author: PELLEGRINO, J.

text:
    STATE OF CONNECTICUT v. KENYON L. JOSEPH
    (AC 28999)
    Gruendel, Beach and Pellegrino, Js.

      Argued May 19
    officially released September 23, 2008

      Annacarina Jacob, senior assistant public defender, for the appellant (defendant).

      Robert J. Scheinblum, senior assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Gary W. Nicholson, senior assistant state’s attorney, for the appellee (state).
   Opinion

PELLEGRINO, J.

The defendant, Kenyon L. Joseph, appeals from the judgment of conviction, rendered after the jury found him guilty of felony murder, murder as an accessory, conspiracy to commit robbery and two counts of assault in the first degree as an accessory. On appeal, the defendant claims that the trial court improperly (1) failed to instruct the jury adequately in connection with the testimony of an accomplice, (2) failed to instruct the jury properly in connection with the testimony of a jailhouse informant and (3) admitted into evidence testimony of uncharged misconduct. We affirm the judgment of the trial court.

The following facts are relevant to our disposition of the defendant’s appeal. On November 11, 2001, in the early morning hours, a shooting occurred at 24 Camp Street in Meriden that resulted in the death of Derling Mercado. During the investigation of the Meriden shooting, the police interviewed the defendant twice, each time recording the interview. The two recordings were played at trial. The defendant told the police that he had stolen a maroon Buick and had driven his friends, Thelburt Hampton, Eddie Schmidt, Kashon Pearson and a man named Cochese to Hartford to buy marijuana. In Hartford, Schmidt and Pearson exited the vehicle to approach some men on the street. The defendant heard shooting and saw Schmidt, with a gun, chasing one of the men. He then saw feathers coming out of the shoulder blade area of one of the men’s jackets.

The defendant then told the police that after the Hartford incident, he drove the same group of friends to Meriden to continue their search to buy marijuana. In Meriden, the defendant came upon Mercado, who was standing outside his house at 24 Camp Street with his friends, Carlos Figueroa, Luis Gonzalez, Ezequiel Rivera, Alexander Rivera, Victor Rivera and Isaias Barreto. The defendant stopped the car to see if Mercado’s group had any marijuana. When Mercado’s group said “no,” Schmidt exited the car with a gun, stole a necklace from Gonzalez and killed Mercado. The defendant stated that Pearson also had a nine millimeter gun in his possession. After the shooting in Meriden, the defendant drove his friends back to New Britain, where he abandoned the stolen Buick.

Other witnesses testified that after Schmidt had exited the car to steal Gonzalez’ necklace, the defendant exited the car with a rifle. Pearson exited next with a semiautomatic nine millimeter handgun, and Cochese exited the car unarmed. The defendant fired the rifle in the direction of Figueora, and the bullet ricocheted off the side of a car and into his body. The defendant’s gunshot started a chain reaction, and, in the time following the defendant’s first gunshot, Schmidt shot and killed Mercado.

The defendant thereafter was arrested and charged with (1) felony murder in violation of General Statutes § 53a-54c, (2) murder as an accessory in violation of General Statutes §§ 53a-8 and 53a-54a, (3) conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 and 53a-134 (a) (2), and (4) two counts of assault in the first degree as an accessory in violation of General Statutes §§ 53a-59 (a) (5) and 53a-8. The defendant elected a jury trial and was found guilty of all charges. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant’s first claim is that the court improperly failed to give an adequate instruction regarding the accomplice testimony of Hampton. Although the defendant concedes that the court gave an instruction regarding the credibility of accomplice testimony, he argues that the court’s instruction was inadequate. We are not persuaded.

The following additional facts are relevant to our disposition of the defendant’s claim. Hampton testified as a witness for the state. He testified that the defendant had a rifle, exited the car and fired the first gunshot. He also testified that the defendant fired an additional two or three gunshots after Schmidt had shot Mercado. Hampton further testified that he understood that in exchange for his testimony, the state would inform his sentencing judge of his cooperation in this matter. At the conclusion of the evidence, the defendant submitted to the court a charge regarding a general credibility instruction. He did not, however, ask for a charge on accomplice testimony or object to the charge as given. The court, sua sponte, provided the following accomplice instruction.

“You have also heard testimony of Thelburt Hampton, who has also been charged in connection with the incident for which this defendant is on trial. In weighing the testimony of an alleged accomplice who has not yet been sentenced or whose case has not yet been disposed of, you should keep in mind that he may, in his own mind, be looking for some favorable treatment in the sentence or disposition of his own case. Therefore, he may have such an interest in the outcome of this case that his testimony may have been colored by that fact. Therefore, you must look with particular care at the testimony of an alleged accomplice and scrutinize it very carefully before you accept it.

“There are many offenses that are ... of such a character that the only persons capable of giving useful testimony are those who are themselves implicated in the crime. It is for you to decide what credibility you will give to a witness who has been charged with a crime, whether you will believe or disbelieve the testimony of a person who has been charged in connection with the crime charged by the state here. Like all other questions of credibility, this is a question you must decide based on all of the evidence presented to you.”

The defendant now argues that the court’s accomplice instruction was inadequate. Our first inquiry is to determine whether the defendant properly preserved this claim. The defendant argues that his submission of a general credibility instruction properly preserved this issue. We disagree.

Our Supreme Court has stated: “It is well settled . . . that a party may preserve for appeal a claim that an instruction, which was proper to give, was nonetheless defective either by: (1) submitting a written request to charge covering the matter; or (2) taking an exception to the charge as given. . . . Moreover, the submission of a request to charge covering the matter at issue preserves a claim that the trial court improperly failed to give an instruction on that matter. ... In each of these instances, the trial court has been put on notice and afforded a timely opportunity to remedy the error. ... It does not follow, however, that a request to charge addressed to the subject matter generally, but which omits an instruction on a specific component, preserves a claim that the trial court’s instruction regarding that component was defective.” (Citations omitted; emphasis added.) State v. Ramos, 261 Conn. 156, 170-71, 801 A.2d 788 (2002); see also Practice Book § 42-16.

The defendant’s submitted charge was not specifically related to an accomplice instruction but, rather, was a general credibility instruction. Additionally, the defendant did not object to the court’s instruction regarding Hampton’s accomplice testimony. The court, therefore, was not put on notice regarding an accomplice instruction. Accordingly, this claim was not preserved properly.

Although we have determined that this claim is unpreserved, the defendant nevertheless claims that the court’s accomplice instruction rises to the level of plain error. Practice Book § 60-5. We disagree.

Plain error review “is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. . . . The conditions of character and interest most inconsistent with a credible witness, very frequently, but not always, attend an accomplice when he [or she] testifies. When those conditions exist, it is the duty of the judge to specially caution the jury .... In reviewing a challenge to a portion of the jury instructions, the proper test is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result.” (Citations omitted; internal quotation marks omitted.) State v. Marra, 222 Conn. 506, 525-26, 610 A.2d 1113 (1992). It is “[a]n examination of the totality of the trial court’s instructions [that] reveals [whether] the charge extensively cautioned the jurors to consider the potential motivations and biases of accomplice witnesses.” Id., 526.

Here, the court’s accomplice instruction extensively cautioned the jurors to consider the potential motivations and biases of Hampton. The court explicitly cautioned the jury that the testimony of Hampton may have been colored by his potentially compelling interest in seeking favorable treatment from the state. Accordingly, there is no error so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings, and there was no plain error.

II

The defendant next claims that the court improperly failed to give a jailhouse informant instruction, sua sponte, in connection with the testimony of an inmate, Tyrin Blue. We disagree.

The following additional facts are relevant to the defendant’s claim. At trial, Blue testified that while in a holding cell in Hartford, the defendant admitted that he, Schmidt and Pearson had been to Hartford and engaged in a shoot-out during a botched robbery shortly before the Meriden incident. Blue had contacted the authorities, through his attorney, to determine if the state would provide consideration in his two pending cases in return for his testimony. Blue testified that he expected that his cooperation in testifying against the defendant would result in a more favorable disposition of his pending cases.

At the conclusion of the evidence, the court provided the following general credibility instruction. “Now, in deciding what the facts are, you must consider all the evidence. In doing this, you must decide which testimony to believe and which testimony not to believe. You may believe all, none or any part of any witness’ testimony. In making that decision, you may take into account a number of factors, including the following .... Did the witness have an interest in the outcome of the case or any bias or prejudice concerning any party or any matter involved in the case? How reasonable was the [witnesses’] testimony considered in light of all of the evidence in the case, and was the witness’ testimony contradicted by what the witness has said or done at another time or by the testimony of other witnesses or by other evidence?” The court further instructed the jury that “certain witnesses have taken the [witness] stand and have admitted having been convicted of felonies. . . . You may consider the [witnesses’] prior convictions in weighing the credibility of the witness and give such weight to those facts as you decide is fair and reasonable in determining the credibility of the witness.”

At no time did the defendant ask for a specific charge on jailhouse informant testimony. Moreover, he did not object to the substance of the court’s general credibility instruction. Nevertheless, the defendant again argues that his submitted general credibility charge properly preserved this claim for appeal. As previously discussed, a general subject matter charge does not preserve a claim on appeal when it omits a more specific component. State v. Ramos, supra, 261 Conn. 170-71. The court, therefore, was not put on notice regarding a jailhouse informant instruction, and this claim was not preserved. Although unpreserved, the defendant invites us to conclude that the court improperly failed to give, sua sponte, a special instruction regarding the credibility of a jailhouse informant pursuant to State v. Patterson, 276 Conn. 452, 886 A.2d 777 (2005), which was decided after the defendant’s trial. He argues that the court’s failure to give the special credibility instruction constituted plain error. We disagree.

In Patterson, our Supreme Court concluded that “the testimony of an informant who expects to receive a benefit from the state in exchange for his or her cooperation is no less suspect than the testimony of an accomplice who expects leniency from the state, [and] the defendant was entitled to an instruction substantially in accord with the one that he had sought.” Id., 470. The defendant argues that the court was required under Patterson to give a jailhouse informant instruction. This court already has concluded, however, that the rule announced in Patterson is not of constitutional dimension and, therefore, should not be given retroactive effect. State v. Martinez, 95 Conn. App. 162, 166 n.3, 896 A.2d 109, cert. denied, 279 Conn. 902, 901 A.2d 1224 (2006); see also State v. Gonzalez, 106 Conn. App. 238, 246, 941 A.2d 989 (Patterson claim fails under second prong of State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), pertaining to appellate review of unpreserved claims of constitutional error), cert. denied, 287 Conn. 903, 947 A.2d 343 (2008).

At the time the defendant’s case was concluded, the court was not required to provide, sua sponte, a jailhouse informant instruction. Moreover, this court recently has concluded that the trial court’s failure to give, sua sponte, a jailhouse informant instruction does not present the type of extraordinary situation that warrants plain error review. See State v. Damato, 105 Conn. App. 335, 351-52, 937 A.2d 1232, cert. denied, 286 Conn. 920, 949 A.2d 481 (2008). Furthermore, the court did instruct the juiy on the credibility of witnesses. The defendant, therefore, has failed to demonstrate that the claimed error is so obvious that it affected the fairness and integrity of and public confidence in the judicial proceedings. Accordingly, we conclude that he is not entitled to plain error review of his claim.

Ill

The defendant’s final claim is that the court abused its discretion when it admitted evidence of uncharged misconduct. Specifically, the defendant argues that (1) the prejudicial effects of his statements to the police regarding his involvement in the Hartford incident, shortly before the Meriden shooting, outweighed the probative value of the evidence and (2) the court failed to balance properly the probative value and prejudicial effect. We are not persuaded.

“Generally, [ejvidence of other crimes, wrongs or acts of a person is inadmissible to prove the bad character or criminal tendencies of that person. Conn. Code Evid. § 4-5 (a). Nevertheless, Connecticut Code of Evidence § 4-5 (b) provides: Evidence of other crimes, wrongs or acts of a person is admissible for purposes other than those specified in subsection (a), such as to prove intent, identity, malice, motive, common plan or scheme, absence of mistake or accident, knowledge, a system of criminal activity, or an element of the crime, or to corroborate crucial prosecution testimony. . . . The list of exceptions provided in the code of evidence is not exclusive but rather is intended to be illustrative. . . .

“To determine whether evidence of prior misconduct falls within an exception to the general rule prohibiting its admission, [our Supreme Court has] adopted a two-pronged analysis. . . . First, the evidence must be relevant and material to at least one of the circumstances encompassed by the exceptions. Second, the probative value of such evidence must outweigh the prejudicial effect of the other crime evidence. . . .

“[An appellate court’s] standard of review on such matters is well established. The admission of evidence of prior uncharged misconduct is a decision properly within the discretion of the trial court. . . . [E]very reasonable presumption should be given in favor of the trial court’s ruling. . . . [T]he trial court’s decision will be reversed only where abuse of discretion is manifest or where an injustice appears to have been done.” (Citations omitted; internal quotation marks omitted.) State v. Damato, supra, 105 Conn. App. 353-54.

Here, the uncharged misconduct evidence clearly was relevant. The defendant acknowledges as much, conceding that the evidence was relevant as to the issues of intent and knowledge. Moreover, our review of the record reveals that the court engaged in the requisite balancing test of prejudicial effect and probative value.

When the Hartford evidence first was argued on November 1, 2004, the court stated: “If [the defendant]—if his defense is that he was in the car, this took place, he had no knowledge that it was going to take place, he had no forewarning that it was going to take place, and these guys just jumped out of a car and started shooting, and it came as a complete surprise to him, I mean, the evidence, this incident having taken place that same evening shortly before under very similar circumstances, I think is highly probative. . . . Certainly, prejudicial. If it weren’t prejudicial, the state wouldn’t be offering it, I understand that. But the question is, is it probative and is it more probative than prejudicial? To me, it’s highly probative for the reasons I have stated.”

The following day, the defendant again raised the issue of the Hartford evidence and the court responded: “[I]t just seems to me that the evidence of what took place in Hartford shortly before this, involving exactly the same people, a very similar factual situation where somebody gets out of the car and discharges a firearm, that that certainly is probative, highly probative of [the defendant’s] intent as an accessory with respect to those three counts. And, again, it also—I agree that it also goes with respect to what his knowledge might be as to what was going to take place in Meriden, that situation having recently taken place in Hartford. So, again, I think . . . the probative value of this incident does outweigh the prejudicial nature of it . . . .”

On the basis of the record before us, we conclude that the court engaged in the requisite balancing test. The court found that the Hartford evidence was relevant to the defendant’s intent and knowledge, and although it was prejudicial, it also was highly probative. Moreover, given the defendant’s defense that he was merely an innocent bystander during the Meriden shooting, the evidence was highly probative of the defendant’s intent to commit the acts with which he was charged. Further, because no evidence of any actual injury in the Hartford shooting was admitted at trial, we cannot conclude that the jury’s emotions necessarily were aroused by the defendant’s statement to the police regarding that incident. Accordingly, we cannot say that the court abused its discretion in admitting evidence of the defendant’s prior uncharged misconduct.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant did not testify at trial.

        Patterson can also be distinguished from the present case because the defendant in Patterson objected to the court’s failure to give a requested instruction on the credibility of jailhouse informants, whereas the defendant in the present case made no such objection.

       The defendant also raises the issue that no limiting instruction was given to the jury regarding the Hartford incident in which the jury would be instructed to use the Hartford evidence only to establish the defendant’s intent and knowledge. This argument fails, however, as the defendant never requested a limiting instruction, nor did he object at trial to the lack of a limiting instruction. “It is well established in Connecticut . . . that the trial court generally is not obligated, sua sponte, to give a limiting instruction.” (Internal quotation marks omitted.) State v. Rosado, 107 Conn. App. 517, 528 n.8, 945 A.2d 1028, cert. denied, 287 Conn. 919, 951 A.2d 571 (2008).


source: Caselaw Access Project

author: LAVINE, J.

license: Public Domain

text:
    VIOLET F. MUNDELL v. MORTIMER A. MUNDELL
    (AC 27679)
    McLachlan, Lavine and Beach, Js.

      Argued April 29
    officially released September 23, 2008

      Shawn Council, for the appellant (defendant).

      David P. Mester, with whom was Mark Miller, for the appellee (plaintiff).
   Opinion

LAVINE, J.

The defendant, Mortimer A. Mundell, appeals from the postdissolution judgments of the trial court. Although the defendant has listed fourteen issues in his amended appeal, this court discerns three that require discussion: (1) whether the court, Epstein, J., improperly ordered the suspended portion of the defendant’s child support and alimony obligation to accrue, (2) whether that court improperly denied the defendant’s second motion for modification, and (3) whether the court, Hon. John R. Caruso, judge trial referee, improperly modified the judgment of dissolution by signing a qualified domestic relations order. We affirm the trial court’s judgments suspending a portion of the defendant’s support obligations and signing the qualified domestic relations order and reverse the judgment as to the second motion for modification.

The following facts are relevant to the appeal. The plaintiff, Violet F. Mundell, commenced an action for the dissolution of the parties’ marriage in June, 2001. Judge Caruso granted the dissolution of marriage on October 8, 2002, and ordered, among other things, that the defendant pay the plaintiff $221 per week for child support and $250 per week in alimony for a period of ten years. The court also ordered that “50 [percent] of the present value of $112,400 (= $56,200)” of the defendant’s state of Connecticut pension plan be assigned to the plaintiff via a qualified domestic relations order prepared by counsel for the defendant.

In January, 2006, the defendant filed a motion for modification as to his child support and alimony obligations because he had been “fired from [his] job” and denied unemployment compensation. Judge Epstein found that the defendant was responsible for his loss of employment and ordered him to pay half of his obligations pursuant to the judgment of dissolution with the balance to accrue. The defendant filed an appeal.

The defendant filed a second motion for modification of his child support and alimony obligations in August, 2006, which Judge Epstein denied without reaching the merits of the motion. The defendant amended his appeal to include claims related to the second motion for modification.

On February 8, 2006, and several times thereafter, the plaintiff filed motions for contempt against the defendant for his failure to file the qualified domestic relations order pursuant to the judgment of dissolution. Judge Caruso ordered the defendant to file the qualified domestic relations order, and, when the defendant refused, Judge Caruso signed it over the defendant’s objections. The defendant again amended his appeal. Additional facts will be set forth as necessary.

I

The defendant claims that Judge Epstein abused her discretion when ruling on his motions for modification of child support and alimony by ordering the balance to accrue after ordering the defendant to pay half of his obligations and denying his second motion for modification. We conclude that the court did not abuse its discretion by ordering the defendant to pay half of his obligation with the balance to accrue but did abuse its discretion by failing to consider the merits of the defendant’s second motion for modification of his alimony and child support obligation.

A

The defendant claims that the court abused its discretion when it ruled on his January, 2006 motion for modification of his child support and alimony obligations. The defendant does not take issue with the court’s reducing his child support and alimony obligations by half but claims that it was improper for the court to order the balance of the child support and alimony ordered pursuant to the judgment of dissolution to accrue. We disagree.

On January 3, 2006, pursuant to General Statutes § 46b-86, the defendant filed a motion for modification of his alimony and child support obligations as ordered pursuant to the dissolution judgment. In ruling on the motion to modify on March 21, 2006, Judge Epstein found that the defendant had lost his employment of seventeen years with the state of Connecticut for cause. Due to the circumstances under which he lost his employment, the defendant was not entitled to unemployment compensation. The court found not credible the defendant’s testimony that he was not able to procure some type of employment, and the court was at a loss as to what had happened to the significant sums the defendant had earned during his last year of employment. The court ordered the defendant to perform a documented employment search and return to court on April 5, 2006. In the interim, the court ordered the defendant to pay half of his child support and alimony, “the balance to accrue.” The defendant filed a motion for articulation, which was denied. This court granted the defendant’s motion for review and ordered the trial court to articulate the factual and legal bases for modifying the defendant’s child support and alimony obligations and what it meant by “balance to accrue.”

The court issued its articulation on July 24, 2007, in which it set forth the defendant’s child support and alimony obligations pursuant to the dissolution judgment and found that at the time the defendant lost his job, his children were still minors and his alimony obligation continued. The court also found that during the last year of his employment, the defendant earned approximately $145,000, including overtime compensation. At the time the state terminated the defendant’s employment, it paid him $10,000 for unused vacation time. The defendant was unable to give the court a credible explanation as to what he had done with the compensation that he had earned “so as to assure the court that residuals from those earnings were available to ameliorate the dire circumstances into which he had placed” the plaintiff and their children. The court also found that the defendant failed to explain credibly that he had undertaken a diligent job search or attempted to retrain. The court found that the defendant lacked any commitment to fulfill his responsibilities and that his testimony was a mere plea to the court for favorable treatment, “despite his self-imposed earnings predicament.”

The court also articulated that it ordered the defendant to pay $120 per week for child support, “the balance to accrue,” and $125 per week for alimony, “the balance to accrue.” The court explained that it provided relief to the defendant in lowering his weekly obligations to one half, with the balance to accrue, because the court was of the firm belief that the defendant was capable of earning at least half of what he had previously earned. The court reasoned, citing Sanchione v. Sanchione, 173 Conn. 397, 407, 378 A.2d 522 (1977), and Wanatowicz v. Wanatowicz, 12 Conn. App. 616, 620, 533 A.2d 239 (1987), that the fact that the defendant brought his financial predicament on himself “foreclosed him from legitimately escaping his relatively moderate financial obligations.” The court also did not find credible the defendant’s contention that he had made a diligent attempt to secure employment during the four months between the date he lost his employment and the hearing on his motion to modify.

The court articulated that “balance to accrue” meant that the amount of the support and alimony reduction would accumulate and remain payable at some future date, pending an order of the court. In other words, the defendant’s obligation was not obviated but suspended. The court afforded relief under the then existing circumstances but also found that the dissolution order regarding the defendant’s financial obligations was sound and could not be altered by a substantial change in circumstances brought about by the defendant’s knowledgeable and wilful acts.

“The well settled standard of review in domestic relations cases is that this court will not disturb trial court orders unless the trial court has abused its legal discretion or its findings have no reasonable basis in the facts. ... As has often been explained, the foundation for this standard is that the trial court is in a clearly advantageous position to assess the personal factors significant to a domestic relations case . . . .” (Internal quotation marks omitted.) Simms v. Simms, 283 Conn. 494, 502, 927 A.2d 894 (2007). “[Ujnless the trial court applied the wrong standard of law, its decision is accorded great deference because the trial court is in an advantageous position to assess the personal factors so significant in domestic relations cases . . . .” (Internal quotation marks omitted.) Doody v. Doody, 99 Conn. App. 512, 516, 914 A.2d 1058 (2007).

General Statutes § 46b-86 (a) provides in relevant part: “Unless and to the extent that the decree precludes modification, the court may order . . . any final order for the periodic payment of permanent alimony or support be . . . altered or modified by said court upon a showing of a substantial change in the circumstances of either party . . . .” (Emphasis added.) “The party seeking modification bears the burden of showing the existence of a substantial change in the circumstances.” (Internal quotation marks omitted.) Rosier v. Rosier, 103 Conn. App. 338, 341, 928 A.2d 1228, cert. denied, 284 Conn. 932, 934 A.2d 247 (2007).

“When presented with a motion for modification, a court must first determine whether there has been a substantial change in the financial circumstances of one or both of the parties. . . . Second, if the court finds a substantial change in circumstances, it may properly consider the motion and, on the basis of the [General Statutes § 46b-82] criteria, make an order for modification.” (Internal quotation marks omitted.) Gervais v. Gervais, 91 Conn. App. 840, 850-51, 882 A.2d 731, cert. denied, 276 Conn. 919, 888 A.2d 88 (2005).

The court found that the defendant had lost his source of income when the state of Connecticut terminated his employment because he had used the state’s telephone service to make more than $6000 worth of international calls. Although the defendant claimed that he was unable to meet his financial obligations, the court found that he was capable of earning at least half of what he had earned before he lost his employment. The court ordered the balance of the defendant’s financial obligation to accrue.

The court provided relief under the present circumstances by suspending the defendant’s entire financial obligation to the plaintiff pending further order of the court because it was of the opinion that Judge Caruso’s dissolution order regarding child support and alimony was a sound one. Moreover, the defendant had not demonstrated to the court that he had made a diligent effort to secure employment. The court ordered him to make a specific search for employment and return to court on April 5, 2006, approximately two weeks after issuing its decision.

As claimed by the defendant, the issue before this court is whether the trial court abused its discretion by ordering half of the dissolution support order to accrue while he was unemployed. The court found that the defendant lost his source of income but failed to make a diligent effort to find new employment and was capable of earning at least half of his prior income. The defendant does not claim that these findings are clearly erroneous. Earning capacity may form the basis of an order of support. Wolf v. Wolf 39 Conn. App. 162, 169, 664 A.2d 315 (1995). “In appropriate circumstances, the trial court may base its financial orders on earning capacity rather than actual earned income. . . . The ultimate inquiry in determining the income reasonably available to the supporting paying spouse is the earning capacity of the supporting paying spouse. . . . The weight to be given the evidence and the credibility of the witnesses are within the sole province of the trial court, which had the unique opportunity to view the evidence presented in a totality of circumstances.” (Citations omitted; internal quotation marks omitted.) Broderick v. Broderick, 20 Conn. App. 145, 147-48, 565 A.2d 3 (1989).

“While there is no fixed standard for the determination of an individual’s earning capacity ... it is well settled that earning capacity is not an amount which a person can theoretically earn, nor is it confined to actual income, but rather it is an amount which a person can realistically be expected to earn considering such things as his vocational skills, employability, age and health.” (Citation omitted; internal quotation marks omitted.) Bleuer v. Bleuer, 59 Conn. App. 167, 170, 755 A.2d 946 (2000).

Although the defendant in this case had lost his ability to pay his financial obligations, the court did not improperly fail to relieve him of his obligations entirely. By suspending in part the defendant’s financial obligations because he did not have a job, the court provided temporary relief to the defendant and preserved the plaintiffs right to child support and alimony pursuant to the judgment of dissolution. Although the court found that the defendant was able to earn at least half of his former salary, because he had not secured new employment, there was no evidence of his actual earning capacity. The court therefore ordered the defendant to undertake an intensive employment search and to return to court on a date certain so as to ascertain whether he, in fact, had secured employment and to determine how much he was being paid. The defendant may have secured employment that generated an income that was in fact greater than half of his prior income. The court therefore did not abuse its discretion by ordering the suspended portion of the defendant’s financial obligations to accrue until further order of the court. Compare Schade v. Schade, 110 Conn. App. 57, 954 A.2d 846 (2008) (court properly suspended portion of financial obligation and ordered balance to accrue).

B

The defendant claims that the court improperly denied his second motion for modification. We agree.

On August 28, 2006, the defendant filed a motion for modification pursuant to § 46b-86. In the motion, the defendant asserted that there had been a substantial change of circumstances because he had obtained employment, his older child had reached the age of nineteen and had graduated from high school, and the current order was not based on the child support guidelines and was without explanation. The defendant also requested in the motion that the court “remove [the] accrue language because [of his] inability to pay and [because it is] not supported [by] statute/case law.” On September 27, 2006, the parties appeared before the court to argue the motion for modification. The plaintiff objected to the motion on the basis of the appeal filed by the defendant from the court’s March 21,2006 modification order. The court denied the motion on the basis of the pending appeal and without considering the merits of the motion for modification.

“It has long been settled law that the power of the trial court to open or modify its judgment is not affected by the fact that an appeal from that judgment is pending.” O’Bymachow v. O’Bymachow, 10 Conn. App. 76, 77, 521 A.2d 599 (1987). “It is well established that a ruling by a trial court regarding financial issues in a marital dissolution case—whether it be a pendente lite ruling, a ruling issued in conjunction with a final dissolution judgment or a decision regarding a postjudgment motion—is a final judgment for purposes of appeal.” Ahneman v. Ahneman, 243 Conn. 471, 479, 706 A.2d 960 (1998). Here, although the court denied the defendant’s motion for modification on the basis of the pending appeal, it did so without considering the merits of the motion. Refusing to consider the merits of the motion for modification during the pendency of the appeal “was to foreclose the possibility of relief from the court on those issues, unless and until the resolution of the appeal required further proceedings.” Id., 480. In this instance, the defendant may have been denied relief to which he was entitled and denied the opportunity to persuade the court that he was entitled to the relief requested. See id.

For these reasons, we conclude that the court improperly refused to consider the merits of the defendant’s second motion for modification. The judgment is reversed and the matter is remanded for further proceedings.

II

The defendant’s third claim is that Judge Caruso modified the judgment of dissolution by signing the qualified domestic relations order prepared by the plaintiffs counsel. We decline to review this claim due to inadequate briefing.

The judgment file dated October 8, 2002, signed by Judge Caruso and certified by counsel for the parties provides in relevant part: “IT IS HEREBY ORDERED, that 50 [percent] of the present value of $112,400 (= $56,200) of [the] Defendant’s pension plan be assigned to [the] Plaintiff Ada [a qualified domestic relations order] prepared by [the] Defendant’s counsel. Said transfer shall take place within [thirty] days of the date of the dissolution.” In February, 2006, counsel for the plaintiff filed a motion for contempt, claiming that the defendant had failed and refused to transfer to the plaintiff the pension funds ordered pursuant to the judgment of dissolution. On March 2,2007, following several hearings on the matter, the court signed the qualified domestic relations order, which provided in part: “A. Amount of Benefits: The court hereby orders the plan to pay the alternate payee for the benefit period, as defined below, an amount equal to 50 [percent] of the participant’s monthly retirement payment accrued as of October 8, 2002. The participant’s monthly benefit as of October 8, 2002 is $2,160.00, subject to a reduction of one quarter of one percent [0.25 percent] for each month the participant retires prior to age 62, or age 60 with 25 or more years.” On appeal, the defendant claims that by signing the qualified domestic relations order, the court modified the terms of the judgment, but he has failed to provide legal analysis as to how or why the qualified domestic relations order is at odds with the dissolution judgment.

“[W]e are not required to review issues that have been improperly presented to this court through an inadequate brief. . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failing to brief the issue properly.” (Internal quotation marks omitted.) Turner v. American Car Rental, Inc., 92 Conn. App. 123, 130, 884 A.2d 7 (2005). “[F]or this court judiciously and efficiently to consider claims of error raised on appeal . . . the parties must clearly and fully set forth their arguments in their briefs. We do not reverse the judgment of a trial court on the basis of challenges to its rulings that have not been adequately briefed. . . . The parties may not merely cite a legal principle without analyzing the relationship between the facts of the case and the law cited. . . . [Assignments of error which are merely mentioned but not briefed beyond a statement of the claim will be deemed abandoned and will not be reviewed by this court. . . . Where the parties cite no law and provide no analysis of their claims, we do not review such claims.” (Internal quotation marks omitted.) Russell v. Russell, 91 Conn. App. 619, 634-35, 882 A.2d 98, cert. denied, 276 Conn. 924, 925, 888 A.2d 92 (2005). Briefs submitted to this court require rigorous legal analysis. It is not the role of this court to undertake the legal research and analyze the facts in support of a claim or argument when it has not been briefed adequately. For this reason, we decline to review the claim.

The judgment denying the August, 2006 motion for modification is reversed and the case is remanded for further proceedings on that motion. The judgments are affirmed in all other respects.

In this opinion the other judges concurred.

       The court ordered the defendant, who has a high school education, to perform a documented employment search, visiting in person at least five potential employers per day, at least five days per week. The defendant was to continue his employment search until he obtained employment of forty hours per week or April 5, 2006, at which time he was to return to court.

       The defendant reimbursed the state for the cost of the telephone calls.

       The record does not contain any facts as to whether the defendant returned to court on April 5, 2006.


author: DiPENTIMA, J.

text:
    KANDY ESPOSITO v. DAVID BANNING
    (AC 28661)
    Bishop, DiPentima and Mihalakos, Js.
    Argued April 30
    officially released September 23, 2008

      Gail M. Lawrence, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellant (state).

      Daniel W. Adelman, for the appellee (defendant).
   Opinion

DiPENTIMA, J.

This appeal is the result of a case losing its way in our family courts. The state of Connecticut, support enforcement services, appeals from the trial court’s judgment reversing an order of the family support magistrate on the ground that the order was an unauthorized retroactive modification of a child support obligation. On appeal, the state claims that the court improperly reversed the decision of the family support magistrate by finding that a temporary order was a final order. We agree and reverse the judgment of the trial court.

The procedural history and facts demonstrate how delays hinder the effective administration of support obligations in our family courts. On January 26, 2004, the defendant, David Banning, filed a motion for modification of his child support obligation, stating that his financial circumstances had changed substantially because he had been laid off from his job. On March 26, 2004, the family support magistrate, Susan Baran, held a hearing on the motion, at which both parties appeared pro se. Magistrate Baran reduced, on a temporary basis, the defendant’s child support order from $267 per week for three children to $128 per week, unallocated for two children. The order was based on the defendant’s unemployment compensation, and, thus, the matter was continued until May 14, 2004, for the defendant to be able to look for new employment.

On May 14, 2004, the parties appeared again before Magistrate Baran. The defendant stated that he had found new employment but that he would not be starting work until June 1, 2004. The matter was continued until July 9, 2004, so the defendant could begin work and receive a paycheck to provide documentation of his employment and income. Magistrate Baran kept the support payment the same until the parties returned in July.

On July 9, 2004, the parties appeared before Magistrate Baran. At this time, the defendant was represented by counsel. Counsel, who had been retained by the defendant that morning, questioned the constitutionality of the temporary order and asked for a continuance. Magistrate Baran considered denying the request for a continuance because the purpose of the previous continuance was to allow the defendant to bring in his pay stubs, which he had done. Magistrate Baran stated that the purpose had not been so that the defendant could retain counsel and that counsel should not have taken the case if he were not prepared to go forward that day. Counsel, in an attempt to persuade Magistrate Baran to grant the continuance, stated: “In light of the fact that it’s a modification, and any orders are presumed to be retroactive to today’s date, I don’t see where there’s any prejudice in coming back in two weeks.” Magistrate Baran declined to rule at that time on the issue of retroactivity but did grant the continuance. Despite counsel’s request for two weeks, the court was unable to set the next date for the parties to appear until September 24, 2004.

It was not until February 14, 2005, that the parties returned to court, this time before family support magistrate John P. McCarthy. At this hearing, the defendant challenged the authority of the court to enter a temporary modification and argued that a final order had been entered in March, 2004. The state appeared and argued that a final order had not been entered and that the magistrate should enter a final order which would be retroactive from July 9,2004, or from the date of service of the motion, March 8, 2004.

On July 28, 2005, Magistrate McCarthy issued a memorandum of decision, concluding that temporary orders were authorized and ordering the clerk’s office to set a date for a hearing to determine final, permanent orders for child support. After a clerical mistake led to an extended delay, a hearing before Magistrate McCarthy was held on June 16, 2006. On that date, Magistrate McCarthy entered a final order for child support in the amount of $256 per week retroactive from August 1,2005. The magistrate stated that he could have made the order retroactive to the date of service but that he set the date as August 1, for reasons of equity and because that was the date the defendant started his employment.

On June 26, 2006, the defendant filed an appeal as to the portion of the magistrate’s order that gave retro-activity to the child support order from August 1, 2005. On December 13, 2006, the court reversed the decision of Magistrate McCarthy and remanded the case for further proceedings, stating: “The order of the family support magistrate was in effect a modification of the existing child support order of $128 per week. . . . Moreover, the magistrate improperly entered an order that retroactively modified the [defendant’s] child support obligation.” (Citation omitted.) This appeal followed.

The state argues that the court improperly concluded that the March 26, 2004 temporary order that was entered was a final order and that therefore the family support magistrate was precluded under General Statutes § 46b-86 (a) from making the order entered on June 16,2006, retroactive from August 1,2005. We agree.

The state’s claim rests on our interpretation of § 46b-86 (a). “The interpretation of a statute, as well as its applicability to a given set of facts and circumstances, involves a question of law and our review, therefore, is plenary.” Commissioner of Social Services v. Smith, 265 Conn. 723, 734, 830 A.2d 228 (2003). “When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. . . . In seeking to determine that meaning, General Statutes § l-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.” (Internal quotation marks omitted.) Pritchard v. Pritchard, 103 Conn. App. 276, 283, 928 A.2d 566 (2007).

We begin with the language of § 46b-86 (a), which provides in relevant part: “No order for periodic payment of permanent alimony or support may be subject to retroactive modification, except that the court may order modification with respect to any period during which there is a pending motion for modification of an alimony or support order from the date of service of notice of such pending motion upon the opposing party . . . .” (Emphasis added.) General Statutes § 46b-86 (a). Thus, according to the plain language of the statute, retroactive modification is permitted if there is a pending motion. The question then is whether there was a pending motion for modification.

Family support magistrates have the power to hear and determine all motions for modification of child support; see General Statutes § 46b-231 (m); and such power includes the ability to issue temporary support orders. See General Statutes § 46b-231 (b) (14) (defining support orders as “ajudgment, decree or order, whether temporary, final or subject to modification” [emphasis added]). In Johnson v. Johnson, 185 Conn. 573, 577, 441 A.2d 578 (1981), our Supreme Court recognized the ability of a trial court to accommodate temporary changes in a party’s financial circumstances. In that case, the trial court temporarily reduced the defendant’s monthly payments for a period of time. Id. The Supreme Court determined that upon the expiration of that period, the parties had returned to court on the defendant’s motion and that the effect of the temporary order had not been to “blot out” the initial judgment originally ordered, but rather to provide the defendant with a limited period of relief. Id., 577-78.

In the present case, Magistrate Baran issued a temporary order to provide immediate, limited relief to the defendant until he could obtain employment. A review of the record demonstrates that after this order was entered, the parties returned to court several times on the defendant’s motion for modification before a final order could be entered. We conclude that the initial motion was undecided and, thus, still pending for purposes of retroactivity. Therefore, because the motion was still pending, the court improperly concluded that the order modified an existing child support order, and we conclude that the magistrate was not prohibited by § 46b-86 (a) from making the support payments retroactive from August 1, 2005.

The judgment is reversed and the case is remanded for further proceedings according to law.

In this opinion the other judges concurred.

       The state brings this appeal under the authority of General Statutes § 46b-231 (t) on behalf of support enforcement services, which is acting on behalf of the plaintiff, Kandy Esposito.

       The state also claims that the court improperly expanded the scope of its review beyond the issue raised in the appeal by the defendant, David Banning, but because of our resolution of the state’s other claim, we need not address this claim.

       A11 hough not stated explicitly at the hearing, both parties agreed that the emancipation of their oldest child created a separate change in circumstances.

       On that date, the state requested a continuance to respond to the defendant’s memorandum of law, and the plaintiff requested a continuance to obtain private counsel. The magistrate acceded and continued the matter. After this, there were further continuances granted due to scheduling conflicts of the parties and the court.

       The defendant appealed from Magistrate McCarthy’s ruling to the Superior Court, but the record reveals that there was no further action taken on that appeal.

       We note that the record reveals that June 1, 2004, was the date on which the defendant was employed. The state does not challenge this on appeal.

       It was more than one year after the defendant’s reemployment that a final child support order was entered, resulting in a substantial arrearage owed to the plaintiff; such a delay was unfortunate for all parties.


text:
    GLADYS NEGRO v. JOHN METAS
    (AC 28213)
    McLachlan, Lavine and Robinson, Js.

      Argued January 23
    officially released September 23, 2008

      Joseph P. Ziehl, for the appellant (administratrix of the estate of the plaintiff).

      Susan M. Phillips, for the appellee (defendant).
   Opinion

LAVINE, J.

The issue raised in this appeal is whether the trial court improperly denied the motion to open the judgment of dismissal. The action was dismissed because the fiduciary of the deceased’s estate had not been substituted as the party plaintiff pursuant to court order. Before we can reach this claim, however, we must determine whether the appeal is properly before us. We conclude that it is and that it has merit. We therefore reverse the judgment of the trial court.

The following factual and procedural history is relevant to our decision. In the spring of 2001, Gladys Negro (deceased) commenced an action on a promissory note against the defendant, John Metas, her son-in-law. The deceased alleged that the defendant was a resident of the state of Nevada, conducting business in the state of Connecticut. The complaint further alleged that on November 11, 1995, the defendant executed a promissory note under which he promised to pay the deceased the sum of $900,000 in forty-seven equal monthly installments of $5000, which represented interest only, on the first day of each month from March, 1996, through March, 2000. The balance due on the note was payable on April 1, 2000. The note provided, in part, that if the defendant failed to make full and timely payment of any monthly installment by the fifteenth day of any month, payment on the remaining unpaid installments would be accelerated and become due and payable. Furthermore, if the deceased had to retain the services of an attorney for collection, the defendant would be liable for reasonable attorney’s fees and costs. The complaint alleged that the defendant had made the required monthly payments for March, April, May and June, 1996, and neglected or refused to pay the remaining installments on the note or the balance due. At the time the action was commenced, the deceased alleged that the defendant owed her $1,277,000 plus accruing interest.

The defendant acting pro se denied the principal allegations of the complaint and alleged six special defenses, including failure to state a cause of action, a prior pending action in the federal Bankruptcy Court, lack of standing, laches, unclean hands and equitable estoppel. The deceased denied each of the special defenses.

The defendant attempted to remove the case to federal District Court in Nevada. The District Court denied the removal and awarded the deceased attorney’s fees and costs, which the defendant has not paid. The removal process stayed the present action from August, 2004, until February, 2005. Since that time, we note that, the defendant has filed eight motions for a continuance.

The representations of the parties and the record disclose that the deceased died on June 8, 2005. Prior to her death, she executed a new will in which she bequeathed her estate to her three daughters in equal shares. The deceased, however, named Sharon L. Freddo as executrix, rather than Lori A. Metas, who had been named executrix in the deceased’s prior will. Freddo and Lori Metas, sisters, are daughters of the deceased. Lori Metas, the defendant’s wife, contested the new will in the Court of Probate. The Court of Probate, Hon. John W. Cooney, appointed Freddo temporary administratrix of the estate on October 13,2005.

On or about October 3, 2005, the defendant, who had been proceeding pro se, retained the law firm of Pepe & Hazard, LLP, to represent him. Pursuant to the trial management schedule, trial was to commence on April 11, 2006. On March 31, 2006, the defendant filed a motion to dismiss the action on the ground that Freddo had failed to be substituted as the plaintiff. The trial court, Scholl, J., heard argument on the motion on April 5, 2006, six days prior to the date trial was to begin. Attorney Joseph P. Ziehl, counsel prosecuting the action, represented to the court that in September, 2005, he had filed a motion to substitute Freddo, administratrix, as plaintiff in this action but that the motion never appeared on any calendar, was not heard and was not reclaimed. Ziehl also represented that the matter of substitution had been discussed at several pretrial hearings with no objection. Judge Scholl ordered Ziehl to file and have granted a motion to substitute by April 11, 2006, or the case would be dismissed. The transcript of the proceedings before Judge Scholl reveals that the defendant’s counsel never voiced any objection to Freddo’s being substituted as the fiduciary to prosecute the action or to the substitution.

At the time Judge Scholl ordered Ziehl to file a motion to substitute, she also granted a motion to withdraw as counsel filed by Pepe & Hazard, LLP. On April 7, 2006, the pro se defendant filed a motion to continue the date of trial. On April 10, 2006, the court, Bryant, J., continued the trial until October 4, 2006.

On April 6, 2006, Ziehl filed a motion to substitute party pursuant to General Statutes § 52-599, specifically asking that Freddo as administratrix be substituted as the party plaintiff in lieu of the deceased. On May 6, 2006, the defendant filed an objection to the motion to substitute, claiming that Freddo did not have permission from the Court of Probate to participate in the present action. The court, Hon. Mary R. Hennessey, judge trial referee, heard oral argument on the motion on July 10, 2006. The defendant participated in the argument telephonically and represented to the court that Freddo had been appointed temporary administratrix of the deceased’s estate for the purpose of providing the Court of Probate with an inventory and accounting and that Freddo had not requested permission from the Court of Probate to be substituted as the plaintiff in this action. Ziehl argued that the term administratrix includes the temporary administratrix and that Freddo was appointed for the sole purpose of taking this case to trial. Freddo was appointed temporary administratrix, rather than executrix, due to the will contest filed by Lori Metas. Ziehl also pointed out that the probate decree that was appended to the motion to substitute indicates that Freddo was empowered “to do all acts necessary to preserve the assets of the estate.” The court sustained the defendant’s objection to the motion to substitute and ordered Ziehl to obtain from Judge Cooney a clarification of Freddo’s authority.

On August 28, 2006, the then pro se defendant filed a motion to enforce Judge Scholl’s order of April 5, 2006, which directed that Freddo be substituted as the party plaintiff by April 11, 2006, or the action would be dismissed. He also represented that Judge Hennessey had ordered that clarification of Freddo’s authority be requested of the Court of Probate and that to the date of his motion, no such hearing had taken place. Moreover, the defendant stated that no motion to substitute Freddo as the party plaintiff had been filed since April 6, 2006. The defendant represented that Ziehl had misrepresented Freddo’s authority to the Superior Court and requested that Judge Scholl’s order of April 5, 2006, be enforced by dismissing the action.

On September 6, 2006, Ziehl filed an objection to the defendant’s motion to enforce Judge Scholl’s order. In the objection, Ziehl represented that pursuant to Judge Hennessey’s order, a hearing was immediately requested in the Probate Court and was scheduled to take place on August 11, 2006, but was continued. Ziehl also represented that the hearing in the Probate Court was rescheduled to take place on September 8, 2006, at which time the issue of Freddo’s authority would be clarified. Moreover, trial of the matter was scheduled to begin on October 4, 2006. On September 11, 2006, an amended motion to substitute party plaintiff was filed in the trial court. The motion stated that “[o]n September 8, 2006, the Probate Court ordered the appointment of Sharon L. Freddo, daughter of the deceased Gladys Negro, as the Executrix of the Estate.”

On September 15, 2006, Judge Scholl rendered an order on the defendant’s motion to enforce her order of April 5, 2006. In her order, Judge Scholl recited the procedural history through Judge Hennessey’s July 10, 2006 order. She also stated that “[t]he defendant has now moved to enforce the court’s order of April 5, 2006. The [counsel for the deceased] objects, claiming that there is a hearing in the Probate Court scheduled for September 8,2006, at which time the issue of the authority to proceed with this action will be clarified. As of this date, there has been no motion to substitute as required by the court’s order of April 5, 2006, nor is such motion pending. Therefore, the case is dismissed in accordance with that order.” (Emphasis added.)

On September 28, 2006, Ziehl filed a motion to open the judgment of dismissal pursuant to Practice Book § 17-4. Judge Scholl denied the motion to open the judgment of dismissal on October 23, 2006.

An appeal was filed on November 9,2006. Ziehl signed the docketing statement on behalf of “Gladys Negro; Gladys Negro, deceased; and the estate of Gladys Negro by Sharon L. Freddo, executrix.” The docketing statement listed the parties as “John Metas, pro se party defendant . . . Gladys Negro, deceased plaintiff . . . Gladys Negro plaintiff . . . Sharon L. Freddo, executrix of the estate of Gladys Negro, nominal plaintiff.” The defendant retained new counsel, briefs were filed and counsel for both parties appeared for oral argument before this court on January 23, 2008. In reviewing the file thereafter, we concluded that no person formally was recognized to prosecute the appeal.

On March 13, 2008, we sua sponte issued the following order. “The parties are hereby ordered to submit simultaneous supplemental briefs of no more than eight pages by Friday, April 4, 2008, giving reasons, if any, why the appeal should not be dismissed as the fiduciary of the estate of Gladys Negro has not yet filed a motion to be made a party to the appeal. See Burton v. Browd, 258 Conn. 566 [783 A.2d 457] (2001).”

On April 2,2008, we received a motion entitled “plaintiff/appellant’s motion to make Sharon L. Freddo, executrix, a party to this appeal.” On April 23, 2008, the defendant filed a motion for permission to file an opposition out of time to the motion to substitute plaintiff on appeal. On May 1, 2008, we received “plaintiffs objection to defendant’s motion for permission to file objection out of time.” To resolve the appeal, we first must address the motion to make Freddo, executrix, a party to this appeal and then the question of whether the court abused its discretion in failing to open the judgment of dismissal.

I

MOTION TO BE SUBSTITUTED AS THE PARTY PLAINTIFF

On April 2, 2008, pursuant to Practice Book § 62-5, Freddo as executrix of the estate of the deceased filed a motion to be substituted as the party plaintiff in this appeal. On April 23, 2008, the defendant filed a motion for permission to file an opposition out of time to the motion to substitute plaintiff on appeal. We hereby grant the motion for permission to file late and the motion to substitute Freddo as the party plaintiff.

When we became aware that no legal entity was prosecuting this appeal, we issued sua sponte an order for supplemental briefs in which we cited Burton v. Browd, supra, 258 Conn. 566. In that case, the plaintiff prevailed in the trial court but filed a motion for reargument as to the court’s award of damages. Id., 567-68. During oral argument on the motion to reargue, the plaintiff learned that the defendant had died. Id., 568. The plaintiff therefore moved for a continuance to substitute the estate of the deceased defendant. Id. The trial court denied both the motion for a continuance and the motion for reargument. Id. The plaintiff appealed, claiming in part that the court improperly had denied the motion for a continuance. Id. This court, “sua sponte, ordered the parties to appear before it to present reasons why the appeal . . . should not be dismissed for failure of either party to substitute a representative of the defendant’s estate.” Id., 569. The day before the hearing in this court, the plaintiff filed a motion for leave to substitute parties and so informed this court at the time of the hearing. Id. Nonetheless, this court dismissed the appeal for failure to substitute and denied the motion for leave to substitute. Id.

On appeal to our Supreme Court, the plaintiff claimed that this court improperly dismissed her appeal because she had not substituted the estate of the deceased defendant in this court “because her failure to substitute the defendant’s estate resulted directly from the action by the trial court that was one of the grounds for her appeal to the Appellate Court.” Id., 571. Our Supreme Court ruled that by dismissing the appeal, this court denied the plaintiff the “opportunity to obtain judicial review of the trial court’s actions,” which constituted an abuse of discretion. Id., 572.

In this case, the plaintiff claims on appeal that Judge Scholl abused her discretion by denying the motion to open the judgment of dismissal and by granting the motion to dismiss. We cannot review the merits of the appeal without a person legally authorized to prosecute the appeal. Given the circumstances of this case, judicial review of the trial court’s rulings should be afforded. We therefore grant the motion to substitute Freddo as the party plaintiff.

II

CLAIMS ON APPEAL

The substitute plaintiff claims that the court improperly (1) denied the motion to open the judgment of dismissal and (2) failed to substitute her as the party plaintiff. We agree.

“A motion to open and vacate a judgment ... is addressed to the [trial] court’s discretion, and the action of the trial court will not be disturbed on appeal unless it acted unreasonably and in clear abuse of its discretion. ... In determining whether the trial court abused its discretion, this court must make every reasonable presumption in favor of its action. . . . The manner in which [this] discretion is exercised will not be disturbed so long as the court could reasonably conclude as it did.” (Internal quotation marks omitted.) Skinner v. Doelger, 99 Conn. App. 540, 546, 915 A.2d 314, cert. denied, 282 Conn. 902, 919 A.2d 1037 (2007). “Inherent ... in the concept of judicial discretion is the idea of choice and a determination between competing considerations. ... A court’s discretion must be informed by the policies that the relevant statute is intended to advance. . . . When reviewing a trial court’s exercise of the legal discretion vested in it, our review is limited to whether the trial court correctly-applied the law and reasonably could have concluded as it did.” (Internal quotation marks omitted.) Sabanovic v. Sabanovic, 108 Conn. App. 89, 92, 946 A.2d 1288 (2008).

The following additional facts are relevant to the resolution of the substitute plaintiffs claim. In the September 28, 2006 motion to open the judgment of dismissal, Ziehl addressed the issues cited by Judge Scholl in her order dismissing the case. He represented that the amended motion to appoint Freddo as the substitute plaintiff was pending in court on September 15, 2006, but had not yet been logged into the court’s docket. He also represented that a probate hearing scheduled pursuant to Judge Hennessey’s order was initially scheduled for August 11, 2006, but was postponed at the request of Lori Metas.

On October 12, 2006, the defendant filed an objection to the motion to open. On October 16, 2006, Ziehl filed a reply to the defendant’s objection to the motion to open to which were attached a copy of Michael J. Whelton’s July 11, 2006 letter to Judge Cooney and a copy of Judge Cooney’s memorandum to the Superior Court dated October 11, 2006. Judge Scholl denied the motion to open the judgment on October 23, 2006, stating: “This litigation has been pending for over five years. No proper motion to substitute the executrix or administratrix of the estate as plaintiff was made within the six month period provided for in [§ 52-599 (b)], and no good cause exists for the failure to do so, especially in light of the plaintiffs counsel’s claim that the pursuit of this litigation was ‘the entire reason for [Freddo’s] appointment [as temporary administratrix] in the first place,’ that is, on October 13, 2005, and no proper motion to substitute was timely granted as required by the court’s order of April 6, 2006, in response to the defendant’s motion to dismiss.”

“Although at common law the death of a sole plaintiff or defendant abated an action; Barton v. New Haven, 74 Conn. 729, 730, 52 A. 403 (1902); by virtue of § 52-599, Connecticut’s right of survival statute, a cause of action can survive if a representative of the decedent’s estate is substituted for the decedent. It is a well established principle, however, that [djuring the interval. . . between the death and the revival of the action by the appearance of the executor or administrator, the cause has no vitality. The surviving party and the court alike are powerless to proceed with it. Id., 730-31; see, e.g., Boucher Agency, Inc. v. Zimmer, 160 Conn. 404, 407, 279 A.2d 540 (1971) . . . .” (Internal quotation marks omitted.) Burton v. Browd, supra, 258 Conn. 570-71. Moreover, the language of § 52-599, and its predecessor, has been construed to mean that the fiduciary may be substituted as a matter of right within the time prescribed by the statute, but the court in its discretion may permit the fiduciary to be substituted after the time prescribed for good cause shown. See Hatch v. Boucher, 77 Conn. 347, 349-50, 59 A. 422 (1904); Warner v. Lancia, 46 Conn. App. 150, 155, 698 A.2d 938 (1997). Statutes in derogation of the common law are remedial in nature and are to be liberally construed to implement their remedial purpose. See F. B. Mattson Co. v. Tarte, 247 Conn. 234, 238, 719 A.2d 1158 (1998).

The case of Hennessy v. Denihan, 110 Conn. 646, 149 A. 250 (1930), guides our decision here. In Hennessy, James Hennessy, the sole devisee, legatee and executor, filed a written document purporting to be the will of Mary Maguire in the Court of Probate for the district of Torrington. Id., 647. The document named him as the sole heir. Following a hearing, the Probate Court adjudged that the document was not Maguire’s will. Id. Between the date of the hearing and issuance of the court’s degree, Hennessy died. Id. Michael Hennessy was appointed administrator of the estate of James Hennessy and filed a petition in the Probate Court to open the judgment as to Maguire’s will and that he be substituted for James Hennessy as the executor of Maguire’s estate. Id., 647-48. The Court of Probate denied the petition, and Michael Hennessy appealed to the Superior Court, which dismissed the appeal for lack of jurisdiction. Id., 648. Michael Hennessy appealed to our Supreme Court. Id.

Our Supreme Court explained that the Probate Court decree denying Maguire’s will was not rendered void because James Hennessy had died; the judgment was “merely irregular.” Id., 649. “Forms of proceeding for the accomplishment of justice, whether through the use of a legal fiction or of particular kinds of judicial processes, are but means to an end. They are not so essential to its attainment that every departure from them makes what is done a nullity.” (Internal quotation marks omitted.) Id. The Probate Court decree was valid until it was set aside in a proper proceeding. Id. The right of an appeal was not lost by reason of James Hennessy’s death; it survived in favor of the administrator of his estate. Id., 649-50. Although Michael Hennessy had no right to have the probate decree set aside in that court, as the administrator of James Hennessy’s estate, he had the right to take an appeal to the Superior Court. Id., 650. The right to appeal “was not lost, since the death of James Hennessy suspended the running of the time within which such appeal might be taken.” Id.

Section 52-599 (b) provides in relevant part that “[i]f a party plaintiff dies, his executor . . . may enter within six months of the plaintiffs death or at any time prior to the action commencing trial and prosecute the action . . . .” In this action, the deceased died on June 8, 2005, and her will was submitted to the Court of Probate in July, 2005. Lori Metas contested the will, and Freddo, the named executrix, was appointed temporary administratrix on October 13, 2005. On April 6, 2006, a motion was filed in the Superior Court to substitute Freddo as the plaintiff in this action. “ [T]he period fixed for taking an appeal would begin to run when the administrator upon his estate was appointed.” Hennessy v. Denihan, supra, 110 Conn. 650. A motion to substitute Freddo as the party plaintiff, therefore, was filed within six months of her appointment as temporary administratrix and before trial and should have been granted as a matter of right. The court’s finding that the motion to substitute was not timely filed is clearly erroneous.

Judge Scholl granted the motion to dismiss, in part, because the motion to substitute had not been filed in conformity with her April 5, 2006 order. Judge Scholl ordered that the motion to substitute be filed and granted by April 11, 2006, the date on which trial originally was to commence. The record demonstrates that the motion to substitute was filed on April 6, 2006, but was not heard until July 10, 2006, at which time Judge Hennessey denied it. Although counsel and pro se parties have the power to file a motion to substitute, they lack the authority to have such a motion, or any motion, granted. Only a judge of the Superior Court has the power and authority to grant a motion to substitute. It was therefore an abuse of the court’s discretion to deny the motion to open the judgment because the motion to substitute had not been granted by April 11, 2006.

Moreover, in its September 15, 2005 memorandum of decision in which it dismissed the action, the court stated that no motion to substitute Freddo as the party plaintiff was then pending. In the motion to open the judgment of dismissal, Ziehl represented that such a motion had been filed on September 11, 2005, but that it had not been docketed timely. That representation should have given the court pause, as delays occur in the clerk’s office from time to time. As the file demonstrates, the motion had been filed but not docketed. Parties ought not be deprived of a legal claim due to the untimely docketing of motions.

Finally, the court stated in denying the motion to open the judgment that no good cause existed for failing to substitute Freddo as the plaintiff to prosecute the action. At the time the motion to open was ruled on, there was a memorandum from Judge Cooney explaining the will contest and that Freddo was appointed temporary administratrix of the estate to preserve the major asset of the estate, this litigation. Whelton’s letter makes clear the reason for the delay in having Freddo’s authority clarified; that is that Lori Metas sought a continuance of the August 6, 2006 probate hearing. Judge Cooney’s memorandum and Whelton’s letter raise questions about the representations of the defendant as to the scope of Freddo’s authority as temporary administratrix and explain the reason for the delay.

Judicial discretion “imports something more than leeway in decision making and should be exercised in conformity with the spirit of the law and should not impede or defeat the ends of substantial justice. . . . [Reversal is required where the abuse is manifest or where injustice appears to have been done.” (Citation omitted; internal quotation marks omitted.) Burton v. Browd, supra, 258 Conn. 570. The allegations of the complaint state a cause of action involving a substantial sum of money—$1.277 million plus accruing interest— owed the deceased’s estate. Section 52-599 was enacted to ensure that a cause of action would not be lost due to the death of a party. A motion to substitute Freddo had been filed within six months of her appointment, and prior to trial, and an amended motion was pending in the court when the action was dismissed.

To the extent that the defendant claims that he will be prejudiced by the substitution of Freddo as the party plaintiff, the argument is unpersuasive. The facts of this case are well known to the defendant, and he himself is responsible, in part, for the delay by opposing the motion to substitute filed on April 6, 2006. He also sought and received a continuance of trial from April 11, 2006, until October 4, 2006, and his wife sought postponements in the Probate Court. By the latter date, Freddo had been appointed executrix of the estate, and a motion to substitute her as the party plaintiff was pending in the trial court. For these reasons, we conclude that the court abused its discretion when it denied the motion to open the judgment of dismissal.

The judgment is reversed and the matter is remanded with direction to open the judgment and grant the motion to substitute and for further proceedings.

In this opinion the other judges concurred.

       The claims raised in this appeal are that (1) the court abused its discretion by (a) denying the motion to open the judgment of dismissal and (b) dismissing the action, and (2) the misrepresentations and actions of the defendant, John Metas, should preclude the remedy of dismissal.

       The brief submitted on behalf of Sharon L. Freddo represents that when the deceased and her husband were divorced, the deceased received an award of alimony secured by several parcels of real property in Connecticut. The former husband filed a petition in bankruptcy that prevented him from fulfilling his obligation to pay the deceased alimony. The deceased transferred her secured interest in the land to the defendant, a Las Vegas entertainment producer, who promised to help the deceased turn her claims against her former husband into cash, in consideration of the $900,000 promissory note. The defendant obtained judgments of foreclosure with respect to all of the real property, sold the parcels but failed to pay the deceased more than four monthly installments on the note.

       This court may take judicial notice of the trial court file. See Syragakis v. Syragakis, 79 Conn. App. 170, 175, 829 A.2d 885 (2003).

       The probate decree stated in part: “After due hearing had, the Court finds that Gladys Negro aka Gladys Irwin Negro, late of Manchester, CT, died on the 8th day of June, 2005, possessed of goods and estate remaining to be administered and that it is necessary for the protection of said estate that a temporary administrator be appointed forthwith for the purpose of preserving, protecting, and maintaining the assets of said estate. There will be no distribution from said estate.”

       Pepe & Hazard, LLP, also was representing Lori Metas in the Court of Probate.

       The court file does not contain a motion to substitute filed in September, 2005.

       In the motion to withdraw, James G. Green, Jr., represented that “irreconcilable differences have arisen between [Pepe & Hazard, LLP, and the defendant]. These differences are grounded in the parties’ inability to agree upon the means by which [the defendant’s] objectives are to be pursued and his case presented.”

       In his motion for a continuance of the date of trial, the defendant represented, in part, that he needed time to retain new counsel and that the trial was scheduled to commence during Holy Week and that he did not want to travel and be away from his family and church at that time.

       General Statutes § 52-599 provides in relevant part: “(a) A cause or right of action shall not be lost or destroyed by the death of any person, but shall survive in favor of or against the executor or administrator of the deceased person.
      “(b) A civil action or proceeding shall not abate by reason of the death of any party thereto, but may be continued by or against the executor or administrator of the decedent. If a party plaintiff dies, his executor or administrator may enter within six months of the plaintiffs death or at any time prior to the action commencing trial and prosecute the action in the same manner as his testator or intestate might have done if he had lived.

       See 2 Connecticut Practice Series: Civil Practice Forms (4th Ed. 2004) § 106.8.

       In his objection, the defendant represented that the deceased’s last will was filed in the Manchester Court of Probate on or about August 5, 2005, by attorney Michael Whelton, who asked that Freddo be appointed executrix of the estate. Lori Metas filed a written objection to the will submitted and to Freddo’s appointment. A hearing was held before Judge Cooney, judge of probate, on October 13, 2005. The defendant further represented that the parties agreed to allow Freddo to be named temporary administratrix for the purposes of emergency situations only and that she could not take any actions without the Probate Court’s approval. The defendant noted that the motion to substitute incorrectly represented that Freddo was the administratrix of the estate. Moreover, Freddo has not sought the approval of the Probate Court to insert herself in the pending action.

       Practice Book § 17-4 (a) provides in relevant part: “Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, any civil judgment or decree rendered in the superior court may not be opened or set aside unless a motion to open or set aside is filed within four months succeeding the date on which notice was sent. . . .”

       Practice Book § 62-5 provides: “Any change in the parties to an action pending an appeal shall be made in the court in which the appeal is pending. The appellate clerk shall notify the clerk of the trial court of any change.”

       We take judicial notice that the amended motion to substitute was date stamped by the clerk’s office for the judicial district of Hartford on September 11, 2006, and is number 138 on the court’s docket.

       See footnote 11.

       Whelton’s letter to Judge Cooney states in part: “On October 13, 2005, you appointed . . . Freddo as temporary administrator of [the deceased’s] estate pursuant to an application filed under date of July 29, 2005. The temporary nature of said appointment resulted from an agreement reached by the three daughters of the [deceased] as one sibling, Lori Metas, had objected to said appointment. The basis of said objection was that the [deceased] had sued [the defendant] for defaulting on a promissory note that had a face value of $900,000.00. This note constitutes the most significant asset of the estate. All parties, including [Lori] Metas’ counsel, had agreed, in chambers, that a temporary administrator needed to be appointed to pursue the litigation brought against [the defendant]. However, [the defendant] has now taken the position, in civil court, that [Y]our Honor’s order did not grant the temporary administrator the power to continue to prosecute the [deceased’s] claim against [the defendant]. For that reason, I would request that an order be issued by your court, if appropriate, confirming the fact that the temporary administrator does have the power to so prosecute said claim.”

       Judge Cooney’s memorandum, prepared at Ziehl’s request, stated in part: “The Probate Court appointed a Temporary Administrator in the above referenced matter as a result of an Objection to the Admission of the Will and the appointment of the proposed Executrix by an heir at law, Lori Metas . . . with the understanding that one of the major assets of the estate was a lawsuit pending in Superior Court and that it was understood that a fiduciary—temporary administrator, needed to be appointed to ‘legally’ stand in the place of the deceased plaintiff pending the outcome of further Probate Court proceedings which may have included a Will Contest. Pending further proceedings of the Probate Court that day the Temporary Administrator was appointed ....
      “The Decree . . . paraphrases the language of [General Statutes §] 45a-316 . . . ‘that it is necessary for the protection of said estate that a temporary administrator be appointed forthwith for the purpose of preserving, protecting and maintaining the assets of said estate.’ My understanding of the cited language would include the preservation of a pending lawsuit while the proponents and contestants of the Will have an opportunity to either work out an agreement or proceed with a Will Contest.”