botwick was liable for the deficiency to the extent of $1,000,000. This appeal followed.

Botwick’s first claim requires little discussion. He argues that the release of the original individual guarantor (Franford) from liability under the original guarantee also released him from liability by virtue of language in the substitute guarantee agreement limiting his liability “to the same extent as [the] liability of the original [individual] guarantor.” Botwick’s proposed interpretation of the language of the substitute guarantee agreement would allow Franford to be relieved of liability and substitute Botwick in his place in name only and without any financial obligation to the plaintiff. Neither the language of the agreement nor the intention of the parties expressed by those words can reasonably support such a conclusion. In giving meaning to the language of a contract, we presume that the parties did not intend to create an absurd result. Waesche v. Redevelopment Agency, 155 Conn. 44, 51, 229 A.2d 352 (1967); Peoples v. New England Lumber & Box Co., 107 Conn. 724, 726-27, 142 A. 387 (1928). Accordingly, we conclude that the trial court properly disregarded Botwick’s claim that the substitute guarantee agreement imposed no liability on him.

Botwick’s remaining claim is that the trial court could not find him liable for more than nominal damages because the plaintiff failed to introduce evidence of the original guarantee agreement and the limitation of liability contained therein. We disagree.

A release of liability must be pleaded as a special defense. Practice Book § 164; King v. Malone, 91 Conn. 342, 345, 99 A. 691 (1917). “Facts which are consistent with [the facts alleged in the complaint] but show, notwithstanding, that [the plaintiff has no cause of action, must be specially alleged.” Practice Book § 164. A limitation of liability, whether contractual or statutory, is, in substance and effect, a partial release of liability and, as such, is properly the subject of a special defense. See id.; see also Ryszkiewicz v. New Britain, 193 Conn. 589, 591, 479 A.2d 793 (1984); Nothnagle v. New York, N.H. & H. R. Co., 139 Conn. 278, 279-80, 93 A.2d 165 (1952), aff’d, 346 U.S. 128, 73 S. Ct. 986, 97 L. Ed. 1500 (1953). Because it is not generally the plaintiffs burden to offer evidence in support of a claim that must be specially pleaded in the defendant’s answer; Atlantic Richfield Co. v. Canaan Oil Co., 202 Conn. 234, 237, 520 A.2d 1008 (1987); Coogan v. Lynch, 88 Conn. 114, 116, 89 A. 906 (1914); the trial court was entitled to render judgment against Botwick in the amount of $1,000,000.

The judgment is affirmed.

In this opinion the other judges concurred.

       The trial court rendered a deficiency judgment in the amount of $1,928,421 against the named defendant and defendant STN Properties, Inc. Edward J. Botwick was found liable for that deficiency to the extent of $1,000,000. Only Botwick appealed from the judgment of the trial court.

       On May 21, 1993, the Federal Deposit Insurance Corporation (FDIC) became the receiver of the plaintiff New England Savings Bank. Thereafter, FDIC assigned the mortgage and note involved in this action to Citizens Savings Bank. On July 8,1993, we granted the plaintiffs motion to substitute Citizens Savings Bank as the plaintiff in this action.

       The original mortgage note was in the principal amount of $2,325,000 and was personally guaranteed, with certain limitations, by Michael S. Franford.

         Between the two hearings on the plaintiffs motion for a deficiency judgment, the plaintiff filed a document, entitled “Motion Re: Deficiency Judgment,” requesting that the court find Botwick’s liability in connection with the deficiency to be $1,000,000. A copy of the original guarantee agreement was attached to that motion. In addition, the monetary limitation on liability contained in the original guarantee agreement was called to the court’s attention thereafter by the plaintiff’s counsel during a hearing on the motion for deficiency judgment.


text:
    Barbara Shedrick v. Daniel Shedrick
    (11832)
    O’Connell, Heiman and Freedman, Js.
    Argued June 9
    decision released July 20, 1993

      Glen A. Canner, with whom, on the brief, was Paul J. Pacifico, for the appellant (plaintiff).

      Andrew R. Tarskis, with whom, on the brief, was Lawrence P. Weisman, for the appellee (defendant).
   Freedman, J.

The plaintiff appeals from the denial by the trial court of her request to make an order of modification of alimony retroactive to the date the motion was filed. We affirm the judgment of the trial court.

The following facts are necessary to the disposition of this appeal. The marriage of the parties was dissolved by a judgment of the trial court on February 16,1988. At the time of the dissolution, there were two minor children issue of the marriage, one age five and the other age three. Custody of the minor children was granted to the plaintiff. The decree of dissolution further provided in pertinent part that the defendant was to pay to the plaintiff the sum of $4000 per month as unallocated alimony and support for a period not to exceed five years from February 16,1988. These payments were to terminate upon “the death, remarriage or cohabitation of the wife pursuant to Connecticut General Statutes § 46b-86b.” Upon the termination of the payment of unallocated alimony and support for any reason, the plaintiff could then apply to the court for an appropriate order of child support.

On October 10, 1991, the order of unallocated alimony and support not having been terminated or otherwise modified, the plaintiff filed a motion seeking to modify the order alleging “a material and substantial change in the financial circumstances of the defendant” and requesting that “any modification be retroactive to the date of the filing of [the] motion.” The motion contains a certification that a copy was mailed to all counsel and pro se parties of record. This motion was not heard until August 24, 1992, when the trial court granted the motion, increasing the amount of unallocated alimony and support to $10,000 per month and extending the term of payments for three years, from February 16, 1993, to February 16, 1996. All of the other original conditions relating to the order of unallocated alimony and support remained unchanged.

At the hearing on the motion, the plaintiff requested that the order be made retroactive to the date the motion was filed. The trial court denied this request concluding that it had no jurisdiction to do so “since the provision of [General Statutes] § 46b-86 (a) was not complied with.”

Our Supreme Court and this court have consistently held that alimony may not be modified retroactively without express legislative authority. Darak v. Darak, 210 Conn. 462, 479, 556 A.2d 145 (1989); Sanchione v. Sanchione, 173 Conn. 397, 405, 378 A.2d 522 (1977); Paddock v. Paddock, 22 Conn. App. 367, 374, 577 A.2d 1087 (1990). This prohibition against retroactive modification is based on sound reasoning: “One reason which has been advanced by the courts is that unpaid alimony installments are in the nature of a final judgment which cannot be retroactively disturbed, and that court’s right to modify the alimony decree therefore extends only to the executory portion of the order, i.e., to payments to become due in the future. ... Of equal concern is the fact . . . that a [retroactively] modifiable alimony decree is not entitled to full faith and credit in another state’s courts . . . . Yet another consideration is that trial courts asked to modify retroactively the original alimony order might well become engaged in what would essentially be appellate review of another trial court’s judgment, or in ‘second-guessing’ another trial court. There is no need to elaborate on the confusion, uncertainty or even ‘judge-shopping’ that might result.” (Citations omitted.) Sanchione v. Sanchione, supra, 405-406.

In 1990, however, the legislature did in fact expressly authorize retroactive modification of alimony under certain circumstances. General Statutes § 46b-86 (a) was amended by the addition of the following language: “No order for periodic payment of permanent alimony or support may be subject to retroactive modification, except that the court may order modification with respect to any period during which there is a pending motion for modification of an alimony or support order from the date of service of notice of such pending motion upon the opposing party pursuant to section 52-50.” (Emphasis added.)

General Statutes § 52-50 provides in pertinent part that “[a]ll process shall be directed to a sheriff, his deputy, a constable or other proper officer authorized by statute . . . “ ‘A fundamental tenet of statutory construction is that “statutes are to be considered to give effect to the apparent intention of the lawmaking body.” ’ Verrastro v. Sivertsen, 188 Conn. 213, 220, 448 A.2d 1344 (1982). When the words of a statute are clear and unambiguous, we assume that the words themselves express the legislature’s intent and there is no need to look further for interpretive guidance. Caltabiano v. Planning & Zoning Commission, 211 Conn. 662, 666, 560 A.2d 975 (1989).” Winchester Woods Associates v. Planning & Zoning Commission, 219 Conn. 303, 309-10, 592 A.2d 953 (1991); Suprenant v. New Britain, 28 Conn. App. 754, 758, 611 A.2d 941 (1992).

General Statutes § 46b-86 requires that in order to modify the periodic payment of permanent alimony and support retroactively to the date a motion seeking modification was served on the opposing party, such service must be made pursuant to § 52-50 by a sheriff, a deputy sheriff, a constable or other proper statutorily authorized officer. Merely mailing a copy to opposing counsel or the opposing party, as was done here, does not, therefore, comply with § 52-50.

Through the 1990 amendment to General Statutes § 46b-86 (a), “the legislature preserved the due process rights of individual obligors to notice of their potential liability . . . .” Turner v. Turner, 219 Conn. 703, 716, 595 A.2d 297 (1991). This was done not only “[b]y limiting retroactivity to the period during which a motion for modification was pending”; id.; but by prescribing the method of providing notice. If these due process rights are to be protected, then such notice to the obligor must be in strict accordance with the statutory mandate.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 46b-86 (a) provides: “Unless and to the extent that the decree precludes modification, any final order for the periodic payment of permanent alimony or support or an order for alimony or support pendente lite may at any time thereafter be continued, set aside, altered or modified by said court upon a showing of a substantial change in the circumstances of either party or upon a showing that the final order for child support substantially deviates from the child support guidelines established pursuant to section 46b-215a, unless there was a specific finding on the record that the application of the guidelines would be inequitable or inappropriate. There shall be a rebuttable presumption that any deviation of less than fifteen per cent from the child support guidelines is not substantial and any deviation of fifteen per cent or more from the guidelines is substantial. Modification may be made of such support order without regard to whether the order was issued before, on or after May 9,1991. In determining whether to modify a child support order based on a substantial deviation from such child support guidelines the court shall consider the division of real and personal property between the parties set forth in the final decree and the benefits accruing to the child as the result of such division. After the date of judgment, modification of any child support order issued before or after July 1, 1990, may be made upon a showing of such substantial change of circumstances, whether or not such change of circumstances was contemplated at the time of dissolution. By written agreement, stipulation or by decision of the court, those items or circumstances that were contemplated and are not to be changed may be specified in the written agreement, stipulation or decision of the court. This section shall not apply to assignments under section 46b-81 or to any assignment of the estate or a portion thereof of one party to the other party under prior law. No order for periodic payment of permanent alimony or support may be subject to retroactive modification, except that the court may order modification with respect to any period during which there is a pending motion for modification of any alimony or support order from the date of service of notice of such pending motion upon the opposing party pursuant to section 52-50.”

       “Judicial process” is defined as follows: “In a wide sense, this term may include all the acts of a court from the beginning to the end of its proceedings in a given cause; but more specifically it means the writ, summons, mandate, or other process which is used to inform the defendant of the institution of proceedings against him and to compel his appearance, in either civil or criminal cases.” Black’s Law Dictionary (6th Ed. 1990) 1205.

       “Postjudgment motions [to modify alimony or support orders] should generally be served on the [opposing party] by means of an order to show cause so as to provide him or her with adequate notice of the reinstitution of proceedings and to assure his or her presence in court.” M. Wynn & E. Lubell, Handbook of Forms for the Connecticut Family Lawyer, p. 233 and Forms XVI-A-la through Id, pp. 234-38.


text:
    Mary Paula Cooley v. Timothy Cooley
    (10445)
    Daly, Foti and Landau, Js.
    Argued March 22
    decision released July 20, 1993

      Joel M. Ellis, with whom was Catherine P. Klingerman, for the appellant-appellee (plaintiff).

      Robert B. Hempstead, for the appellee-appellant (defendant).
   Foti, J.

This is an appeal from a judgment rendered in a dissolution of marriage action. The plaintiff withdrew her complaint after the defendant filed a cross complaint. She now appeals, claiming that the trial court improperly (1) excluded her from a share in a trust, (2) ordered nonmodifiable, time limited periodic alimony, and (3) ordered financial awards. The defendant has cross appealed, claiming that the trial court improperly (1) assigned the principal of a trust and (2) apportioned personal property. We reverse the trial court’s judgment in part.

The parties were married on September 13,1972, in Hartford. At the time of the dissolution, they had one minor child, a daughter bom March 19, 1975. The prior marriage of each party ended in divorce. The defendant has three adult sons from his first marriage, which ended in 1972; he pays $7800 annually in alimony to his former spouse. Beginning in 1974, the defendant’s three sons changed their residence from that of their mother to that of the parties for respective periods of three, five and two years. The plaintiff took an active role in raising the defendant’s sons.

The defendant graduated from Yale, and from Wharton School of Finance with a masters degree in business administration. The parties met when they were both employed at the same stock brokerage firm and eventually developed a relationship that led to marriage. The defendant later worked for another stock brokerage firm, until he became a bank trust officer and vice president for investments. In August 1982, with the plaintiffs support, the defendant began working as a chartered financial analyst. When he left the bank he earned about $39,000; during the next few years his salary was about $20,000 to $25,000. He has had significant trust income to cushion the income loss. Since 1986, the defendant has been employed as an independent contractor-salesperson for an investment advisory firm. He is paid on a commission basis, but has had expectations of an equity position with this firm.

The plaintiff stopped working in 1974 when she became pregnant. She organized a local chapter of The Samaritans, Inc., in 1985. In 1988, she received a masters degree in pastoral ministry from St. Joseph College and began work as a part-time assistant photographer, earning $100 a week. She has been employed as a personal financial planner since August, 1989, and is now an independent contractor-salesperson, earning commissions for financial planning and selling various financial products. She expects her income to reach $20,000 in a few years when she has built a client base, and thereafter to reach between $30,000 and $40,000.

During his first marriage, the defendant had a drinking problem. His alcoholism also surfaced in this marriage about 1975 and became a significant factor that eventually doomed the relationship. Although he was a functioning alcoholic who maintained employment, the defendant’s illness transformed him into a distant family figure. After a confrontation with his children and the plaintiff in December, 1981, the defendant stopped drinking and joined Alcoholics Anonymous (AA) in June, 1982. He believes.that during his alcoholic period the plaintiff assumed a dominant role in the marital and parental relationship and was unable to accept him as an equal partner when he became a recovered alcoholic in 1982.

The parties could not agree on therapists, or Al-Anon, or about the defendant’s alcoholism. The defendant initially went to AA five nights a week. He later reduced the number of sessions, but could spend up to four nights a week at AA, which meant he was out of the house for up to fifty-eight hours a week. The loss of family time became a problem for the parties. By 1985, the marriage was in difficulty; divorce proceedings were initiated in 1988. In November, 1990, the trial court rendered a judgment dissolving the marriage and entered financial orders.

I

The Appeal

A

The plaintiff first claims that the trial court improperly excluded her from sharing in a trust. The defendant’s deceased mother set up two trusts in August, 1975, referred to as the “Timothy Trust” and the “Paula Trust.” The trustee of each is an independent bank and both are spendthrift trusts. See General Statutes § 52-321. The plaintiffs claim relates to the Paula Trust. (Paula is the plaintiff.)

The Paula Trust was funded in 1975. At that time, the defendant’s mother gifted equal amounts to her four sons. The defendant’s allocation was placed in the Paula Trust. Between the time that the trust was funded and April, 1990, its appreciation was $667,848.

During the “initial period” of the Paula Trust, the trust provides that the trustee in its discretion can pay out the annual net income and principal for the care, maintenance and support of the plaintiff as long as she remains married to the defendant. Subject to the plaintiff’s needs, the trustee in its discretion can pay out any remaining income and principal for the maintenance, support and education of the defendant’s children (his three sons and the parties’ daughter). In the event the marriage terminates, the trustee in its discretion can pay out the annual income and principal solely for the defendant’s children, though not necessarily equally.

During the initial period, the trust instrument confers on the defendant a limited power to appoint, during his lifetime or by his will, all or any part of the trust principal for the benefit of the plaintiff or his three brothers or any of them.

The trust instrument expressly provides that no interest in the trust, while in the possession of the trustee, shall be subject to the debts, contracts, liabilities, engagements or torts of any beneficiary. The Paula Trust is still in its initial period.

The trial court refused to order that the plaintiff share in the appreciation of the Paula Trust. The court found that, under article eleventh of the trust instrument, she ceased to be a beneficiary upon the filing of this dissolution action, and, therefore, the defendant’s limited power to appoint to her had ceased.

The plaintiff disagrees. She recognizes that, pursuant to article first, § (a), during the initial period the trustee may pay her income and principal only “so long as she shall be married to said Timothy Cooley.” She contends, however, that because the initial period of the trust has not terminated, the defendant still has a limited power to appoint to her. She points out that under article second of the Paula Trust, the “initial period” terminates only upon one of five occurrences, none of which, undisputedly, has happened. She also points out that article first, § (b), provides that “[a]nything herein to the contrary notwithstanding” the defendant may appoint, during his lifetime or by will, all or any part of the trust principal to her or his brothers, or any of them, but not to himself. The plaintiff argues that by this language, the defendant may exercise his power to appoint to her at any time during his life or by his will, even after the marriage terminates, as long as the “initial period” of the trust has not ceased. She claims that the trial court improperly concluded that, pursuant to article eleventh, she ceased to be both an income beneficiary and a beneficiary of the defendant’s power of appointment upon her filing of a dissolution action.

We agree with the plaintiff that, under the terms of the trust, termination of the parties’ marriage appears not to have affected her position as a possible appointee. We disagree, however, with her contention that the court improperly excluded her from a share in the trust corpus.

“The issue of intent as it relates to the interpretation of a trust instrument ... is to be determined by examination of the language of the trust instrument itself and not by extrinsic evidence of actual intent.” Heffernan v. Freedman, 177 Conn. 476, 481, 418 A.2d 895 (1979). The construction of a trust instrument presents a question of law to be determined in the light of facts that are found by the trial court or are undisputed or indisputable. See Connecticut National Bank & Trust Co. v. Chadwick, 217 Conn. 260, 266, 385 A.2d 1189 (1991). Since the issue presented concerns the court’s legal conclusion regarding intent of the settlor as expressed solely in the language of the trust she created, we must decide that issue by determining de novo whether that language supports the court’s conclusion. See Canaan National Bank v. Peters, 217 Conn. 330, 335, 586 A.2d 562 (1991).

“[W]e cannot rewrite . . . a trust instrument. The expressed intent must control, although this is to be determined from reading the instrument as a whole in the light of the circumstances surrounding the . . . settlor when the instrument was executed, including the condition of [her] estate, [her] relations to [her] family and beneficiaries, and their situation and condition. ‘The construing court will put itself as far as possible in the position of the . . . [settlor], in the effort to construe . . . [any] uncertain language used by [her] in such a way as shall, conformably to the language, give force and effect to [her] intention.’ . . . But ‘[t]he quest is to determine the meaning of what the . . . [settlor] said and not to speculate upon what [she] meant to say.’ ” (Citations omitted.) Connecticut Bank & Trust Co. v. Lyman, 148 Conn. 273, 278-79, 170 A.2d 130 (1961).

In its articulation, the trial court properly concluded that article eleventh terminates the plaintiffs status as an income beneficiary of the trust upon the filing of divorce papers. The court determined that an inconsistent result would be possible if it found that even after a divorce the plaintiff remained an appointee under the defendant’s limited power of appointment, with access to the trust corpus. The trial court found this interpretation would be contrary to a harmonious reading of all sections of the trust. The court discerned that the settlor was concerned with the impact of divorce on her proposed gift to her son, and that she desired to protect and preserve the trust from financial claims arising from a dissolution. These intentions are strongly evidenced by the great lengths to which the settlor went to protect the trust assets from claims by the defendant’s first wife, Susan Cooley. The trust instrument also evinces an intent by the settlor to limit the distribution of the trust principal to a very narrow group of persons. Under article sixth, § (c), for instance, in the event that any legal action to enforce a claim against the defendant by his first wife results in a determination that any part of the trust estate may be taken to satisfy such claim, the trustee is directed to terminate the trust as to that part and pay the portion to the defendant’s brothers, the settlor’s other sons; the plaintiff was not to be a recipient under this provision. Also significant is that the trust’s initial period does not end upon the termination of the parties’ marriage “with issue living.” Under that circumstance, the defendant himself still has no access to trust assets for his own benefit, again evincing the settlor’s intent to shield the assets from the effects of a dissolution judgment. The trust instrument, read as a whole, strongly suggests an intent on the part of the settlor that the plaintiff’s status as a recipient under the trust would change upon termination of the marriage.

Nevertheless, the phrase “anything herein to the contrary notwithstanding” contained in article first, § (b), appears to preserve the defendant’s power to appoint to the plaintiff even after her filing of divorce papers. While this phrase injects uncertainty into the trust instrument, we need not resolve that uncertainty. We conclude that, even if the language of the trust were crystal clear as to the settlor’s intent that the plaintiff maintain her status as an appointee even after termination of the marriage, the trial court’s decision not to award her a portion of the Paula Trust was proper.

General Statutes § 46b-81 gives the trial court the power in a dissolution action to “assign to either the husband or wife all or any part of the estate of the other.” A limited power of appointment is not a part of the marital estate that can be awarded in a dissolution action, however.

“A power of appointment is a power of disposition given to a person over property not his own by some one who directs the mode in which that power shall be exercised by a particular instrument. . . . The donor does not vest in the donee of the power title to the property, but simply vests in the donee power to appoint the one to take the title. The appointee under the power takes title from the donor, and not from the donee of the power. . . . The ultimate beneficiary really takes from the person who created the power, the donee of the power acting as a mere conduit of the former’s bounty.” (Citations omitted; internal quotation marks omitted.) Linahan v. Linahan, 131 Conn. 307, 324, 39 A.2d 895 (1944).

Under the terms of the Paula Trust, the defendant was the donee of only a limited or nongeneral power of appointment. “(1) A power of appointment is general if it is exercisable in favor of any one or more of the following: the donee of the power, the donee’s creditors, the donee’s estate, or the creditors of the donee’s estate. (2) Any other power of appointment is a non-general one.” 2 Restatement (Second), Property § 11.4 “Donative Transfers” (1986). “As a matter of both common law doctrine and the practicalities of the situation, the donee of a nongeneral power is not the owner of the appointive assets. The donee is in a fiduciary position with reference to the power and cannot derive personal benefit from its exercise. The donee’s creditors have no more claim to the appointive assets than to property which the donee holds in trust. It is immaterial whether or not the donee exercises the power.” Id., § 13.1, comment (a). The situation differs where the donee possesses a general power of appointment. “Where ... a general power has been created, the donee is substantially in the position of an owner.” Id. Because the defendant, having only a limited power of appointment, has no interest, beneficial or otherwise, in the appointive assets of the Paula Trust, no portion of those assets may be included in the marital estate.

Nor can the appointive assets be included in the marital estate by virtue of the plaintiff’s status as the object of the power of appointment given to the defendant. “An object of a power of appointment has an interest analogous to a contingent future interest in the property subject to the power . . . .” Id., § 11.2, comment (d). As one of the possible objects of the defendant’s power, the plaintiff possesses no more than a mere expectancy; her receipt of principal from the trust is wholly contingent upon the defendant’s exercising his discretion to appoint to her. Even if the marriage had continued, the plaintiff’s expectancy might never have been realized if, for example, the defendant had elected to appoint the entire corpus of the Paula Trust to one of his brothers. The plaintiff had no vested right at any time to the trust corpus that would permit its inclusion in the marital estate. See Rubin v. Rubin, 204 Conn. 224, 231, 527 A.2d 1184 (1987) (future property that is a “mere expectancy” is not subject to division in a divorce action).

Finally, because a limited power of appointment such as the defendant’s is not, itself, an asset of the donee; Supreme Colony v. Towne, 87 Conn. 644, 648, 89 A. 264 (1914); it may be neither assigned nor delegated. The trial court properly refused to order the defendant to exercise his limited power of appointment and properly concluded that the plaintiff was not entitled a share of the Paula Trust.

B

The plaintiff next claims that the trial court’s award of nonmodifiable, time limited periodic alimony was clearly erroneous.

“The issue of time limited alimony has been considered by this court in a number of cases. See Watson v. Watson, 20 Conn. App. 551, 568 A.2d 1044 (1990); Sunbury v. Sunbury, [13 Conn. App. 651, 538 A.2d 1082 (1988)]; O’Neill v. O’Neill, 13 Conn. App. 300, 536 A.2d 978, cert. denied, 207 Conn. 806, 540 A.2d 374 (1988); Louney v. Louney, 13 Conn. App. 270, 535 A.2d 1318 (1988); Markarian v. Markarian, 2 Conn. App. 14, 475 A.2d 337 (1984). In each of these cases, we stated that one purpose of limiting the duration of an alimony award is to provide an incentive for the spouse receiving support to use diligence in procuring training or skills necessary to attain self-sufficiency. See Markarian v. Markarian, supra, 16.

“In these cases, we reviewed whether there was sufficient evidence to support the trial court’s finding that the spouse should receive time limited alimony for the particular duration established. If the time period for the periodic alimony is logically inconsistent with the facts found or the evidence, it cannot stand. O’Neill v. O’Neill, supra.” Henin v. Henin, 26 Conn. App. 386, 391-92, 601 A.2d 555 (1992).

The trial court must consider all of its financial orders as a cohesive unit. Brash v. Brash, 20 Conn. App. 609, 614, 509 A.2d 44 (1990). The trial court need not make a detailed finding justifying its award of time limited alimony, but the record must indicate the basis for that award, and there must be sufficient evidence supporting the award for the particular duration established. Mathis v. Mathis, 30 Conn. App. 292, 293, 620 A.2d 174 (1993); Ippolito v. Ippolito, 28 Conn. App. 745, 751-52, 612 A.2d 131, cert. denied, 224 Conn. 905, 615 A.2d 1047 (1992).

Our review of the record in this case indicates that the trial court considered a number of the criteria set out in General Statutes § 46b-82 in exercising its discretion to award time limited alimony, including the length of the marriage, the causes of the dissolution, the age, health, station, occupation, amount and sources of income, along with the vocational skills, employa-bility, estate and needs of the parties. We recognize that the trial court did not explicitly address each criteria. The court has great discretion in domestic relations cases; Savage v. Savage, 25 Conn. App. 693, 695, 596 A.2d 23 (1991); and a reviewing court will give great weight to the financial awards because of the trial court’s opportunity to observe the parties and the evidence. Holley v. Holley, 194 Conn. 25, 29, 478 A.2d 1000 (1984). While the trial court did not specifically address rehabilitative alimony, the record supports the court’s conclusion that the plaintiff is not in need of training or further education in order to obtain the skills necessary to attain self-sufficiency. See Wolfburg v. Wolfburg, 27 Conn. App. 396, 400, 606 A.2d 48 (1992). “Although time limited alimony awards are essentially rehabilitative in purpose, there may be other valid reasons for awarding such alimony.” Roach v. Roach, 20 Conn. App. 500, 506, 568 A.2d 1037 (1990). “The particular length of time needed for alimony can sometimes be established by predicting when future earnings, based on earning capacity as known at the time of the dissolution, will be sufficient for self-sufficency.” Wolfburg v. Wolfburg, supra.

The evidence in the record as to the plaintiffs education, ability and vocational skills, and the absence of any evidence of physical or mental restrictions, reasonably lead to a conclusion that she will resume a successful business career in a relatively short period of time. We conclude that neither placing a time limit on the alimony nor ordering that its duration be nonmodifiable was logically inconsistent with these factors.

C

The plaintiffs final claim is that the trial court improperly awarded the lump sum and periodic alimony and the division of property.

As a reviewing court, we are limited to determining whether the trial court abused its discretion in making financial awards. Barnes v. Barnes, 190 Conn. 491, 494-95, 460 A.2d 1302 (1983). To conclude that the trial court abused its discretion, we must first find that the court either incorrectly applied the law or could not reasonably have concluded as it did. Wolfburg v. Wolfburg, supra, 398. Here, the court made clear that it intended to set a greater share of the marital estate to the plaintiff than to the defendant and that one of the difficulties in this matter was to produce an equitable dissolution judgment in a deteriorating financial market. We have reviewed the record and the evidence in this case and conclude that the financial awards are within the parameters of the trial court’s broad discretion and made in accordance with the law and the evidence.

II

The Defendant’s Cross Appeal

A

The defendant first claims that the trial court improperly ordered him to exercise his limited power of appointment to appoint to the plaintiff one half of the appreciation of the Timothy Trust. We agree with the defendant.

At the time the defendant’s mother set up the Paula Trust in 1975, she also set up another trust. That trust was funded in 1985 after the defendant’s mother died. The trust property was divided into four equal portions for the defendant and his three brothers; the defendant’s portion is referred to as the Timothy Trust.

Article third, § (a), of the Timothy Trust provides that the trustee, in its discretion, can pay out so much of the annual net income and principal as the trustee deems advisable for the defendant’s care, maintenance and support. Thereafter, the trustee can distribute to the defendant’s four children, not necessarily equally, so much of the balance of the income and principal as the trustee deems advisable for their maintenance, support and education. Article third, § (b), provides that the defendant in his sole discretion may appoint all or any part of the principal of the Timothy Trust, “in trust or otherwise, to or for the benefit of any person, persons or charitable organizations, or any of them, except himself, his estate, his creditors or the creditors of his estate.” If, at death, the defendant has not exercised this limited power as to all of the principal of the trust, the balance will be divided equally among his four children.

The trial court determined that because the Timothy Trust did not exclude the plaintiff as a possible beneficiary of the power of appointment and the plaintiff is not a creditor, she should share in the appreciation of the trust principal. As ordered, this would give the plaintiff 50 percent of the difference between the trust’s funding value of $237,826 and its market value at the close of business on December 1,1990, the accounting date nearest to the date of judgment. For nearly the same reasons that we concluded that the plaintiff is not entitled to a share in the Paula Trust, we conclude that she is not entitled to a share in the Timothy Trust.

As we noted earlier in this opinion, a limited power of appointment such as the defendant’s is not an asset of the defendant that can be assigned or transferred. Supreme Colony v. Towne, supra, 648-49. The power does not confer on the defendant any title to or interest in the appointive property. Bankers Trust Co. v. Variell, 143 Conn. 524, 528, 123 A.2d 874 (1956). Unlike a general power, which in some contexts is deemed to be the equivalent of ownership over the appointive assets, a limited power confers on the donee none of the beneficial enjoyment of the property. Nor does the plaintiff have more than a mere expectancy in the trust property. Rubin v. Rubin, supra.

The plaintiff recommends that we cast aside the common law principle that appointive property is not an asset of the donee and that we recognize an equitable power in the trial court to reach the appointive assets and include them in the marital estate. She urges us to employ “a common sense notion that such powers over wealth should be deemed the equivalent of property subject to a court’s control in a dissolution proceeding.” The plaintiff relies on a doctrine applicable to general powers, “that property of a third person, not owned by a [donee] but over which he had and has exercised a general power of appointment, is deemed in equity to be charged with the payment of the debts of the donee to the extent that his own estate is insufficient to satisfy them .... and while doubts have often been expressed as to the soundness of the reasons underlying [this doctrine] and the logical difficulties involved have been noted, it has been generally adopted and applied in appropriate cases. . . . The doctrine is purely one of equity. ‘On no theory of hard fact is the property appointed the property of the donee of the power. But very early equity grafted onto these bald facts a principle of fair dealing. That principle was founded on the idea that a man ought to pay his debts if he could. Equity assumed as a matter of good conscience and sound morals that a man in debt could not honestly have meant to give property to his friends or relatives to the exclusion of his creditors, when he could give it to anybody he chose. . . . This is another of numerous illustrations of the application by courts of “fundamental ethical rules of right and wrong” to the complicated affairs of mankind.’ ” State ex rel. Beardsley v. London & Lancashire Indemnity Co., 124 Conn. 416, 427-28, 200 A. 567 (1938). In keeping with this principle, the plaintiff also urges us to treat the assets subject to the defendant’s limited power of appointment as they might be treated under the transfer and succession tax laws if they were subject to a general power of appointment in the defendant. By this analysis, she contends, the appointive assets would be includable in the marital estate and would be subject to distribution by the trial court.

The plaintiffs position has an obvious flaw: While this equitable principle may apply to general powers of appointment, the power possessed by the defendant under the Timothy Trust was only a limited power. Although the plaintiff acknowledges this important distinction, she urges us to ignore it. We decline to do so.

We earlier underscored the important difference between a general and a limited or nongeneral power of appointment. Again we point out that the nature of this power is such that the defendant, himself, can derive no personal benefit from its exercise. While it is certainly possible, as the plaintiff proposes, that the defendant can indirectly benefit from the power by appointing to persons — his brothers, for instance — who might turn the money back over to the him, we cannot and will not base our decision on such speculation. The trust instrument specifically provides that the power may not be exercised for the benefit of the defendant himself, his estate, his creditors, or the creditors of his estate. Financial awards made in a dissolution proceeding are, by their very nature, a benefit to one party and an obligation to another.

Moreover, while the class of appointees under the Timothy Trust is broader than that under the Paula Trust, the trust instrument expressly excludes creditors from the class of appointees. Contrary to the trial court’s statement that the plaintiff is not a creditor, the judgment in this dissolution action established the plaintiff’s status as that of a judgment creditor. See Urrata v. Izzillo, 1 Conn. App. 17, 18, 467 A.2d 943 (1983) (former spouse is a judgment creditor pursuant to a judgment for alimony and child support); see also McAnerney v. McAnerney, 165 Conn. 277, 287, 334 A.2d 437 (1973); 2 Restatement (Second), Property § 13.7 "Donative Transfers,” (1986) Reporter’s note 4 (as a result of divorce, spousal claims established in divorce proceedings entitle spouse to same rights against appointive assets as would be available to a creditor). The plaintiff is thus no longer a permissible appointee.

We therefore conclude that the trial court improperly ordered the defendant to exercise his limited power of appointment under the Timothy Trust in favor of the plaintiff.

B

The defendant next claims that the trial court abused its discretion in apportioning personal property between the parties. Specifically, he claims that the court failed to consider written proposals submitted by the parties and incorrectly applied the criteria ordinarily relevant to apportionment.

Because our resolution of the defendant’s first claim requires that we remand the case to the trial court for a reconsideration of all the financial orders; Sunbury v. Sunbury, 210 Conn. 170, 175, 553 A.2d 612 (1989); we need not address this issue.

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

In this opinion the other judges concurred.

       General Statutes § 52-321 provides: “Except as provided in sections 52-321a and 52-352b:
      “(a) If property has been given to trustees to pay over the income to any person, without provision for accumulation or express authorization to the trustees to withhold the income, and the income has not been expressly given for the support of the beneficiary or his family, the income shall be liable in equity to the claims of all creditors of the beneficiary.
      “(b) Any creditor of the beneficiary who has secured a judgment against the beneficiary may bring an action against him and serve the trustees with garnishee process, and the court to which the action is returnable may direct the trustees to pay over the net income derived from the trust estate to the judgment creditor, as the income may accrue, until the creditor’s debt is satisfied.
      “(c) The court having jurisdiction over the fund may make such an order for payment pursuant to subsection (b) when the beneficiary is a nonresident of this state, as well as when the beneficiary is a resident, but in the case of a nonresident beneficiary notice shall be given to the nonresident of the action against him as provided in section 52-87. The nonresidence of the beneficiary shall not deprive the court of authority to make such an order.
      “(d) If any such trust has been expressly provided to be for the support of the beneficiary or his family, a court of equity having jurisdiction may make such order regarding the surplus, if any, not required for the support of the beneficiary or his family, as justice and equity may require.
      “(e) The defendant trustee in any such action shall be entitled to charge in the administration account of the trust such expenses and disbursements as the court to which the action is brought determines to be reasonable and proper.”

       We note with concern that the trial court did not appoint counsel for the parties’ daughter, who did not reach majority until March 19, 1993; General Statutes § 46b-54 (b); the interests of the minor child and those of the defendant’s three sons were unrepresented throughout this action even though, as secondary beneficiaries under both the Paula Trust and the Timothy Trust, their interests may have been adverse to those of the parties.
      We also find troubling the absence of the trustee, Connecticut National Bank, which owes a fiduciary duty to all of the persons whose interests may be affected by the financial orders in this dissolution action. We recognize, however, that because of our disposition of this appeal the trustee may no longer be a necessary party.

       Article eleventh provides in pertinent part: “DEFINITION OF TERMS . . . For purposes of this Indenture, the initiation of any legal proceeding by either said Timothy Cooley or said Paula D. Cooley for either a divorce or a legal separation shall constitute the termination of their marriage and the status of said Paula D. Cooley as a beneficiary hereunder shall terminate upon the filing of such papers.”

       Article second provides:
      “TERMINATION OF INITIAL PERIOD OF TRUST
      “The initial period of the trust hereby created shall terminate upon the happening of whichever of the following events shall first occur:
      “(a) The remarriage of Susan Cooley, the former wife of said Timothy Cooley.
      “(b) The death of said Susan Cooley.
      “(c) The death of said Timothy Cooley.
      “(d) The termination of the marriage of said Paula D. Cooley to said Timothy Cooley if no issue of said Timothy Cooley shall then be living.
      “(e) The death of the last survivor of the issue of said Timothy Cooley living at the time of execution of this Indenture if his marriage to said Paula D. Cooley shall previously have terminated.
      “Upon such termination of the initial period of the trust, the Trustee shall set out any balance of the Trust Estate not appointed by an effective exercise of the power of appointment contained in Paragraph FIRST (b) hereof, as it is then constituted, under Paragraph THIRD hereof if said Timothy Cooley shall then be living, or if he is not then living, the Trustee shall set out the same under Paragraph FOURTH hereof if said Paula D. Cooley shall then be living and unremarried, and shall have been married to him at the time of his death. If said Paula D. Cooley is not then living and unremarried, or if she was not married to said Timothy Cooley at the time of his death, the Trustee shall set out the Trust Estate under Paragraph FIFTH hereof.”

       As part of the court’s award, the plaintiff received a lump sum payment of over $100,000 as well as the marital residence valued at $225,000 subject to a mortgage of approximately $30,000. She was awarded alimony of $45,000 payable over four years, ending December 7,1994, plus two additional years at $1 per year.

       The defendant also, as part of this claim on his cross appeal, alleges that the trial court incorrectly calculated the amount of the lump sum payment awarded to the plaintiff. Because of our disposition of the first issue on his cross complaint we find it unnecessary to address this.


author: O’Connell, J.

text:
    Robert E. Hull v. Warden, State Prison
    (11462)
    Dupont, O’Connell and Freedman, Js.

      Argued June 4
    decision released July 20, 1993

      Paula Mangini Montonye, assistant public defender, for the appellant (petitioner).

      Jacqueline J. Footman, assistant state’s attorney, for the appellee (respondent).
   O’Connell, J.

This is an appeal from the denial of a petition for a writ of habeas corpus. The petitioner claims that the habeas court (1) improperly concluded that the failure of the petitioner’s trial counsel to object to or otherwise address certain rebuttal testimony by the state’s expert psychiatric witness did not constitute ineffective assistance of counsel, and (2) abused its discretion by failing to consider all of the trial exhibits. We affirm the judgment of the habeas court.

In 1987, the petitioner was convicted of murder, in violation of General Statutes § 53a-54a, arising out of the stabbing of his wife. The conviction was affirmed on appeal. State v. Hull, 210 Conn. 481, 556 A.2d 154 (1989). Because the facts of the crime are detailed in the Supreme Court opinion, we will not repeat them here. For purposes of this appeal it is sufficient to state that it is not disputed that the petitioner killed his wife; the issue is the petitioner’s state of mind at the time of the killing.

At trial, the petitioner called Walter Borden, a psychiatrist, in an effort to establish a defense of extreme emotional disturbance. Borden testified to problems in the petitioner’s background including family abuse as a child, alcoholism, death of his three sons and a history of a dysfunctional relationship with his wife, the victim. Borden diagnosed the petitioner as having a mixed personality disorder with alcoholism. The critical testimony was Borden’s opinion that the petitioner was not “capable of forming a conscious intent to stab his wife on June 19, 1985.”

The state called Donald Grayson, another psychiatrist, to rebut Borden’s opinion. The state’s attorney posed a lengthy hypothetical question to Grayson culminating in a request that Grayson state if he had “an opinion as to whether the defendant at the time of the stabbing was capable of forming a conscious objective to cause his wife’s death; that is, was he capable of forming an intent to kill his wife?” There was no objection and Grayson responded in the affirmative. The petitioner was convicted and, following an appeal, the conviction was affirmed. The petitioner’s subsequent petition for a writ of habeas corpus was denied and this appeal followed.

Central to the petitioner’s first claim is his contention that Grayson’s response was an opinion on an ultimate issue in violation of General Statutes § 54-86Í. Section 54-86Í provides: “No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto, except that such expert witness may state his diagnosis of the mental state or condition of the defendant. The ultimate issue as to whether the defendant was criminally responsible for the crime charged is a matter for the trier of fact alone.” The defendant argues that the failure of his trial counsel to object to Gray-son’s testimony “was clearly below the level of reasonable competence for criminal defense attorneys in 1987; and that his error caused the petitioner to be convicted

The petitioner’s claim is without merit for two reasons. First, Grayson’s response was not objectionable. Grayson merely agreed that the petitioner had the capacity to form an intent to kill his wife at the time of the attack; he did not offer an opinion as to whether the petitioner actually had such an intent. Section 54-86Í, which is to be narrowly construed; State v. Joyner, 225 Conn. 450, 480, 625 A.2d 791 (1993); does not proscribe expert opinion testimony concerning a defendant’s capacity for a certain mental state; it proscribes testimony concerning whether a defendant actually had the relevant mental state at the time the crime charged was committed. State v. Forrest, 216 Conn. 139, 149, 578 A.2d 1066 (1990). Moreover, neither Grayson’s response nor the state’s question tracked the language of the statute under which the petitioner was convicted. See State v. Raguseo, 225 Conn. 114, 137-38, 622 A.2d 519 (1993) (expert testimony did not violate § 54-86Í even though it closely proximated the statutory language establishing the defense of mental disease or defect because the testimony did not explicitly track the statutory language). Consequently, Grayson’s response was not in violation of § 54-86L

Second, even if we agreed that the petitioner’s attorney could have successfully objected, his failure to do so does not constitute ineffective assistance of counsel. To prevail in such a claim, the petitioner “must show that: (1) his counsel’s performance was deficient in the sense that the counsel made errors so serious that counsel was not functioning as the counsel guaranteed by the Sixth Amendment; and (2) the deficient performance prejudiced the defense ... in the sense that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Citation omitted; internal quotation marks omitted.) Phillips v. Warden, 220 Conn. 112, 132, 595 A.2d 1356 (1991), quoting Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

To demonstrate the requisite deficiency of performance, “the defendant must show that counsel’s representation fell below an objective standard of reasonableness. ... In any case presenting an ineffectiveness claim, the performance inquiry must be whether counsel’s assistance was reasonable considering all the circumstances. [Levine v. Manson, 195 Conn. 636, 688, 490 A.2d 82 (1985)]. Judicial scrutiny of counsel’s performance must be highly deferential, and courts must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Safford v. Warden, 223 Conn. 180, 193, 612 A.2d 1161 (1992). In the present case, the habeas court, after first concluding that Grayson’s testimony was not objectionable, recognized that even if it were objectionable, the petitioner had not overcome the presumption that his counsel was employing sound trial strategy. The court observed that the evidence “clearly shows that [counsel’s action] very well could have been, and probably was, a tactical decision.”

Grayson’s testimony was in rebuttal to the testimony of the defendant’s own witness, Borden, who opined that the petitioner did not have the capacity to form the requisite intent. The habeas court recognized that as a result of Borden’s testimony, the state “would have been allowed, even if there had been an objection, to introduce evidence to the contrary, that [the petitioner] had the capacity to have the intent.” In further evaluating the petitioner’s counsel’s questioning of Borden, the court explained that “[i]n fact, I think that this was probably a wise tactical decision to take in this case, to ask Dr. Borden this question . . . knowing that the answer was going to be [that the petitioner] did not have the capacity to intend to stab his wife.” The court further explained that counsel had “nothing to lose and everything to gain. The only possibility would be that the state’s expert might balance out, and they would be where they would have been, had he not asked the question of Dr. Borden in the first place.”

We find nothing in the record to demonstrate that the trial court improperly concluded that the petitioner failed to overcome the presumption that his counsel’s conduct fell within the wide range of reasonable professional assistance. In light of this, we need not proceed to a determination of whether there was a reasonable probability that, but for counsel’s conduct, the result of the proceeding would have been different.

The defendant also claims that the habeas court improperly failed to consider all of the exhibits that had been admitted into evidence. Further facts are necessary to resolve this claim. At the time of the hearing, the petitioner decided to narrow the scope of his petition by withdrawing all of his claims except those that were inextricably bound to his underlying contention that Grayson’s testimony violated § 54-86Í. In support of those claims, the transcripts of both expert witnesses were offered by the petitioner and admitted into evidence as petitioner’s exhibits A and B. After the petitioner rested, he further offered the complete transcript of his criminal trial, which was admitted, by stipulation, as petitioner’s exhibit C. Thereafter, at the close of the respondent’s case, the respondent entered various appellate briefs produced in conjunction with the petitioner’s direct appeal decided in 1989.

The habeas court issued its ruling and, responding to the petitioner’s inquiry, stated that it had not reviewed exhibit C because “I felt it was not necessary to the decision because of my interpretation of § 54-86Í and my conclusion that this was probably the best way to raise the defense he was entitled to raise. ... I want to make clear, I did read [exhibits] A and B.” The court further indicated that it had not read the appellate briefs either.

The petitioner relies on this court’s decision in Evans v. Warden, 29 Conn. App. 274, 613 A.2d 327 (1992), for the proposition that a new hearing is warranted where the habeas court does not review all of the evidence. His reliance is misplaced. Although we recognize that the habeas court must consider all of the evidence admitted for all the purposes it is offered and claimed; id., 277; we also recognize that the court is not obligated to review evidence that is not relevant to any issue under consideration. The petitioner’s counsel neither indicated the purpose of the offer of exhibit C, nor referred to it during the balance of the trial. Indeed, in closing argument, she informed the court that Grayson’s response “was the issue. Who said what, who heard what, who was where is completely irrelevant. Completely irrelevant to a case when you admit that the defendant performed a particular act. The rest of the trial is almost irrelevant. [Grayson’s response] is what was at issue. This is what counted.”

Unlike this case, it was necessary for the Evans court to review the entire transcript to consider properly the broad scope of the petitioner’s claims. The Evans petitioner had argued that his trial counsel “was ineffective in not presenting sufficient evidence to substantiate the petitioner’s [defense] claims.” Id. The petition also involved other claims that would have necessitated a reading of the transcript; id., 282 n.4; including a claim that the petitioner’s appellate counsel failed to include a sufficiency of the evidence claim in the direct appeal. Id., 278. It is well established that such claims, which implicate the sufficiency of the evidence, require the reviewing court to construe all of the evidence presented at trial. See, e.g., State v. Baldwin, 224 Conn. 347, 368, 618 A.2d 513 (1993).

In the present case, however, the petitioner’s claims are exceedingly narrow in scope and concerned solely with the testimony of Borden and Grayson. This is particularly true because the habeas court, having first concluded that Grayson’s testimony did not violate § 54-86Í and, therefore, that the petitioner’s counsel was not ineffective for failing to object to it, had no need to proceed to the second prong of the Strickland test concerning the potentially broader issue of prejudice.

Although a habeas court is obligated to give careful consideration to all the evidence; Evans v. Warden, supra, 278; it does not have to read the full text of every exhibit. Id., 277. Here, the habeas court reviewed the parties’ pretrial briefs, heard substantial testimony and argument at the hearing, read the transcripts of both experts’ testimony, and was properly satisfied that neither a review of the entire trial transcript, nor a review of briefs filed in an appeal decided years earlier, would have been of any additional benefit. Accordingly, the habeas court did not abuse its discretion.

The judgment is affirmed.

In this opinion the other judges concurred.

       We address the petitioner’s claim that the habeas court improperly interpreted General Statutes § 54-86Í within the larger framework of this claim.

       The petitioner raised and briefed this issue in his direct appeal. State v. Hull, 210 Conn. 481, 556 A.2d 154 (1989). The Supreme Court declined to review the claim under either State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973) or the plain error doctrine. State v. Hull, supra, 484-85.

       The petitioner’s brief engages in a lengthy discussion concerning the distinction between Borden’s opinion that he did not have the capacity to form the intent to stab his wife and Grayson’s affirmative answer to the question asking whether the petitioner had the capacity to form the intent to hill his wife. The purpose of this discussion is apparently to demonstrate that the petitioner’s trial counsel’s questioning of Borden did not properly open the door to Grayson’s response. Our review of the transcripts satisfies us that in the context of the entire testimony of the psychiatrists, there was no significant difference in character between the two responses; the distinction is one solely of semantics.

       The remaining claims alleged that the assistance of the petitioner’s trial counsel was ineffective in that he did not (1) adequately cross-examine Gray-son, (2) move in limine to preclude Grayson’s opinion of the petitioner’s capacity to form intent, and (3) object to Grayson’s testimony.


author: Daly, J.

text:
    State of Connecticut v. Lawrence Hubbard
    (11044)
    Dupont, C. J., Daly and Schaller, Js.

      Argued June 1
    decision released July 27, 1993

      Donald D. Dakers, special public defender, with whom, on the brief, was Christine Perra, special public defender, for the appellant (defendant).

      James M. Ralls, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Michael A. Pepper, assistant state’s attorney, for the appellee (state).
   Daly, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (1), assault of a victim sixty years or older in the third degree in violation of General Statutes § 53a-61a, and unlawful restraint in the first degree in violation of General Statutes § 53a-95 (a).

The defendant claims that the trial court improperly (1) refused to review, in camera, police records concerning two previous sexual assaults, and (2) limited the direct examination of the defendant’s father. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. On September 28,1989, at about 9 p.m., a sixty-seven year old female drove her automobile to her condominium in Meriden. Her dog was in the car with her. As she drove into the condominium complex, she noticed a white male wearing blue jeans, a gray sweater and a gray hat. The headlights of her car illuminated his face. She described him as thin, twenty to twenty-five years old and approximately six feet to six feet, two inches tall. After parking her car, she walked her dog to a grassy area behind the automobile. She was grabbed from behind by a white male who placed his hands over her eyes and told her, “Don’t holler and you won’t get hurt.” He then dragged her across the parking area and down a grassy embankment bordering the parking lot. At the bottom of the embankment, he threw her to the ground near some bushes, struck her in the face, and sexually assaulted her. After the attack, her assailant fled from the premises. She recognized him as the man she had observed earlier when her headlights flashed on him as she drove into the complex. The victim crawled up the embankment and, upon reaching her condominium, immediately dialed 911. When the police arrived, she gave them a written statement and thereafter went to the emergency room of the Meriden-Wallingford Hospital.

More than a year later, on October 17, 1990, the defendant was arrested for an unrelated incident that occurred within one mile of the victim’s condominium complex. The information that the police obtained during this investigation led them to suspect that the defendant may have been responsible for the September, 1989 assault. On October 26,1990, the victim went to the Meriden police department to view photographs in an attempt to identify her assailant. An array of photographs of eight white males with similar characteristics was shown to the victim. She identified a photograph of the defendant as her assailant. On the basis of this identification, the defendant was arrested for the September, 1989 assault. The defendant was subsequently convicted and this appeal ensued.

In addition to the sexual assault involved in this case, the defendant was arrested for two separate attempted sexual assaults that took place on August 21,1990. A Meriden police report dated August 29,1990, indicated that these two sexual assault attempts might fit into a pattern of cases dating back to early 1989. Specifically, two incidents took place in February, 1989, that involved white females who were outdoors alone at night, and were assaulted after being attacked from behind by their assailants.

I

The defendant first claims that the trial court should have reviewed, in camera, the police records of the two assaults that occurred in February, 1989, to determine if they contained exculpatory material necessary to his defense. There was an arrest and prosecution of another individual for one of the February, 1989 assaults, which resulted in the acquittal of that individual. No arrest has been made on the other February, 1989 assault.

In the present case, the police reports of the two February assaults were presented to the trial court under seal. The defendant asked the trial court to examine these records in camera. The defendant claimed that he needed the information in these records to establish a third party’s guilt for the offenses for which he was charged. It was the defendant’s position that another individual fitting his description might have committed the sexual assault in this case.

To trigger an in camera review of records, the defendant must first demonstrate some reasonable likelihood that the records contain information relevant to the case. State v. James, 211 Conn. 555, 579, 560 A.2d 426 (1989); State v. Hayes, 20 Conn. App. 737, 743, 570 A.2d 716, cert. denied, 215 Conn. 802, 574 A.2d 218 (1990). In Hayes, the defendant claimed that the records were relevant to a claim that someone other than he had committed the crimes charged. “Evidence of such third party culpability is a component of a defendant’s due process right to present a defense. State v. Echols, [203 Conn. 385, 392, 524 A.2d 1143 (1987)]. For third party evidence to be admissible, however, it must directly connect the third party to the crime, it must be more than . . . enough to raise a bare suspicion of such third party culpability. Id., 392.” State v. Hayes, supra, 743.

Thus, in the present case, “in order for the defendant to trigger an in camera review of the records, he was required to establish a reasonable likelihood that the records contained material directly connecting [a third party] to the crimes charged.” Id., 744-45. This he failed to do.

The defendant relies on the facts of Siemon v. Stough-ton, 184 Conn. 547, 440 A.2d 210 (1981), and State v. Echols, supra, to demonstrate that he is entitled to an in camera review to establish his defense of third party guilt. Like the defendants in Siemon and Echols, this defendant sought to be apprised of the factual details of the earlier assaults and to obtain the names and addresses of the complainants therein, so that he could interview them. The defendant’s reliance on these two cases is misplaced, however, as both involved the admissibility of evidence of third party guilt, and did not reach the issue of in camera inspection of erased police records.

In the present case, no evidence of a third party lookalike was produced at trial. The trial court found that the defendant had failed to establish a reasonable likelihood that the erased records contained exculpatory information directly connecting a third party to the crime for which this defendant has been convicted. The trial judge stated that although there is language in the police report that would suggest some connection between five well documented cases fitting a general pattern of sexual assault, the report does not contain sufficient information to demonstrate a reasonable likelihood that the crime in this case was committed by a third person. The trial judge noted that no precise description was available to link a third party to the present case. The police report revealed that only a general range of information as to the assailant’s height, age and build had been provided by the victim in this case. Thus, there is no basis for inferring that the perpetrators of the February offenses were responsible for this offense since no arrest has been made for one and the accused in the other has been acquitted.

We conclude that the defendant has failed to demonstrate a reasonable likelihood that the records would directly connect a third party to the crime in this case. On the contrary, the records would indicate that a third party was not connected to the crime charged since the only individual arrested for either of the February, 1989 assaults was acquitted.

The trial court properly refused to conduct an in camera review.

II

The defendant next claims that the trial court improperly limited the direct examination of his father. The trial court sustained objections to the introduction of evidence of the defendant’s working hours since they did not relate specifically to the date of the assault.

“In exercising the right to present witnesses in his own defense, the defendant ‘must comply with established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence.’ Chambers v. Mississippi, [410 U.S. 284, 302, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973)]; State v. Mastropetre, [175 Conn. 512, 521, 400 A.2d 276 (1978)].” State v. Cassidy, 3 Conn. App. 374, 383, 489 A.2d 386, cert. denied, 196 Conn. 803, 492 A.2d 1239 (1985); State v. Kelly, 208 Conn. 365, 375-76, 545 A.2d 1048 (1988). The United States constitution does not authorize the defendant to present every piece of evidence he desires, although exclusionary rules of evidence cannot be applied “mechanistically” to deprive the defendant of his rights. Chambers v. Mississippi, supra; State v. Kelly, supra, 376. If the evidence submitted is not relevant, however, the defendant’s right to confrontation is not affected and the evidence should be excluded. State v. Kelly, supra.

“As a general principle, evidence is relevant if it has a tendency to establish the existence of a material fact. One fact is relevant to another fact whenever, according to the common course of events, the existence of the one, taken alone or in connection with other facts, renders the existence of the other either certain or more probable. State v. Lombardo, 163 Conn. 241, 243, 304 A.2d 36 (1972); State v. Mastropetre, supra, 517. State v. Cassidy, [supra].” (Internal quotation marks omitted.) State v. Kelly, supra; State v. James L., 26 Conn. App. 81, 83, 598 A.2d 663 (1991).

The defendant claims, for the first time on appeal, that the questions posed to the defendant’s father were relevant as evidence of custom and habit. The defendant was employed by his father in an automobile service station in September, 1989. He claims that his father’s testimony was necessary to establish that he could not have committed this crime because he had worked evenings during September and, thus, it would have been impossible for him to have been at the victim’s condominium complex when she was sexually assaulted at approximately 9 p.m. on September 28, 1989. This basis for admitting the testimony, however, was not raised before the trial court.

Testimony as to the habit or practice of doing a certain thing in a certain way is evidence of what actually occurred under similar circumstances or conditions. Montinieri v. Southern New England Telephone Co., 175 Conn. 337, 348, 398 A.2d 1180 (1978); Caslowitz v. Roosevelt Mills, Inc., 138 Conn. 121, 125, 82 A.2d 808 (1951); see also 1 B. Holden & J. Daly, Connecticut Evidence (2d Ed. 1988), § 72a. “Evidence of a regular practice permits an inference that the practice was followed on a given occasion.” Puro v. Henry, 188 Conn. 301, 312, 449 A.2d 176 (1982).

At trial, during direct examination of the defendant’s father, defense counsel made several attempts to establish the defendant’s working hours in September, 1989. The state objected to each attempt on the ground that only the hours on September 28 were relevant. The trial court sustained each objection. The defendant took several general exceptions to the rulings made against him, but he failed to inform the trial court of his grounds for the exceptions. “ Tf a defendant . . . wishes to except to a ruling excluding evidence which was objected to only generally, he must avail himself of the provisions of [Practice Book § 288] and state his claim of admissibility. . . ” State v. De Santis, 178 Conn. 534, 540, 423 A.2d 149 (1979); see also Raino v. Supermarkets General Corporation, 28 Conn. App. 56, 59, 609 A.2d 1047, cert. denied, 223 Conn. 924, 614 A.2d 825 (1992); O & G Industries, Ine. v. Mizzoni, 23 Conn. App. 19, 23, 578 A.2d 672 (1990). By not raising the ground for his claim of admissibility, the defendant has failed to preserve this evidentiary claim for appellate review.

The defendant seeks to overcome this deficiency by relying on the doctrine of State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). This court will review an unpreserved claim under this doctrine only where that claim is of constitutional magnitude, alleging the violation of a fundamental right. Id., 239-40; State v. McClain, 23 Conn. App. 83, 90, 579 A.2d 564, cert. denied, 216 Conn. 822, 581 A.2d 1056 (1990). Here, the defendant’s claim is an evidentiary one, and thus not deserving of review under State v. Golding, supra.

The judgment is affirmed.

In this opinion the other judges concurred.

       At oral argument and in his reply brief, the defendant abandoned his claim that his rights were violated by the intentional erasure by the Meriden police of the 911 call from the victim, and by the trial court’s denial of the defendant’s motion to strike the victim’s testimony in light of that erasure, in view of the Supreme Court’s recent decision in State v. Cain, 223 Conn. 731, 613 A.2d 804 (1992).

       We note that it is unclear whether there was one or more perpetrators responsible for the two February, 1989 assaults.

       The pertinent questions and subsequent colloquy were as follows:
      “[Public Defender]: What were your son’s hours back in September of 1989?
      “[State’s Attorney]: I object to that. I think we are talking about a particular date and time. I don’t think it is relevant what the general hours were, Your Honor.
      “[The Court]: Sustain the objection.
      “[Public Defender]: What were the hours that he worked throughout the month of September, 1989?
      “[State's Attorney]: Objection.
      “[The Court]: Sustain the objection.
      “[Public Defender]: I am going to claim that one, Your Honor.
      “[The Court]: You may have an exception.
      “[Public Defender]: All right, exception.
      “[Public Defender]: Did your son work the same hours throughout the month of September 28, 1989?
      “[State’s Attorney]: I object to that.
      “[The Court]: Sustain the objection.
      “[Public Defender]: Exception, Your Honor.”