author: Dannehy, C.P.J. Borden, J.,

text:
    Elissa Osborne v. Edward R. Osborne
    (2849)
    Dannehy, C.P.J., Dupont and Borden, Js.

      Argued June 7
    decision released September 25, 1984

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

      H. James Stedronski, for the appellee (defendant).
   Dannehy, C.P.J.

This is an appeal from a judgment which ordered a conveyance of the parties’ marital property under General Statutes § 52-22. The parties were married on April 30, 1971. The plaintiff filed a complaint for the dissolution of her marriage to the defendant on the ground that the marriage had broken down irretrievably. One of the claims for relief specifically sought the conveyance of the defendant’s one-half interest in the parties’ jointly owned premises. Subsequently, the defendant filed a cross complaint which also alleged that the marriage had broken down irretrievably and specified the same relief as claimed in the complaint, including a claim for the conveyance of the plaintiff’s one-half interest in the parties’ jointly-owned premises. In August, 1981, the defendant also filed discovery requests. The plaintiff did not object or comply. Upon the failure of the plaintiff to respond to these requests, the defendant moved for a nonsuit on October 8,1981. On November 16,1981, the trial court ordered “nonsuit to enter unless [the plaintiff] complied] within one week.” The plaintiff received written notice of that order from the clerk of the court. The plaintiff did not comply within one week and, in fact, she did not comply until shortly before trial. No further orders were made or notices mailed to the parties or motions filed until the plaintiff filed a motion to open the nonsuit during the trial, on May 24, 1982. In that motion, the plaintiff endeavored to show that the failure to complete discovery was inadvertent and that prior to trial the defendant was provided the information anyway and was not prejudiced. The plaintiff’s motion was denied and the trial referee refused to allow the plaintiff to proceed on her complaint. She was not allowed to introduce evidence to show that her father had contributed money toward the cost of constructing the jointly owned premises or that he claimed a life interest in the realty with the plaintiff’s mother. The parties subsequently stipulated that the marriage had broken down irretrievably and submitted an agreement concerning the custody of their minor child and its terms were later incorporated in the decree which was rendered on the cross complaint on June 29,1982. Neither the decree itself, nor the orders of custody, child support or alimony are involved in this appeal.

In her appeal, the plaintiff argues that the trial referee erred “in ruling that a disciplinary nonsuit was entered, when in fact, a nonsuit or notice of the same to the referee or counsel was not sent, entered or recorded by the clerk.” A failure to comply with an order of the court is a ground for a nonsuit. Practice Book § 351; Stanley v. Hartford, 140 Conn. 643, 648, 103 A.2d 147 (1954). An order of nonsuit terminates an action when it is issued and no further proceedings are necessary. Stephenson, Conn. Civ. Proc. (2d Ed.) § 156. The ministerial failure of the clerk to enter judgment into the records does not affect the validity of a judgment of nonsuit. A judgment of nonsuit is a pro forma action of a clerk and “[t]he clerk of the court is no longer required to mail a copy of the nonsuit to the party against whom it is directed.” Stephenson, Conn. Civ. Proc. (Cum. Sup. 1982) § 156. It is of no consequence that the plaintiff did not receive further notice. The original notice was sufficient. The plaintiff was fully aware that a nonsuit was to enter unless she complied with the order.

The issue before this court is whether the trial referee acted properly in denying the motion to vacate the judgment of nonsuit. The question is not whether we would have applied as severe a sanction as did the trial court; rather, it is whether the trial court abused its discretion in selecting the sanction. A nonsuit may be opened only when, within the discretion of the trial court, there is shown a reasonable cause for the failure to comply with the court’s order or the lack of compliance is shown to have arisen from mistake or accident. Jaquith v. Revson, 159 Conn. 427, 431-32, 270 A.2d 559 (1970). Under the circumstances of this case, it is difficult to conclude that the failure of the plaintiff to comply with the discovery request of the defendant was due to anything other than her fault. There were no mitigating facts before the court at the time it considered the plaintiffs motion to open the judgment of nonsuit, such as, for example, evidence of any real attempt to comply or of an inability to comply for any reasons beyond her control. In view of the totality of the circumstances, the excuse raised in the motion to open the nonsuit was both legally tardy and inadequate. See Practice Book § 377.

Careful attention must be paid to the prompt and orderly handling of discovery. Trial courts should not countenance unnecessary delays in discovery and should unhesitatingly impose sanctions proportionate to the circumstances. Pavlinko v. Yale-New Haven Hospital, 192 Conn. 138, 144-45, 470 A.2d 246 (1984). The plaintiffs counsel clearly failed to follow the rules of practice. Either we adhere to the rules or we do not adhere to them. There was no abuse of discretion here where the trial referee decided to enforce adherence to the rules of practice. See Jaquith v. Revson, supra.

The plaintiff also claims error (1) in the exclusion by the trial court of evidence which she claims would have shown her parents’ contributions to the equity in the parties’ home and (2) in assigning a disproportionate share of the realty to the defendant.

In its judgment on the cross complaint, the court passed title to the plaintiff in the parties’ jointly owned premises, subject to a lien in favor of the defendant in the amount of $25,000 without interest until the due date. See General Statutes § 52-22. The plaintiff was not required to pay the $25,000 until one of the following events occurred: the death of the plaintiff or the minor child; the remarriage of the plaintiff; the cohabitation by the plaintiff with an unrelated male person on the premises; the sale of said premises; the minor child’s attainment of majority; or the failure of the plaintiff to pay the taxes, interest, principal payment, insurance, municipal liens and judgment liens sixty days after the same are due and payable.

The parties’ only real estate was their residence. Both sides submitted their appraisals of the fair market value of the residence, which was occupied by the plaintiff, the minor child and the plaintiff’s parents. The plaintiff’s financial affidavit indicated that the residence had a present fair market value of $85,000, while the defendant set the value at $110,000. The court made no specific finding of fact regarding the fair market value of the residence. There was a mortgage of approximately $33,900. The court did find that the defendant, who is a competent carpenter, provided his labor and that of approximately twenty of his friends who worked without payment in the construction of the house. The employer of the defendant drew the plans for the house; the defendant hired his employer to erect its shell and roof; the plaintiff paid all the construction expenses from a special checking account which was in her name and her father’s name and which was funded, in part, by the earnings from the parties’ employment. There was evidence that approximately $10,000 of the cost of construction came from the sale of the parties’ first home; and $3000 of the cost of their first home was paid by the plaintiff’s parents as a wedding gift to the parties. Originally, title to the premises was held by the plaintiff and her father, and both executed the mortgage deed. The plaintiff’s father transferred his interest to the defendant at a later date without reserving any interest in the estate; and while the house was being constructed, the parties lived rent-free in the home of the defendant’s mother. Neither party objected to the introduction of this evidence. In excluding other evidence as to the source of the funds used in the construction of the home, the court remarked that it was only interested in the contribution of the defendant and not in what those other than the parties themselves had contributed.

The plaintiff claims that the trial court improperly excluded evidence showing the extent of her parents’ contribution to the equity in the marital home. She contends that in excluding that evidence, the court violated the mandate of General Statutes § 46b-81 (c) which requires that the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates be considered by the court in making an assignment of property. This claim, however, has not been properly preserved because the plaintiff presented nothing for this court to review. See Varley v. Varley, 189 Conn. 490, 492, 457 A.2d 1065 (1983). The plaintiff failed to observe the requirements of Practice Book § 3060F (c) (3) which requires that an appellant’s brief include, inter alia, the question, the objection and its ground, the claimed ground of admissibility, the ruling and the exception. The bare assertion in a brief that the evidence was improperly excluded, coupled with transcript page references, will not suffice. Enterprise Leasing Corporation v. Dixon, 1 Conn. App. 496, 501, 472 A.2d 1300 (1984). It is our strong policy that rulings claimed as evidentiary errors to be reviewed by this court be provided and printed in the briefs as required and outlined by the Practice Book. Gross v. Latimer, 1 Conn. App. 501, 505, 472 A.2d 1303 (1984).

Even if the claim had been properly preserved, however, we do not agree that the evidence was improperly excluded. The court was presented with ample information addressing all areas of consideration required by § 46b-81 (c). A ritualistic rendition of each of those elements would serve no useful purpose. Carpenter v. Carpenter, 188 Conn. 736, 740, 453 A.2d 1151 (1982). In the exercise of its inherent equitable powers, the court may also consider other factors which may be appropriate for a just and equitable resolution of the marital dispute. Robinson v. Robinson, 187 Conn. 70, 72, 444 A.2d 234 (1982); Pasquariello v. Pasquariello, 168 Conn. 579, 585-86, 362 A.2d 835 (1975). The court is not obligated, however, to go beyond the delineated statutory criteria. Section 46b-81 (c) requires the court to consider the “contribution” of the parties; it does not use the words “source of the equity” in real estate. The section does not allow the court to consider the legal claims of other persons in realty owned by the parties to a dissolution action, nor does it provide for the assignment of interests in that realty to others. The plaintiff, in her effort to introduce evidence of the contribution of her parents to the cost of the marital home, variously claimed that their interest in the realty consisted of a lease for less than one year and a life estate. Although evidence relating to gifts to and inheritances of both parties may be relevant evidence in a dissolution action; see Dubicki v. Dubicki, 186 Conn. 709, 443 A.2d 1268 (1982); Koizim v. Koizim, 181 Conn. 492, 435 A.2d 1030 (1980); evidence relating to claims in the realty of the parties by those not parties to the action is irrelevant. The court had before it the facts relating to the contribution of the defendant and the contribution of the plaintiff. We will not upset the award on the basis that the court did not consider the contribution of the plaintiffs parents to the marital residence.

The plaintiff’s third claim of error is that the trial court erred in determining her interest in the jointly owned premises. Specifically, she argues that the court’s award of an interest in the premises to the defendant was excessive and disproportionate. After considering the factors set forth in General Statutes § 46b-81, the court’s authority not only to order the conveyance of real property but to pass title to real estate by decree is undoubted. Pasquariello v. Pasquariello, supra, 587; see General Statutes § 52-22. “The power to act equitably is the keystone to the court’s ability to fashion relief in the infinite variety of circumstances which arise out of the dissolution of a marriage.” Pasquariello v. Pasquariello, supra, 585. “An equitable award may be found to be error only if it is based on factual findings that are clearly erroneous; Kaplan v. Kaplan, 186 Conn. 387, 391-92, 441 A.2d 629 (1982); or if it is the result of an abuse of discretion. Tutalo v. Tutalo, 187 Conn. 249, 251-52, 445 A.2d 598 (1982) . . . .” LaCroix v. LaCroix, 189 Conn. 685, 689-90, 457 A.2d 1076 (1983). As we have noted, the record indicates that the trial court adequately considered the requisite elements in making its award.

The court would be severely restricted in granting the just and equitable relief which the statutes allow and the plaintiff herself claimed, if the defendant were not allowed to acquire an immediate interest in the property. “One who seeks equity must also do equity and expect that equity will be done for all.” LaCroix v. LaCroix, supra, 689. The defendant here is getting no windfall. He was awarded as his interest in the real estate a lien fixed in the amount of $25,000 to be paid upon the happening of one of six future events. What the plaintiff entirely overlooks is that the defendant will not share in any appreciation of the property and he is potentially being deprived of a substantial financial asset for many years. For example, one of the occurrences upon which payment of the lien is conditioned is the minor child’s attainment of majority. Since the child was born in 1979, that eventuality will not happen for approximately thirteen years. “An assignment of property is not to be examined in a financial vacuum but rather should be considered in relation to all other relevant financial factors.” Krause v. Krause, 189 Conn. 570, 571, 456 A.2d 1204 (1983). In view of those factors, we find no error in the award.

The plaintiff also contends that the court ignored the cause of the dissolution when it made its assignment of property. The trial court must, in dividing family property, take into account many factors, including the court’s determination of the cause of the marital breakdown. Yontef v. Yontef, 185 Conn. 275, 285, 440 A.2d 899 (1981). The memorandum of decision in this case reveals that this was done. Having heard the evidence, the court stated that “[t]he differences between the parties were not serious and were magnified by the plaintiff.” It is clear to us that the plaintiff “would in reality have this court vary either the weight placed upon specific statutory criteria or the weight placed upon documentary or testimonial evidence. Fucci v. Fucci, 179 Conn. 174, 183, 425 A.2d 592 (1979). Such an excursion by this court into the domain of the trier is unacceptable. Schaffer v. Schaffer, 187 Conn. 224, 227, 445 A.2d 589 (1982). On appellate review, the ultimate issue is whether the court could reasonably conclude as it did. Koizim v. Koizim, supra, 497.” Carpenter v. Carpenter, 188 Conn. 736, 741-42, 453 A.2d 1151 (1982). “The [trial] court had an opportunity to view the witnesses and weigh the testimony presented. Unless there were no facts upon which the court could base its finding, we as an appellate body cannot retry the case or substitute our judgment for that of the trial court. Weiman v. Weiman, 188 Conn. 232, 234, 449 A.2d 151 (1982).” Wolk v. Wolk, 191 Conn. 328, 330, 464 A.2d 780 (1983).

We are satisfied from our review of the record that the trial court reasonably and equitably divided the marital assets based upon the requisite considerations.

There is no error.

In this opinion Dupont, J., concurred.

Borden, J.,

dissenting. The majority declines to review an evidentiary ruling on the ground that it was not properly presented in the plaintiffs brief, and concludes that, even if the ruling had been properly presented, the evidence was not improperly excluded because the court had ample other evidence before it. I disagree that the claim was not properly presented; I believe that the evidence was improperly excluded; and I disagree that the proper standard for this court to employ, where evidence was improperly excluded, is whether there was ample other evidence to support the award.

I

I do not dispute that it is our strong policy to require litigants to comply with the Practice Book in order to obtain appellate review of evidentiary rulings, and that a bare assertion in the brief of impropriety does not suffice. Gross v. Latimer, 1 Conn. App. 501, 505, 472 A.2d 1303 (1984); Enterprise Leasing Corporation v. Dixon, 1 Conn. App. 496, 501, 472 A.2d 1300 (1984). The plaintiff here, however, went far beyond such a bare assertion, and complied with our strong policy.

Practice Book § 3060F (c) (3) requires, for review of an evidentiary ruling, that the party seeking review include in his brief “the question or offer of exhibit; the objection and the ground on which it was based; the ground on which the evidence was claimed to be admissible; the answer, if any; the ruling; and any exception.” It also provides that “[a] verbatim excerpt from the transcript should not be used if a narrative statement will suffice.” Id. All of these requirements are either clearly stated in the plaintiff’s brief; see footnote 1, supra; or, like the claimed ground of admissibility, are so self-evident that it would be an undue elevation of form over substance to require more.

Moreover, here the trial referee in his memorandum of decision specifically adverted to the exclusion of the evidence. Thus, the referee more than adequately supplied for us, without any further effort on our part, whatever might be deemed to be missing from the plaintiff’s brief. Also, the plaintiff, in her brief, elaborated on the referee’s ruling by quoting, with appropriate reference to the transcript, the following: “[T]he referee made it clear in sustaining the many ‘non-suit’ objections to plaintiff’s counsel’s questions ‘where did the proceeds come from for the construction of the house?’ by saying repeatedly, T don’t care where it came from, all I care to find out is whether they both owned it today, don’t they in survivorship?’ ”

I conclude, therefore, that the plaintiff fully complied with our rules and policy, and that her evidentiary claim should be reviewed.

II

Turning to the merits of that claim, I conclude that the referee erred in excluding the evidence of the contribution of the plaintiff’s parents to the parties’ home. First, as the majority recognizes, General Statutes § 46b-81 (c) requires the court to “consider the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates.” This consideration should be given in the context of the court’s broad equitable powers. Robinson v. Robinson, 187 Conn. 70, 72, 444 A.2d 234 (1982). The plaintiff was age nineteen at the time of the marriage of the parties in 1971. The house in question was built in 1977, when the plaintiff was approximately age twenty-five. It is an undue limitation on both the statutory criterion and the court’s equitable powers to exclude evidence that a contribution to the party’s jointly owned home came from the plaintiff via her parents. Such evidence certainly is as relevant and worthy of consideration as the evidence, on which the trial referee and the majority of this court rely, that part of the defendant’s contribution came from the labor of his friends and employer.

Furthermore, although the trial court, in justifying its evidentiary ruling, adverted to the fact that a non-suit had been entered, what it did not mention and what the majority here does not mention is that in his motion for a nonsuit the defendant had requested three sanctions for the plaintiff’s failure to provide the requested disclosure: (1) a nonsuit; (2) attorney’s fees; and (3) that the plaintiff be barred, at the subsequent trial, from introducing evidence on the material sought in the disclosure motion. That material was the information regarding the contribution of the parents of the plaintiff to the residence of the parties. At the time of the ruling on the motion, the court, Pickett, J., specifically ordered only that “[njonsuit [is] to enter unless compliance within one week.” By the time the case was heard by the trial referee, the requested information had been provided, albeit late. Nonetheless, the trial referee, without any reason indicated on this record or without any prejudice being claimed or shown by the defendant, enlarged the sanction to include one which had specifically been refused by the trial court when the motion was presented to it, namely, the barring of that evidence. Thus, the referee in effect modified the earlier order of the trial court entered on the defendant’s motion, even though that motion was not before the referee for consideration. Although the plaintiff was certainly subject to sanction for disregarding the rules on discovery, she was also entitled to understand that, at the most, the sanction already imposed was the one she would have to bear, particularly when she had already provided the disclosure material sought and when the motion for the other sanctions had not been again brought before the court.

Indeed, it was not until she realized that the trial referee was relying on the nonsuit to bar the evidence that the plaintiff moved to open the nonsuit. This, too, was a justified reliance, since at the outset of the trial, when the nonsuit was brought to the referee’s attention, he said: “I don’t think they have such a thing, let’s see what happened here. Let’s see what happened. What was the date. ... I don’t think it makes a whole lot of difference, the only thing that matters is who proceeds. All right, you [the defendant] proceed.” Thus, the trial referee indicated that the only effect of the nonsuit was that the defendant would be proceeding on his cross complaint, which simply mirrored the plaintiffs complaint.

Finally, even if the evidence was properly excluded as part of the plaintiffs case, it was clearly admissible on the defendant’s cross complaint, in which he claimed a conveyance of the plaintiff’s interest in the property. What I observed earlier on the merits of the plaintiff’s evidentiary claim is of equal force here. Under General Statutes § 46b-81 (c) the court was required, in passing on the defendant’s claim to the property, to “consider the contribution of each of the parties” (emphasis added) to the acquisition of the property. It is error for the court to exclude testimony on any of the statutory factors. Gallo v. Gallo, 184 Conn. 36, 49, 440 A.2d 782 (1981). Thus, the court was required to consider, not only the labor of the defendant’s friends and employer, but the money supplied by the parents of his nineteen year old bride.

The appropriate test of a financial award made by a trial court in a dissolution case is whether the award constituted an abuse of discretion. See Barnes v. Barnes, 190 Conn. 491, 494, 460 A.2d 1302 (1983). It appears to me that the majority sustains this award because, based on what evidence the trial referee did consider, it was not an abuse of discretion. I have never understood it to be the law, even the law of limited appellate review of domestic relations cases, that we are permitted to sustain an award, which was arrived at after the improper exclusion of relevant evidence, simply because it was not so unfair as to be an abuse of discretion based on the evidence properly admitted. Indeed, in another but closely related context this court has very recently rejected such an approach. “A decision that accidentally falls within allowable limits of discretion because of a computation error by the court cannot be allowed to stand. To stretch the concept of limited appellate review in this case in order to find no error because the amount awarded may have been fair, would require this court to usurp the fact finding function of the trial court.” Ehrenkranz v. Ehrenkranz, 2 Conn. App. 416, 424, 479 A.2d 826 (1984). Likewise, a decision that may be within allowable limits of discretion because of an evidentiary error by the court should not be allowed to stand.

I would find error and would remand the case for a rehearing limited to the issue of the disposition of the interests of the parties in the jointly owned real estate.

       This appeal, originally filed in the Supreme Court, was transferred to this court. Public Acts, Spec. Sess., June, 1983, No. 83-29, § 2 (c).

       General Statutes § 46b-81 (a) provides that, at the time of rendering a judgment dissolving a marriage, the Superior Court may assign to either the husband or wife all or any part of the estate of the other. General Statutes § 46b-81 (c) provides in pertinent part as follows: “In fixing the nature and value of the property, if any, to be assigned, the court . . . shall consider 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, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income. The court shall also consider the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates.”

       The pertinent portion of the plaintiffs brief reads as follows: “The plaintiff inquired of the defendant whether it was true that the plaintiffs parents contributed approximately $50,000 to the building of the house. T1 69. The defendant objected, claiming that the nonsuit of November 16, 1981 excluded the evidence and the referee sustained the objection. T1 69. The plaintiff’s counsel attempted to inquire numerous times of the defendant, the plaintiff and her father where the funds came from, both in the May 24th hearing and during the June 21,1982 hearing after the defendant had the opportunity to see the cancelled checks, and in each instance the referee ruled that the non-suit precluded the admission of such evidence. In each instance, the plaintiff took exception to the ruling. T2 64. For the same reasons, the plaintiffs counsel’s inquiry into the nature of the parents’ interest was also excluded and exception taken. (T2 22, 66).”

       The memorandum of decision sets forth in pertinent part as follows: “The plaintiff attempted to show that [the defendant’s] in-laws had advanced monies and their interest was represented by the life use (oral) of a certain apartment on the premises. This evidence was excluded as (1) the first representation of the plaintiffs attorney was that it was for a lease for less than a year; (2) plaintiff failed to file answers to interrogatories and a nonsuit was entered and (3) the in-laws were not parties to this litigation.”


source: Caselaw Access Project

author: Borden, J.

license: Public Domain

text:
    Adrienne Szypula v. John W. Szypula
    (2290)
    Dannehy, C.P.J., Dupont and Borden, Js.

      Argued May 10
    decision released September 25, 1984

      Michael F. Dowley, with whom, on the brief, was Judith Lederer, for the appellant (defendant).

      Howard A. Baran, for the appellee (plaintiff).
   Borden, J.

The plaintiff wife filed a complaint and the defendant husband filed a counterclaim, both seeking dissolution of their marriage, custody and support of their three minor children, alimony, and conveyance of the other party’s interest in the family home. After a hearing lasting four days, the court, M. Hennessey, J., filed a memorandum of decision and rendered a judgment dissolving the marriage, committing custody of the children to the plaintiff, conveying the defendant’s interest in the family home to the plaintiff, and making other financial orders. Subsequently, the defendant moved to modify the support orders, which the court, Quinn, J., granted in part and denied in part. The defendant appealed.

I

The defendant’s principal claim in this appeal is that Judge Hennessey erred in not granting his oral motion for an evidentiary hearing on his postjudgment motion to disqualify her, and in not recusing herself from hearing that motion to disqualify. Analysis of this claim requires us to set forth its procedural setting.

Two days after the filing of the memorandum of decision and the rendering of the judgment, the defendant filed written motions for a new trial, to open the judgment, and to reargue the entire case. The common gist of these three motions, which were substantially identical, was that, in making its custody decisions and its decision as to the family home, the court failed to consider the evidence; that in making its financial orders as to support for the children, the court disregarded the evidence; that the defendant was denied a fair trial because of a bias by the court in favor of the plaintiff; and that certain evidentiary rulings made by the court during the trial were erroneous.

When these written motions came before the court, the defendant’s counsel opened by expressing “concern” as to whether Judge Hennessey should be disqualified from hearing the motions, and orally requested an evidentiary hearing on whether Judge Hennessey should be disqualified. This “concern” ripened into an oral motion for Judge Hennessey to disqualify herself from hearing the written motions, and the defendant’s counsel then orally moved that the evidentiary hearing be before another judge. These oral motions were denied.

The record indicates that the defendant was claiming an actual, undisclosed bias in favor of women on the part of Judge Hennessey in deciding this case. The defendant argues in effect that he made a sufficient offer of proof of bias by Judge Hennessey to require an evidentiary hearing on his claim; and that, having done so, Canon 3 C (1) (d) (iv) of the Code of Judicial Conduct required that Judge Hennessey disqualify herself because she might be a witness in that evidentiary hearing. We disagree.

An accusation of bias or prejudice “against a judge . . . ‘strikes at the very core of judicial integrity and tends to undermine public confidence in the established judiciary.’ ” Cameron v. Cameron, 187 Conn. 163, 168, 444 A.2d 915 (1982). Because such a charge “implicates basic concepts of fair trial”; id.; and because “[n]o more elementary statement concerning the judiciary can be made than that the conduct of the trial judge must be characterized by the highest degree of impartiality”; Felix v. Hall-Brooke Sanitarium, 140 Conn. 496, 501, 101 A.2d 500 (1953); it requires that we “[examine] the record with infinite care . . . .’’Id.

Our Supreme Court has indicated that, where there is a factual dispute involved in a claim of judicial bias, an evidentiary hearing may be in order, and it has implied that such a hearing be before another judge. See Papa v. New Haven Federation of Teachers, 186 Conn. 725, 750-53, 444 A.2d 196 (1982). The issue posed by the defendant’s claim here, then, is whether he was entitled to such a hearing.

“In Connecticut, the disqualification of judges is governed by General Statutes § 51-39 and Canon 3 C of the Code of Judicial Conduct.” (Footnotes omitted.) Id., 744. General Statutes § 51-39, which deals with disqualification by reason of the judge’s relationship with a specific party or potential interest in the outcome of the proceedings; Dacey v. Connecticut Bar Assn., 184 Conn. 21, 26, 441 A.2d 49 (1981); is not involved in this appeal.

Although Canon 3 C states the substantive norm for disqualification; see footnote 3, supra; it does not articulate the procedural standards which a litigant must meet in order to set in motion such a momentous mechanism as an evidentiary hearing on such a serious claim as actual bias on the part of the trial judge. Nor does our prior case law shed much light. All that is clear is that the litigant must “[raise] the question of disqualification in a timely and appropriate manner.” Dacey v. Connecticut Bar Assn., supra, 28.

It may be that, by waiting until the outcome of the trial, the defendant did not timely assert his claim and that he thus waived it. See Krattenstein v. G. Fox & Co., 155 Conn. 609, 236 A.2d 466 (1967). The defendant claims, however, that he was not alerted to the bases of his claim until after the trial. For purposes of this decision we assume, therefore, that the defendant’s motions for recusal and for an evidentiary hearing were timely.

Other jurisdictions have statutes or rules of court which prescribe the procedural requirements for raising a claim of judicial disqualification. See, e.g., 46 Am. Jur. 2d, Judges §§ 209-15. In the absence of such prescriptions, the procedure to be employed must take into account various principles which may, at times, compete with each other. Among these principles are: (1) that the integrity of the judicial system requires both the fact and the appearance of impartiality; see Papa v. New Haven Federation of Teachers, supra, 744-46; (2) that a party who has a good faith belief, grounded on facts, that a judge is biased is entitled to demonstrate that bias; and (3) that the due administration of justice requires that such a demonstration be based on more than opinion or conclusion.

The federal procedure requires, inter alia, that a statement of the facts and reasons upon which the claim for disqualification is based, be presented initially to the judge whose disqualification is sought. That judge must then, taking the facts stated as true, pass on their legal sufficiency for disqualification; and, if those allegations “give fair support to the charge of a bent of mind that may prevent or impede impartiality of judgment,” the judge is disqualified without further inquiry into the truth of the facts alleged. Berger v. United States, 255 U.S. 22, 33-34, 41 S. Ct. 230, 65 L. Ed. 481 (1921); United States v. Tropiano, 418 F.2d 1069, 1077 (2d Cir. 1969); Hayes v. National Football League, 463 F. Sup. 1174, 1178-79 (C.D. Cal. 1979); note, “Disqualification of Judges for Bias in the Federal Courts,” 79 Harv. L. R. 1435 (1966). Moreover, “the alleged bias and prejudice, to be disqualifying, must stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from his [or her] participation in the case. United States v. Grinnell Corp., 384 U.S. 563, 583, 86 S. Ct. 1698, 16 L. Ed. 2d 778 (1966) . . . .” Hayes v. National Football League, supra, 1179.

We believe that this procedure provides a useful starting point for articulating the procedural requirements which a litigant in this state must meet in order to obtain an evidentiary hearing on a claim of actual bias. In view of our Supreme Court’s indication, however, that, when facts are controverted, an evidentiary hearing into the claim of bias is appropriate; Papa v. New Haven Federation of Teachers, supra, 750-54; we also believe that the proper balance among the various competing principles is struck by requiring the party asserting the bias of the judge to state facts on the record which, if true, give fair support to his claim. If those facts, taken as true, give that fair support, the party is entitled to an evidentiary hearing on those facts before another judge.

Applying this standard to the defendant’s offer of proof here, we find that it falls far short of indicating fair support for the defendant’s claim that Judge Hennessey was biased. It was no more than a compendium of vague and unverified assertions relating to a remark which Judge Hennessey had allegedly made, before the trial in chambers, concerning her background, to some opinions of her held by six or seven unnamed attorneys, and to an unspecified reason for some unspecified judicial assignment. This offer of proof was grossly deficient. Such vague and unverified assertions of opinion and speculation are nowhere near factually sufficient to trigger an evidentiary hearing into a judge’s impartiality. Taken as true, whether singly or together, these assertions do not give fair support to a claim of either actual or apparent bias in favor of women on the part of Judge Hennessey. Moreover, we have carefully reviewed the transcript of those portions of the trial supplied to us in connection with this appeal, and we see no evidence whatsoever that Judge Hennessey conducted the trial in anything but a completely fair and impartial manner.

II

The defendant’s other claims concern various financial orders, and the order of custody.

A

The defendant first argues that the court erred in requiring him to provide medical coverage for the minor children because such coverage was available to the plaintiff without cost. This argument is without merit. Had it been established at the trial that such coverage for the children was available to the plaintiff without cost to her, and that the defendant would have to pay for such coverage, it would have been an abuse of discretion to order the defendant to bear this burden. It is clear, however, that the defendant did not make this factual claim until he filed his postjudgment motions. Thus, there was no evidence of such a discrepancy presented at the trial. Moreover, the court, in ruling on the defendant’s postjudgment motions, pointed out that the defendant, who had previously been covered by the plaintiff’s medical coverage, would in all likelihood be availing himself of the equivalent coverage through his employer, and that, if coverage for the children resulted in an additional expense, he could move for modification of the judgment on that basis.

B

The defendant next claims error in the court’s support orders. This claim is based on what the defendant urges is a misreading of his financial affidavit. Like the argument regarding the medical coverage, this claim was first raised in the defendant’s postjudgment motions. In his brief, however, the defendant notes that it was his financial affidavit which the court used to make the support orders, and that the affidavit was misleading. We will not find error on appeal in an order which the party seeking review induced by his own misleading conduct in the trial court. See Leveston v. Leveston, 182 Conn. 19, 24, 437 A.2d 819 (1980). Furthermore, the only reference in the defendant’s brief to the manner in which his misleading affidavit should have been read, is to the hearing on his postjudgment motions, after the trial court had already issued its memorandum of decision in reliance on that affidavit. Thus, we cannot find an abuse of discretion in these orders.

C

The defendant also argues that the court erred in awarding the defendant’s entire interest in the family home to the plaintiff, because the defendant was the sole contributor to the mortgage payments and because the award left him without any assets. Both the plaintiff and the defendant are teachers. The court found, however, that for several years the plaintiff remained at home caring for the children in their early years, and returned to work in 1971. After that time the parties established a division of labor and financial responsibilities, under which the plaintiff paid out of her earnings for food, clothing, gifts and part of a business loan which they had incurred. Furthermore, the court found that after this action was instituted the defendant relinquished his control over an $18,000 joint bank account which he had with his seventy-seven year old mother, and that, one month before the trial of the case, he had made a fraudulent conveyance of a luxury house trailer to the parties’ oldest child. These findings are not challenged on this appeal. Under these circumstances, we cannot find that this is the “rare case in which a disappointed litigant will be able to demonstrate abuse of a trial court’s broad discretion in family matters.” Yontef v. Yontef, 185 Conn. 275, 279, 440 A.2d 899 (1981); see also Lane v. Lane, 187 Conn. 144, 444 A.2d 1377 (1982) (no abuse of discretion in award of defendant’s entire interest in family home to the plaintiff).

D

The defendant argues that the court erred in awarding custody of the youngest minor child to the plaintiff. We were informed at oral argument, however, that the child, who is now age sixteen, is currently living with the defendant, and that, although no formal motion had yet been filed to reflect this change of circumstances, the plaintiff acquiesces to the child’s desires and does not plan to challenge this change. Thus, since the parties have in effect settled this issue between themselves and our decision would not result in practical relief to either party, this issue is moot and we do not consider it. See Waterbury Hospital v. Connecticut Health Care Associates, 186 Conn. 247, 250-51, 440 A.2d 310 (1982); Groesbeck v. Sotire, 1 Conn. App. 66, 68-69, 467 A.2d 1245 (1983).

Ill

The defendant’s final claim concerns the order of the court that, in addition to the order of $150 weekly support for the three minor children, he contribute $150 per month toward the mortgage on the family home. One of the three children reached the age of eighteen on November 13,1981, approximately six months after the judgment. The court, Quinn, J., reduced the $150 weekly order by one third to $100, but left in effect the $150 monthly mortgage contribution. The defendant claims that the monthly mortgage contribution must also be reduced proportionately, because it constituted a support order which terminated as a matter of law when the minor child whom it benefited reached the age of eighteen. We agree.

The judgment ordered the defendant “to contribute $150 per week and $150 on the first day of each month towards the mortgage, as support for the three children . . . .” While it is true that the plaintiff’s expenses on the mortgage may have remained the same regardless of whether there were two or three minor children in her custody, it is clear that the monthly mortgage contribution order was aimed at the defendant’s legal obligation to bear a proportional part of the burden of shelter expense being borne by the plaintiff as custodian of the oldest minor child. When that child reached the age of eighteen, the defendant no longer could be charged with that expense. See Cariseo v. Cariseo, 190 Conn. 141, 459 A.2d 523 (1983); Gould v. Gould, 1 Conn. App. 224, 470 A.2d 713 (1984). Thus, the monthly mortgage contribution should also have been reduced proportionately.

There is error only with respect to the order of the court dated December 4,1981, that the mortgage contribution payments are to remain in effect, the judgment is set aside as to that order and the case is remanded with direction to modify the judgment by reducing the mortgage contribution payments to $100 per month effective the week of December 16, 1981.

In this opinion the other judges concurred.

       A fourth child was over the age of eighteen at the time of the filing of the complaint and counterclaim.

       This appeal, originally filed in the Supreme Court, was transferred to this court. Public Acts, Spec. Sess., June, 1983, No. 83-29, § 2 (c).

       Canon 3 C (1) (d) (iv) provides in pertinent part: “A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to instances where ... he ... is . . . likely to be a material witness in the proceeding . . . .” See Papa v. New Haven Federation of Teachers, 186 Conn. 725, 444 A.2d 196 (1982) (standard is the objective one of whether the judge’s impartiality might reasonably be questioned.)


author: Per Curiam.

text:
    The Herold Fund, Inc. v. Commissioner of Revenue Services
    (2337)
    Hull, Borden and Spallone, Js.
    Argued June 14
    decision released September 25, 1984

      Ralph G. Murphy, assistant attorney general, with whom, on the brief, was Joseph I. Lieberman, attorney general, for the appellant (defendant).

      George G. Vest, with whom, on the brief, was David I. Bower, for the appellee (plaintiff).
   Per Curiam.

This appeal arises from a disagreement between the plaintiff, The Herold Fund, Inc., and the defendant, the commissioner of revenue services, concerning the proper method of taxation applicable to the plaintiff for the tax years ending June 30,1975, and June 30,1976. The parties to this action stipulated that The Herold Fund, Inc., is a regulated investment company as that term is defined in § 851 of the Internal Revenue Code. The principal issue on appeal is whether a corporation which satisfies the criteria to be classified as a regulated investment company may, nevertheless, be treated under certain circumstances as a general business corporation in a given tax year for the purposes of calculating the Connecticut corporation business tax.

The underlying dispute herein concerns the proper interpretation and application of the “minimum tax” provision set forth in General Statutes § 12-219, as amended by Public Acts 1973, No. 73-350. In each of the tax years in question, the plaintiff did not distribute at least 90 percent of its “investment company taxable income” as defined in I.R.C. § 852. Consequently, the plaintiff did not claim a deduction for dividends paid as provided by I.R.C. § 852, nor did it, in filing its Connecticut corporation business tax returns for those years, claim a deduction from gross income for dividends paid pursuant to General Statutes § 12-217. As a result, the plaintiff corporation filed its business tax returns as a general business corporation and, accordingly, in calculating its tax base, reduced its tax base by the amount of its stock holdings in private corporations pursuant to General Statutes § 12-219 (1) (A) (b).

On January 10,1978, the state tax department notified the plaintiff that an additional tax was due for the years in question because the plaintiff was to be treated for tax purposes as a regulated investment company “entitled to a deduction under § 12-217 for dividends paid” and, therefore, the plaintiff was not permitted to reduce its tax base for holdings of stock in private corporations. The plaintiff thereafter requested a hearing before the commissioner of revenue services. After the hearing, the commissioner issued a decision which stated that the plaintiff was subject to the additional tax found by the state tax department to be due and owing pursuant to General Statutes § 12-219 (1) (A) (c). The plaintiff appealed the commissioner’s decision to the Superior Court. The court reversed the decision of the commissioner, holding that because the plaintiff did not distribute at least 90 percent of its investment company taxable income, it did not pay dividends and, therefore, was not entitled to a deduction for dividends paid and, as a result, the plaintiff did not come within the purview of General Statutes § 12-219 (1) (A) (c). Consequently, the court held that for the years in question the plaintiff came within the purview of § 12-219 (1) (A) (b), which permits an adjustment to the plaintiff’s tax base for stock holdings in private corporations. The defendant brought this appeal claiming that the court erred (1) in concluding that there was no provision in General Statutes § 12-219, as amended by Public Acts 1973, No. 73-350, for an additional tax to be paid by a regulated investment company which did not distribute at least 90 percent of its investment company taxable income during the tax year and, accordingly, that the plaintiff was not entitled to a deduction for dividends paid, and (2) in concluding that the plaintiff could, under certain circumstances in a given tax year, be treated as a general business corporation for tax purposes, and that it was thereby entitled to reduce its tax base by the amount of its holdings of stock in private corporations.

The trial court filed a detailed and lengthy memorandum of decision discussing each of these issues. Herold Fund, Inc. v. Commissioner of Revenue Services, 40 Conn. Sup. 77, 481 A.2d 105 (1982). After examining the record on appeal and after a detailed consideration of the briefs and arguments of the parties in this case, we conclude that there is no error in the judgment of the trial court “and that the memorandum of decision filed by the trial court adequately and properly disposes of the contentions of the parties before us. That decision may be referred to for a detailed discussion of the facts and the applicable law. It would serve no useful purpose to repeat them here.” Hinchliffe v. American Motors Corporation, 192 Conn. 252, 253-54, 470 A.2d 1216 (1984); Ribicoff v. Division of Public Utility Control, 187 Conn. 247, 248, 445 A.2d 324 (1982).

There is no error.

       This appeal, originally filed in the Supreme Court, was transferred to this court. Public Acts, Spec. Sess., June, 1983, No. 83-29, § 2 (c).


text:
    Frank Spoto, Jr. v. Hayward Manufacturing Co.
    (2365)
    Dannehy, C.P.J., Dupont and Borden, Js.

      Argued June 7
    decision released September 25, 1984

      David S. Golub, with whom, on the brief, were Richard A. Silver, Stanley A. Twardy, Jr., and Susann E. Gill, for the appellant (plaintiff).

      Robert J. Cooney, for the appellee (defendant).
   Borden, J.

The plaintiff in this products liability action was rendered quadraplegic in a swimming pool accident. The defendant is the manufacturer and distributor of a component part of the pool known as a skimmer device. The gist of the plaintiff’s claim was that as he was running toward the shallow end of the pool to assist his young son who was having trouble in the water, he stepped into a hole in the deck of the pool created by the uncovered top of the skimmer device; that as a result he fell in a twisting motion into the pool, landing on the top of his head on the bottom of the pool; and that the defendant was responsible for the ease with which the cover of the skimmer device could be removed. The defendant denied that the cover of the skimmer device was off, and claimed instead that the plaintiff, intending to go swimming, dove into the shallow end of the pool from a location different from that of the skimmer device, striking his head on the bottom of the pool.

The jury returned a verdict for the defendant, on which the trial court rendered judgment. The plaintiff appeals claiming that the court erred in three sets of evidentiary rulings. We find no error.

Certain of the facts are undisputed, as follows: On August 8, 1971, the plaintiff was a guest at the home of Amerigo and Gloria Párente. At the rear of the home was an in ground swimming pool consisting in part of a vinyl liner laid over sand. The pool, which was installed in 1970, was approximately thirty-two feet long and sixteen feet wide. The longer axis ran in a north-south direction, the northerly end being the shallow end; the shorter axis ran in an east-west direction. The skimmer device consisted of an opening into the shallow end of the pool, at water level, into which pool debris would be drawn, and a connected opening into the deck of the pool from which the debris would periodically be removed. The opening into the deck had a removable cover. The deck portion of the skimmer device was located approximately four and one-half feet from the easterly edge of the pool and ten and one-half inches from the northerly edge of the pool. It was undisputed that the plaintiff either tripped and fell, or dove, into the shallow end of the pool. When the plaintiff did not surface and the others at poolside realized that something was amiss, the plaintiff was pulled, unconscious, from the deep end of the pool. As a result of the contact between his head and the bottom of the pool, he suffered a compression fracture of the C-5 vertebra, resulting in permanent quadraplegia.

The crucial factual dispute in the case concerned how, and from what location, the plaintiff entered the pool. The plaintiff claimed to have fallen into the shallow end of the pool after stepping into the uncovered skimmer device. The skimmer device was located on the easterly portion of the northerly, or shallow, end of the pool. The defendant claimed that the plaintiff dove into the pool from the westerly portion of the northerly, or shallow, end of the pool.

I

We first address the plaintiffs third claim of error, because it is the most significant and involves what the plaintiff describes in his brief as the key evidence in the case. This evidence was the testimony and two exhibits prepared by Richard Stone, a physicist presented as an expert witness by the defendant. Stone had done research and performed experiments on the causes of swimming pool accidents.

The evidence challenged by the plaintiff on appeal concerns Stone’s testimony describing his examination of the pool on November 10,1981, more than ten years after the accident; a plaster cast and fiberglass replica of an indentation which he found in the bottom of the pool as a result of that examination; and certain opinions which he gave linking that indentation to the plaintiff’s injuries. An understanding of the admissibility of Stone’s testimony, however, requires, first, a recitation of the prior testimony of Hans Koch.

Koch was a swimming pool repairman who was at the Parente’s pool on a service call related to the pool’s filtering system, which included the skimmer device. He was the only person at the pool who claimed to have seen the plaintiff actually enter the water.

Koch testified essentially as follows: The plaintiff was sitting on a deck chair facing the shallow end of the pool. He got up, took off his pants, stripped to his undershorts, walked to a point about three feet easterly from the northwesterly comer of the pool, which was at the shallow end, and made a perfect shallow dive into the water. The plaintiffs chest hit the water first, and his arms were extended straight out with the hands up. The dive was very close to the kind of perfect shallow water dive that an Olympic swimmer would make. Koch could not see if the plaintiff hit the bottom or not. About a minute later, he and the others at the pool pulled the plaintiff, who was blue in the face and unconscious, from the deep end of the pool. A written statement of Koch, including a rough diagram of the location and direction of the plaintiffs dive into the pool, was introduced into evidence by the defendant without objection.

Stone testified essentially as follows: There are two mechanisms that can result in someone diving nearly flat into water and an instant later being rotated straight to the bottom. The first mechanism, which he described as the diver tripping over his arms, occurs if the diver, by trying to force his arms back over his head, resists the natural tendency of his hands and arms to be pushed down as he goes into the water. This resistance results in the vertical movement of the arms stopping, the upper part of the trunk rotating over the arms, and a dive towards the bottom. The second mechanism, which he described as the diver tripping over his trunk, occurs if the diver, after entering the water, ducks his head down and relaxes at the waist. This results in the force on the back of his head pushing the head and trunk down, and the diver being pushed into the bottom of the pool. These two mechanisms can occur in the three foot water level of a swimming pool. The defendant introduced videotapes of dives which Stone had made demonstrating these mechanisms.

On November 10, 1981, Stone examined the entire bottom of the Párente’s pool, under water in a wetsuit. The examination was done both visually and tactually. He found an indentation in the bottom of the pool. The indentation was elliptical in shape, roughly eight inches by six inches. The longer axis of the indentation lined up with the longer dimension of the pool; it started out very shallow and got progressly deeper, to a maximum depth of one-half inch. He found no other significant indentations in the bottom of the pool. On the basis of the facts that from August 8, 1971, to November 10, 1981, the water had not been drained from the pool; that the bottom of the pool was sand covered by a vinyl liner which had not been changed; that the pool was subject to normal use in that intervening ten year period; and that, in his opinion, there were no forces acting on the bottom of the pool sufficient to change the configuration of the indentation, Stone expressed the opinion that the lapse of time between the date of the accident and his examination of the pool would not change the configuration of the dent. By employing a method of reproduction of the indentation, the accuracy of which is not in issue here, he was able to make an accurate plaster cast and fiberglass replica of the indentation, both of which were introduced into evidence.

In response to a series of hypothetical questions, Stone also testified essentially as follows: The indentation that he found was probably caused by the plaintiffs dive as described by Koch. That indentation and its location are consistent with the type of injury suffered by the plaintiff and with the location at which his body was recovered from the deep end of the pool.

The plaintiff mounts a three part attack on Stone’s testimony and the exhibits which accompanied it. He first argues that an insufficient factual foundation was laid connecting the indentation and the plaintiff’s accident. We disagree.

“Whether a witness is qualified to testify as an expert with respect to a certain matter is a decision to be made by the trial court. . . . That decision will not be disturbed on appeal unless there has been an abuse of discretion or there was a clear error involving a misconception of the law. . . . It is rare for this court to find that a trial court has erred in a ruling permitting expert testimony. . . . Once the trial court has determined that the witness has reasonable qualifications to testify as an expert on the question presented, the objection goes to the weight rather than the admissibility of the testimony.” McKiernan v. Caldor, Inc., 183 Conn. 164, 167-68, 438 A.2d 865 (1981). The question of whether a sufficient foundation was laid is a factual question for the court. “[Wjhere the admissibility of evidence depends upon a preliminary question of fact, to be determined by the court, its decision is not to be reversed unless there is clear and manifest error.” Engelke v. Wheatley, 148 Conn. 398, 411, 171 A.2d 402 (1961). A hypothetical question is not required to include all the pertinent facts in evidence. Donch v. Kardos, 149 Conn. 196, 201, 177 A.2d 801 (1962); Nielsen v. D’Angelo, 1 Conn. App. 239, 247, 71 A.2d 560 (1984). “[T]he facts assumed therein must be sufficient to justify a definite and intelligent opinion.” Stephanofsky v. Hill, 136 Conn. 379, 384, 71 A.2d 560 (1950).

The hypothetical questions posed to Stone asked him to assume the following facts: The plaintiff dove into the pool as testified to by Koch. He weighed 185 pounds and was five foot eleven inches tall. Either of the tripping mechanisms, which Stone had discovered, occurred. The plaintiff was found underwater in the westerly portion of the deep end of the pool. Thus, the questions properly incorporated facts which were already in evidence, such as the plaintiff’s weight and height, Koch’s description of the dive, and the location where the plaintiff was found, and also incorporated the mechanisms which Stone had already testified can occur after such a dive.

On the basis of these factual assumptions, Stone gave his opinions essentially as follows: The plaintiff’s head would enter the water about eight feet out. Assuming the rotating or “tripping” mechanisms he described earlier, the plaintiff’s head would strike the bottom of the pool at the location at which he found the indentation, causing that type of indentation and causing the plaintiff’s injury, a compression fracture of the C-5 vertebra.

We conclude that the trial court did not abuse its broad discretion or commit clear and manifest error in finding sufficient factual foundation connecting the indentation found by Stone to the dive as described by Koch. The plaintiffs claims, which focus on such facts as that no one observed the plaintiff rotate in the water or actually hit the bottom of the pool, go to the weight of the evidence and not to its admissibility. The same can be said of the plaintiffs claims that there was no evidence that the indentation was not there before the accident, and that Stone admitted on cross-examination that it was possible that the indentation was formed by workmen when the pool was built. “ ‘Testimony of conditions after the happening of an event is relevant to show conditions at the time of the event if the conditions are of such a permanent character that a lapse of time would not make a material difference.’ ” State v. Schaffer, 168 Conn. 309, 317-18, 362 A.2d 893 (1975). “It was not necessary [for admissibility] that the [defendant] prove by evidence equivalent to a mathematical demonstration that the [indentation] had been made by the [plaintiff] at the time of the accident. It was enough if there was evidence from which it could be found that it was reasonably probable that [it] had been.” Engelke v. Wheatley, supra, 410.

The plaintiff next argues that, even if there was a sufficient factual foundation laid connecting the indentation to the plaintiff’s dive, there was an insufficient factual showing that the dent was in substantially the same condition in November, 1981, as it would have been in August, 1971. This argument is without merit.

There was evidence that, in that intervening period, the water was not removed from the pool, that the vinyl liner was not changed, and that the pool was subject to normal use. There was also evidence that the surface underneath the liner was sand which was compacted by the weight of the water. On the basis of these facts, Stone testified in essence that it was probable that an indentation caused by the plaintiffs head in 1971 would remain in substantially the same condition until November 10,1981, when he made his inspection; and that it would have taken something like the force of a steam roller or of the dropping of a cannon ball into the water to change the indentation which he found. Clearly, under these unique factual circumstances there was sufficient evidence for the trial court to reject the plaintiffs argument, as do we, even after a lapse of ten years from the date of the accident to the date of the examination of the pool. The plaintiffs claims in this regard all go to the weight, rather than to the admissibility, of Stone’s opinions.

The plaintiff’s final argument against the admissibility of Stone’s testimony is that Stone was permitted, in giving his opinions, to use assumptions about the thrust, speed and take-off angle of the plaintiff’s dive which had no basis in the evidence. Like the plaintiff’s other arguments regarding Stone’s testimony, this argument fails.

Stone testified in this regard essentially as follows: The trajectory of a diver the size of the plaintiff is determined by how fast he takes off, which is a measure of the strength of his legs, the spring he puts into the dive and the angle that he chooses. On the basis of reasonable estimates of the amount of spring such a diver puts into a dive, of his height and of the angle of take off, one can predict his point of entry, his speed, and the angle of entry into the water. Assuming the diver is reasonably athletic, is capable of jumping vertically eighteen inches and takes off at an angle of fifteen degrees, he will enter the water at a downward angle of twenty-five degrees, and at a speed of 7.2 miles per hour. Varying the take-off angle to thirty degrees will result in an entry angle of thirty-five degrees and a speed of 7.3 miles per hour. These assumptions and the conclusions flowing from them were part of the basis for Stone’s opinion that the dive described by Koch caused the indentation which Stone found and caused the plaintiffs injuries.

There was testimony of the plaintiff’s height and weight. There was also evidence from which Stone could infer that the plaintiff was reasonably athletic. This evidence was the plaintiff’s own testimony that he knew how to swim, having learned at camp as a child and having swum in the navy, and Koch’s testimony that the plaintiff performed a perfect shallow water dive in a manner close to that of an Olympic swimmer. Koch’s testimony also supplied a reasonable basis for Stone’s assumption regarding the angle of take off. The fact that there was no specific evidence that the plaintiff was able to jump eighteen inches vertically is far from fatal to the admissibility of Stone’s opinion. It was reasonable for Stone to assume that someone who had the athletic ability to perform the dive described by Koch also had the ability to jump eighteen inches vertically. Whether that assumption was valid in this particular case, and the effect of that validity, or the lack thereof, on the value of Stone’s opinion are matters which fall within the ambit of cross-examination, and go to the opinion’s weight, rather than to its admissiblity.

A hypothetical question “ ‘should contain such assumptions of facts . . . as counsel may fairly claim that the evidence in the case tends to justify . . . .’” Johnson v. Toscano, 144 Conn. 582, 591, 136 A.2d 341 (1957). It need not contain all the pertinent facts in evidence; Donch v. Kardos, supra; as long as the facts assumed are sufficient to justify a definite and intelligent opinion. Stephanofsky v. Hill, supra. The proper standard for appellate review of a trial court’s decision permitting expert opinion testimony is whether there has been an abuse of discretion or clear error involving misconception of the law; and a ruling permitting such testimony will rarely be disturbed on appeal. McKiernan v. Caldor, Inc., supra. Gauged by this standard, we cannot find that the trial court abused its broad discretion, or committed clear error misconceiving the law, in admitting Stone’s opinions.

II

The plaintiff also claims error in a ruling of the trial court permitting certain testimony of Gloria Párente. Párente testified that, after the accident, she observed “an indentation in the bottom of the pool, approximately at the spot that [the plaintiff] would have hit when he dove into the pool.” The plaintiff argues that this testimony was inadmissible because it permitted Párente, as a layperson, to render an opinion on the basis of facts which she had not personally observed and which were not supported by the physical evidence. The plaintiff claims that Párente had no personal knowledge that the plaintiff dove into the pool, and that there was no basis for her claim that he hit in the area of the dent that she found. We disagree with the plaintiff’s argument.

This testimony must be viewed in the context of the other parts of Parente’s testimony, which were essentially as follows: She had vacuumed the bottom of the pool on the day of the accident, prior to the arrival of the plaintiff and his family. Vacuuming the pool involves actually getting into the water and running a pool vacuum over its bottom. Just before the plaintiff entered the pool, he said to her: “Aunty Glor, I am going to go in for a swim now.” She saw him take his clothes off, he was in his underwear, and he started to move toward the pool. At this point he was facing the pool, less than five feet from its westerly edge and he was approaching the shallow end. She turned away to remark to the plaintiff’s father-in-law, who was also at poolside, about the fact that the plaintiff was in his underwear. She next saw the plaintiff, a minute later, unconscious, at the bottom of the deep end of the pool, on the westerly side. Later that same day, she visited the plaintiff in the intensive care unit of the hospital after he regained consciousness. When she started to cry, the plaintiff said: “Don’t cry, Aunty Glor.” She said: “Frank, you could have killed yourself.” He said: “I’m sorry, Aunty Glor, I almost made it. I thought I could.” The next day, she was vacuuming the bottom of the pool and found an indentation at the spot where the plaintiff would have hit when he dove into the pool. She immediately clarified the location of the dent as about one foot in from the westerly side of the pool, at the point where the pool begins to slope from shallow to deep.

“It is permissible to admit into evidence the ‘opinions of common observers in regard to common appearances, facts and conditions . . . in a great variety of cases.’ ” State v. Schaffer, supra, 318. “ ‘Because of the wide range of matters on which lay witnesses are permitted to give their opinion, the admissibility of such evidence rests in the sound discretion of the trial court, and the exercise of that discretion, unless abused, will not constitute reversible error.’ ” Id., 319.

Although Párente did not specifically see the plaintiff actually dive into the pool, there was sufficient testimony from her own observations for her to describe his entry into the water as a dive. He told her he was going in for a swim. She saw him taking off his clothes and approaching the shallow edge of the pool, preparatory to doing so. She next saw him a minute later, in the deep end, unconscious. It was undisputed that he was clad in his underwear when he was pulled from the pool. It was also undisputed that he either tripped and fell, or dove, into the pool. That very day, after regaining consciousness, he made statements to her which were certainly consistent with a dive, rather than a trip and fall, into the pool. Moreover, it was made clear to the jury in cross-examination that she did not actually see him dive into the pool. Under these circumstances, we cannot find that the court abused its discretion in permitting her to describe his entry into the pool as she did.

We also reject the plaintiffs claim based on the fact that Párente did not specifically testify that the dent was not there before the plaintiffs accident. She testified that she vacuumed the pool the day of the accident, and that when she vacuumed the pool the next day she found the dent. It was not incumbent on the defendant to establish with mathematical certainty, as a precondition of what Párente did find the next day, that it was not there the previous day. Engelke v. Wheatley, supra.

The plaintiff also takes issue with that part of the ruling permitting Párente to characterize the location of the dent which she found as “approximately at the point that [the plaintiff would have hit” when he dove into the pool. Because of Parente's observations of the plaintiff just prior to the accident, her conversations with him after the accident, her reference to the location as only “approximately” at the point where he would have hit, and her immediate clarification of that location in terms based, not on her opinion, but on her own observations, we do not think that the trial court abused its wide discretion in permitting this expression of lay opinion. State v. Schaffer, supra.

Even if the ruling was error, however, we are convinced that it was harmless. “The [plaintiff has] the burden of showing that the error was probably harmful to [him], which involved a showing that the error was likely to affect the result.” Enterprise Leasing Corporation v. Dixon, 1 Conn. App. 496, 500, 472 A.2d 1300 (1984). We do not think that this error, if any, was likely to affect the result of this case.

First, there was abundant and clear evidence from Koch, prior to Parente’s testimony, that the plaintiff dove into the pool at a location and in a direction which were generally consistent with Parente’s testimony. Thus, her characterization of his entry into the pool as a dive was merely cumulative of eye-witness testimony which the jury had already heard. Second, the sole characterization by Párente of the location of the dent was promptly followed by a specific description of its location in the bottom of the pool. That description was based on Parente’s own personal observation. Third, she was subjected to full cross-examination, in which it was made clear to the jury that she did not see the plaintiff dive into the pool and that her characterization of the location was merely an assumption. Fourth, and most important, it is quite clear that the critical evidence in the case linking an indentation in the bottom of the pool to the plaintiff’s injuries was that of Stone, which we have determined was properly admissible. His testimony and exhibits were dependent on Koch’s testimony, and not in any way dependent on Parente’s testimony. The fact of an indentation found by Stone was dramatically demonstrated by the fiberglass replica of it. The trial consumed ten weeks of presentation of evidence. Parente’s entire testimony, both direct and cross-examination, consumes 199 pages of transcript. Stone’s consumes 696 pages, involving six days of testimony. Under these circumstances, we can only conclude that permitting Párente to testify as she did was not likely to affect the result.

Ill

The plaintiff’s final argument concerns testimony of, and an exhibit prepared by, Jay Black, a consulting engineer and land surveyor. On August 14,1979, Black performed a survey of the pool, a map of which was admitted into evidence over the plaintiff’s objection. The map indicates three ridges in the liner on the floor of the pool. The ridges, which are approximately three feet long and which run in an east-west direction, measure approximately one foot between the first and third ridge. They are located generally about five feet from the westerly edge of the pool and nine to ten feet from the northerly end of the pool. After proper cautionary instructions from the court limiting the use of Párente’s statement to him, Black testified that Párente “indicated to me there were ridges in the bottom of the pool, which she alleged was [sic] a result of the subject accident.” Párente had also testified in effect that she pointed out to Black, in 1979, the dent that she observed in 1971.

The plaintiff argues that Black’s testimony about and depiction of the ridges was inadmissible because (1) they were based on Párente’s testimony, which he claims was improperly admitted; and (2) there was no showing that what Black observed and measured in 1979 was substantially the same as what Párente observed in 1971. We disagree.

We note, first, that Black took all his measurements and made all his observations from poolside. He did not enter the water, as had Párente when she vacuumed the pool. Thus, what Párente described as a dent in the bottom of the pool, observed by her while vacuuming the pool in the water, could also, as the trial court aptly observed, have been described as ridges by someone at poolside.

We have already determined that there was no harmful error in permitting Párente to testify as to the dent and its location based on her observations the day after the accident. We also conclude that there was a sufficient factual link between what Párente observed in 1971 and what Black observed and measured.

As we have noted, “where the admissibility of evidence depends upon a preliminary question of fact, to be determined by the court, its decision is not to be reversed unless there is clear and manifest error.” Engelke v. Wheatley, supra, 410-11. Párente testified that the condition of the pool had not changed materially since the day of the accident. She testified in effect that she showed Black, in 1979, from poolside, what she observed in the water in 1971. Black’s testimony confirmed that she showed him what she had observed. Furthermore, Black testified on cross-examination that the type of ridges he observed could not be caused by pool activity or by someone’s hands. The differences in description and possible differences in location between what Párente observed and what Black observed and measured were matters for cross-examination going to the weight of the challenged evidence, rather than to its admissibility. Under these circumstances, we cannot conclude that the court committed clear and manifest error in admitting the evidence.

There is no error.

In this opinion the other judges concurred.

       This appeal, originally filed in the Supreme Court, was transferred to this court. Public Acts, Spec. Sess., June, 1983, No. 83-29, § 2 (c).

       The plaintiff claims that Stone’s location of the indentation is inconsistent with the version of the accident given by Koch, who testified that the plaintiff dove from the westerly side of the shallow end of the pool. There is some confusion in the record about the precise location of the indentation. In a voir dire in the absence of the jury before the admission of his testimony and exhibits, Stone described the location of the indentation in two somewhat inconsistent ways. First, he located the indentation approximately ten feet out from the shallow, or northerly, end of the pool, and approximately five feet in from the easterly edge of the pool. Later in the same voir dire, however, he used a map of the pool which had been introduced into evidence to locate the dent at a place ten feet four inches out from the shallow, or northerly, end of the pool, and five feet in from the westerly edge of the pool. After the plaintiff’s objections were overruled, in the presence of the jury, Stone located the indentation approximately ten feet out from the shallow end of the pool and five feet in from the east wall of the pool. Later in his testimony, however, in response to a hypothetical question posed by the defendant’s counsel, his testimony was susceptible of an interpretation that the location of the indentation was on the westerly side of the pool. In cross-examination by the plaintiff, again referring to the map, he located the indentation on the westerly side of the pool.
      These inconsistencies are not significant in this appeal, however. First, there was evidence locating the indentation on the westerly side of the pool. The trial court was entitled to rely on that evidence, even though there was contrary evidence, in making its evidentiary ruling. This is so particularly where, as here, the inconsistency in precise location was not brought to the court’s attention by the plaintiff’s objection to the evidence. Indeed, our review of the transcript indicates that the plaintiff’s counsel considered the location by Stone of the indentation to be on the westerly side of the pool. Second, Stone consistently testified that the indentation, as it was configured and where he found it, was consistent with Koch’s version of how the plaintiff entered the pool and where the plaintiff was found unconscious in the pool. Thus, any such inconsistencies were grist for the mill of cross-examination, and not a ground of inadmissibility.

       Although on direct examination she did not specifically say that this took place the next day, answering only the question of whether “after the accident occurred” she had vacuumed the pool and what she found, on cross-examination she testified that this was “[t]he next day.”

       That point of slope was later located as approximately ten feet from the northerly, or shallow, edge of the pool.


text:
    Mildred Moseley et al. v. Grant Hamilton et al.
    (2451)
    Dupont, Acting C.P.J., Hull and Spallone, Js.
    Argued October 2
    decision released November 13, 1984

      Joseph F. Keefe, with whom, on the brief, was Marcia J. Speziale, for the appellants (plaintiffs).

      Christopher D. Bernard, for the appellee (named defendant).

      Thomas L. Brayton, for the appellee (defendant Brian Farrell).
   Per Curiam.

This is a negligence action in which the plaintiffs seek compensation from the defendants for damage to realty and personalty caused by fire. After a trial, the jury returned a general verdict for the defendants. The plaintiffs appeal from the adverse judgment which followed the trial court’s denial of their motion to set aside the verdict and to render judgment for them.

The plaintiffs claim that the trial court erred in giving an instruction to the jury on the doctrine of intervening cause and in its instructions on the foreseeability of harm to the plaintiffs.

Despite conflicting testimony, the jury could have reasonably found certain facts. These are that the defendant Grant Hamilton, on the day before the fire, purchased fireworks in another state and transported them to his home in Connecticut, that the defendant Brian Farrell lit a firework in Grant Hamilton’s bedroom to the surprise of Hamilton, and that the remnants of the firework were extinguished.

The first claim of the plaintiffs is that the trial court erred in charging the jury that “[t]he defendants claim, as I understand it, that the discharge of the fireworks was . . . an intervening cause between the bringing of them here in violation of the statute, if you find that there was a violation, and the fire.” The plaintiffs do not claim that the trial court misstated the law on intervening cause but, rather, they contend that the pleadings and evidence did not warrant any instruction on the doctrine.

One of the allegations of the plaintiff’s complaint was that "the defendant, Grant Hamilton, possessed fireworks and brought them to Connecticut from out of state, in violation of Section 29-97 of the Connecticut General Statutes.” A theory on which the plaintiffs presented their case was that the violation of the statute by Grant Hamilton was negligence and the proximate cause of the fire. Whether the act of one defendant is an intervening cause of a fireworks explosion where another defendant admittedly transported fireworks in violation of a statute is a question of fact for a jury. Angier v. Barton, 160 Conn. 204, 210, 276 A.2d 782 (1970). The proximate cause of a plaintiff’s harm is a jury question. Tetro v. Stratford, 189 Conn. 601, 605, 458 A.2d 5 (1983). The defendant Grant Hamilton admitted that he had transported fireworks into the state. There were other facts from which the jury could conclude that the other defendant, Brian Farrell, unexpectedly lit a firework, and it was for the jury to decide whether the action of the latter defendant was an intervening cause of the harm to the plaintiffs. The instruction of the court to the jury was proper.

The second claim of error of the plaintiffs is that the court instructed the jury that there was a foreseeability requirement for the jury to consider in its determination of proximate cause. The portion of the charge to which the plaintiffs excepted, however, relates not to proximate cause but to the existence of a duty to use reasonable care. The plaintiffs have culled an isolated passage from the charge and subjected it to their criticism. An appellate court should review a charge of a trial court as a whole in order to determine if the case was fairly presented to the jury so as to avoid injustice and should not review single segments of the charge in isolation from the whole. Van Steensburg v. Lawrence & Memorial Hospitals, 194 Conn. 500, 507, 481 A.2d 750 (1984). The trial court’s statement of law concerning the test to be applied in determining the existence of a duty to use reasonable care was legally correct. Frankovitch v. Burton, 185 Conn. 14, 20-21, 440 A.2d 254. (1981).

There is no error.

       The plaintiffs are the owners of a home which was leased to the parents of the defendant Grant Hamilton. The other defendant, Brian Farrell, is a friend of Grant Hamilton. Both were minors on the date of the alleged negligence. The action was withdrawn as to a third defendant, and a summary judgment was rendered in favor of the parents of Grant Hamilton.

       This appeal, originally filed in the Supreme Court, was transferred to this court. Public Acts, Spec. Sess., June, 1983, No. 83-29, § 2 (c).

       The plaintiffs’ brief on page three states as a fact that the defendant Brian Farrell lit a firework which went under Grant Hamilton’s bed.

       This instruction applies only to the defendant Grant Hamilton.

       General Statutes (Rev. to 1981) § 29-97 is now § 29-357.

       The plaintiffs excepted to the following portion of the charge: “The test which you should apply is this: Would the ordinary, reasonably prudent child of similar age, judgment and experience, being in the same position of the defendant, knowing what they knew or should have known, have anticipated that harm of the general nature as that suffered by the plaintiff was likely to result unless reasonable care was used.” The sentence immediately preceding this portion of the charge was: “The ultimate test of the existence of a duty to use reasonable care is to be found in the foreseeability that harm may result if that care is not exercised. By that is not meant that one charged with negligence must be found actually to have foreseen the probability of harm or that the particular injury which resulted was foreseeable.”


text:
    Charles Santini et al. v. Gabby Deeb
    (2426)
    Dupont, Acting C.P.J., Hull and Spallone, Js.
    Argued October 2
    decision released November 13, 1984

      Bruce L. Levin, with whom, on the brief, was Serge G. Mihaly, for the appellant (plaintiff Oswaldo Santini).

      Jeffrey L. Williams, with whom, on the brief, was Carl F. Yeich, for the appellee (defendant).

      Kevin A. Coles, for the garnishee Covenant Insurance Company.
   Per Curiam.

The plaintiff appeals from the trial court’s denial of his application for a prejudgment remedy. The plaintiff claims that the trial court’s failure to find probable cause to issue a garnishment was clearly erroneous.

The defendant operated a grocery store in premises leased from the plaintiff. On February 26, 1982, a fire caused great damage to the premises. The plaintiff’s complaint alleges that the fire and the plaintiff’s damages were proximately caused by the negligence of the defendant in that he failed to lock the doors, thus allowing persons unknown to enter the premises and cause destruction, and in that he maintained flammable liquids on the premises.

The plaintiff seeks a prejudgment remedy to garnish the Covenant Insurance Company as it is the debtor of the defendant.

At the hearing on the application, the plaintiff produced witnesses who testified that the front and back doors of the grocery store were unlocked, and that an accelerant (gasoline) was used to start the fire. The plaintiff did not elicit any testimony that the defendant had flammable liquids on the premises.

The court in its oral memorandum of decision found as follows: “Testimony was elicited that, upon arriving at the scene, the firefighters discovered that the back door was not secured and was unlocked. It was later determined by an investigator that, indeed, the front door of the premises also was not secured, and the door was unlocked. These are the premises that were occupied by the defendant Deeb under a lease. There was no testimony presented that the defendant, Gabby Deeb, maintained highly flammable and combustible liquids on the premises.

“The court finds that even if upon the trial of this matter it was demonstrated that the defendant Gabby Deeb was negligent in failing to secure and lock the premises, a fire at the premises would not have-been proximately caused by his failure to so lock and secure the premises.

“Accordingly, the motion for prejudgment remedy is denied.”

Although the court’s finding is not entirely clear, a reasonable reading of it supports a finding that the front and back doors of the store were found unlocked by the firefighters who arrived at the scene. There was no direct evidence as to how the premises came to be unlocked at the time of the fire. There was also no evidence from which the court could find probable cause that the defendant’s negligence, if any, in leaving the store unlocked, was the proximate cause of the claimed arson and the resulting damages.

The plaintiff states in his brief: “Since ‘the factual and practical considerations of everyday life on which reasonable and prudent men act’ would lead a prudent person to recognize that in Bridgeport in 1982 vandals would at least enter the premises of an unlocked commercial facility, the defendant’s negligence was a proximate cause of the plaintiff’s damages.” No evidence was adduced at the hearing to substantiate this naked claim of counsel. Such an unsupported and speculative statement falls short of meeting the standard of proof in a probable cause hearing.

In discussing the trial court’s role in determining probable cause in a prejudgment remedy hearing, the Supreme Court stated the appellate rule as follows: “In reaching its determination of probable success on the merits it is essentially weighing probabilities, and in this it must have a broad discretion. In the absence of clear error, this court should not overrule the thoughtful decision of the trial court, which has had an opportunity to assess the legal issues which may be raised and to weigh the credibility of at least some of the witnesses.” Augeri v. C. F. Wooding Co., 173 Conn. 426, 429, 378 A.2d 538 (1977); see also Three S. Development Co. v. Santore, 193 Conn. 174, 176, 474 A.2d 795 (1984); Babiarz v. Hartford Special, Inc., 2 Conn. App. 388, 393-94, 480 A.2d 561 (1984). Under the circumstances of the present case, we conclude that the decision of the trial court was not clearly erroneous.

There is no error.

       Charles and Oswaldo Santini are the plaintiffs, but only Oswaldo Santini is named as a lessor in the lease involved. Any reference to the plaintiff herein is to Oswaldo Santini.

       This appeal, originally filed in the Supreme Court, was transferred to this court. Public Acts, Spec. Sess., June, 1983, No. 83-29, § 2 (c).


text:
    Dominick De Dominicis et al. v. American National Fire Insurance Company et al.
    (2444)
    Dupont, Acting C.P.J., Hull and Borden, Js.
    Argued October 2
    decision released November 13, 1984

      John W. Lemega, for the appellants (defendants).

      Joseph A. Lorenzo, with whom was Sandra A. Trionfini, for the appellees (plaintiffs).
   Per Curiam.

This appeal is from a judgment rendered against the defendant insurers determining liability under a homeowners insurance policy which, inter alia, covered the plaintiffs, Dominick and Joan De Dominicis, in case of theft of a coin collection. The trial court, upon concluding that no genuine issue of material fact existed as to liability, granted the plaintiffs’ motion for summary judgment. Following a hearing in damages, the trial court rendered judgment in favor of the plaintiffs and the defendants appealed claiming, inter alia, that the trial court erred in granting the plaintiffs’ motion for summary judgment.

On or about January 31,1976, a coin collection was allegedly stolen from the home of the plaintiffs. At that time, the plaintiffs were insured by the defendant American National Fire Insurance Company under a policy which covered the collection. After that defendant refused to pay under the policy, the plaintiffs brought this action. The defendants’ position is that the collection was never stolen and that, in fact, it may never have existed.

The plaintiffs filed a motion for summary judgment as to liability supported by an affidavit which included a thirteen page list of the coins comprising the missing collection. In opposition to this motion, the defendants filed the affidavit of a professional numismatist who asserted that “based upon the extreme rarity of some of the coins listed on the first page, and the contradictory grading of quality, it is my professional opinion that the coin collection listed on page one is partly or wholly fictitious.” The trial court concluded that no genuine issue existed as to any material fact and granted the plaintiffs’ motion for summary judgment as to liability.

In a summary judgment motion, the parties are entitled to consideration, not only of the facts presented by their affidavits, but of the “inferences which could be reasonably and logically drawn from them” as well. United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 381, 260 A.2d 596 (1969). One common definition of “fictitious” includes the synonyms “imaginary” and “fabrication or contrivance.” Webster, Third New International Dictionary. The affidavit provided by the defendants, therefore, furnished a basis for a permissible inference creating doubt as to the very existence of the coin collection. Thus, there was a genuine issue of material fact which precluded the granting of the plaintiffs’ summary judgment motion on the issue of liability.

There is error, the judgment is set aside and the case is remanded for further proceedings.

       This appeal, originally filed in the Supreme Court, was transferred to this court. Public Acts, Spec. Sess., June, 1983, No. 83-29, § 2 (c).

       The total value of the collection was $25,546.20 of which $13,366.25 consisted of coins listed on the page questioned by the defendants’ affiant.


text:
    Araxie Markarian v. Herache Markarian
    (2348)
    Dupont, Acting C.P.J., Hull and Daly, Js.
    Argued October 2
    decision released November 13, 1984

      Joseph A. O'Brien, for the appellant (plaintiff).

      Gerald A. Roisman, with whom was Edith F. McClure, for the appellee (defendant).
   Per Curiam.

This dissolution action was remanded by this court to the trial court with direction to file a memorandum of decision articulating the basis upon which it awarded the plaintiff alimony limited to two years.

The trial court has now sufficiently articulated the facts upon which its decision was based and its decision should not be disturbed. Holley v. Holley, 194 Conn. 25, 29, 478 A.2d 1000 (1984).

There is no error.


author: Daly, J.

text:
    John T. Sullivan v. Northwind Energy Insulators, Inc., et al.
    (2142)
    Dupont, Acting C.P.J., Spallone and Daly, Js.
    Argued October 3
    decision released November 13, 1984

      David M. Reilly, for the appellant (plaintiff).

      James L. Gartland, for the appellees (defendants).
   Daly, J.

This is an appeal from a decision of the compensation review division of the workers’ compensation commission affirming the finding and award of the commissioner for the fourth district and dismissing the plaintiff’s appeal. The issues on this appeal deal not with the merits of the case, but with the alleged tardy decision rendered by the commissioner of the workers’ compensation commission.

The facts which set the framework for the plaintiff’s claims of error are as follows: The plaintiff filed a claim with the workers’ compensation commission and hearings were held on December 3,1980, and on February 4,1981. On March 17,1982, the plaintiff filed a motion to disqualify the commissioner for the reason that no decision had been rendered on his claim, albeit hearings had been completed for more than one year. On May 18,1982, the commissioner issued his finding and award on the merits of the claim, with no mention of or ruling upon the motion to disqualify. The plaintiff’s subsequent appeal to the compensation review division was dismissed on May 16, 1983.

On appeal, the plaintiff alleges that the essential issue is whether the commissioner can retain jurisdiction and render a decision (1) after a reasonable time for rendition of decision has long since expired, and (2) after his continued jurisdiction has been challenged upon the grounds that his duties have been neglected.

The Workers’ Compensation Act does not provide for a specific time limit within which a finding and award must be made. Rather, General Statutes § 31-300 provides that the commissioner shall make an award “[a]s soon as may be after the conclusion of any hearing . . . .” It is to be noted that the General Assembly has seen fit, on other occasions, to include specific time limits in a governing statute. For example, when the Uniform Administrative Procedure Act is applicable to a proceeding, General Statutes § 4-180 requires that a decision be rendered within ninety days. General Statutes § 51-183b mandates that a judge of the Superior Court, who has commenced the trial of any civil cause, must render judgment not later than one hundred twenty days from the completion date of the trial. We do not find any language in the Workers’ Compensation Act to support the plaintiffs contention that a commissioner loses jurisdiction to render a decision after a certain lapse of time.

The plaintiff claims error in that the commissioner never specifically ruled on his motion to disqualify. The compensation review division panel was of the opinion that although the plaintiff had a right to receive a specific ruling on the motion to disqualify, the commissioner’s finding and award issued on May 18,1982, constituted, at the very least, an implied denial of said motion. The compensation review division concluded that, although there may have been error in the technical sense, it was harmless error. We agree.

The plaintiff further argues that the commissioner was not able to render an impartial decision due to the fact that, because the plaintiff had filed a motion to disqualify, the commissioner must have been biased against the plaintiff. The mere filing of a motion to disqualify does not automatically disqualify a judge. United States v. Townsend, 478 F.2d 1072 (3d Cir. 1973); Behr v. Mine Safety Appliances Co., 233 F.2d 371 (3d Cir. 1956). We believe this general rule is also applicable to a hearing commissioner. The plaintiff has not alleged any facts to indicate that the commissioner harbored any bias, or that he had prejudged the case on the merits. See Kirsten v. B. F. Goodrich Sponge Products Co., 178 Conn. 401, 423 A.2d 95 (1979). We do not believe that the plaintiff was denied his due process right to an impartial decision-maker. See 3 Larson, Workmen’s Compensation Law (1983 Cum. Sup.) § 77A.20, p. 15-7.

There is no error.

In this opinion the other judges concurred.

       This appeal was originally filed in the Appellate Session of the Superior Court. Public Acts, Spec. Sess., June, 1983, No. 83-29, § 3 (c).