text:
    SHERRY KASOWITZ v. LEWIS KASOWITZ
    (AC 34179)
    DiPentima, C. J., and Sheldon and Bishop, Js.

      Argued December 6, 2012
    officially released January 29, 2013

      Joseph S. Hubicki, for the appellant (defendant).

      Noah Eisenhandler, with whom, on the brief, was Lori Welch-Rubin, for the appellee (plaintiff).
   Opinion

PER CURIAM.

The defendant, Lewis Kasowitz, appeals from the judgment of the trial court granting the postdissolution motion of the plaintiff, Sherry Kasowitz, to find him in contempt. On appeal, he argues that the court improperly (1) found that he wilfully or deliberately disobeyed the court’s financial orders and (2) rejected his defense of laches. We are not persuaded by either claim and, accordingly, affirm the judgment of the court.

The following facts and procedural history are relevant to our resolution of this appeal. The marriage of the parties was dissolved on January 26,1999. The court awarded legal and physical custody of the parties’ six children to the plaintiff. The court ordered the defendant to pay $225 per week in child support, $150 per week in alimony, an additional $250 per week in unallocated support and $45 per week to eliminate an arrear-age. Further, each party was ordered to pay one half of the children’s uncovered or unreimbursed dental expenses.

On October 17, 2011, the plaintiff filed a motion for contempt, alleging that the defendant had failed to comply with the judgment of the court. Specifically, she claimed that he had failed to make the required alimony, child support, additional support and dental expense payments. On December 6, 2011, the defendant filed an objection, arguing that the plaintiffs motion was barred by the equitable doctrine of laches.

The court held a hearing on December 14, 2011. At the outset, the parties’ attorneys agreed that the child support order had terminated in June, 2007, and that the alimony award had expired in January, 2009. The plaintiff testified that she and the children had had virtually no contact with the defendant following the divorce. She further stated that the defendant’s child support and alimony obligations were paid by his former employer, TR Paul, Inc. (TR Paul), to her attorney, who then forwarded the payment to her. The plaintiff last received a payment from the defendant, via the arrangement with TR Paul, in 2007. After that, the plaintiff testified that she collected all of the payments received and calculated the following arrearages: $9752 for 2001, $16,039.60 for 2002, $14,556.29 for 2003, $14,502.23 for 2004, $14,369.71 for 2005, $12,955.65 for 2006, $10,640.04 for 2007 and $7800 for 2008, for a total of $100,625.52. The plaintiff also calculated the arrear-age from the defendant’s failure to pay one half of unreimbursed dental expenses as $6814. The plaintiff further testified that all six of the children had attended college and some had continued on to graduate school.

The defendant testified that he had been unaware of the arrearage accumulating over the years. He acknowledged, however, receiving monthly statements from TR Paul that showed the payments that had been sent to the plaintiff and the payments that had been sent to him. The defendant did not verify that the payments from TR Paul satisfied his financial obligation to the plaintiff as ordered by the court. He also indicated that he had not been notified about the dental expenses of the children.

At the conclusion of the hearing, the court issued an oral decision. The court found the defendant in contempt. It further found that it was not credible that the defendant “was unaware of the shortfall in the support payments when he was receiving statements every month from TR Paul as to what his — what he was receiving from them and also showing what was going to [the plaintiff] pursuant to that agreement .... It had to be clear to him that she wasn’t being paid the full amount of what was being owed to her pursuant to that agreement which was an order of the court.” The court also rejected the defendant’s defense of laches, finding both that the plaintiffs delay was reasonable and that the defendant was not prejudiced as a result of the delay. As to the former, the court stated: “Her delay I believe is excusable and I find it’s excusable given everything that was going on in her life at the time; taking care of six kids, putting them through high school, getting them to college, getting them through college with little help or contact from [the defendant].” In finding no prejudice, the court noted that the defendant was not harmed by the delay as to a debt he owed to the Internal Revenue Service. The court concluded that the defendant failed to meet his burden of proof as to this element of the defense of laches.

The court found the total arrearage to be $100,625.52, which did not include any award for the plaintiffs claim regarding unreimbursed dental expenses. It ordered a lump sum payment of $15,000, payable within fifteen days, followed by weekly payments of $300. This appeal followed.

On appeal, the defendant first claims that the court improperly found him in contempt. Specifically, he argues that there was nothing in the record to support a finding that he wilfully refused to comply with his support obligations as ordered by the court. He further contends that neither his former employer nor the plaintiff informed him of the shortfall. We are not persuaded that the court’s finding of contempt was improper.

“The standard of review in family matters is that this court will not disturb the trial court’s orders unless it has abused its legal discretion or its findings have no reasonable basis in fact. ... It is within the province of the trial court to find facts and draw proper inferences from the evidence presented. . . . [E]very reasonable presumption will be given in favor of the trial court’s ruling, and [n]othing short of a conviction that the action of the trial court is one which discloses a clear abuse of discretion can warrant our interference. ... A court may only find a party in contempt when that party has wilfully failed to comply with a court order. To constitute contempt, a party’s conduct must be wilful. . . . Noncompliance alone will not support a judgment of contempt. . . . We review the court’s factual findings in the context of a motion for contempt to determine whether they are clearly erroneous.” (Citation omitted; internal quotation marks omitted.) Gray v. Gray, 131 Conn. App. 404, 408-409, 27 A.3d 1102 (2011); see also Montagnese v. Spicer, 130 Conn. App. 301, 304-305, 22 A.3d 702 (2011).

Responsibility for compliance with the support order fell solely on the defendant’s shoulders. Neither his former employer nor the plaintiff shared that responsibility. See generally Giordano v. Giordano, 127 Conn. App. 498, 505-506, 14 A.3d 1058 (2011). In his testimony, the defendant conceded that he had received monthly statements from TR Paul showing the moneys paid to the plaintiff but he had “never thought about” whether his obligations to her had been met. He also acknowledged that he presently was employed as a stockbroker and was responsible for handling other people’s money. Given these facts, we conclude that the court’s finding of contempt was not clearly erroneous. The court was free to find that “[i]t had to be clear to [the defendant] that [the plaintiff] wasn’t being paid the full amount” and therefore that he was in wilful violation of the court’s order. “It is . . . undisputed that, if a finding of wilful misconduct is based on a court’s determination of the credibility of relevant testimony at trial, we will overturn it only if the record demonstrates a manifest abuse of discretion. [T]he trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony and, therefore, is free to accept or reject, in whole or in part, the testimony offered by either party.” (Internal quotation marks omitted.) LaBossiere v. Jones, 117 Conn. App. 211, 224, 979 A.2d 522 (2009). The defendant’s challenge to the court’s finding of contempt, therefore, must fail.

The defendant next claims that the court improperly rejected his defense of laches. Specifically, he argues that the plaintiffs delay in filing the contempt motion was inexcusable and that he was prejudiced as a result. We disagree.

“Laches is an equitable defense that consists of two elements. First, there must have been a delay that was inexcusable, and, second, that delay must have prejudiced the defendant. . . . The mere lapse of time does not constitute laches . . . unless it results in prejudice to the defendant ... as where, for example, the defendant is led to change his position with respect to the matter in question. . . . Thus, prejudicial delay is the principal element in establishing the defense of laches. . . . The standard of review that governs appellate claims with respect to the law of laches is well established. A conclusion that a plaintiff has been guilty of laches is one of fact .... We must defer to the court’s findings of fact unless they are clearly erroneous.” (Citations omitted; internal quotation marks omitted.) Cifaldi v. Cifaldi, 118 Conn. App. 325, 334-35, 983 A.2d 293 (2009); see also Jarvis v. Lieder, 117 Conn. App. 129, 149, 978 A.2d 106 (2009); Sablosky v. Sablosky, 72 Conn. App. 408, 413, 805 A.2d 745 (2002).

The court made a finding that the plaintiffs delay was excusable. “I find it’s excusable given everything that was going on in her life at the time; taking care of six kids, putting them though high school, getting them to college, getting them through college with little help or contact from [the defendant].” This finding is supported by the plaintiffs testimony that she was “totally busy” raising and supporting the children, and, as a result, lacked the time to review the financial documents. She further testified that she had “kept track of the money as far as I got the check, I filed it and that’s what I have .... I always filed the year together. I had a running record, a sloppy running record. After 2007, I had the opportunity to sit down, put it all together.” Last, she stated that once she learned that she could go to court without an attorney, she filed the motion for contempt. On the basis of this record, the court’s finding that the plaintiffs delay was excusable was not clearly erroneous. Therefore, the court properly rejected the defendant’s claim of laches.

The judgment is affirmed.

       The parties’ youngest child turned eighteen in June, 2007.

       The defendant explained that he was entitled to a commission from “a continuing stream of revenue” following his departure from TR Paul. These commissions ended in December, 2007.

       The court subsequently signed a transcript of its decision. See Practice Book § 64-1 (a).

       The defendant claimed that he was prejudiced because he used funds to repay other financial obligations, including a large debt owed to the Internal Revenue Service. He testified that if he had been made aware of the arrearage, he would have paid the plaintiff and reached a different arrangement with the Internal Revenue Service.

       We note that the court also found that the defendant was not prejudiced by the plaintiffs delay. The defendant had argued that if he had known of his arrearage to the plaintiff, he would have arranged a less burdensome payment plan for his significant debt to the Internal Revenue Service. In rejecting this argument, the court stated: “I don’t find it credible that this delay harmed in his obligation to the [Internal Revenue Service], I don’t think he’s met his burden of proof on that issue.” We further conclude that this finding was not clearly erroneous, and therefore the defendant failed to satisfy both elements of the defense of laches.


source: Caselaw Access Project

author: SULLIVAN, J.

license: Public Domain

text:
    NEWTOWN POOL SERVICE, LLC v. KENNETH POND ET AL.
    (AC 34136)
    Alvord, Espinosa and Sullivan, Js.

      Argued September 11, 2012
    officially released February 5, 2013

      William F. L. Rodgers, for the plaintiff in error.
   Opinion

SULLIVAN, J.

The plaintiff in error, Newtown Pool Service, LLC (plaintiff), filed a writ of error with the Supreme Court, challenging the judgment of the trial court, small claims session. In its writ, the plaintiff claims that the trial court improperly awarded the defendants in error damages on a counterclaim beyond the jurisdictional money limit for small claims. We agree and reverse in part the judgment of the trial court.

The following facts and procedural history are relevant to this decision. On September 17, 2010, the plaintiff commenced this small claims action against the defendants in error, Kenneth Pond and Victoria Pond (Ponds), claiming $4925, plus court costs, arising out of a balance due on a contract for the construction of a pool. The plaintiff also alleged that the Ponds owed an additional $455 for cleaning and opening the pool, but added: “[The plaintiff] waives any dollar claim beyond the jurisdictional limit.” On October 18, 2010, the Ponds filed an answer and counterclaim. On the counterclaim form, the Ponds wrote in relevant part: “Job was never completed and we have estimates to repair damage [plus] incomplete work in excess of $5,000[plus]. Newtown Pools owes us this to complete job . . . .” Although the jurisdictional limit for claims brought in the small claims session is $5000, neither party filed a motion to transfer the action to the regular docket of the Superior Court.

On June 6,2011, the small claims magistrate rendered judgment for the plaintiff for $5000 on its complaint and for the Ponds for $8000 on their counterclaim, ordering the plaintiff to pay the balance of $3000 to the Ponds. The plaintiff moved to open the judgment, claiming that the magistrate, in awarding the Ponds $8000 on their counterclaim, exceeded the small claims court’s jurisdictional limit of $5000. The motion to open was granted. After a second hearing on August 15,2011, the trial court issued an order affirming the initial judgment and ordering the plaintiff to pay $3000 to the Ponds. This writ of error followed.

We must first address whether we have jurisdiction over the writ of error. The plaintiff argues that this court has jurisdiction pursuant to Practice Book §§ 72-1 (a) (4) and 60-1, despite the language of § 72-1 (b) (2), which bars a writ of error when “the parties, by failure timely to seek a transfer or otherwise, have consented to have the case determined by a court or tribunal from which there is no right of appeal or opportunity for certification.” The plaintiff argues that this court should grant the writ of error for two reasons: (1) to clarify for lower courts that the jurisdictional money limit applies both to claims and awards, and that jurisdiction is based on the amount in each component claim, not on aggregate awards; and (2) to avoid surprise or injustice to this plaintiff, because it could not have known that a motion to transfer would be necessary given that the court could not award more than $5000. We agree with the plaintiff for the reasons discussed herein.

In Cannavo Enterprises, Inc. v. Burns, 194 Conn. 43, 48, 478 A.2d 601 (1984), our Supreme Court held that, notwithstanding the language in General Statutes § 51-197a barring appeals from actions of the small claims court, limited appellate review of small claims court decisions is appropriate through a writ of error. In that case, the trial court had denied a properly filed motion to transfer. Id., 50-51; see also Burns v. Bennett, 220 Conn. 162, 165, 595 A.2d 877 (1991). (“§ 51-197a . . . does not preclude us from entertaining a writ of error . . . from the Small Claims division of the Superior Court” [internal quotation marks omitted]). In Veterans Memorial Medical Center v. Townsend, 49 Conn. App. 198, 201-202, 712 A.2d 993 (1998), we held that a writ of error was the proper method to obtain review of a small claims judgment. In that case, the small claims court dismissed the plaintiffs action without a hearing. Id., 199. Noting that the plaintiff had no hearing of any kind and no notice that the trial court was considering dismissing the case, we relied on Practice Book § 60-1 to hold that, under the limited circumstances of the case, the writ of error was proper. Id., 201. In Safe Home Security, Inc. v. Lewis, 52 Conn. App. 780, 782, 727 A.2d 1289 (1999), we again relied on Practice Book § 60-1 to avoid injustice where the plaintiff had no notice that the small claims court was considering a counterclaim because the defendant had failed to file a counterclaim form, but rather had stated in her answer that the plaintiff owed money to the defendant. Under those facts, we held that the writ of error was the proper avenue to obtain review. Id., 782-83. In Esposito v. Tony’s Long Wharf Services, LLC, 96 Conn. App. 571, 575-76, 901 A.2d 82 (2006), however, we dismissed a writ of error sought by a defendant whose counsel attended the small claims hearing, but who never raised its claim of lack of personal jurisdiction until filing the writ of error. In that case, the defendant knew of the alleged jurisdictional defect at the time it was served. Id., 575.

We read the previously mentioned cases to stand for the proposition that, where the limited circumstances of Practice Book § 60-1 are met and the plaintiff did not have an opportunity or notice to seek a transfer prior to the deadline imposed by Practice Book § 24-21, a writ of error is the appropriate method to seek review of a small claims judgment, and is not barred by § 51-197a. Nothing in those decisions, nor in the statute itself, bars review solely because the party bringing the writ of error failed to seek a transfer during the trial proceedings.

In the present case, the plaintiff, upon seeing the Ponds’ statements on the counterclaim form, arguably became aware that the Ponds were claiming more than $5000 in damages. Still, knowing of the $5000 jurisdictional money limit in small claims actions, the plaintiff reasonably could have concluded that the Ponds were not claiming more than $5000, that the trial court did not have the authority to award more than $5000 on the counterclaim, and that, therefore, there was no need to seek a transfer. Such a conclusion would be supported by a plain reading of Practice Book §§ 24-1 and 24-19 in conjunction with General Statutes § 51-15 (d), which provides that the small claims procedure applies to actions for money damages that do not exceed $5000, “and to no other actions.”

Practice Book § 24-21 (a) (1) provides in relevant part that the motion to transfer “must be filed on or before the answer date . . . .” By the time of the first hearing, when it became clear that the court intended to consider an award on the counterclaim greater than $5000, the deadline for filing a motion to transfer had passed. This stands in contrast to Esposito, where the defendant knew of the jurisdictional defect when it was served with the complaint, but it did not raise the issue until it filed the writ. Here, once the plaintiff was confronted with the possibility of an award of more than $5000, it raised its jurisdictional claim with the trial court — the only thing it could do given the time limit for filing a motion to transfer. As in Veterans Memorial Medical Center and Safe Home Security, Inc., the plaintiff here was denied an opportunity to transfer because the deadline to move for transfer had passed before the error became clear. The trial court’s action outside the jurisdiction of the small claims session after the deadline to seek a transfer had passed is an extraordinary and limited circumstance that meets the requirements of Practice Book § 60-1.

The plaintiff is aggrieved by the trial court’s action because, instead of having to pay nothing, which would be the result if the award on the counterclaim were limited to $5000, it has been ordered to pay $3000 on - the counterclaim. The plaintiff gave up the right to use the regular rules, including the right to appeal, based on an understanding that the small claims court could not act beyond its jurisdiction. Were we to dismiss the writ, all parties to cases without a statutory right of appeal would have to seek transfer at the outset to prepare for the possibility that the trial court would act outside its jurisdiction.

We hold that a writ of error is the proper avenue to obtain review under the unusual combination of facts in this case, where a party challenges not the underlying findings or legal conclusions of the trial court, but rather the trial court’s award of damages outside the jurisdictional money limit. In so holding, we rely on Practice Book § 60-1, reasoning that a writ of error may be brought to review the judgment to avoid the smprise to the plaintiff that would result from strict adherence to Practice Book § 72-1 (b) (2), to avoid the injustice that would be manifest if parties who filed counterclaims in violation of the rules could then benefit by such violations, and to clarify to lower courts the application of the jurisdictional money limit in small claims actions.

We next consider the merits of the plaintiffs claim of jurisdictional error. “We have long held that because [a] determination regarding a trial court’s subject matter jurisdiction is a question of law, our review is plenary.” (Internal quotation marks omitted.) Haworth v. Dieffenbach, 133 Conn. App. 773, 779, 38 A.3d 1203 (2012). Although a court may have jurisdiction to hear certain matters and controversies, it must act only within its authority when exercising that jurisdiction. See Amodio v. Amodio, 247 Conn. 724, 728-29, 724 A.2d 1084 (1999) (distinguishing between court’s jurisdiction to hear case and proper application of its authority under governing statute).

The plaintiff first argues that the court’s order that the plaintiff pay $3000 to the Ponds was error because it represented the aggregate of an award on the complaint that fell within the jurisdictional money limit and an award on the counterclaim that exceeded it by $3000. The plaintiff argues that, where jurisdictional money limits are imposed, a court’s jurisdiction is determined by the amount of each component claim, not by the aggregate of all claims.

No case law specifically addresses whether each individual claim and each award in small claims court must be limited to $5000, but Connecticut courts have long followed the principle that, when statutes apply jurisdictional money limits, a court’s jurisdiction is determined not by the amount of the aggregate award, but instead by the amount of each individual claim. For example, in Brennan v. Berlin Iron Bridge Co., 75 Conn. 393, 396-97, 53 A. 779 (1903), a case involving multiple claims by one plaintiff against the same defendant, our Supreme Court held that the amount of each demand must fall within the court’s jurisdiction. The court held that the plaintiff in that case was entitled to recover only on the claim that fell within the jurisdictional limit, and not on the one that fell outside it. Id., 397. In Reconstruction Finance Corp. v. S. Landow & Co., 8 Conn. Sup. 269, 270 (1940), the Superior Court ruled that it did not have jurisdiction to entertain a claim that was below that court’s minimum jurisdictional limit despite the fact that the claim was joined in a complaint with three other claims that were above, and therefore within, the jurisdictional limit. Finally, in Friede v. Jennings, 121 Conn. 220, 228-30, 184 A. 369 (1936), our Supreme Court held that, where there were multiple claims against different parties, the amount of each individual claim, not the aggregate of the claims, determined whether the court had jurisdiction over each claim. In that case, the Supreme Court was considering a statute that specifically provided for joining separate claims in one complaint, but only if each fell within the jurisdictional limit. Id., 226. “The same limitations of jurisdiction growing out of the amount involved apply as regards the power of the court to give a several judgment against the defendants in a single action as it would were separate actions brought against each, and the amount of the judgment which is claimed against each determines the jurisdiction of the court to entertain the action against him.” Id., 230. Here, the Ponds’ counterclaim, had it been filed as a separate small claims action, would have been limited to $5000.

The plaintiff also argues that the jurisdictional money limit of $5000 for small claims actions applies to both the amount that may be claimed and the amount that the court may award, even though the relevant language uses only the phrase “all actions . . . claiming money damages not in excess of five thousand dollars . . . .” General Statutes § 51-15 (d). In support of this argument, the plaintiff cites to the single exception in the statute, which provides that the small claims court may award amounts in certain landlord-tenant actions that are “authorized by the rental agreement or any provision of the general statutes . . . notwithstanding that the amount of such damages and costs, in the aggregate, exceeds the jurisdictional money limit established by this subsection. . . .” General Statutes § 51-15 (d). The plaintiff argues that the entire subsection applies to awards as well as claims because of the canon of statutory construction that “where exceptions are set forth, those items not excepted fall under the general rule established. Thus, if damages can be awarded that exceed the jurisdictional limit in just this one circumstance, a fair implication is that otherwise damages that exceed the limit cannot be awarded by the court.” We agree. To hold otherwise, we would have to conclude that the reference to the jurisdictional money limit in § 51-15 (d) has no meaning. When interpreting statutory language, we must presume that “the legislature did not intend to enact meaningless provisions. . . . [Statutes must be construed, if possible, such that no clause, sentence or word shall be superfluous, void or insignificant . . . .” (Internal quotation marks omitted.) Housatonic Railroad Co. v. Commissioner of Revenue Services, 301 Conn. 268, 303, 21 A.3d 759 (2011).

The plaintiff argues, persuasively, that “if component claims of any amount could be considered and awarded so long as the combined effect was under the limit, then multimillion dollar competing claims could be routinely filed in small claims.” This result would defeat the purpose of the small claims docket. The explicit limit on claims would be rendered meaningless, because a plaintiff, or a defendant on a counterclaim, would also be free to make a claim within the limit, but then argue for greater damages during the hearing. Every party would be forced to seek transfer to the regular Superior Court docket to comply with Practice Book § 72-1 (b) and safeguard the right to appeal. Additionally, our Supreme Court’s holding in Amodio v. Amodio, supra, 247 Conn. 732, makes clear that even if the court determined it had jurisdiction to hear a case, it could exercise that jurisdiction only within statutory limits, meaning, in this case, that it could award only $5000 on any claim or counterclaim.

Accordingly, we conclude that the trial court’s award of $8000 on the counterclaim was erroneous in that the court acted beyond its jurisdiction by exceeding the jurisdictional money limit, in contravention of § 51-15 (d) and Practice Book § 24-2. The plaintiff was materially injured by being ordered to pay $3000 to the Ponds that it would not have been ordered to pay had the trial corut abided by the jurisdictional money limit. Accordingly, the award of damages on the counterclaim must be reduced to the jurisdictional limit of the small claims court, with the result that neither party shall be required to pay anything to the other.

The writ of error is granted, the judgment is reversed only with respect to the amount of the award on the counterclaim and judgment is rendered thereon for the Ponds in the amount of $5000; the judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       Judgments of the small claims session are not normally appealable; see General Statutes § 51-197a; but Practice Book § 72-1 provides that a writ of error may be brought from certain decisions from which there is no statutory right of appeal. Section 72-1 (a) provides: “Writs of error for errors in matters of law may be brought from a final judgment of the superior court to the supreme court in the following cases: (1) a decision binding on an aggrieved nonparty; (2) a summary decision of criminal contempt; (3) a denial of transfer of a small claims action to the regular docket; and (4) as otherwise necessary or appropriate in aid of its jurisdiction and agreeable to the usages and principles of law.” As discussed herein, a writ of error is proper in this case.

       The Ponds used an addition symbol (+) on the counterclaim form to represent the word “plus.”

       General Statutes § 51-15 (d) provides in relevant part: “The small claims procedure shall be applicable to all actions, except actions of libel and slander, claiming money damages not in excess of five thousand dollars, and to no other actions.”

        Practice Book § 24-2 provides in relevant part: “In no case shall the damages claimed exceed the jurisdictional money limit fixed by statute, including attorney’s fees and other costs of collection, but exclusive of interests and costs.”
      Practice Book § 24-19 provides in relevant part: “The defendant . . . may claim any setoff or counterclaim within the jurisdiction of the small claims court.” (Emphasis added.) Practice Book § 24-21 governs motions to transfer.

       The plaintiff filed its brief on November 28, 2011. The Ponds did not file an appellee’s brief, which was due on December 28, 2011. On January 6, 2012, the Supreme Court transferred the writ to this court pursuant to Practice Book § 65-1. On its own motion, this court held a hearing to determine whether to dismiss the writ of error on the ground that the plaintiff did not move to transfer the case from the small claims docket to the regular docket of the Superior Court in compliance with Practice Book § 72-1 (b). Section 72-1 (b) provides in relevant part: “No writ of error may be brought in any civil or criminal proceeding for the correction of any error where ... (2) the parties, by failure timely to seek a transfer or otherwise, have consented to have the case determined by a court or tribunal from whose judgment there is no right of appeal or opportunity for certification.” Practice Book § 24-21 provides the procedure for a defendant, or a plaintiff on a defendant’s counterclaim, to seek a transfer to the regular docket of a “counterclaim in an amount greater than the jurisdiction of the small claims court . . . .” Section 24-21 requires that the case “shall be transferred” should the requesting party meet the procedural requirements, but does not require that parties seek a transfer when a claim or counterclaim exceeds the jurisdictional limit. Nothing in chapter 24 of the Practice Book, which governs small claims, refers to the § 72-1 (b) (2) prohibition against writs of error for failure to seek a transfer. After the hearing, this court marked off its motion, ordered oral argument and ordered, sua sponte, that in light of the Ponds’ failure to file an appellee’s brief, the case be decided based on the plaintiffs brief and the record.

       General Statutes § 51-197a provides in relevant part: “Appeals from final judgments or actions of the Superior Court shall be taken to the Appellate Court in accordance with section 51-197c, except for small claims, which, are not appealable . . . (Emphasis added.)

       Practice Book § 60-1 provides in relevant part: “The design of these rules being to facilitate business and advance justice, they will be interpreted liberally in any case where it shall be manifest that a strict adherence to them will work surprise or injustice.”

       Unlike in Esposito, nothing in the record in the present case indicates that the plaintiff was represented by counsel at either hearing. The plaintiff s counsel indicated both in the docketing statement filed with this court and during oral argument that the plaintiff was not represented by counsel at either hearing.

       Because this is sufficient ground to grant the writ of error, we do not address the plaintiffs argument based on Practice Book § 72-1 (a) (4).

       Practice Book § 24-1 provides in relevant part: “The general purpose of these rules is to secure the prompt and inexpensive hearing and determination of small claims by simplified procedure designed to allow the public maximum access to and use of the court in connection with such claims. ... All proceedings shall be simple and informal.”


author: LAVINE, J.

text:
    CHRISTINE M. SZYNKOWICZ v. VINCENT P. SZYNKOWICZ
    (AC 33606)
    Gruendel, Lavine and Mihalakos, Js.

      Argued September 20, 2012
    officially released February 5, 2013

      Pamela M. Magnano, for the appellant (defendant).

      Sarah A. Ouellette, for the appellee (plaintiff).
   Opinion

LAVINE, J.

The defendant, Vincent P. Szynkowicz, appeals from the judgment of the trial court dissolving his marriage to the plaintiff, Christine M. Szynkowicz. The defendant claims that the court abused its discretion (1) in fashioning orders of support because the court (a) calculated alimony based on gross income, (b) ordered him to obtain life insurance without a factual basis to do so and (c) ordered him to provide impracticable financial support, (2) by awarding all of the parties’ real property to the plaintiff, (3) by ordering the defendant to pay the plaintiff $8000 in attorney’s fees and (4) by failing to find the plaintiff in contempt of automatic court orders. We disagree and affirm the judgment of the trial court.

The following findings of fact by the court and procedural history are relevant to this appeal. The parties were married in 1993. In late 2009, the defendant told the plaintiff that he had met Linda KLeinschmidt. At some point, the defendant became romantically involved with her. In January, 2010, the defendant told the plaintiff that he wanted a divorce. The parties separated in March, 2010. The court found that the defendant was primarily at fault for the irretrievable breakdown of the marriage.

At the time of the dissolution proceedings, the plaintiff faced serious health issues. She suffers from multiple sclerosis. She must rely upon any available object to support her when she walks or else she faces a serious risk of falling. Due to the disease, she can only go up or down stairs by moving sideways. Furthermore, the plaintiff was injured seriously in an automobile accident in 1987. She still suffers neck pain from her injuries sustained in that accident. In addition, at the time of the proceedings, she was facing surgery for another serious health issue.

At the time of the dissolution proceedings, the plaintiff had lived in the marital home for more than two decades. Most of the plaintiffs settlement from the 1987 accident, approximately $39,400.32, was used to purchase the marital home. She was fully familiar with the layout of the house. Despite her condition, she could maneuver within the home. Friends and neighbors assist her. It would have been a particular hardship for the plaintiff to leave the marital home.

At the time of the dissolution proceedings, the plaintiff had a high school education and had been able to join the workforce for only five of the previous twenty-eight years. The plaintiffs educational background and skills, her long hiatus from the workforce and her serious medical issues made it unlikely that she would be able to obtain gainful employment in the future. The plaintiff received social security disability payments totaling $764 per month.

At the time of the dissolution proceedings, the defendant had an associates degree, was in generally good health, worked for an elevator company and earned overtime pay. The defendant’s salary varied somewhat from year to year due to the variable availability of overtime pay, but as of December 30, 2010, his earnings statement showed $98,202.61 in gross pay for the year. The defendant had given KLeinschmidt approximately $6000 and paid for a vacation with her. They had exchanged gifts, and he purchased gifts for her children from a prior relationship.

The court concluded that the defendant contributed most substantially to the family finances, aside from the purchase of the marital home, whereas the plaintiff contributed most substantially to the family unit and carried primary responsibility for the maintenance and preservation of the family finances.

On April 19,2011, the court issued its memorandum of decision dissolving the parties’ marriage. Among other things, the court ordered the defendant to pay the plaintiff $36,000 per year in alimony, to transfer all interest in the marital home to the plaintiff, to maintain $200,000 in life insurance naming the plaintiff as irrevocable beneficiary, to pay one half of the plaintiff’s medical insurance premiums, to pay $8000 of the plaintiff’s counsel fees and to pay $6471.63 in joint credit card debt. This appeal followed.

We reiterate our standard of review. “An appellate court will not disturb a trial court’s orders in domestic relations cases unless the court has abused its discretion or it is found that it could not reasonably conclude as it did, based on the facts presented. ... It is within the province of the trial court to find facts and draw proper inferences from the evidence presented. . . . In determining whether a trial court has abused its broad discretion in domestic relations matters, we allow every reasonable presumption in favor of the correctness of its action. . . . [T]o conclude that the trial court abused its discretion, we must find that the court either incorrectly applied the law or could not reasonably conclude as it did. . . . Appellate review of a trial court’s findings of fact is governed by the clearly erroneous standard of review. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Milazzo-Panico v. Panico, 103 Conn. App. 464, 467-68, 929 A.2d 351 (2007).

I

A

The defendant claims that the court improperly calculated alimony based on gross income rather than net income. Specifically, the defendant claims that because the court referred only to gross income and made no express findings as to net income in its memorandum of decision, the court must necessarily have based its order solely on gross income. We disagree.

“[A] court must base its child support and alimony orders on the available net income of the parties, not gross income. . . . Whether ... an order falls within this prescription must be analyzed on a case-by-case basis. Thus, while our decisional law in this regard consistently affirms the basic tenet that support and alimony orders must be based on net income, the proper application of this principle is context specific.” (Internal quotation marks omitted.) Auerbach v. Auerbach, 113 Conn. App. 318, 338, 966 A.2d 292, cert. denied, 292 Conn. 901, 971 A.2d 40 (2009). “[T]he trial court is not required to make specific reference to the criteria that it considered in making its decision.” (Emphasis added.) Hughes v. Hughes, 95 Conn. App. 200, 207-208, 895 A.2d 274, cert. denied, 280 Conn. 902, 907 A.2d 90 (2006). “[T]he mere notation by the court of a party’s gross earnings is not fatal to its support and alimony orders so long as its orders are not based on the parties’ gross earnings.” (Emphasis added.) Id., 206.

In the present case, the defendant concedes that the court had before it evidence of his net income. In its memorandum of decision, the court stated that it “ha[d] considered all of the evidence presented with respect to the . . . amount and sources of income . . . .” Facially, the court’s consideration included the conceded evidence of net income. Furthermore, when examined in context, it is clear that the court made the passing reference to gross income merely in reference to the variable of overtime pay.

Finally, the court was not required to make explicit findings as to net income. See Hughes v. Hughes, supra, 95 Conn. App. 207-208. To whatever extent the precise basis of the court’s decision may be unclear, the defendant bore the responsibility to provide this court with an adequate record for review, and he chose not to seek review of the court’s denial of his motion for articulation. “Because it is the . . . appellant’s responsibility to provide this court with an adequate record for review ... we will not remand a case to correct a deficiency the . . . appellant should have remedied.” (Internal quotation marks omitted.) Phillips v. Phillips, 101 Conn. App. 65, 72 n.1, 922 A.2d 1100 (2007). Rather, “we allow every reasonable presumption ... in favor of the correctness of [the trial court’s] action.” (Internal quotation marks omitted.) Kelman v. Kelman, 86 Conn. App. 120, 122, 860 A.2d 292 (2004), cert. denied, 273 Conn. 911, 870 A.2d 1079 (2005). We conclude that the court did not improperly fashion the alimony order based on the defendant’s gross income.

B

The defendant claims that the court improperly ordered him to obtain a life insurance policy in the amount of $200,000 because there was no evidence of his ability to obtain such life insurance, the cost of life insurance or his ability to pay for the policy. We do not agree.

“An order for life insurance is very often an appropriate and necessary component of a judgment of dissolution of marriage. . . . General Statutes §§ 46b-82 (a) and 46b-84 (f) were amended in 2003 to provide: The court may order that a party obtain life insurance as such security unless such party proves, by a preponderance of the evidence, that such insurance is not available to such party, such party is unable to pay the cost of such insurance or such party is uninsurable. . . . These amendments place the burden regarding the availability and cost of the life insurance on the party upon whom the life insurance obligation is to be imposed.” (Citation omitted; emphasis added; internal quotation marks omitted.) Boyne v. Boyne, 112 Conn. App. 279, 285-86, 962 A.2d 818 (2009).

In the present case, the plaintiff requested that the defendant maintain life insurance in the amount of $250,000, and the court ordered the defendant to obtain a policy of $200,000. At trial the defendant argued that there was “some evidence” tending to show that he was not insurable. Nevertheless, we conclude that the court reasonably could have found that the defendant failed to meet his burden of proof as required by statute, and accordingly, we cannot conclude that the court abused its discretion in fashioning the life insurance order. See Boyne v. Boyne, supra, 112 Conn. App. 286.

C

The defendant claims that the totality of the financial orders requires reversal. Specifically, the defendant argues that the orders are punitive and impracticable. We do not agree.

Courts carefully must consider the parties’ standard of living when dividing marital property. Greco v. Greco, 275 Conn. 348, 356, 880 A.2d 872 (2005). “The purpose of dividing marital property is to preserve, as much as possible, the parties’ existing standard of living, not to award property to one spouse to the complete exclusion of the other.” Id. “[T]he issues involving financial orders are . . . interwoven. The rendering of a judgment in a complicated dissolution case is a carefully crafted mosaic, each element of which may be dependent on the other. . . . Furthermore, trial courts are endowed with broad discretion to distribute property in connection with a dissolution of marriage.” (Citation omitted; internal quotation marks omitted.) Id., 354. Finally, “alimony is not designed to punish, but to ensure that the former spouse receives adequate support.” Id., 361.

“With respect to the financial awards in a dissolution action, great weight is given to the judgment of the trial court because of its opportunity to observe the parties and the evidence. . . . Moreover, 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.” (Internal quotation marks omitted.) Fitzsimons v. Fitzsimons, 116 Conn. App. 449, 458-59, 975 A.2d 729 (2009).

At the outset, we take notice of the court’s postjudgment order issued December 23, 2011, on the plaintiffs motions to terminate the appellate stay and for post-judgment attorney’s fees. See Szynkowicz v. Szynkowicz, Superior Court, judicial district of Litchfield, Docket No. FA-10-4009365-S (December 23, 2011). “The Appellate Corut, like the trial court, may take judicial notice of files of the Superior Court in the same or other cases.” (Internal quotation marks omitted.) Wasson v. Wasson, 91 Conn. App. 149, 151 n.1, 881 A.2d 356, cert. denied, 276 Conn. 932, 890 A.2d 574 (2005). In its memorandum of decision on the motions, the court explained that it found the defendant’s financial affidavit to be unreliable: “The court finds that the defendant’s financial affidavit was prepared in a maimer that artificially inflates his liabilities. The court is firmly convinced that the defendant is capable of making the payment sought by the plaintiff. The court is equally convinced, having reviewed the plaintiffs financial affidavit and knowing her personal situation, that the plaintiff has virtually no assets available to her.” Although these factual findings are not directly part of the judgment that is the subject of this appeal, they illuminate it.

After thoroughly reviewing the record, we conclude that the financial orders were not punitive. Given the especially difficult situation that the plaintiff faces due to her physical disability and other health issues, the financial orders fall within the range of the court’s discretion.

Nor do we conclude that the orders are impracticable. The defendant claims that he cannot meet basic living expenses under these orders, pointing to his financial affidavit. As discussed, in its December 23, 2011 memorandum of decision, the court noted the affidavit’s unreliability. More importantly, the court made no express findings as to the defendant’s net income or expenses, and “this court cannot find facts . . . .” (Internal quotation marks omitted.) Zhuta v. Tartaglia, 135 Conn. App. 113, 117, 43 A.3d 183 (2012). The present case required the court to exercise its discretion to tailor equitable orders to fit a difficult situation. In the absence of requisite factual findings, we cannot say that these orders “forced [the defendant] to the brink of abject poverty”; Greco v. Greco, supra, 275 Conn. 363; and were so impracticable as to constitute an abuse of discretion.

The defendant relies on Greco v. Greco, supra, 275 Conn. 348, in which our Supreme Court concluded that the court “abused its discretion by failing to consider adequately the parties’ current financial circumstances in forming its judgment.” Id., 350. Like the court in this case, the trial court in Greco did not make any factual findings concerning the net income of the defendant, George Greco. See Greco v. Greco, 82 Conn. App. 768, 774 n.9, 847 A.2d 1017 (2004), aff'd, 275 Conn. 348, 880 A.2d 872 (2005). In determining that the orders in Greco constituted an abuse of discretion, both this court and our Supreme Court discussed George Greco’s financial affidavit, as opposed to express factual findings. Greco v. Greco, supra, 361; Greco v. Greco, supra, 774 n.9.

Greco is distinguishable from the present case. First, because the orders in Greco left George Greco with a “gross income deficit,” the trial court could not reasonably have concluded that it was possible for him to comply. (Emphasis in original.) Greco v. Greco, supra, 82 Conn. App. 774 and n.9. A court in domestic relations cases sits in equity; Parlato v. Parlato, 134 Conn. App. 848, 851, 41 A.3d 327 (2012); and equity will not grant a decree that is ineffectual because compliance is impossible. See 27A Am. Jur. 2d 629, Equity § 91 (2008) (“equity will not do or require the doing of a useless, vain, or futile thing”); cf. Kelley v. Tomas, 66 Conn. App. 146, 157, 783 A.2d 1226 (2001) (equity “does not require the doing of a useless act”). By contrast, the defendant contends that the orders would leave him with $18,558.80 of income per year before paying $8000 in attorney’s fees and credit card debt. Additionally, for the purpose of analysis under the statutory factors enumerated in §§ 46b-82 (a) and46b-84 (f), the situation of the parties in the present case is substantially different. George Greco had an eighth grade education, suffered significant health problems and could only work a few hours each day. Greco v. Greco, supra, 275 Conn. 356. In the present case, the defendant had an associates degree, was in generally good health and earned overtime pay. By contrast, the plaintiff had a high school education, suffered serious health issues and had been able to join the workforce for only five of the previous twenty-eight years. Because of these factual distinctions, the reasoning in Greco cannot apply to the facts of the present case.

After carefully reviewing the record and the evidence before the corut, we cannot say that the orders are impracticable or punitive. Because the court reasonably could have reached its result, we conclude that the orders fall within the trial court’s broad discretion.

II

The defendant’s second claim is that the court abused its discretion by awarding all of the parties’ real property to the plaintiff. Specifically, the defendant claims that it was an abuse of discretion for the court to award the marital home entirely to the plaintiff, rather than order the property sold and the proceeds divided, because there is no evidence in the record to support the award. We do not agree.

“[T]o conclude that the trial court abused its discretion, we must find that the court either incorrectly applied the law or could not reasonably conclude as it did. . . . Appellate review of a trial court’s findings of fact is governed by the clearly erroneous standard of review. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it . . . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Milazzo-Panico v. Panico, supra, 103 Conn. App. 467-68.

The court specifically found that “[i]t would be a particular hardship for [the plaintiff] to leave the marital home.” The court made additional specific findings of fact as to the plaintiffs limited income and the tremendous obstacles she faces. The court took note of the plaintiffs contribution to the acquisition of the marital home using the settlement money compensating her for injuries she sustained in 1987. The plaintiffs testimony and exhibits support these findings of fact, and therefore they are not clearly erroneous. See Lynch v. Lynch, 135 Conn. App. 40, 47, 43 A.3d 667 (2012).

In light of these facts, the court reasonably could have concluded that this equitable “divi[sion] [of the] marital property [was necessary] to preserve, as much as possible, the parties’ existing standard of living . . . .” Greco v. Greco, supra, 275 Conn. 356. Accordingly, we conclude that the court did not abuse its discretion in awarding all of the parties’ real property to the plaintiff.

m

The defendant’s third claim is that the court abused its discretion by ordering him to pay the plaintiff $8000 in attorney’s fees. Specifically, the defendant claims that the award is punitive, that there is no evidence of “egregious litigation” to support the award, that the court failed to make express findings to support the award, and that the evidence does not support the award, which actually totals $13,000 as $5000 of the credit card debt is for attorney’s fees. We disagree.

We review the relevant legal standards. “General Statutes § 46b-62 . . . provides in relevant part that the court may order either spouse ... to pay the reasonable attorney’s fees of the other in accordance with their respective financial abilities and the criteria set forth in [§] 46b-82. Section 46b-82, in turn, permits the court to take into consideration such factors as the length of the marriage, the causes for the . . . dissolution of the marriage . . . the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties and the award, if any, which the court may make pursuant to [General Statutes § 46b-81].” (Internal quotation marks omitted.) Berzins v. Berzins, 306 Conn. 651, 657, 51 A.3d 941 (2012). “In making an award of attorney’s fees under § 46b-82, [t]he court is not obligated to make express findings on each of these statutory criteria.” (Internal quotation marks omitted.) Misthopoulos v. Misthopoulos, 297 Conn. 358, 385, 999 A.2d 721 (2010).

“[Our Supreme Court] interpreted these statutory provisions ... to mean that an award of attorney’s fees in a marital dissolution case is warranted only when at least one of two circumstances is present: (1) one party does not have ample liquid assets to pay for attorney’s fees; or (2) the failure to award attorney’s fees will undermine the court’s other financial orders.” (Citation omitted; internal quotation marks omitted.) Berzins v. Berzins, supra, 306 Conn. 657. “Whether to allow counsel fees [under § 46b-82], and if so in what amount, calls for the exercise of judicial discretion. ... An abuse of discretion in granting counsel fees will be found only if [an appellate court] determines that the trial court could not reasonably have concluded as it did.” (Citation omitted; internal quotation marks omitted.) Misthopoulos v. Misthopoulos, supra, 297 Conn. 386.

The defendant claims that the court should have made additional findings to justify the award. A court, however, is not obligated to make express findings on the statutory criteria; id., 385; nor does a court have to state expressly the reason for the award. Rather, the appropriate inquiry is whether “the record would support a finding by the trial court either that the plaintiff lacked sufficient liquid assets with which to pay her own attorney’s fees, or that the failure to award attorney’s fees would have undermined its other financial orders Bornemann v. Bornemann, 245 Conn. 508, 544, 752 A.2d 978 (1998). Similarly, the defendant cites no law to support his position that “egregious conduct” in litigation is required before a court may award attorney’s fees or that a total award of $13,000 in attorney’s fees constitutes an abuse of discretion. See Misthopoulos v. Misthopoulos, supra, 297 Conn. 386 (affirming order of $64,000 in attorney’s fees). Likewise, aside from this reasonable sum, the defendant identifies no evidence in the record that the court fashioned the orders to punish the defendant.

In the present case, the court found that the defendant contributed most substantially to the family finances, aside from the purchase of the marital home, and that the plaintiff received only disability payments totaling $764 per month. The court also found that the defendant had the ability to give $6000 to KLeinschmidt, to pay for gifts to her, and to pay for a vacation with her. The defendant does not contend that these findings were clearly erroneous. In light of these facts, as well as the affidavit prepared by the plaintiffs attorney as to the fees the plaintiff incurred, the court reasonably could have concluded either that the plaintiff lacked sufficient liquid assets with which to pay her own attorney’s fees, or that the failure to award attorney’s fees would have undermined its other financial orders. See Bornemann v. Bornemann, supra, 245 Conn. 544. Accordingly, we conclude that the court did not abuse its discretion in ordering the defendant to pay the plaintiff $8000 in attorney’s fees.

IV

The defendant’s fourth claim is that the court erred when it denied his motions for contempt. Specifically, the defendant claims the plaintiff violated automatic court orders pursuant to Practice Book § 25-5 when she removed funds from the parties’ joint banking accounts and used those moneys, and that the evidence does not support the court’s failure to find the plaintiff in contempt. We reject this claim.

We reiterate the relevant legal standards. “A finding of contempt is a question of fact, and our standard of review is to determine whether the court abused its discretion in [finding] that the actions or inactions of the [alleged contemnor] were in contempt of a court order. . . . [T]he credibility of witnesses, the findings of fact and the drawing of inferences are all within the province of the trier of fact. . . . We review the findings to determine whether they could legally and reasonably be found, thereby establishing that the trial court could reasonably have concluded as it did.” (Internal quotation marks omitted.) O’Connell v. O’Connell, 101 Conn. App. 516, 521, 922 A.2d 293 (2007). “Great weight is given to the conclusions of the trial court which had the opportunity to observe directly the parties and the witnesses.” Gallo v. Gallo, 184 Conn. 36, 44, 440 A.2d 782 (1981). Finally, among other things, the automatic orders pursuant to Practice Book § 25-5 (b) prohibit parties from “incurfring] unreasonable debts” and removing funds “except in the usual course of business or for customary and usual household expenses or for reasonable attorney’s fees in connection with th[e] action.”

The court’s memorandum of decision reflects that it analyzed each of the contested withdrawals and expenditures and concluded that each was a usual household expense or not an unreasonable debt. The plaintiff used the moneys to meet her basic needs.

The defendant does not claim that the record is bereft of any evidence to support the court’s findings. Rather, the defendant recites in his brief the various contrasting evidence presented at trial and claims that the court should have ruled in his favor on disputed facts. “As is often stated, we do not reverse the factual findings of the trial court unless they are clearly erroneous and find no support in the evidence.” (Emphasis in original; internal quotation marks omitted.) Lynch v. Lynch, supra, 135 Conn. App. 47. The plaintiffs testimony and exhibits support the findings of the trial court. See Gallo v. Gallo, supra, 184 Conn. 44. On the basis of these findings, the trial court reasonably could have concluded that the plaintiff did not violate the automatic orders pursuant to Practice Book § 25-5. See O’Connell v. O’Connell, supra, 101 Conn. App. 521. Accordingly, the defendant’s claim fails.

The judgment is affirmed.

In this opinion the other judges concurred.

       On May 3, 2011, the plaintiff filed a postjudgment motion to correct, which the court granted on May 5, 2011. The court’s initial decision ordered the defendant to make periodic alimony payments of $2800 per month, which would not total $36,000 in alimony per year. The correction was to order periodic alimony payments of $3000 per month.

       On January 25, 2012, the defendant filed a motion for articulation pursuant to Practice Book § 66-5, which the trial court denied on February 8, 2012. The defendant did not seek review of that motion pursuant to Practice Book § 66-7.

       In its memorandum of decision, the court stated in relevant part: “The defendant . . . worked for Otis Elevator for twenty-four years, he then worked for another company for four years, and he now works for Eagle . . . Elevator Company, Inc. His current salary varies somewhat due to the availability of overtime pay, but his year to date earnings statement from [his employer] shows $98,202.61 in gross pay as of December 30, 2010. The defendant is fifty-four years of age and is in generally good health, suffering to some extent from high blood pressure.”

       The defendant maintains that such orders for life insurance must have a basis in fact, relying on cases that recite the legal standard prior to the 2003 amendments: “[A]n order [for life insurance] must have a reasonable basis in the evidence” or the order would be invalid. (Internal quotation marks omitted.) Bee v. Bee, 79 Conn. App. 783, 793, 831 A.2d 833, cert. denied, 266 Conn. 932, 837 A.2d 805 (2003); see also Crews v. Crews, 107 Conn. App. 279, 306, 945 A.2d 502 (2008), aff'd, 295 Conn. 153, 989 A.2d 1060 (2010); Quindazzi v. Quindazzi, 56 Conn. App. 336, 338, 742 A.2d 838 (2000). In each case that the defendant relies upon, either the trial court rendered judgment before the 2003 amendments went into effect or application of the burden shifting provisions was not presented as an issue on appeal. Accordingly, those cases are inapposite. See Boyne v. Boyne, supra, 112 Conn. App. 286 n.8, distinguishing Watrous v. Watrous, 108 Conn. App. 813, 820 n.5, 949 A.2d 557 (2008).

       In numerous places throughout his appellate brief, the defendant points to the fact that the court denied his motion for articulation. Because the defendant did not seek and obtain review of that denial; see footnote 2 of this opinion; the denial does not affect our reasoning. “[WJhere a party is dissatisfied with the trial court’s response to a motion for articulation, he may, and indeed under appropriate circumstances he must, seek immediate appeal of the rectification memorandum to this court via the motion for review.” (Internal quotation marks omitted.) Phillips v. Phillips, supra, 101 Conn. App. 71 n.1.

       Although the defendant claims that the orders fail to account for certain moneys, any deficiency in the record falls on the defendant. See footnote 5 of this opinion.


author: GRUENDEL, J.

text:
    JEAN O’CONNOR v. MED-CENTER HOME HEALTH CARE, INC., ET AL.
    (AC 30200)
    Gruendel, Lavine and Foti, Js.

      Argued September 14, 2012
    officially released February 5, 2013

      Robert K. John, for the appellant (named defendant et al.).

      Jean O’Connor, pro se, the appellee (plaintiff).
   Opinion

GRUENDEL, J.

The defendants, Med-Center Home Health Care, Inc. (Med-Center), and its workers’ compensation insurer, AIG Claims Services, Inc., appeal from the decision of the workers’ compensation review board (board) upholding the decision of the workers’ compensation commissioner for the fifth district (commissioner) finding, inter alia, that the self-represented plaintiff, Jean O’Connor, was totally disabled and awarding her temporary total disability benefits under the Workers’ Compensation Act (act), General Statutes § 31-275 et seq. Specifically, the defendants claim that the board erred in upholding the commissioner’s finding and award of total disability, which was made without receiving direct medical evidence that the plaintiff was totally disabled. We affirm the decision of the board.

The following facts and procedural history are relevant to our disposition of the defendants’ claim. While in the course of her employment as a duty nurse working for Med-Center, on December 27,1996, the plaintiff fell on ice in a patient’s driveway sustaining injuries to her hand, wrist, right knee and left shoulder. The defendants accepted and covered these injuries. Several years after her initial injury, the plaintiff requested coverage for a partial knee replacement, which the defendants first approved, but then withdrew their approval. In the course of seeking coverage for the knee replacement surgery, the plaintiff submitted to evaluations by two orthopedic physicians, Steven E. Selden and Aris D. Yannopoulos, independent medical examiners secured by the defendants. Both Yannopoulos and Sel-den stated, in their respective reports prepared as part of their evaluations, that the plaintiff was capable of sedentary work. Following the evaluations by Selden and Yannopoulos, on January 16, 2006, the defendants filed a notice of intention to discontinue or reduce payments.

On December 7, 2005, a four session hearing began before the commissioner regarding, inter alia, coverage of the plaintiffs partial knee replacement and the plaintiffs entitlement to temporary total disability benefits. During the hearing, the commissioner received documentary medical evidence from both the plaintiff and the defendants. In support of her position, the plaintiff submitted a medical report dated March 30, 2006, from her treating physician, Michael J. Kaplan, stating that she was “functionally disabled.” Kaplan explained in his report that the plaintiff could not endure “long periods of standing,” “high-stress walking,” “getting up repeatedly from a chair,” “lifting, twisting, or high impact [activities].” Kaplan opined that the plaintiff was “capable of only the most sedentary of duties.” The plaintiff also submitted a report dated April 26, 2006, dictated by Kaplan and signed by his physician’s assistant, Keith Miner, stating that “there is little in terms of work capacities that she could tolerate other than [s]edentary capacities, but her ability to get to and from her house to place of employment is now severely limited.” In addition to Kaplan’s reports, the plaintiff offered a letter from Philip A. Mongeluzzo, Jr., a physician, dated February 25, 2006, that described the plaintiffs need for regular Coumadin therapy and blood monitoring, without which she would be at risk for a “potentially fatal blood clot.” The commissioner also accepted the reports produced by Selden and Yanno-poulos.

The commissioner, in addition to taking documentary medical evidence, also heard testimony from the plaintiff. During the defendants’ cross-examination of the plaintiff, she testified regarding her ability to perform a “desk job.” She testified that she would be unable to perform such a job both because her condition prevented her from getting to a place of work and because she is unable to sit for any extended period of time due to the resulting numbness and muscle spasms in her leg. The plaintiff, in her direct testimony, described accommodations her physical condition has required that she make in her everyday life. She testified that she can no longer clean her home, do her laundry or drive. The plaintiff stated that, as a result, she pays to have these services performed on her behalf.

The commissioner issued his finding and award on September 20, 2006, in which he found that Kaplan and Mongeluzzo “are of the opinion [that] the [plaintiff] is totally disabled.” He did not credit the opinions of Sel-den and Yannopoulos. The commissioner found that the plaintiff was credible and that she had sustained her burden of proof in showing that she is totally disabled. Based on these findings, the commissioner ordered, inter alia, that the defendants pay the plaintiff total disability benefits.

Following the issuance of the commissioner’s finding and award, on October 3, 2006, the defendants filed a motion to correct, inter alia, the findings that Kaplan and Mongeluzzo were of the opinion that the plaintiff is totally disabled and that she had met her burden of proof. The defendants argued that these findings warranted correction because the medical reports indicated that the plaintiff was capable of sedentary work. The commissioner denied the motion to correct.

The defendants appealed the September 20,2006 finding and award to the board, claiming that the commissioner’s findings of fact regarding the plaintiffs total disability were not supported by the record and that the conclusions of the commissioner were legally inconsistent with the subordinate facts found. After a hearing on the matter, the board issued its decision on August 28, 2007. The board stated that whether the plaintiff is totally disabled, as opposed to partially disabled, is a matter to be determined by the commissioner. In affirming the commissioner’s finding and award, the board reasoned that the plaintiffs testimony about the “physical limitations she suffered and the accommodations she has made in her personal life” render it reasonable “to infer from the [plaintiffs] medical history and the reports of [the plaintiffs] treating physician . . . that the [plaintiff] is totally disabled from employment.” Accordingly, the board concluded that the commissioner did not abuse his discretion in finding that the plaintiff was totally disabled. Although the board affirmed the decision of the commissioner, it remanded the case to the commissioner to find an exact award amount, which he had not done in his finding and award of September 20,2006. From that decision of the board, the defendants appeal.

“As a preliminary matter, we note that when the decision of a commissioner is appealed to the review [board], the review [board] is obligated to hear the appeal on the record of the hearing before the commissioner and not to retry the facts. ... It is the power and the duty of the commissioner, as the trier of fact, to determine the facts. . . . [T]he commissioner is the sole arbiter of the weight of the evidence and the credibility of witnesses . . . .” (Citations omitted; internal quotation marks omitted.) D’Amico v. Dept. of Correction, 73 Conn. App. 718, 723, 812 A.2d 17 (2002), cert. denied, 262 Conn. 933, 815 A.2d 132 (2003). “Neither the review board nor this court has the power to retry facts.” (Internal quotation marks omitted.) Schiano v. Bliss Exterminating Co., 57 Conn. App. 406, 411, 750 A.2d 1098 (2000).

“The review [board] may not disturb the conclusions that the commissioner draws from the facts found unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. ... In other words, [t]hese conclusions must stand unless they could not reasonably or logically be reached on the subordinate facts. . . . Our scope of review of the actions of the review [board] is similarly limited. . . . The decision of the review [board] must be correct in law, and must not include facts found without evidence or fail to include material facts which are admitted or undisputed.” (Citations omitted; internal quotation marks omitted.) D’Amico v. Dept. of Correction, supra, 73 Conn. App. 723-24. Furthermore, “[i]t is well established that [although not dispositive, we accord great weight to the construction given to the workers’ compensation statutes by the commissioner and [the] board.” (Internal quotation marks omitted.) Marandino v. Prometheus Pharmacy, 294 Conn. 564, 572, 986 A.2d 1023 (2010).

We address first the underlying factual finding made by the commissioner that Kaplan and Mongeluzzo were of the opinion that the plaintiff was totally disabled. As there is no evidence in the record to support it, we are not bound by that finding.

“[W]e are bound by the subordinate facts found by the commissioner unless those findings are clearly erroneous. ... A factual finding is clearly erroneous only in cases in which the record contains no evidence to support it, or in cases where there is evidence, but the reviewing court is left with the definite and firm conviction that a mistake has been made.” (Citation omitted; internal quotation marks omitted.) Brymer v. Clinton, 302 Conn. 755, 765, 31 A.3d 353 (2011).

The two reports from Kaplan describe the varied physical limitations suffered by the plaintiff. They do not, however, indicate that Kaplan was of the opinion that the plaintiff was totally disabled. While Kaplan did opine that the plaintiff was “functionally disabled,” he unequivocally stated that she was capable of sedentary duties. The report prepared by Mongeluzzo did not discuss in any respect the plaintiffs degree of disability, but addressed only the plaintiffs need for treatment with anticoagulants.

Given that there is no evidence in the record that either Kaplan or Mongeluzzo were of the medical opinion that the plaintiff was totally disabled, we conclude that the commissioner’s finding that they were of such an opinion is clearly erroneous. Accordingly, we do not consider that finding as we determine whether the board erred in upholding the commissioner’s finding and award.

We turn next to the defendants’ claim that the board improperly upheld the commissioner’s finding that the plaintiff was totally disabled from work. The defendants argue that without direct medical evidence indicating that the plaintiff was totally disabled, the commissioner could not properly find that the plaintiff was totally disabled. We disagree.

General Statutes § 31-307 (a) mandates that employers provide compensation to injured employees otherwise covered by the act, in the case that their work-related injuries result in total incapacity from work. “[A] plaintiff is entitled to total disability benefits under § 31-307 (a) only if he can prove that he has a total incapacity to work. . . . The plaintiff [bears] the burden of proving an incapacity to work. . . . Our Supreme Court has defined total incapacity to work as the inability of the employee, because of his injuries, to work at his customary calling or at any other occupation he might reasonably follow.” (Internal quotation marks omitted.) Diaz v. Pineda, 117 Conn. App. 619, 623-24, 980 A.2d 347 (2009).

The defendants contend that in order to meet her burden of proving her total incapacity to work, the plaintiff was required to produce direct medical evidence that she was totally disabled. To support their position, the defendants rely largely on case law that stands for the proposition that, when the causal relationship between a claimant’s work-related accident and his or her injury is not a matter of common knowledge, the commissioner must base conclusions with respect to causation on competent medical evidence. See Murchison v. Skinner Precision Industries, Inc., 162 Conn. 142, 151-52, 291 A.2d 743 (1972). Relying on a single case from this court, Dengler v. Special Attention Health Services, Inc., 62 Conn. App. 440, 774 A.2d 992 (2001), the defendants argue that competent medical evidence similarly is required to prove total disability, or total incapacity to work.

In Dengler, the plaintiff, a nurse’s assistant, injured her back while working in a patient’s home. Id., 443. That injury was covered by her employer. Id. In the course of her treatment for the work-related back injury, the plaintiff was diagnosed with degenerative disc disease and spondylosis, among other back ailments. Id. Approximately six months after she injured her back, the plaintiff “experienced some instability in her lumbar spine, which caused her to drop to her knees in her kitchen.” Id. On the same day as the episode in her kitchen, “the instability in her lumbar spine caused her to fall while descending a stairway” in her home. Id. The plaintiff sustained a fractured tibia and fibula in her right leg as a result of that fall. Id. The commissioner heard testimony from the plaintiffs brother corroborating the plaintiffs account, but also received a medical record that indicated that the plaintiff, while chasing dogs in her backyard, had fallen into a hole. Id., 446. Without receiving medical evidence opining on causation, the commissioner found that the injuries the plaintiff sustained from the fall down the stairs were causally related to her original back injury and that she was totally disabled from the combined results of those injuries. Id., 443-44. The board reversed the commissioner’s finding because the plaintiff had not presented medical evidence to substantiate the causal relationship between her original and her second injury. Id., 444-45. On appeal, this court found that the board properly required such evidence when causation was in dispute. Id., 449-50.

The defendants in the present case, arguing that the plaintiff must present direct medical evidence to sustain a finding of total disability, rely primarily on one line from Dengler. In Dengler, this court, after concluding that medical evidence is required when the cause of an injury is in dispute, turned to the question of whether the board improperly reversed the finding of the commissioner that the plaintiffs total disability, which resulted from the combined effects of her first and second injury, was caused by her original work-related injury. In setting forth the standard of review for this issue, the court in Dengler stated, “[a]s with our earlier discussion [regarding the causal nexus between accident and injury], we look to whether competent medical evidence supports the commissioner’s finding and award.” Id., 454. The defendants cite this statement for the proposition that direct medical evidence is required for the commissioner to make a finding of total disability. That, however, is a misreading of the case. At issue in Dengler was not merely whether the plaintiff was totally disabled, but whether the subsequent injury to her leg, for which causation had not been established, was a cause of her total disability. The analysis in Den-gler involved a combined question of causation and whether the plaintiff was totally disabled, and the court held only that direct medical evidence is required where the claim involves any dispute over causation. Accordingly, we conclude that Dengler is inapposite to the present case.

This court, however, has recently addressed the issue now presented by the defendants in Bode v. Connecticut Mason Contractors, The Learning Corridor, 130 Conn. App. 672, 25 A.3d 687, cert. denied, 302 Conn. 942, 29 A.3d 467 (2011). In Bode, the plaintiff, an Albanian immigrant with limited English language proficiency, fell approximately thirty feet from scaffolding on which he was laboring. Id., 674. He suffered multiple spine and shoulder fractures, as well as a hernia. Id. Due to these injuries, Bode requested temporary total disability payments and a hearing was held to determine his eligibility. Id., 675.

During the hearing, Bode produced medical records that contained the opinions of several physicians who concluded that he was capable of “light duty” work, but presented no medical evidence that concluded that he was totally disabled. Id., 676. He did, however, submit four vocational evaluations. Id., 677. Two of those evaluations, conducted in the two years following his injury, indicated that Bode was capable of light duty work. Id. The two subsequent evaluations, conducted two and one-half and six years after his injury, when his physical condition had further deteriorated, indicated that he was not employable. Id. The commissioner found that Bode had not met his burden of demonstrating that he was totally disabled from work because “he did not introduce one medical report in which a physician opined that [he] was totally disabled.” Id., 678. The board affirmed the commissioner’s finding and award. Id.

In Bode, this court explained that a medical determination of total disability is merely one way a claimant can establish total incapacity to work, and one of many types of evidence the commissioner may consider in making this finding. “[I]n order to receive total incapacity benefits ... a plaintiff bears the burden to demonstrate a diminished earning capacity by showing either that she has made adequate attempts to secure gainful employment or that she is truly unemployable. . . . Whether the plaintiff makes this showing of unemploy-ability by demonstrating that she actively sought employment but could not secure any, or by demonstrating through nonphysician vocational rehabilitation expert or medical testimony that she is unemployable ... as long as there is sufficient evidence before the commissioner that the plaintiff is unemployable, the plaintiff has met her burden. . . .

“Whether a claimant is realistically employable requires an analysis of the effects of the compensable injury upon the claimant, in combination with his preexisting talents, deficiencies, education and intelligence levels, vocational background, age, and any other factors which might prove relevant. ... A commissioner always must examine the impact of the compensable injury upon the particular claimant before him. . . . [T]he commissioner must evaluate not only the physical incapacity of the plaintiff, but the effect the physical injury has on the plaintiffs employability.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Id., 680-81. This court held that because the commissioner based his decision only on Bode’s physical capacity, ignoring the other significant evidence that he presented, his determination that the plaintiff was not totally disabled “resulted from an incorrect application of the law to the subordinate facts and from inferences unreasonably drawn from those facts.” Id., 687.

Bode highlighted that the evaluation of whether a claimant is totally disabled is a holistic determination of work capacity, rather than a medical determination. Moreover, Bode categorically rejected the notion that claimants must present a particular kind of evidence to meet their burden of proving their total disability. The board similarly has concluded that wide latitude is afforded to commissioners with respect to the evidence they may consider in evaluating whether a claimant is totally disabled. While neither dispositive of the issue nor binding on this court, the board’s interpretation of the act is instructive and we give it great weight. See Schiano v. Bliss Exterminating Co., supra, 57 Conn. App. 411. The board has opined that, under the act, no specific type of evidence is required for a commissioner to make a finding of total disability. “[0]ur total and partial disability statutes give the factfinder room to extrapolate unemployability from various sources. These include a claimant’s inability to find work after making a reasonable attempt to do so, a vocational expert’s report, or considerations such as educational background, language fluency, and medical restrictions impheating physical posture, lifting, stamina, sleep disorders, and pain tolerance.” Gombas v. Custom Air Systems, Inc., No. 4996 CRB 4-05-9 (September 20, 2006). Accordingly, we conclude that the commissioner did not apply an improper legal standard to the underlying facts of this case when, by evaluating all of the evidence before him, he found that the plaintiff had met her evidentiary burden without requiring direct medical evidence declaring her to be totally disabled.

Finally, we turn to the question of whether, in applying the proper legal standard, the commissioner reasonably could have found that the plaintiff was totally disabled. We conclude that he reasonably could have found as he did, and, therefore, the board did not err in upholding the commissioner’s finding and award.

The commissioner had before him competent medical evidence that detailed the plaintiffs significant physical limitations with respect to work capacity, along with the plaintiffs credible testimony regarding her inability to do even desk work because of the pain associated with sitting for extended periods of time and her restricted mobility. While the commissioner did not receive medical evidence categorically stating that the plaintiff was totally incapacitated from work, nor did he receive expert vocational evidence, the commissioner had sufficient evidence in the record to support his finding that the plaintiff had met her burden to show that she was temporarily totally disabled. The commissioner reasonably and logically could have concluded that the plaintiffs inability to sit for long periods, stand for long periods, repeatedly get up from a chair, twist, lift or drive, combined with the pain associated with her condition, rendered her temporarily totally incapacitated from work. We, therefore, determine that the board’s decision was correct in law and supported by the facts in evidence. Thus, we conclude that it properly affirmed the commissioner’s finding and award of temporary total disability benefits.

The decision of the workers’ compensation review board is affirmed.

In this opinion the other judges concurred.

       The board, in a previous decision, affirmed the finding of the commissioner that a pulmonary embolism and an adrenal mass suffered by the plaintiff also were caused by her original work-related injury. O’Connor v. Med-Center Home Health Care, Inc., No. 4954 CRB 5-05-6 (July 17, 2006).

       The hearing continued to May 24, June 1, and August 17, 2006.

       Coumadin, a brand name for the drug Warfarin, is “used to treat or prevent venous thrombosis (swelling and blood clotinavein) and pulmonary embolism (a blood clot in the lung). Warfarin is in a class of medications called anticoagulants (‘blood thinners’). It works by decreasing the clotting ability of the blood.” Medline Plus: Warfarin, last modified September 1, 2010, p. 2, 6, available at http://www.nlm.nih.gov/medlineplus/druginfo/ meds/a682277.html (last visited January 14, 2013) (copy contained in the file of this case in the Appellate Court clerk’s office).

       The defendants ask us to consider the fact that the plaintiff has represented herself in this action as evidence that she is not totally disabled. Because the commissioner made no such finding, we may not consider this fact, nor do we need to address whether such a finding would be proper. Castro v. Viera, 207 Conn. 420, 435, 540 A.2d 1216 (1988) (“[i]t is the power and the duty of the commissioner ... to determine the facts”).

       This appeal is presented on remand from the Supreme Court. O’Connor v. Med-Center Home Health Care, Inc., 303 Conn. 238, 32 A.3d 956 (2011). This court dismissed on jurisdictional grounds the defendants’ original appeal from the decision of the board. Id., 240. The Supreme Court concluded that this court has jurisdiction to hear the appeal, reversed the judgment dismissing the defendants’ appeal and remanded the case to this court for further proceedings. Id., 245-46.

       The defendants, without citing any legal authority, also assert that the commissioner improperly referenced the plaintiffs “medical history” in support of his finding of the plaintiffs total disability. As this claim was inadequately briefed, we do not address it. See State v. T.R.D., 286 Conn. 191, 213-14 n.18, 942 A.2d 1000 (2008) (“[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 failure to brief the issue properly.” [Internal quotation marks omitted.]).

       General Statutes § 31-307 (a) provides in relevant part: “If any injury for which compensation is provided under the provisions of this chapter results in total incapacity to work, the injured employee shall be paid a weekly compensation equal to seventy-five per cent of the injured employee’s average weekly earnings as of the date of the injury . . . and the compensation shall not continue longer than the period of total incapacity.”

       The defendants suggest in their brief to this court that if there is no direct medical evidence declaring the plaintiffs total disability, she must then launch a distinct claim of “vocational” total disability in order to be eligible for total disability benefits. There is no Connecticut authority that supports such a distinction.