author: Dupont, C. J.

text:
    Joyce A. Wolfburg v. William D. Wolfburg
    (10258)
    Dupont, C. J., Landau and Heiman, Js.
    Argued December 14, 1991
    decision released April 21, 1992

      B. Paul Kaplan, for the appellant (defendant).

      Carol A. Brigham, for the appellee (plaintiff).
   Dupont, C. J.

This is an appeal from a judgment rendered in a dissolution of marriage action. The defendant challenges the financial awards, claiming that the trial court (1) abused its discretion in valuing the parties’ furniture, (2) abused its discretion in ordering certain debts to be divided equally between the parties in light of its other awards, (3) improperly awarded time limited alimony to the plaintiff during their son’s minority. The first two claims are garden variety appellate claims. The third issue raised requires a resolution of whether the economic impact of providing the main custodial care of a child may, under certain circumstances, be a basis for limiting the term of alimony payments to a period coextensive with the child’s minority.

The parties were married in November of 1968. Two children were born during the marriage, one of whom had attained her majority prior to the commencement of this action. At the time of the dissolution, the plaintiff was forty years old and worked approximately twenty-five hours per week as a computer operator, with a net weekly income of approximately $255. The defendant was a forty-one year old police officer whose earnings were supplemented by workers’ compensation benefits, with a net weekly income of approximately $590. The parties’ minor child was ten years old.

In April, 1989, the plaintiff learned that the defendant had been involved in an affair with another woman for one and one-half years. Despite repeated promises to terminate that relationship, the defendant’s inability to keep those promises led to the plaintiff’s filing a complaint for divorce. After the complaint was filed, the other woman gave birth to the defendant’s twin sons.

The marriage was dissolved on April 30, 1991. The court awarded the parties joint custody of their minor son but gave primary physical custody to the plaintiff. The court ordered alimony to the plaintiff in the amount of $95 per week until August 1, 1998, unless sooner terminated by the death or remarriage of the plaintiff. The minor son will attain his majority on August 2, 1998. The alimony was made nonmodifiable as to term only. The court also ordered child support in the amount of $135 per week.

The defendant was ordered to maintain medical and dental insurance for the minor child and the plaintiff for two years. The plaintiff was ordered to reimburse the defendant for any increased premium due to her coverage. Uninsured medical expenses for the minor child were ordered to be divided equally between the parties. The defendant was also ordered to maintain life insurance with a minimum face value of $50,000 for the plaintiff’s benefit until alimony ceased or the child attained his majority, whichever was later.

The defendant was ordered to deed his interest in the marital real estate to the plaintiff by quitclaim deed and the plaintiff was ordered to execute a mortgage deed and note in the amount of $17,378 to the defendant, payable upon her remarriage, death, the sale of the home or August 2,1998, whichever soonest occurred.

This court has repeated on many occasions that a trial court has broad discretion in domestic relations cases. Savage v. Savage, 25 Conn. App. 693, 695, 596 A.2d 23 (1990). Because of the opportunity for the trial court to observe the parties, great weight is given its judgment with respect to financial awards. Holley v. Holley, 194 Conn. 25, 29, 478 A.2d 1000 (1984); Breen v. Breen, 18 Conn. App. 166, 169, 557 A.2d 140 (1989). As a reviewing court, we are limited to determining whether the trial court abused its discretion in making those awards. Barnes v. Barnes, 190 Conn. 491, 494-95, 460 A.2d 1302 (1983). For us to conclude that the trial court abused its discretion, we must find that the court “ ‘either incorrectly applied the law or could not reasonably conclude as it did.’ ” Trivelli v. Trivelli, 5 Conn. App. 488, 490, 500 A.2d 244 (1985), quoting Sweet v. Sweet, 190 Conn. 657, 664, 462 A.2d 1031 (1983). Having reviewed the record and the evidence in this case, we conclude that the award of the trial court as to the amount of alimony, the valuation of the furniture and the division of the payment of the parties’ debts was clearly within the parameters of its broad discretion and was in accordance with the law and the evidence.

The defendant challenges the nonmodifiable duration of the time limited alimony on two grounds. First, he claims that the plaintiff has extensive job skills and, therefore, does not need time limited alimony for the purpose of further education or job training. Second, he argues that in linking the term of alimony to the period of their child’s minority, the court impermissi-bly awarded additional child support under the guise of time limited alimony.

General Statutes § 46b-82 sets out a number of criteria for the court to consider in exercising its discretion in awarding alimony. These include the length of the marriage, the causes for the dissolution of the marriage, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of the parties. The trial court expressly considered the statutory factors and specifically discussed the employability, the vocational skills, and the amount and sources of income in its oral decision.

Where alimony of limited duration is awarded, however, there must also be “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.” Henin v. Henin, 26 Conn. App. 386, 392, 601 A.2d 550 (1992).

We agree with the defendant that the record amply supports his contention that the plaintiff is not in need of training or further education in order to obtain the skills necessary to attain self-sufficiency. We do not agree, however, that a rehabilitative purpose was the basis of the time limited award of alimony in this case. “Although time limited alimony awards are usually 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); see also Henin v. Henin, supra; Kane v. Parry, 24 Conn. App. 307, 314, 588 A.2d 227 (1991).

A valid purpose of time limited alimony is to provide interim support until a future event occurs that makes such support less necessary or unnecessary. Henin v. Henin, supra. 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-sufficiency. Kane v. Parry, supra, 314-15.

The defendant’s claim, in effect, is that the trial court impermissibly awarded alimony for a longer period of time than can be supported by the record because it wanted to award child support in an amount greater than necessary to support the child. In other words, the defendant argues that the alimony here is really child support. This argument is a twist on the issue raised in Brown v. Brown, 190 Conn. 345, 349, 460 A.2d 1287 (1983), which held that an award of child support can be so disproportionate to the child’s needs that it is obviously a mask for alimony, and, therefore, cannot be upheld. Here, the defendant’s claim is that the alimony is so disproportionate to the plaintiff’s needs, in terms of the time period over which it is to be paid, that it must be child support. We do not agree.

Misinonile v. Misinonile, 190 Conn. 132, 459 A.2d 518 (1983), is a case similar to, but not dispositive of, the present case. In Misinonile, a father claimed that the trial court had no jurisdiction to award alimony, unlimited as to term, because the alimony was in actuality an award for support of a mentally retarded child who would attain her majority long before the alimony ceased. It was argued, therefore, that the alimony was not needed as support for the wife but was instead an impermissible attempt by the court to provide for an adult child. The court determined that the trial court had jurisdiction because it could not be shown that the alimony was disguised child support for a soon to be adult mentally retarded child. Id. The court specifically left unanswered the question of whether a trial court could, in determining the amount of alimony to be awarded, “consider the economic impact on the [custodial party] of providing care and comfort for her child after the child had attained her majority . . . .” Id., 136. The specific question of the present case is whether a trial court can consider the economic and other consequences of providing primary care for a minor child in establishing the term of time limited alimony.

Here, jurisdiction to award either child support or alimony clearly exists. Our question is, therefore, not jurisdictional, but, instead, whether the court improperly set the period for alimony payments to equate with the period of the child’s minority. This question is based on the subsidiary question of whether the economic impact on a custodial parent and the caretaking responsibility of such a parent can be reflected in conforming the duration of alimony payments to the period of the child’s minority. We conclude that if a record supports a finding that the parties had agreed, during the viable days of the marriage, that one of them should shape the time spent in a career or employment to the needs of the family during the minority of the child, alimony limited in duration to the period of minority may be awarded, at the discretion of the trial court, because the caretaker’s ability to maximize self-sufficiency has been impaired for that period.

Alimony is payment for support of a former spouse and child support is payment for support of a minor child. Although the two must be kept separate when the court determines the appropriate awards as to each; Brown v. Brown, supra; the distinction between the two kinds of payments is easily blurred, particularly when the child for whom the support is needed resides primarily with the recipient of the alimony.

Here, the record supports the conclusion that the trial court’s rationale for the time limited alimony was to allow the plaintiff the time necessary to care for the dependent child. It has been recognized that the duration of alimony may be based on such a factor. See 24 Am. Jur. 2d § 748 (1991 Sup.). The testimony in this case was that twice during the parties’ marriage, the plaintiff quit full-time employment at the defendant’s insistence in order to devote more time to child rearing responsibilities. Subsequently, the plaintiff was able to develop part-time work opportunities that allowed her to work during regular school hours and to be available at home to meet the needs of the family. At the time of trial, the plaintiff had maximized the economic aspects of that arrangement by securing part-time employment in her field of training at a higher hourly wage than that offered in similar positions available on a full-time basis. The testimony established that the defendant agreed to that arrangement during the marriage.

It was within the discretion of the trial court to conclude on the basis of these specific facts that the decision of the parties to provide their minor child with a parent’s attention warranted time limited alimony. But for the dissolution, the plaintiff would have continued part-time employment and that need not be changed solely because the marriage has dissolved. See Hall v. Hall, 1363 So. 2d 137, 140 (Fla. App. 1978), cert. denied, 370 So. 2d 459 (Fla. 1979).

There is a rationale for the particular length of time for the time limited alimony as set by the trial court, which is supported by the record, and the trial court did not abuse its discretion in providing for alimony until the minor child attained his majority.

The judgment is affirmed.

In this opinion the other judges concurred.

       There is no doubt that the court intended the alimony and child support to be coextensive in time. When speaking of the date alimony was to cease, the court stated “Joshua becomes eighteen (18) years of age—and I’m setting the date as August 1, 1998—one day off, but I thought I would round it off there . . . .”


source: Caselaw Access Project

license: Public Domain

text:
    State of Connecticut v. Darin Scott
    (9977)
    Dupont, C. J., Foti and Freedman, Js.
    Argued February 19
    decision released April 21, 1992

      Susan A. Brown, assistant public defender, for the appellant (defendant).

      Richard F. Jacobson, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Gerard P. Eisenman, assistant state’s attorney, for the appellee (state).
   Dupont, C. J.

The defendant was convicted, after a trial to the court, of attempted murder in violation of General Statutes §§ 53a-54a (a) and 53a-49 and carrying a pistol without a permit in violation of General Statutes §§ 29-35 and 29-37 (b). He was arrested after the police entered his house with probable cause for an arrest, but without an arrest warrant and without his consent. Immediately thereafter, at the police station, the police performed an atomic absorption test on the defendant’s hands to test for the presence of chemical elements consistent with the recent firing of a gun. The sole issue in this appeal is whether the trial court improperly denied the defendant’s motion to suppress the results of that atomic absorption test as the fruit of an unconstitutional seizure of his person. The resolution of the issue depends on whether exigent circumstances existed at the time the defendant’s house was entered. We affirm the judgment of the trial court.

At approximately 1:15 a.m. on May 23, 1990, Harold White was standing on Albion Street in Bridgeport when he was shot four or five times. White was immediately rushed to Park City Hospital. Detective Richard Herlihy arrived at the hospital immediately after the shooting at approximately 2 a.m., but was unable to speak to the victim because of his condition.

Herlihy then spoke to two witnesses at the crime scene. Both witnesses stated that they saw a man shoot the victim. One of the witnesses knew the perpetrator as Zuke and knew that he lived on Orland Street. She then directed Herlihy to a multi-family home at 231-233 Orland Street, which she stated was where Zuke lived. Soon thereafter, at the police station, the two witnesses each separately identified a picture of the defendant from a photograph array as being the person who had shot White earlier that morning.

Herlihy then returned to Park City Hospital at about 5 a.m. and was able to interview the victim just prior to surgery. The victim identified the defendant’s picture, from the same photograph array that was shown to the two witnesses, as the person who had shot him. The victim also gave Herlihy some details about the shooting, including the fact that after the first gun shot felled him, the defendant shot him several additional times while he was on the ground.

At that point in the investigation, Herlihy believed he had probable cause to arrest the defendant. Her-lihy and other police officers then went to 231-233 Orland Street to arrest the defendant and arrived there at approximately 5:30 a.m.

The police officers knocked on the door to the first floor apartment of the two-family house. A woman came to the door. The police officers informed her that they were looking for the defendant in connection with a shooting earlier that morning. The woman told the police officers that the defendant lived upstairs and led the officers through the adjacent door and up the stairs to the kitchen of the second floor apartment. There were two women in the kitchen. Herlihy again identified himself as a police officer and explained that he was looking for the defendant in connection with the shooting. Herlihy then walked into the bedroom adjacent to the kitchen and found the defendant facedown on the floor between a bed and a bureau.

The defendant was arrested and taken to the police station. At the police station, an atomic absorption test was performed on the defendant’s hands.

Prior to the trial, the defendant moved to suppress evidence obtained as a result of his arrest, namely, the results of the atomic absorption test, claiming that his arrest was an unconstitutional seizure. The court found that the police had reasonably concluded that there was probable cause for the defendant’s arrest and had assumed that the defendant lived in the apartment in which he was arrested. On the basis of the evidence introduced, we conclude that there was probable cause for the arrest and that the defendant had standing to object to the entry because he was arrested in his house. The trial court further found that the warrantless arrest in the defendant’s house was justified by exigent circumstances and denied the motion to suppress.

The fourth amendment to the constitution of the United States provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” A similar provision is found in article first, § 7, of the Connecticut constitution. It is a fundamental principle of constitutional law that searches and seizures inside a house made without a warrant are presumptively unreasonable. Payton v. New York, 445 U.S. 573, 586, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980); State v. Guertin, 190 Conn. 440, 446, 461 A.2d 963 (1983). Absent exigent circumstances and probable cause for arrest, a person’s house may not be entered without a warrant. Payton v. New York, supra, 590; State v. Guertin, supra. We have recently determined that our state exclusionary rule, as derived from article first, § 7, of the Connecticut constitution, bars the state from using evidence acquired outside a defendant’s house following an illegal arrest in the house, unless the taint resulting from the arrest is sufficiently attenuated from the initial entry into the house. State v. Geisler, 25 Conn. App. 282, 292, 594 A.2d 985, cert. granted, 220 Conn. 918, 597 A.2d 342 (1991).

“The question of what constitutes exigent circumstances justifying a warrantless entry of a private dwelling has been a difficult one for both the police and the courts.” State v. Enright, 17 Conn. App. 142, 148, 550 A.2d 1095 (1988). “The phrase ‘exigent circumstances’ refers generally to those situations in which law enforcement agents will be unable or unlikely to effectuate an arrest, search or seizure, for which probable cause exists, unless they act swiftly and, without seeking prior judicial authorization.” United States v. Campbell, 581 F.2d 22, 25 (2d Cir. 1978); State v. Guertin, supra, 447.

The trial court relied on the exigent circumstances test set forth in Dorman v. United States, 435 F.2d 385 (D.C. Cir. 1970). The Dorman test establishes a number of factors to be considered in analyzing a claim of exigent circumstances. “These are (1) that a grave offense is involved, particularly one that is a crime of violence; (2) that the suspect is reasonably believed to be armed; (3) that there is a clear showing of probable cause; (4) that there is a strong reason to believe the suspect is in the premises being entered; (5) that there is a likelihood that the suspect will escape if not swiftly apprehended; (6) that the entry, though not consented to, is made peaceably, although forcible entry may be justified in some instances. Another factor to be considered is (7) the time of entry. [Dorman v. United States, supra,] 392-93. The latter factor may cut both ways. A night entry may, on the one hand, underscore the impracticability of securing a warrant and, at the same time, raise particular concern about its reasonableness.” State v. Guertin, supra, 449-50.

Here, the trial court, applying Dorman, found all seven factors to justify a warrantless arrest based on exigent circumstances. A grave, violent offense had been committed; the police had not found the weapon at the scene and therefore could reasonably believe the suspect was still armed; three eyewitness identifications clearly demonstrated probable cause; the defendant would likely have returned to his house and would still be there at that early hour; it was likely that the suspect would escape if not apprehended; and the entry was made peacefully. The court also took judicial notice that the courts were not open at 5:30 a.m. and that there would have been a significant delay if a warrant had been sought.

In State v. Guertin, supra, our Supreme Court concluded that exigent circumstances were present under the facts of that case and that the Dorman test had been satisfied. The court, however, recognized a number of practical problems with Dorman where less than all of the factors are present. Id., 451. It noted commentary suggesting that “the Dorman approach is too sophisticated to be applied with a fair degree of consistency by well-intentioned police officers, in that it requires them to make on-the-spot decisions by a complicated weighing and balancing of a multitude of imprecise factors.” Id., citing 2 W. LaFave, Search and Seizure (1978) § 6.1, p. 390. The Guertin court noted LaFave’s solution to the perceived Dorman deficiencies, namely, a test based on a “distinction between the ‘planned’ arrest and the arrest which is made in the course of an ongoing investigation in the field.” State v. Guertin, supra, 451-52, citing 2 W. LaFave, supra, p. 391. Guertin, however, rejected the LaFave suggestion and adopted the exigent circumstances test formulated in a case of the West Virginia Supreme Court of Appeals. “ ‘The test of exigent circumstances for the making of an arrest for a felony without a warrant ... is whether, under the totality of the circumstances, the police had reasonable grounds to believe that if an immediate arrest were not made, the accused would be able to destroy evidence, flee or otherwise avoid capture, or might, during the time necessary to procure a warrant, endanger the safety or property of others. This is an objective test; its preeminent criterion is what a reasonable, well-trained police officer would believe, not what the arresting officer actually did believe.’ (Footnote omitted, emphasis in original.)” State v. Canby, 252 S.E.2d 164, 167 (W. Va. 1979), quoted in State v. Guertin, supra, 453. Applying the Canby test, the Guertin court concluded that exigent circumstances existed to justify the warrantless arrest there.

Although Guertin adopts the Canby test; see State v. Klauss, 19 Conn. App. 296, 301, 562 A.2d 558 (1989); State v. Reagan, 18 Conn. App. 32, 37, 556 A.2d 183, cert. denied, 211 Conn. 805, 559 A.2d 1139 (1989); State v. Enright, supra; we further conclude that Guertin also supports the view that the Canby test is met where all of the Dorman factors are present. The presence of the first, second, fifth and seventh Dorman factors, taken together, necessarily support the Canby requirement that “the police had reasonable grounds to believe that if an immediate arrest were not made, the accused would be able to . . . flee or otherwise avoid capture, or might, during the time necessary to procure a warrant, endanger the safety ... of others.” State v. Canby, supra, 167. The additional presence of the third, fourth and sixth Dorman factors assures the reasonableness of the police conduct because these factors embody the recognition that “[physical entry of the home is the chief evil against which the wording of the fourth amendment is directed.” State v. Guertin, supra, 447. Thus, Guertin does not disapprove of consideration of the Dorman factors but, rather, recognizes the limitations attendant upon any mechanical application of those factors.

In those cases where less than all of the Dorman factors are present, Guertin’s approval of Canby allows a focus on the totality of the circumstances. A trial court is, therefore, left free to examine the particular mix of factors present in assessing the necessity for immediate arrest by the police. We read Guertin’s failure to disavow Dorman as continuing the vitality of an analysis of the Dorman factors in assessing exigent circumstances to justify a warrantless arrest in the house in Connecticut. Although the third, fourth and sixth Dorman factors have little to do with any necessity for immediate arrest, they do assure the reasonableness of police conduct in making warrantless searches and seizures, thus meeting the core requirements of the fourth amendment to the constitution of the United States and of article first, § 7, of the Connecticut constitution.

We conclude that the Guertin test requires a trial court to examine whether, on the basis of the totality of the circumstances and giving particular consideration to the relevant factors identified in Dorman, a reasonable, well trained police officer would have had reasonable grounds to believe that if an immediate arrest were not made, the accused would be able to destroy evidence, flee or otherwise avoid capture, or might, during the time necessary to procure a warrant, endanger the safety or property of others.

Because each of the Dorman factors is present here and because the Guertin test is therefore met, we conclude that the warrantless arrest of the defendant was justified by exigent circumstances. The offense of attempted murder involved was both grave and violent. The victim was not only shot but was shot while he lay injured on the ground. The gun used was not found at the scene of the crime, leading reasonably to the conclusion that the defendant continued to be armed with the weapon. See State v. Hopes, 26 Conn. 367, 375-77, 602 A.2d 23, cert. denied, 221 Conn. 915, 603 A.2d 405 (1992). We believe that these factors, recognized by the trial court as significant under Dorman, were also sufficient to give the police reasonable grounds to believe that if an immediate arrest were not made, the accused would likely flee and be able to avoid capture and very well might, during the time necessary to procure a warrant, endanger the safety of others, as outlined in Guertin. The additional Dorman factors present here, namely, that there was a clear showing of probable cause, that both the time of day and the information given to the police gave them strong reason to believe that the defendant was in the premises being entered, and the peaceable nature of the entry, further convince us that this “invasion of the sanctity of the home” was carried out in a reasonable manner under the circumstances. State v. Guertin, supra, 447-48. Finally, since the entry was otherwise reasonable, the predawn entry here “underscore[d] the impracticability of securing a warrant. . . .” Id., 450. The trial court, therefore, correctly denied the motion to suppress because the warrantless arrest of the defendant in his house was justified by the presence of exigent circumstances.

The judgment is affirmed.

In this opinion the other judges concurred.

       The first, second, fifth and seventh Dorman factors are present where a grave crime of violence is involved, the suspect is believed to be armed, the suspect is likely to escape if not quickly apprehended, and entry is made when the practicability of securing a warrant is especially lessened.

       The third, fourth and sixth Dorman factors are present when there is a clear showing of probable cause, a strong reason to believe the suspect is in the premises to be entered, and the entry, though nonconsensual, is made peaceably.

       See footnote 2, supra.


author: Freedman, J.

text:
    Leo Fedus and Sons Construction Company, Inc., et al. v. Zoning Board of Appeals of the Town and Borough of Colchester et al.
    (10219)
    Dupont, C. J., Heiman and Freedman, Js.
    Argued January 9
    decision released April 21, 1992

      Lewis K. Wise, for the appellants (defendants).

      David F. Sherwood, for the appellees (plaintiffs).
   Freedman, J.

This is an appeal by the defendants from a decision of the trial court granting the plaintiffs a writ of mandamus against the defendant zoning board of appeals of Colchester (board) ordering the board to issue a certificate approving the plaintiffs’ application for site plan approval for the construction of a bituminous concrete (asphalt) plant on the plaintiffs’ property.

The facts in this matter were stipulated to by the parties and the case was heard by the trial court on the basis of the stipulation. For purposes of this appeal, the pertinent facts are as follows. On August 3, 1988, at a regular meeting of the Colchester planning and zoning commission (commission), the commission interpreted the town’s zoning regulations to allow an asphalt plant as a permitted use on the land involved under § 12.2-12 of the Colchester zoning regulations. On June 5, 1989, the plaintiffs submitted an application to the commission for a Class 2 site plan approval for the construction of an asphalt plant on their property. On August 2,1989, the commission held a public hearing on the application. On August 10, 1989, the commission denied the application. Although not stipulated to by the parties, the record reveals that the reasons for the denial were (1) the plaintiffs’ failure to comply with a regulation requiring department of environmental protection approval prior to submitting the plan and (2) their failure to present sufficient information about traffic volume and controls, the protection of groundwater, and the protection of neighboring property values.

On September 1, 1989, the plaintiffs filed an application with the board, appealing from the denial of its site plan application by the commission. Shortly after the appeal was filed with the board, the commission determined at its meeting on September 6, 1989, that asphalt plants “were no longer allowed in Colchester.” No notice of the commission’s intention to reconsider its prior interpretation of the regulations, namely, that such plants were a permitted industrial use, was given to either the plaintiffs or the public prior to the meeting, nor was its outcome promulgated by publication. The reinterpretation occurred more than one year after the commission had originally determined that an asphalt plant was a permitted use in an industrial zone.

On October 24,1989, the board notified the plaintiffs that a public hearing would be held on the appeal application on November 9, 1989, and duly advertised the public hearing in a local newspaper. On November 3, 1989, the board notified the plaintiffs that the public hearing had been canceled. Although not stipulated to by the parties, the letter sent by the board to the plaintiffs and contained in the record stated that the board felt that the commission’s action of September 6,1989, had left it with no jurisdiction to act on the appeal. The board did not hold a public hearing on the plaintiffs’ application, nor did it render a decision on that application. The plaintiffs sought a writ of mandamus to compel the board to issue a certificate approving their site plan application and be ordered to sustain the appeal filed with it by the plaintiffs.

The trial court granted the plaintiffs the relief requested. This appeal follows.

There are two questions that must be addressed in this appeal. First, did the board have jurisdiction to hear the plaintiffs’ appeal to it from the denial of their application to the planning and zoning commission for site plan approval, and, second, if it did have such jurisdiction, did the board’s failure to hold a hearing within the time limits set forth in General Statutes § 8-7d result in the automatic approval of the subject site plan. We answer both questions in the affirmative.

In the recent case of Castellon v. Board of Zoning Appeals, 221 Conn. 374, 603 A.2d 1168 (1992), our Supreme Court distinguished between situations in which the local zoning regulations provide for an appeal to the zoning board of appeals from the action of a zoning commission on an application for site plan approval and situations in which the regulations do not so provide, leaving the jurisdiction of the zoning board of appeals to be governed by the general statutes. In the former, an appeal must first go to the zoning board of appeals and, in the latter, an appeal is taken directly to the Superior Court.

In Castellon, the Supreme Court analyzed its prior decision in Conto v. Zoning Commission, 186 Conn. 106, 439 A.2d 441 (1982). As part of its analysis, the court stated that they had concluded in Conto (1) that “the ‘town zoning regulations could legally provide that appeals from enforcement decisions of a town zoning commission must, in the first instance, be taken to the town’s zoning board of appeals’ Castellon v. Board of Zoning Appeals, 378; and (2) “that neither General Statutes § 8-9 nor General Statutes § 8-10, nor the two sections taken together, permit an aggrieved party-direct access to the court when the local regulations provide for an intermediate appellate step between the commission and the court.” Id., 380.

In Castellón, which involved an application for site approval as in the present case, the local zoning regulations did not provide for review of the zoning commission’s decision by the zoning board of appeals. Our Supreme Court concluded that “there was no further administrative remedy available from the board for the plaintiffs to exhaust before resorting to an appeal pursuant to General Statutes § 8-9.” Id., 382. It is therefore clear from Castellón that the question of whether the board in the present matter had jurisdiction to hear the plaintiff’s appeal from the denial of its application to the commission for site plan approval is the “function solely of the particular regulations at issue.” Id., 383.

Section 17.1 of the Colchester zoning regulations provides that “[a]ny person may appeal to the Zoning Board of Appeals when it is alleged that there is an error in any order, requirement, or decision made by the Commission or the Zoning Enforcement Officer related to the enforcement of these regulations.” (Emphasis added.) The term “enforcement” has never been directly defined by our courts in this context. Zoning regulations, however, may be “enforced by a refusal of a building or occupancy permit where the construction or use of the land in question is not in compliance with the pertinent regulations.” 82 Am. Jur. 2d, Zoning § 242; Corsino v. Grover, 148 Conn. 299, 170 A.2d 267 (1961). Similarly, the refusal by the commission to approve a site plan enforces the existing regulations and is therefore “enforcement” as that term is used in § 17.1 of the Colchester zoning regulations. We hold therefore that the board did have jurisdiction to hear the plaintiffs’ appeal under § 17.1 of the Colchester zoning regulations.

The next question that we must consider is whether the commission’s September 6, 1989 determination that asphalt plants “were no longer a permitted use in the town of Colchester” made the appeal to the board moot and thereby deprived the board of its jurisdiction because no practical relief could be given. In the present case, the town’s zoning regulations were not amended; instead, the commission reinterpreted the same regulation one year later, coming to a different conclusion as to whether the use sought by the plaintiffs was a permitted use. When the commission engaged in reinterpretation, it had already acted on the plaintiffs’ application and an appeal had been taken to the board. The question of whether an asphalt plant was a permitted use was no longer before the commission when it reinterpreted the town’s regulations. The question on appeal from the commission to the board was whether the site plan was properly denied, not whether an asphalt plant was a permitted use at the time the commission denied the plaintiffs’ application for site plan approval.

We turn now to the second question presented: whether General Statutes § 8-7d required automatic approval of the site plan because the board did not hold a hearing on the plaintiffs’ appeal within sixty-five days after the receipt of the plaintiffs’ application. General Statutes § 8-7d (a) requires that a hearing on any formal appeal to the zoning board of appeals commence within sixty-five days after receipt by the board of the petition. The parties have stipulated that no hearing was held; however, the board claims that its cancellation of the public hearing as confirmed by a letter to the plaintiffs was an action sufficient to satisfy the statute. We disagree.

In Vartuli v. Sotire, 192 Conn. 353, 363-64, 472 A.2d 336 (1984), our Supreme Court held that the statutory language of § 8-7d (b) is mandatory. In Carr v. Woolwich, 7 Conn. App. 684, 695, 510 A.2d 1358, cert. denied, 201 Conn. 804, 513 A.2d 698 (1986), we held: “If General Statutes § 8-7d (b) is mandatory because of the clause providing for the applicant’s consent to an extension of the sixty-five day time period, then General Statutes § 8-7d (a) is equally mandatory.” If the hearing is not held within the statutory time period, the application is deemed to have been approved. Id., 693.

The defendants rely on our Supreme Court’s decision in Winchester Woods Associates v. Planning & Zon ing Commission, 219 Conn. 303, 592 A.2d 953 (1991), to support its claim that its action was sufficient to satisfy the requirements of § 8-7d (a). In Winchester Woods Associates, the zoning commission denied the plaintiffs resubdivision application because it believed it had no jurisdiction to accept the application. The court held that the automatic approval provisions of General Statutes § 8-26 were not triggered by the commission’s failure to act. “The commission’s vote not to accept the plaintiff’s application at its June meeting, although based upon an incomplete examination of the factors to be considered in the exercise of its discretion and therefore an abuse of that discretion, was nevertheless an action by the commission.” Id., 313.

The defendants, however, have failed to note the essential difference between the statute discussed in Winchester Woods Associates and the statute that applies to a zoning board of appeals. General Statutes § 8-26, applicable to Winchester Woods Associates, provides that “[t]he failure of the commission to act thereon shall be considered as an approval,” (emphasis added) while General Statutes § 8-7d (a), applicable here, provides that a public hearing “shall commence within sixty-five days.” The word “act” is not used in General Statutes § 8-7d.

“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 farther for interpretive guidance. Caltabiano v. Planning & Zoning Commission, 211 Conn. 662, 666, 560 A.2d 975 (1989).” (Internal quotation marks omitted.) Winchester Woods Associates v. Planning & Zoning Commission, supra, 309-310. Similarly, we presume that the legislature had a purpose for each sentence, clause or phrase in a legislative enactment, that it did not intend to enact meaningless provisions; Zichichi v. Middlesex Memorial Hospital, 204 Conn. 399, 407, 528 A.2d 805 (1987); and that it intended to create a consistent body of law. Warner v. Leslie-Elliott Construction, Inc., 194 Conn. 129, 134, 479 A.2d 231 (1984).

The language of § 8-7d is distinct from that of § 8-26 and, accordingly, we must presume the legislature intended to treat the sixty-five day hearing requirements in each situation differently. Accordingly, we must heed the plain language of § 8-7d and hold that its requirements can be satisfied only by the commencement of a timely public hearing and not by any other act. Therefore, there was automatic approval of the plaintiffs’ site plan.

The judgment is affirmed.

In this opinion the other judges concurred.

       The other defendant is Robert Bourassa, the chairperson of the zoning board of appeals.

       The plaintiffs in this case are Michael T. Fedus and Theodore L. Fedus, who own the real estate and lease it to the plaintiff Leo Fedus and Sons Construction Company, Inc.

        Conto v. Zoning Commission, 186 Conn. 106, 439 A.2d 441 (1982), involved the issuance of a zoning permit by the defendant zoning commission of the town of Washington. The Washington zoning regulations provided in pertinent part that the zoning board of appeals was empowered “[t]o hear and decide appeals where it is alleged that there is an error in any order or decision made by the Zoning Commission or its Enforcement Officer.”

       General Statutes § 8-9 provides: “Appeals from zoning commissions and planning and zoning commissions may be taken to the superior court and, upon certification for review, to the appellate court in the manner provided in § 8-8.”
      General Statues § 8-10 provides: “The provisions of sections 8-8 and 8-9 shall apply to appeals from zoning boards of appeals, zoning commissions or other final zoning authority of any municipality whether or not such municipality has adopted the provisions of this chapter and whether or not the charter of such municipality . . . contains a provision giving a right of appeal from zoning boards of appeals or zoning commissions and any provision of any special act, inconsistent with the provisions of said sections, is repealed.”

       General Statutes § 8-7d (a) provides: “(a) Except as provided in subsection (b) of this section, in all matters wherein a formal petition, application, request or appeal must be submitted to a zoning commission, planning and zoning commission or zoning board of appeals under this chapter and a hearing is required on such petition, application, request or appeal, such hearing shall commence within sixty-five days after receipt of such petition, application, request or appeal and shall be completed within thirty days after such hearing commences. All decisions on such matters shall be rendered within sixty-five days after completion of such hearing. The petitioner or applicant may consent to one or more extensions of any period specified in this subsection, provided the total extension of any such period shall not be for longer than the original period as specified in this subsection, or may withdraw such petition, application, request or appeal.” (Emphasis added.)

       General Statutes § 8-26 provides in pertinent part: “approval of subdivision AND RESUBDIVISION PLANS. WAIVER OF CERTAIN REGULATION REQUIREMENTS. APPLICATIONS INVOLVING INLAND WETLANDS AND WATERCOURSES. All plans for subdivisions and resubdivisions . . . shall be submitted to the commission with an application in the form to be prescribed by it. . . . The commission may hold a public hearing regarding any subdivision proposal if, in its judgment, the specific circumstances require such action. No plan of resubdivision shall be acted upon by the commission without a public hearing. . . . The failure of the commission to act thereon shall be considered as an approval, and a certificate to that effect shall be issued by the commission on demand. . . .” (Emphasis added.)

       We note that § 8-7d applies only in situations where a public hearing is necessary. If the board did not have jurisdiction over the appeal, then no hearing would have been necessary. As we have held that the board did have jurisdiction over the appeal, however, its erroneous determination that it did not cannot negate the provisions of the statute.


text:
    Stephen Deguzis et al. v. Dana N. Jandreau
    (10240)
    Dupont, C. J., Lavery and Freedman, Js.
    Argued February 14
    decision released April 21, 1992

      Theodore J. Wurz, with whom, on the brief, was Mary-Lynn Krusz, for the appellant (plaintiff John Bukowski).

      James Ziogas, Jr., with whom, on the brief, was Arthur D. Machado, for the appellee (defendant).
   Freedman, J.

The plaintiff John Bukowski in this action in quo warranto appeals from the trial court’s judgment in favor of the defendant. Bukowski claims that the trial court (1) improperly found that the defendant met his burden of proving that he holds the position of captain in the Bristol fire department by right, and (2) improperly permitted one of the defendant’s witnesses to testify as an expert witness. We affirm the judgment of the trial court.

The plaintiffs commenced this action against the defendant by filing a “Complaint in the Nature of Quo Warranto” dated February 26, 1991. The complaint requested that the defendant appear in court and show by what warrant he claims to hold the office, and exercise the rights, powers and privileges of the office of captain in the Bristol fire department. The plaintiffs claimed that the defendant illegally held that office because question number thirty-seven on the department’s examination for promotion to captain was not “based on Fire Department material taken from current reference sources,” as required by § 42 (d) of the Bristol town charter.

The pertinent facts are not disputed. The plaintiffs and the defendant all were lieutenants in the Bristol fire department. On January 29, 1991, all three took a written examination to qualify for promotion to the position of captain. The defendant’s final adjusted score on the written examination was 85.26, and his overall final score for purposes of the eligibility ranking list was 85.94. The plaintiffs, Stephen Deguzis and John Bukowski, received final overall scores of 85.53 and 84.91, respectively. After all other portions of the promotion procedure were completed, the Bristol fire commission, on February 25, 1991, promoted the defendant to the position of captain, subject to his successful completion of a physical examination. The defendant successfully completed that examination on March 25, 1991.

Prior to the written examination, the director of personnel for the city of Bristol, James Byer, provided each test applicant with a list of reference sources from which the examination questions would be derived. Among the sources included in the list of reference sources was a publication entitled Fire Department Company Officer (2d Ed.) (Company Officer). On the examination, the defendant chose answer d to question thirty-seven and the plaintiffs each chose answer a. The parties agree that answers b and c are incorrect and not derived from any of the reference sources provided. The answer key indicated that answer d is correct, and thus the defendant received credit for the correct answer, but the plaintiffs did not receive credit for their answers.

The trial court rendered judgment in favor of the defendant, having concluded that the defendant had met his burden of proving that answer d is the correct answer to question thirty-seven according to fire department material used in preparing the written exam, and that the defendant therefore holds the position of captain of the fire department of the city of Bristol by right.

“In a quo warranto proceeding brought pursuant to General Statutes § 52-491, the Superior Court is to proceed to ‘render judgment according to the course of the common law.’ ... A quo warranto proceeding under the common law lies only to test the defendant’s right to hold office de jure. . . .” (Citations omitted.) Cheshire v. McKenney, 182 Conn. 253, 256, 438 A.2d 88 (1980). “In a quo warranto proceeding, the burden is upon the defendant to show a complete title to the office in dispute.” State ex rel. Gaski v. Basile, 174 Conn. 36, 38, 381 A.2d 547 (1977).

A quo warranto action is a civil proceeding. 65 Am. Jur. 2d, Quo Warranto § 6. Thus, because the burden of proof in quo warranto actions is on the defendant, the trial court must find that the defendant met this burden by a preponderance of the evidence in order to find for the defendant.

Here, Bukowski challenges the trial court’s factual finding that answer d is the correct answer to question thirty-seven, according to the reference material provided pursuant to § 42 (d) of the charter. He also contends that one of the defendant’s witnesses did not use the reference material provided to form the basis of his opinion that d is the correct answer. “When the factual basis of the trial court’s decision is challenged on appeal, the role of this court is to determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous. Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980).” Cupina v. Bernklau, 17 Conn. App. 159, 161, 551 A.2d 37 (1988). “ ‘[T]he trier is the final judge of the credibility of witnesses and of the weight to be accorded their testimony.” Id., 162. “On appeal, the function of this court is limited solely to the determination of whether the decision of the trial court is clearly erroneous. . . . This court cannot find fact or draw conclusions from primary facts found, but can only review such findings to determine whether they could have legally, logically and reasonably been found by the trier. . . .” (Citations omitted.) Robertson v. Nationwide Mutual Ins. Co., 20 Conn. App. 635, 637, 569 A.2d 565 (1990).

We have reviewed the record in this case and conclude that the trial court’s finding that answer d is the correct answer to question thirty-seven according to the reference material provided is sufficiently supported by the substantial evidence presented by the parties.

The trial court received the testimony of, among others, Craig Zendzian, who designed and constructed the exam taken by the parties. The court received the testimony of Bruce Davey, a consultant who develops and validates tests, primarily for employment in the public sector. It also received the testimony of Byer. One of Byer’s duties in his capacity as director of personnel is to handle promotional testing for employment positions offered by the city of Bristol. In its memorandum of decision, the trial court indicated that its conclusion was reached after it had “studied the question and the possible answers, the applicable provisions of the Bristol City Charter, and the fire department material used in preparing the written exam .... In addition, it has heard evidence from several witnesses, including the plaintiffs, defendant, and a number of expert witnesses.” On the basis of the evidence presented, the trial court concluded that answer d is the correct answer to question thirty-seven, and, because the answer to question thirty-seven was the only issue raised by the plaintiffs at trial, the court properly concluded that the defendant had met his burden of proof and that he holds the position of captain in the fire department of the city of Bristol by right. We cannot say that this conclusion is clearly erroneous.

Bukowski also claims that the trial court improperly permitted Davey to testify as an expert witness concerning the correct answer to question thirty-seven. Davey testified as an expert on the formulation of multiple choice tests. His testimony went to the wording of the question itself, and not to its subject matter. His conclusion that d is the correct answer was based on his expertise in test formulation and wording, not on the current reference sources provided to the applicants.

“The general standard for the admissibility of expert testimony in Connecticut is simply that the expert must demonstrate ‘a special skill or knowledge, beyond the ken of the average juror, that, as properly applied, would be helpful to the determination of an ultimate issue.’ ” Davis v. Margolis, 215 Conn. 408, 416, 576 A.2d 489 (1990). Bukowski does not dispute that Davey’s testimony was useful to the finder of fact, but rather claims that because his testimony was not based on the current reference sources, his testimony as to the correct answer should not have been permitted. “When dealing with the testimony of expert witnesses, ‘[o]nce the threshold question of usefulness to the [trier of fact] has been satisfied, any other questions regarding the expert’s qualifications properly go to the weight, and not the admissibility, of his testimony.’ Davis v. Margolis, [supra, 417].” Richmond v. Longo, 27 Conn. App. 30, 38, 604 A.2d 374 (1992). Thus, questions regarding Davey’s ability to testify that d is the correct answer to question thirty-seven go to the weight to be given to his testimony and such weight is to be determined by the trier of fact. Marsh v. Washburn, 11 Conn. App. 447, 455, 528 A.2d 382 (1987). Upon our review of the record and transcripts in this matter, we cannot say that the trial court abused its discretion in permitting Davey to testify, and we will not second guess the weight that it, as the trier of fact, accorded his testimony.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 52-491 provides: “When any person or corporation usurps the exercise of any office, franchise or jurisdiction, the superior court may proceed, on a complaint in the nature of a quo warranto, to punish such person or corporation for such usurpation, according to the course of the common law and may proceed therein and render judgment according to the course of the common law.”

       Section 42 (d) of the Bristol town charter provides in pertinent part: “All candidates must first take a written exam, which shall be based on Fire Department material taken from current reference sources. Prior to the exam, each applicant shall upon request, be provided by Director of Personnel, with a bibliography of the sources used in preparing the test. Following the exam, the Director of Personnel shall upon the request of a candidate, arrange with the testing agency to make test questions and answer sheets of such candidate available for his inspection.”

       Question thirty-seven provided: “The supervisor who becomes aware of the existence of a ‘grapevine’ in his work group should?
      “a. inform subordinates of all his decisions, thus eliminating the need for a grapevine.
      “b. instruct his subordinates to eliminate this system whenever possible.
      “c. take disciplinary action against those who pass on incorrect information via the grapevine.
      “d. utilize the grapevine as an aid to communications.”

       All parties agree that under any possible scenario other than answer d’s being the sole correct answer, the defendant’s final overall score would drop to the extent that he no longer would be the highest ranked candidate for the position.

       The only fire department material that the trial court had before it at trial was chapter 3 of Company Officer, which concerned communications.

       Bukowski devoted much of the discussion in his appellate brief to what he perceived was an issue in the case, namely, whether the trial court applied the proper standard of review of the evidence presented in this case. In its memorandum of decision, the trial court discussed the testimony of the defendant’s witnesses, and stated that it found “nothing arbitrary or illegal” in the determination of those witnesses that answer d is the correct answer. Bukowski has seized on this statement to argue that the trial court improperly determined that the defendant merely was required to demonstrate that the actions of the city of Bristol were not arbitrary or illegal.
      Bukowski’s argument in this regard lacks merit. The trial court’s memorandum of decision clearly indicates that the trial court was well aware of the defendant’s unusual burden in the action in quo warranto. At the outset, the memorandum of decision clearly and correctly stated that the defendant had the burden of proving that he had complete title to the office in dispute. Additionally, the trial court expressly held that “the defendant has met his burden of proof and that he holds the position of Captain . . . by right.” There can be little doubt that the trial court applied the correct standard of review in this case.


author: Norcott, J.

text:
    State of Connecticut v. Ruben Diaz
    (10389)
    Dupont, C. J., O’Connell and Norcott, Js.
    Argued February 10
    decision released April 28, 1992

      Margaret Gaffney Radionovas, deputy assistant state’s attorney, with whom, on the brief, were John T. Redway, state’s attorney, and Bernadette Conway, assistant state’s attorney, for the appellant (state).

      Adam J. Teller, deputy assistant public defender, with whom, on the brief, was Richard Kelly, public defender, for the appellee (defendant).
   Norcott, J.

The sole issue of this appeal is whether the trial court improperly ruled that a warrant for the search of the defendant’s house was insufficient to establish probable cause to believe narcotics and narcotic paraphernalia would be found there. After the trial court granted the defendant’s motion to suppress, the state represented that prosecution of the defendant for the crime of possession of cocaine with intent to sell could not proceed without the suppressed evidence. Accordingly, the trial court dismissed the case and granted the state leave to appeal pursuant to General Statutes § 54-96.

The following facts are relevant to the disposition of this appeal. On April 2, 1990, the police submitted an affidavit and application for a search warrant to the Superior Court, requesting authorization to search the defendant’s house at 36 Clinton Avenue in Old Saybrook. The items sought under the warrant were cocaine, cocaine related paraphernalia and other items commonly used in drug related transactions. The court, Gormley, J., reviewed and approved the warrant application. That application included the affidavit of Trooper Chester Harris of the state police statewide narcotics task force, and Officer Cliff Barrows of the Old Saybrook police department.

The following information contained in the affidavit is relevant to the disposition of this appeal. On the basis of information obtained from known, reliable informants together with evidence obtained through controlled narcotic buys, the affiant police officers asserted that Benjamin Perez and the defendant had been jointly engaged in the dealing of narcotics, principally cocaine, since the early part of 1990. Perez’ house at 34 Clinton Avenue in Old Saybrook had been the subject of a search and seizure warrant on or about August 18, 1989, when a gun, packaging material for narcotics, a scale and cash, which had been part of a controlled buy, were found there. According to the information in the affidavit from Harris and Barrows, a reliable informant first implicated the defendant in Perez’ narcotics business as a “relative [who] cooperated with Benji [Perez] in the sale of narcotics” during the month of December, 1989. The defendant resides at 36 Clinton Avenue in Old Saybrook. The affidavit goes on to reveal that the defendant allegedly was first seen taking part in a drug transaction during the first week of March, 1990, when he collected money for the purpose of buying cocaine and then turned this money over to Perez, who then took the purchasers to his house at 34 Clinton Avenue.

The second time the defendant is specifically alleged to have been involved in drug transactions occurs in paragraph fourteen of the affidavit. There, a known informant alleges that, between March 19 and March 26, 1990, he first engaged in a “narcotics related conversation” with the defendant at the defendant’s house, where he had entered under police surveillance. Following this conversation, another “Hispanic male” brought cocaine from 34 Clinton Avenue to the defendant’s house.

The third occasion of the defendant’s activity with Perez is discussed in paragraph sixteen. Again, an informant with police money who was under surveillance met the defendant at 36 Clinton Avenue. Thereafter, a “Hispanic male from 34 Clinton Avenue” brought cocaine from that address to the defendant’s house and sold the drugs to the informant.

During oral argument on the motion to suppress, the defendant successfully contended that the warrant application failed to establish probable cause to believe that narcotics and paraphernalia were present in the defendant’s house. The trial court, Hendel, J., agreed with the defendant that the information in the warrant failed to establish a sufficient nexus between the cocaine itself and the defendant’s house. We disagree.

The standards that apply to the proper issuance of a warrant to search any property are well established and have been concisely set forth in our recent decision in State v. Castano, 25 Conn. App. 99, 100-101, 592 A.2d 977 (1991). These standards can be summarized as follows: (1) there must be probable cause that fruits, instrumentalities or evidence of a crime will be found in the place to be searched; (2) “probable cause to search” exists if (a) the items sought are connected with criminal activity or will assist in a particular apprehension or conviction, and (b) there is probable cause to believe that the items sought to be seized will be found in the place to be searched; (3) the existence of probable cause is determined by the facts stated in the supporting affidavit; (4) a review of the sufficiency of the affidavit is confined to the facts appearing on the face of the warrant or facts that may reasonably be inferred therefrom; (5) we test those facts with common sense and reality; and (6) we accord great deference to the fact that the issuing magistrate did determine that probable cause existed. Id. “In reviewing the sufficiency of an affidavit supporting the application for a search warrant we do not conduct a de novo review, but determine whether the court had a substantial basis for concluding that a search would uncover evidence of a crime.” Id., 101. Further, the grounds for the search, as asserted in the affidavit, “must satisfy objective standards which ensure that the invasion of personal privacy is justified by legitimate governmental interests.” (Emphasis in original; internal quotation marks omitted.) State v. Vallas, 16 Conn. App. 245, 261, 547 A.2d 903 (1988), aff’d sub nom. State v. Calash, 212 Conn. 485, 563 A.2d 660 (1989).

The defendant argues that our Supreme Court’s decision in State v. DeChamplain, 179 Conn. 522, 427 A.2d 1338 (1980), is dispositive of the present case in that here, as in DeChamplain, the recitation of facts in the application and affidavit in support of the search warrant was insufficient to connect his house with the drugs. We disagree.

“In DeChamplain, the court found a lack of probable cause to believe that drugs were located in the defendant’s apartment, because the only fact establishing a nexus to the apartment was a single telephone call to the defendant at his apartment in which he received an order for the purchase of drugs.” State v. Brown, 14 Conn. App. 605, 619, 543 A.2d 750, cert. denied, 208 Conn. 816, 546 A.2d 283 (1988). This case is quite distinguishable from DeChamplain. Here, the documentation supporting the warrant application clearly established an ongoing connection and relationship between the defendant and Benjamin Perez, his neighbor. While it was not a paragon of craftsmanship, the affidavit was not fatally imperfect. Perfection in the drafting of affidavits and applications for warrants is not what the law demands. The affidavit asserted that narcotic transactions were negotiated in the defendant’s house and that the defendant had been the conduit for the money in one of those transactions. In two other transactions, those referred to specifically in paragraphs fourteen and sixteen of the affidavit, the defendant’s conversations and initial contact with the informant led to cocaine being brought to the defendant’s.home to be purchased there. Given the information presented to the issuing judge, it is clear that Perez and the defendant, next door neighbors, were engaged in an ongoing drug business that operated between their two homes at 34 and 36 Clinton Avenue. Accordingly, the affidavit provided the requisite probable cause to issue a warrant. Drugs for the purpose of sale clearly were in the defendant’s house on more than one occasion. Indeed, it would be a hypertechnical reading of the affidavit not to draw a reasonable inference that the defendant’s house was a situs of drug transactions. It is equally hypertechnical to regard as fatal the lack of a reference in the warrant by the police to an actual observation of drugs, which were not from the 34 Clinton Avenue source, inside the defendant’s house.

“Actual observations of illegal activity or contraband in the premises to be searched . . . are not required to establish probable cause. . . . The nexus between the premises and the evidence can be inferred from the type of crime, the nature of the items sought, the extent of an opportunity for concealment and normal inferences as to where a criminal would hide [the evidence].” (Citations omitted; internal quotation marks omitted.) State v. Castano, supra, 103-104, quoting State v. Cou ture, 194 Conn. 530, 537, 482 A.2d 300 (1984), cert. denied, 469 U.S. 1192, 105 S. Ct. 967, 83 L. Ed. 2d 971 (1985). We have on several occasions concluded that “[i]n dealing with large scale drug conspiracies, it is reasonable to conclude that the participants will maintain certain records and supplies in their homes.” (Emphasis added.) State v. Vallas, supra, 262. We also have adopted an established federal principle that “[i]n the case of drug dealers, evidence is likely to be found where the dealers live.” (Internal quotation marks omitted.) State v. Castano, supra, 104, quoting United States v. Angulo-Lopez, 791 F.2d 1394, 1399 (9th Cir. 1986); United States v. Reyes, 798 F.2d 380, 382 (9th Cir. 1986); United States v. Peacock, 761 F.2d 1313, 1315-16 (9th Cir.), cert. denied, 474 U.S. 847, 106 S. Ct. 139, 88 L. Ed. 2d 114 (1985); State v. Vallas, supra. It is clear that in this case, probable cause was established to show that the defendant was engaged in an ongoing drug business.

Finally, the defendant urges that a ruling against him will assault the fourth amendment’s proscription against unreasonable searches and seizures by allowing police to search any place with which a person might have even the most tenuous association. With full appreciation of the sanctity of a person’s house, a concept that is the essence of that constitutional amendment; Warden v. Hayden, 387 U.S. 294, 301, 87 S. Ct. 1642, 18 L. Ed. 2d 782 (1967); State v. Marsala, 216 Conn. 150, 164, 579 A.2d 58 (1990); State v. Guertin, 190 Conn. 440, 453, 461 A.2d 963 (1983); we find only that, on the facts of this case, the issuing court had a substantial basis from the facts included within the four comers of the application for the search warrant to conclude there was probable cause that the defendant’s house contained the evidence of criminal activity sought by the police. Our opinion is not to be construed as an open invitation to search any place, residence or otherwise, with which any person suspected of criminal activity has only minimal contacts.

“[WJhen a magistrate has in fact found probable cause, the reviewing court should not invalidate the warrant by application of rigid analytical categories.” State v. Barton, 219 Conn. 529, 545, 594 A.2d 917 (1991). In determining whether probable cause exists to conduct a search, we apply the “totality of the circumstances” test, which our Supreme Court recently adopted in State v. Barton, supra, where it overruled State v. Kimbro, 197 Conn. 219, 496 A.2d 498 (1985). State v. Anziano, 26 Conn. App. 667, 671, 603 A.2d 415 (1992). “In a doubtful or marginal case, however, our constitutional preference for a judicial determination of probable cause leads us to afford deference to the magistrate’s determination.” State v. Johnson, 219 Conn. 557, 565, 594 A.2d 933 (1991); State v. Anziano, supra, 672. Our role is to determine whether the affidavit here presented a substantial basis for the issuing judge’s conclusion that probable cause existed. State v. Anziano, supra. We conclude that the warrant at issue was sufficient with respect to its allegations of probable cause and, accordingly, the trial court improperly found otherwise.

The judgment is reversed and the case is remanded with direction to deny the motion to suppress.

In this opinion the other judges concurred.

       It is unclear from paragraph eleven in the affidavit, from which these allegations derive, whether the informant observed the transaction inside the defendant’s house at 36 Clinton Avenue or what precisely occurred at Perez’ house.


author: Landau, J.

text:
    Central Connecticut Teachers Federal Credit Union v. Estella Grant
    (10309)
    O’Connell, Laveey and Landau, Js.
    Submitted on briefs February 14
    decision released April 28, 1992

      Robert C. Lubus, Jr., filed a brief for the appellant (plaintiff).
   Landau, J.

The plaintiff Central Connecticut Teachers Federal Credit Union, successor to Colt Employees Federal Credit Union, appeals from a trial court’s judgment on the plaintiff’s action on a promissory note, and from an order denying its motion to correct that judgment. The plaintiff claims that the trial court improperly (1) altered the amount of the monthly payments provided for in a stipulation that had been submitted by the parties by reducing the order of payments from $200 to $75 per month, and (2) subsequently increased the monthly payment order from $75 to $150 per month pursuant to the plaintiffs motion to correct the judgment.

The following undisputed facts are necessary to our resolution of this appeal. The plaintiff is the holder of a promissory note executed by the defendant. The defendant defaulted in her payments on the note and the plaintiff commenced suit seeking to collect the remainder of the money due it. A written stipulation signed by the plaintiffs counsel and by the defendant, appearing pro se, was filed with a motion for judgment and order of payments in accordance with the stipulation. The stipulation provided, inter alia, that judgment enter against the defendant for the principal amount, plus attorney’s fees and costs of collection. It further provided that the defendant would make monthly payments to the plaintiff in the amount of $200.

The motion for judgment and order of payments was granted by the trial court without a hearing. See Practice Book § 211A (1). The trial court, however, ordered payments of $75 per month rather than $200 as agreed to in the stipulation between the parties. The plaintiff filed a motion to correct the judgment, requesting that the trial court modify the order of payments to conform to the written stipulation for judgment. The trial court, without a hearing, modified the order of payments to $150 per month.

“A stipulated judgment ‘is not a judicial determination of any litigated right. New York Cent. & H. R. R. Co. v. T. Stuart & Son Co., 260 Mass. 242, 248, 157 N.E. 540 [1927]; Dulles v. Dulles, 369 Pa. 101, 107, 85 A. 2d 134 [1952]. It may be defined as a contract of the parties acknowledged in open court and ordered to be recorded by a court of competent jurisdiction. Owsiejko v. American Hardware Corporation, 137 Conn. 185, 187, 75 A.2d 404 [1950]; Risk v. Director, 141 Neb. 488, 496, 3 N.W.2d 922 [1942], “[It is] the result of a contract and its embodiment in a form which places it and the matters covered by it beyond further controversy.” 3 Freeman, Judgments (5th Ed.) p. 2774. The essence of the judgment is that the parties to the litigation have voluntarily entered into an agreement setting their dispute or disputes at rest and that, upon this agreement, the court has entered judgment conforming to the terms of the agreement. Harter v. King County, 11 Wash. 2d 583, 591, 119 P.2d 919 [1941].’ . . .” Gillis v. Gillis, 214 Conn. 336, 339-40, 572 A.2d 323 (1990). “Such a judgment represents ‘a settlement of the controversy by the parties thereto [thus creating the presumption] that the parties intended to settle all aspects of the controversy’ . . . .” Bargain Mart, Inc. v. Lipkis, 212 Conn. 120,135, 561 A.2d 1365 (1989); see also Guille v. Guille, 196 Conn. 260, 265, 492 A.2d 175 (1985); Gagne v. Norton, 189 Conn. 29, 34, 453 A.2d 1162 (1983). “A judgment rendered in accordance with the stipulation of the parties is to be construed and regarded as a binding contract.” Albrecht v. Albrecht, 19 Conn. App. 146,152, 562 A.2d 528, cert. denied, 212 Conn. 813, 565 A.2d 534 (1989), quoting Caracansi v. Caracansi, 4 Conn. App. 645, 650, 496 A.2d 225, cert. denied, 197 Conn. 805, 499 A.2d 56 (1985).

Construction of a stipulation is an issue of fact to be resolved by the trial court, as the trier of fact, and that construction is subject to our review under the clearly erroneous standard. Mihalyak v. Mihalyak, 11 Conn. App. 610, 616, 529 A.2d 213 (1987). “Appellate review under [this] standard is a two-pronged inquiry: ‘[W]e first determine whether there is evidence to support the finding. If not, the finding is clearly erroneous. Even if there is evidence to support it, however, a finding is clearly erroneous if “in view of the evidence and pleadings in the whole record [this court] is left with the definite and firm conviction that a mistake has been committed.” ’ Buddenhagen v. Luque, 10 Conn. App. 41, 45, 521 A. 2d 221 (1987), quoting Doyle v. Kulesza, 197 Conn. 101, 105, 495 A. 2d 1074 (1985). See also Web Press Services Corporation v. New London Motors, Inc., 205 Conn. 479, 483, 533 A. 2d 1211 (1987).” Nelson v. Nelson, 13 Conn. App. 355, 359, 536 A.2d 985 (1988).

We are mindful that a judge is not a mere umpire in a forensic encounter but a minister of justice, and it follows that an agreement is not necessarily binding on the court and may justifiably be disregarded in a particular case. Peiter v. Degenring, 136 Conn. 331, 338, 71 A.2d 87 (1949). Ordinarily, however, stipulations of the parties should be adopted by the court. Central Coat, Apron & Linen Service, Inc. v. Indemnity Ins. Co., 136 Conn. 234, 236, 70 A.2d 126 (1949). If, for some reason, the court cannot adopt the stipulation of the parties, it should state its disapproval of the stipulation and the reasons for its disapproval on the record. The court should not proceed to judgment, including an order for payments, without offering the parties an opportunity to present evidence relevant to that judgment. See Bartley v. Bartley, 27 Conn. App. 195, 197-98, 604 A.2d 1343 (1992). Here, the parties reached an agreement regarding the defendant’s payment of the outstanding debt and stipulated to a judgment satisfactory to both. We conclude that the trial court committed clear error in rendering judgment and ordering monthly payments in disregard of the stipulation without first notifying the parties of its disapproval and affording them an opportunity to litigate the issues fully.

We need not address the plaintiff’s second claim, that the trial court improperly increased the order of payments from $75 to $150 per month pursuant to a motion to correct the judgment. Because our conclusion on the first claim requires our reversing the judgment of the trial court, including the order of payments, there remains no judgment that could be corrected. See Foster Development Associates v. Talar, 26 Conn. App. 300, 304, 600 A.2d 1040 (1991).

The judgment is reversed and the case is remanded for a hearing on the plaintiffs motion for judgment.

In this opinion the other judges concurred.


author: Foti, J.

text:
    Vicki S. Curry v. J. William Burns, Commissioner of Transportation
    (9488)
    NORCOTT, FOTI and FREEDMAN, Js.
    Argued February 11
    decision released April 28, 1992

      James H. Lee, for the appellant (plaintiff).

      Raymond J. Plouffe, Jr., for the appellee (defendant).
   Foti, J.

This appeal concerns an action brought under General Statutes § lSa-144 by the plaintiff, Vicki S. Curry, against the defendant commissioner of transportation, J. William Burns, for injuries she sustained in a motor vehicle accident allegedly caused by a defective highway. The case was tried to a jury which returned a general verdict in favor of the defendant. The plaintiff filed a motion to set aside the verdict. The trial court denied the motion and rendered judgment for the defendant. The plaintiff alleges that the trial court acted improperly with regard to the issue of notice in that it (1) quashed two subpoenas, (2) redacted the statutory notice, and (3) failed to instruct the jury as requested. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. On March 14,1984, at about 5:30 a.m., the plaintiff was operating a tractor trailer eastbound in the center lane of Interstate 95 between exits four and five in Greenwich when her vehicle hit a pothole. The plaintiffs vehicle collided with an automobile attempting to pass her on the left and as a result of the collision, sustained personal injuries.

In her complaint, the plaintiff alleges that her injuries were caused by a breach of the defendant’s statutory duty under General Statutes § 13a-144. The plaintiff further alleges that “written notice of the plaintiff’s injury and a general description of the same and of the cause thereof and of the time and place of its occurrence was given to the defendant on May 23, 1984.” A redacted version of the notice given to the defendant included the date, time and general location of the accident as well as the specific injuries sustained by the plaintiff. The defendant denied that he breached his statutory duty, and that written notice had been given.

The defendant asks this court to affirm the judgment of the trial court as rendered, or on the alternative ground that the trial court should have directed a verdict in its favor because the plaintiff’s statutory notice was defective as a matter of law. Giving statutory written notice is a condition precedent to maintaining an action under General Statutes § 13a-144. Ozmun v. Burns, 18 Conn. App. 677, 680, 559 A.2d 1143 (1989). Because a general verdict was returned in this case, we need not address the plaintiff’s claims because any error by the trial court would be considered harmless.

We note that no interrogatories were submitted to the jury, nor were any special defenses filed by the defendant. While the defendant’s general denial of the allegation in the plaintiff’s complaint that the defendant had breached his statutory duty does not alone trigger the general verdict rule; Hall v. Burns, 213 Conn. 446, 484-85 n.9, 569 A.2d 10 (1990); his denial of the plaintiff’s assertion that she gave written notice, and the submission of that issue to the jury, do implicate the general verdict rule. See Finley v. Aetna Life & Casualty Co., 202 Conn. 190, 520 A.2d 208 (1987).

“The application of the general verdict rule . . .does not depend on the niceties of pleading but on the distinctness and severability of the claims and defenses raised at trial.” Id., 203. “[I]t is the distinctness of the defenses raised, and not the form of their pleading, that is the decisive test governing the applicability of the general verdict rule. Meglio v. Comeau, 137 Conn. 551, 553-54, 79 A.2d 187 (1951). ‘If the defenses are clearly distinct, the fact that one has not been specially pleaded . . . will not prevent the application of the rule.’ Royal Homes, Inc. v. Dalene Hardwood Flooring Co. [151 Conn. 463, 466, 199 A.2d 698 (1964)] . . . .” Id., 203-204.

The defendant’s answer disavowed two obligatory claims raised by the plaintiff’s complaint. The defendant’s denials presented the jury with two distinct and severable defenses—one dealing with the defendant’s breach of his statutory duty and one dealing with whether notice was given and, if so, whether the notice given was statutorily sufficient. The plaintiff concedes that it is the jury’s responsibility to determine “as a matter of fact whether the notice was a sufficient guide, under the circumstances, to the defendant’s inquiries,” and that the jury was correctly allowed to determine this issue once the court determined “as a matter of law whether the written notice contains all the necessary elements prescribed by the statute.”

“Ordinarily, the question of the adequacy of notice ‘is one for the jury and not for the court, and the cases make clear that this question must be determined on the basis of the facts of the particular case.’ Morico v. Cox, 134 Conn. 218, 223, 56 A.2d 522 (1947). Before submitting the question to the jury, however, the trial court must first determine whether, as a matter of law, a purported notice ‘patently meets or fails to meet’; id.; the statutory requirements.” Zotta v. Burns, 8 Conn. App. 169, 173, 511 A.2d 373 (1986). In the present case, the trial court left the question of the validity of the statutory notice to the jury.

Because no interrogatories were submitted to the jury, we cannot determine on what basis the jury reached its conclusion and must presume that the jury found both issues in favor of the defendant, namely, that the defendant did not breach his statutory duty and that the defendant did not receive the statutorily mandated notice. Any error by the trial court as to the issue of notice, therefore, becomes harmless under the general verdict rule. Accordingly, we conclude that the verdict for the defendant must be sustained.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 13a-144 provides in pertinent part: “Any person injured in person or property through the neglect or default of the state or any of its employees by means of any defective highway, bridge or sidewalk which it is the duty of the commissioner of transportation to keep in repair, or by reason of the lack of any railing or fence on the side of such bridge or part of such road which may be raised above the adjoining ground so as to be unsafe for travel or, in the case of the death of any person by reason of any such neglect or default, the executor or administrator of such person, may bring a civil action to recover damages sustained thereby against the commissioner in the superior court. No such action shall be brought except within two years from the date of such injury, nor unless notice of such injury and a general description of the same and of the cause thereof and of the time and place of its occurrence has been given in writing within ninety days thereafter to the commissioner. ” (Emphasis added.)

       The notice was redacted by the court to delete matters not in evidence, matters requiring expert testimony where none was offered, and matters that were immaterial.

       “The so-called general verdict rule provides that, if a jury renders a general verdict for one party, and no party requests interrogatories, an appellate court will presume that the jury found every issue in favor of the prevailing party. Stone v. Bastarache, 188 Conn. 201, 204, 449 A.2d 142 (1982); Collucci v. Pinette, 185 Conn. 483, 489, 441 A.2d 574 (1981). The rule applies whenever a verdict for one party could reasonably be rendered on one or more distinct causes of action; see Matthews v. F.M.C. Corporation, 190 Conn. 700, 706, 462 A.2d 376 (1983); or distinct defenses. See Royal Homes, Inc. v. Dalene Hardwood Flooring Co., 151 Conn. 463, 466, 199 A.2d 698 (1964). A party desiring to avoid the effects of the general verdict rule may elicit the specific grounds for the verdict by submitting interrogatories to the jury. Alternatively, if the action is in separate counts, a party may seek separate verdicts on each of the counts. Ziman v. Whitley, 110 Conn. 108, 113-15, 147 A. 370 (1929).” Finley v. Aetna Life & Casualty Co., 202 Conn. 190, 202-203, 520 A.2d 208 (1987).