text:
    Virruso Imports, Inc. v. Mario Interlandi
    (9432)
    O’Connell, Foti and Heiman, Js.
    Argued April 25
    decision released May 21, 1991

      Lawrence J. Cicchiello, for the appellant (defendant).

      John C. Heffernan, for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Mark A. Lathrop v. Kimberly-Clark Corporation et al.
    (9597)
    Düpont, C. J., Spallone and O’Connell, Js.
    Argued May 2
    decision released May 28, 1991

      Brewster Blackall, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Charles A. Over end and Cori-Lynn S. Webber, assistant attorneys general, for the appellant (defendant second injury and compensation assurance fund).

      Philip F. Spillane, for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    Timothy Burke v. Town of Fairfield et al.
    (9609)
    Daly, O’Connell and Heiman, Js.
    Submitted on briefs May 1
    decision released May 28, 1991

      Andrew R. Sherriff filed a brief for the appellant (plaintiff).

      Roy H. Ervin and Roy H. Ervin, Jr., filed a brief for the appellees (defendants).
   Per Curiam.

This case is controlled by our decisions in Manning v. Barenz, 24 Conn. App. 592, 590 A.2d 980 (1991), and Gauthier v. Fairfield, 24 Conn. App. 831, 591 A.2d 827 (1991).

The judgment is affirmed.


text:
    State of Connecticut v. Matthew J. Wehrle
    (9610)
    Daly, Layeey and Landau, Js.
    Argued May 2
    decision released May 28, 1991

      William Domnarski, for the appellant (defendant).

      Paul J. Ferencek, assistant state’s attorney, with whom, on the brief, were Patricia Swords, state’s attorney, and Sandra Tulius, deputy assistant state’s attorney, for the appellee (state).
   Per Curiam.

The judgment is affirmed.


text:
    Mac’s Car City, Inc. v. Pelino S. DiLoreto
    (9412)
    Spallone, Daly and O’Connell, Js.
    Argued May 2
    decision released May 28, 1991

      Vincent F. Sabatini, for the appellant (defendant).

      Lisa J. Barry, for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    Paul Vazzano et al. v. Zoning Commission of the City of Bridgeport et al.
    (9373)
    Spallone, Norcott and Lavery, Js.
    Argued May 3
    decision released May 28, 1991

      Kathryn L. Braun, with whom, on the brief, were Laurence V. Pamoff and David A. Scalzi, for the appellants (plaintiffs).

      Barbara Brazzel-Massaro, city attorney, filed a brief for the appellees (defendants)..
   Per Curiam.

The judgment is affirmed.


text:
    Marie T. Saviano v. Nicholas J. Saviano
    (9576)
    Dupont, C. J., Spallone and O’Connell, Js.
    Argued May 2
    decision released May 28, 1991

      Dianne M. Anderson, with whom, on the brief, was Melissa A. Granel, for the appellant (defendant).

      David P. Ball, with whom, on the brief, was Paul Swenson, for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    Daniel Raposo v. Environmental Protection Board of the City of Stamford et al.
    (9437)
    O’Connell, Foti and Heiman, Js.
    Argued March 25
    decision released June 4, 1991

      Mark J. Kovack, for the appellant (plaintiff).

      James V. Minor, assistant corporation counsel, with whom, on the brief, was Mary E. Sommer, corporation counsel, for the appellee (defendant).
   Per Curiam.

The issues raised in this case are (1) whether the trial court properly upheld the decision of the defendant board after the board had decided contrary to the recommendation of its staff, (2) whether the defendant board’s denial of the plaintiff’s application amounted to an unconstitutional exercise of the state’s police power, and (3) whether the defendant board’s decision amounted to an unconstitutional taking of the plaintiff’s property. These same issues were raised and thoroughly discussed in our recent resolution of Laufer v. Conservation Commission, 24 Conn. App. 708, 592 A.2d 392 (1991). In light of our decision in Laufer, we affirm the judgment of the trial court in the present case.

The judgment is affirmed.

       The defendants in the present case are the environmental protection board of the city of Stamford and the Stamford city clerk.


text:
    Kathleen Borkowski v. John J. Borkowski
    (9389)
    (9390)
    Daly, Landau and Heiman, Js.
    Argued March 27
    decision released June 11, 1991

      Leanne M. Kinsley, for the appellant (defendant).

      Averum J. Spreeher, for the appellee (plaintiff).
   Per Curiam.

The defendant appeals from the trial court’s order granting the plaintiff’s motion to modify the unallocated alimony and support order. The defendant also filed a separate appeal from the trial court’s partial granting of his motion for modification. The trial court rendered its decision on both motions following a joint hearing on July 9,1990. The two appeals were consolidated, by order of this court, on August 3,1990.

These appeals involve the trial court’s decision to decrease the amount of the unallocated alimony and support order by $250 a month to reflect the fact that one of the minor children residing with the plaintiff had reached the age of eighteen on May 19, 1990, and to increase the amount of the unallocated alimony and support order by $250 a month due to the wife’s uncontemplated substantial change of circumstances, specifically her physical health. The trial court’s action in modifying the support order essentially leaves unchanged the husband’s monthly obligation of $2500 in unallocated alimony and support.

The trial court has broad discretion in domestic relations cases and review is limited to whether the court’s conclusions were correct in law and reasonably reached on the basis of the evidence presented. Cattaneo v. Cattaneo, 19 Conn. App. 161, 166, 561 A.2d 967 (1989). This court will not substitute its judgment for that of the trial court unless there has been an abuse of discretion or the findings lack a reasonable basis in fact. Paddock v. Paddock, 22 Conn. App. 367, 372, 577 A.2d 1087 (1990).

After review of the briefs and record in this matter we cannot say that the trial court abused its discretion or that the result was not reasonably reached.

The judgment is affirmed.


author: Daly, J.

text:
    State of Connecticut v. William Dixon
    (9138)
    Spallone, Daly and Landau, Js.
    Argued March 20
    decision released June 11, 1991

      David B. Bachman, with whom, on the brief, was John R. Williams, for the appellant (defendant).

      Carolyn K. Longstreth, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and John Waddock, assistant state’s attorney, for the appellee (state).
   Daly, J.

The defendant appeals from the judgment of conviction rendered after he had entered a conditional plea of nolo contendere, pursuant to General Statutes § 54-94a, to charges of possession of narcotics with intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b), and conspiracy to sell narcotics in violation of General Statutes §§ 53a-48 (a) and 21a-277 (a). The defendant claims that the trial court improperly denied his motions to suppress and his motion to withdraw his nolo contendere plea. We disagree and affirm the judgment of the trial court.

The trial court found the following facts. On February 17, 1989, at about 10 p.m., Detective Sergeant Walter Casey and Officer Ralph Puglia of the West Haven police department were patrolling in the area of the Hilton Court apartment complex in West Haven. This area was known to police as a high crime area notorious for drug trafficking and car thefts. Puglia noticed a 1985 Nissan Sentra with a Maryland license plate parked in front of 20 Hilton Court. The Sentra was occupied by a lone man, secreting himself in the rear seat and behaving in a suspicious manner while the car’s motor was running. Puglia approached the car and asked the man to step out. The man identified himself as Jesus Baez and said he was waiting for friends who were in 20 Hilton Court. He did not know their names or the name of the owner of the car and he did not have any personal identification. Baez did retrieve and give to the police the car’s registration and ignition keys that had a New York tag attached to them. Casey suspected that the car was stolen and called for backup.

Officers John Conzo and Paul Raucci responded, and upon arriving entered 20 Hilton Court in search of Baez’ friends. After an unsuccessful search, Casey instructed Conzo to take Baez to headquarters. As Conzo was taking Baez to headquarters, they saw a large black male, later identified as the defendant, and two Hispanic men, who Baez stated were his friends, exit the rear of 20 Hilton Court. Conzo left the police cruiser and approached the three men, stating that he was a policeman and wanted to speak with them. The two Hispanic men immediately ran in different directions, the defendant retreated into the hallway of 20 Hilton Court, using a key. Conzo pursued the defendant, who slammed a door shut on Conzo’s hand. Conzo then ran to the front of 20 Hilton Court where he saw the defendant and the two Hispanic males, identified as Johnny Mancebo and Robert Rosario, with Raucci and another police officer. The defendant was asked his name, address and reason for being on the premises. The defendant stated that he did not live at 20 Hilton Court. Conzo then placed the defendant under arrest for interfering with a police officer, pursuant to General Statutes § 53a-167a (a). His driver’s license identified the defendant as William Dixon and listed an address in Huntington, New York. Rosario was carrying a white plastic bag that he said contained money. Raucci observed a large sum of money, later counted as $50,010, in wrappers from Connecticut National Bank (CNB).

Raucci recalled information he had received from a Yale University police officer in 1987 that a black male named William Dixon, who lived at 20 Hilton Court and owned a burgundy Chevy Nova, Connecticut registration 381-ENL, was selling cocaine out of his car and apartment. Raucci suspected, therefore, that a drug transaction had just occurred and called Sergeant Peter Bontempo who was in charge of narcotics investigations. Bontempo and Ricci arrived at the scene and Bontempo asked the defendant what he was doing at 20 Hilton Court. The defendant had not yet been given his Miranda warnings. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). He responded that he was visiting his girl friend in apartment B-7. A security guard advised the officers that apartment B-7 was vacant. The defendant was searched incident to his arrest, and cash, a beeper and a set of keys were seized from him. Raucci and Bontempo found a burgundy Chevy Nova in the parking lot and Bontempo observed from outside that it contained additional CNB wrappers and plastic bags commonly used in narcotics packaging. Ricci went into the apartment lobby and checked the registry of tenants. Apartment C-6 was listed in the defendant’s name and Bontempo was so informed. Ricci went to apartment C-6 while Bontempo and Raucci went to headquarters to obtain a search warrant. Ricci knocked on the door of C-6 and a man named Ruckert opened the door and said it was the defendant’s apartment. Ruckert said he rented a room from the defendant and shared the common areas with him. He allowed Ricci and other officers to enter the apartment and they ascertained that no one else was present and secured the apartment until the arrival of the search warrant.

At 5 a.m. on February 18, 1989, Bontempo and a police search party entered apartment C-6 pursuant to the search warrant. The search uncovered a large number of plastic sandwich bags, records indicative of narcotics transactions, records of telephone calls to New York, the defendant’s mobile phone, a shoulder holster for an Uzi machine gun, a bulletproof vest, a beeper, 100 empty glass vials commonly used to package cocaine, and a rental receipt for $800 for an apartment located at 104 Orange Landing. Bontempo and Inspector James Harris went to 104 Orange Landing at 153 Bull Hill Lane in West Haven. After knocking on the door, they heard noises inside. Using the defendant’s keys, they entered 104 Orange Landing and found a television playing and a telephone answering machine turned on. After ascertaining that no one was inside, they secured the premises and waited until a search warrant arrived. The subsequent search authorized by warrant uncovered seven pounds of white powder, later tested to be cocaine, and scales, cash, and narcotics packaging materials. The defendant moved to suppress all items that were seized in both of these searches and his oral statement to Bontempo, in addition to withdrawing his nolo contendere plea.

I

The defendant moved to suppress his oral statement given in response to Bontempo’s question asking what he was doing at 20 Hilton Court. This question was asked after the defendant’s arrest, but before he had been given Miranda warnings. See Miranda v. Arizona, supra. The defendant claims that this question constituted interrogation and that the question occurred prior to his receiving Miranda warnings. He asserts that, because he had not yet waived his Miranda rights when Bontempo’s question was asked and answered, the statement should have been suppressed. The defendant also claims that the statement he made to Bontempo was obtained in violation of his sixth amendment right to counsel. In denying the defendant’s motion to suppress, the trial court found that this single question was not an interrogation, but rather a routine administrative type of question that was not designed to elicit incriminating evidence.

This claim has validity only if the defendant was subject to custodial interrogation, and he bears the burden of showing that his answer to Bontempo’s one question was the result of custodial interrogation. State v. Vitale, 197 Conn. 396, 409, 497 A.2d 956 (1985). Because “the determination as to whether a particular question constituted interrogation is essentially factual”; State v. Evans, 203 Conn. 212, 227, 523 A.2d 1306 (1987); we apply the clearly erroneous standard to review the trial court’s decision. Id.

“Custodial interrogation means questioning initiated by law enforcement officers after a person has been taken into custody or deprived of his freedom of action in any significant way. . . . Before one suspected of the commission of a crime is entitled to . . . [Miranda warnings], two conditions are required: the suspect must be in the custody of law enforcement officials . . . and the suspect must be subjected to interrogation.” (Citations omitted.) State v. Vitale, supra, 411. The state concedes that the defendant was in police custody but argues that he was not subjected to interrogation when Bontempo posed his question.

Every question posed to a defendant in custody is not equivalent to an interrogation. State v. Evans, supra, 226. The test employed to determine whether an interrogation has occurred is “whether, under all the circumstances involved in a given case, the questions asked are ‘reasonably likely to elicit an incriminating response from the suspect.’ The test as to whether a particular question is ‘likely to elicit an incriminating response’ is objective; the subjective intent of the police officer is relevant but not conclusive and the relationship of the questions asked to the crime committed is ‘highly relevant.’. . . Ordinarily, the routine gathering of background, biographical data will not constitute interrogation.” (Citations omitted). Id. Furthermore, questions that are asked after an event or occurrence that would naturally tend to evoke such an inquiry do not constitute interrogation. These questions, unlike the sort of interrogation that prompted the implementation of the Miranda safeguards, are characterized by brevity, neutrality and an absence of intent to elicit a confession or admission. Most, moreover, are typically spontaneous. State v. Simoneau, 402 A.2d 870, 873-74 (Me. 1979).

Bontempo’s question, “What are you doing here?” was asked at the threshold of the encounter and was arguably aimed at determining the nature of the situation confronting the police at that time. There is no suggestion in the record that Bontempo’s single query was probing, accusatory, or likely to elicit an incriminatory response. See, e.g., Hairston v. United States, 500 A.2d 994 (D.C. App. 1985) (warnings not required where, after suspect told officer he shot victim, officer asked, “What happened?”); Robertson v. United States, 429 A.2d 192 (D.C. App. 1981) (no interrogation where officer went to suspect’s apartment, arrested him and asked “Do you know why I’m here?”); People v. Quicke, 71 Cal. 2d 502, 455 P.2d 787, 78 Cal. Rptr. 683 (1969) (no interrogation where officer came upon suspect lying on top of a dead body, handcuffed suspect and asked “What happened?”).

When we consider the fact that Bontempo asked one question, without the intent of eliciting a confession or inculpatory information, but simply to investigate the situation before him, we conclude that the trial court properly held that this query was not an interrogation. See State v. Evans, supra, 227.

The defendant’s cursory claim to a sixth amendment violation is also without merit. The right to counsel may arise when the government deliberately elicits incriminating information; State v. Vitale, supra, 412; but such is not the case here. In light of our conclusion that Bontempo did not deliberately elicit an incriminatory answer by his single, general question, we further conclude that the defendant’s sixth amendment right to counsel was not violated.

Thus, the trial court correctly refused to suppress the defendant’s statement.

II

The defendant next contends that the search warrant obtained for 20 Hilton Court apartment C-6 was inadequate because it did not meet the Aguilar-Spinelli test. Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964); Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969); State v. Kimbro, 197 Conn. 219, 496 A.2d 498 (1985). The defendant argues that the affidavit underlying the search warrant application failed to set forth the informants’ basis of knowledge and reliability. Further, the defendant claims that the subsequent search of the defendant’s premises known as apartment 104 Orange Landing at 153 Bull Hill Lane was also tainted because the search warrant issued for that address relied on the prior illegal search of 20 Hilton Court apartment C-6. See Wong Sun v. United States, 371 U.S. 471, 484-88, 83 S. Ct. 407, 371 L. Ed. 2d 441 (1963).

Specifically, the defendant challenges paragraphs five and eleven of the affidavit that was submitted with the application to search 20 Hilton Court apartment C-6. Paragraph five states that a Sergeant Barber of the Yale University police told Raucci that an informant had told Barber that the defendant was selling cocaine from 20 Hilton Court, that the defendant operated a burgundy Chevy Nova bearing Connecticut registration 381-ENL, and that the defendant stored cocaine in his apartment and under the Nova’s dashboard when transporting the drugs. Paragraph eleven states that the affiant was told by a New Haven police officer, Hilden Wright, that an informant had told Wright of a black male named Dixon who was from the area of Eastern Circle in New Haven, and who was dealing drugs in that area.

In determining whether a search warrant has been properly issued, a reviewing court must ascertain whether a neutral, detached judge or magistrate determined if the affidavit contained facts sufficient to justify probable cause to issue the search warrant. State v. Shifflett, 199 Conn. 718, 745-46, 508 A.2d 748 (1986). “Probable cause to search exists if: (1) there is probable cause to believe that the particular items sought to be seized are connected with criminal activity or will assist in a particular apprehension or conviction . . . and (2) there is probable cause to believe that the items sought to be seized will be found in the place to be searched.” (Emphasis in original; citations omitted.) State v. DeChamplain, 179 Conn. 522, 528-29, 427 A.2d 1338 (1980). When an affidavit contains tips from confidential informants, the judge must make an independent evaluation of the informants’ credibility by applying the Aguilar-Spinelli test. State v. Delmonaco, 194 Conn. 331, 340-41, 481 A.2d 40, cert. denied, 469 U.S. 1036, 105 S. Ct. 511, 83 L. Ed. 2d 401 (1984). The Aguilar-Spinelli test requires that an affidavit must set forth facts demonstrating both the informants’ basis of knowledge and the affiant’s reason for crediting the informant. Id.

The trial court found, and we agree, that paragraphs five and eleven of the affidavit did not meet the criteria of the Aguilar-Spinelli test. Even though the informants’ tips contained in those paragraphs were defective, they could still be partially considered by the issuing judge; State v. Delmonaco, supra, 341; because they provided only part, if any, of the basis, for a finding of probable cause. Here, there were significant other corroborative facts and probative indications of criminal activity to support the informants’ tips, and thereby provide additional color to the underlying facts supporting the judge’s determination of probable cause. Id.

Even without considering the informants’ tips in paragraphs five and eleven, the issuing judge had ample information to support a finding of probable cause that evidence of criminal activity would be found at 20 Hill-crest Court apartment C-6: (1) the defendant was with Mancebo and Rosario, and a background check at the scene revealed that Rosario had a New York narcotics record; (2) the trio fled when approached by police; (3) the defendant lied to police about his residence in apartment C-6 at 20 Hilton Court; (4) the defendant used a key to enter 20 Hilton Court and Ruckert, his roommate, confirmed that the defendant lived in apartment C-6; (5) a large sum of money in CNB wrappers was seized from Rosario; (6) the defendant’s burgundy Chevy Nova, registered in his daughter’s name, contained CNB money wrappers and plastic bags commonly used to package narcotics; (7) the affiants had personal knowledge that Dominicans were then involved in the drug trade around New Haven and Mancebo and Rosario identified themselves as Dominicans; (8) the defendant had a beeper, a device commonly used by drug dealers to facilitate sales; (9) Mancebo had a portable, cellular telephone on his person, commonly used by drug dealers to facilitate sales. Relying on his experience and common sense; see State v. Brown, 14 Conn. App. 605, 614, 543 A.2d 750, cert. denied, 208 Conn. 816, 546 A.2d 283 (1988); the issuing judge could find probable cause that a criminal drug transaction had just occurred. Finally, utilizing the tips contained in paragraphs five and eleven would color the aforementioned information and bridge any gap in providing a reasonable basis to find probable cause. State v. Delmonaco, supra.

This court does not engage in de novo review of the sufficiency of an affidavit, but rather gives great deference to the judge’s determination. State v. Kimbro, supra, 222. We, therefore, agree with the trial court that the issuing judge correctly found probable cause to issue a valid search warrant of 20 Hilton Court apartment C-6. In view of this decision, we need not consider the defendant’s derivative claim that challenges the search warrant for 153 Bull Hill Lane, apartment 104, issued after the search of the defendant’s 20 Hilton Court apartment.

Ill

The defendant finally claims that the trial court should have granted him an evidentiary hearing before denying his motion to withdraw his plea of nolo contendere. The following facts are pertinent to this claim. After the trial court denied the defendant’s motion to suppress, the defendant filed a pro se “motion to dismiss counsel,” in which he alleged a claim of ineffective assistance of counsel. The trial court treated the defendant’s motion as a motion to withdraw his plea, allowed the defendant’s attorney to withdraw from the case and appointed new counsel. When the defendant subsequently appeared with his new counsel, the court requested that the defendant state his claim of ineffective assistance. The defendant’s counsel represented that the defendant’s claim regarded prior counsel’s lack of investigation of his case. After some discussion of the proper forum for such claims in view of State v. Leecan, 198 Conn. 517, 504 A.2d 480 (1986); State v. Morant, 13 Conn. App. 378, 536 A.2d 605 (1988); and State v. Rish, 17 Conn. App. 447, 455, 455 n.9, 553 A.2d 1145, cert. denied, 211 Conn. 802, 559 A.2d 1137, cert. denied, 493 U.S. 818, 110 S. Ct. 71, 107 L. Ed. 2d 38 (1989); the court denied the defendant’s motion to withdraw his plea and the defendant excepted. At the sentencing hearing two weeks later, the defendant did not renew his motion to withdraw his plea, request an evidentiary hearing or make any other claim and the trial court proceeded to impose a sentence.

The defendant’s appeal is brought pursuant to General Statutes § 54-94a and Practice Book § 4003, which limit a defendant’s appeal after a conditional nolo contendere plea to motions to suppress evidence or statements and motions to dismiss. Practice Book § 4003 (b) requires that a conditional nolo contendere plea be submitted in writing and specify the particular motions preserved for appellate review. “ ‘[0]nly those issues fully disclosed in the record which relate either to the exercise of jurisdiction by the court or to the voluntary and intelligent nature of the plea are ordinarily appeal-able . . . .’ (Emphasis omitted; citations omitted.)” State v. Kelly, 206 Conn. 323, 327, 537 A.2d 483 (1988), quoting State v. Madera, 198 Conn. 92, 97-98, 503 A.2d 136 (1985). For purposes of this appeal, we regard the defendant’s claim as pertinent to the knowing and voluntary nature of his plea, and thus within the ambit of the aforementioned statute and rules of practice.

We begin our analysis by noting that once a plea of nolo contendere has been entered, a defendant is not entitled to withdraw his plea unless a motion to withdraw is made prior to the conclusion of sentencing. Practice Book § 720. The trial court is obligated to permit the defendant to withdraw his plea on proof of one of the grounds in Practice Book § 721. The defendant here alleged that his plea was involuntary or entered into without his being fully and adequately informed by his legal counsel. See Practice Book § 721 (2) and (4). A defendant is not entitled to an evidentiary hearing to determine the voluntariness of his plea merely because he makes a general allegation to the contrary. State v. Morant, supra, 13 Conn. 384. Thus, if the defendant -properly raises the issue of ineffective assistance of counsel, he may obtain an evidentiary hearing on the issue, notwithstanding the preference stated in Leecan for the habeas corpus forum or by petition for a new trial. State v. Leecan, supra; State v. Rish, supra, 454-55. A trial court’s decision to deny a motion to withdraw a plea is reversible only on a showing of a clear abuse of discretion. State v. Morant, 20 Conn. App. 630, 633, 569 A.2d 1140, cert. denied, 215 Conn. 818, 576 A.2d 547 (1990); State v. Rish, supra, 451.

"An evidentiary hearing is not required if the record of the plea proceeding and other information in the court file conclusively establishes that the motion is without merit. ... In considering whether to hold an evidentiary hearing . . . the court may disregard any allegations of fact, whether contained in the motion or made in an offer of proof, which are either conclusory, vague or oblique. For the purpose of determining whether to hold an evidentiary hearing, the court should ordinarily assume any specific allegations of fact to be true. If such allegations furnish a basis for withdrawal of the plea. . . and are not conclusively refuted by the record of the plea proceedings and other information contained in the court file, then an evidentiary hearing is required.” (Citation omitted.) State v. Torres, 182 Conn. 176, 185-86, 438 A.2d 46 (1980); State v. Morant, supra, 20 Conn. App. 633.

The record indicates that the defendant entered his plea of nolo contendere and the trial court conducted proceedings to accept the defendant’s plea on December 4,1989. The defendant has failed to provide a transcript of the plea proceedings of December 4, 1989, which is necessary for our review of the defendant’s claim. Because the defendant has failed to furnish this court with an adequate record for review; Practice Book §§ 4013 and 4019; Coveney v. Nicoletti, 168 Conn. 184, 193, 362 A.2d 937 (1975); Urban v. Leggio, 1 Conn. App. 226, 228, 470 A.2d 1226 (1984); we cannot consider his claim.

The judgment is affirmed.

In this opinion the other judges concurred.


author: Norcott, J.

text:
    Patty Haxhi et al. v. Sarah E. Moss
    (8821)
    O'Connell, Norcott and Landau, Js.
    Argued March 28
    decision released June 11, 1991

      William J. Goggin, Jr., for the appellants-appellees (plaintiffs).

      Patrick J. O’Connell, for the appellee-appellant (defendant).
   Norcott, J.

The plaintiffs in this libel action, Patty and Ben Haxhi, doing business as Patty’s Pantry, appeal from the granting of the defendant’s motion to dissolve or modify an ex parte prejudgment attachment. The plaintiffs challenge the trial court’s finding that there was insufficient evidence to establish probable cause that the defendant had acted with malice in fact. The defendant has cross appealed, claiming that the trial court improperly determined that her challenged statement (1) was not protected by the constitutional guarantee of free speech and (2) accused the plaintiffs of dealing drugs.

The trial court could reasonably have found the following facts. On August 10, 1989, the defendant sent a letter to Carol Herskowitz, first selectperson for the town of Southbury. In her letter, the defendant complained of government inaction with respect to garbage pickup and the enforcement of zoning laws near Patty’s Pantry. She also stated that “[m]any locals freely admit with a shrug that Patty’s Pantry is the local spot to get your drugs since everyone going in and out makes it difficult to monitor. . . . It’s supposed to be a convenience store, but I don’t think that the availability of drugs within a block of the high school is what the term ‘convenience store’ is supposed to mean.” The defendant sent a copy of this letter to Voices, a local newspaper, which published the letter on its “Letters to the Editor” page on August 16, 1989.

The plaintiffs brought this libel action in two counts by a complaint dated August 21,1989. On August 22, 1989, the plaintiffs obtained an ex parte prejudgment remedy to attach the defendant’s real property at 151 Reservoir Road, Southbury, in the amount of $150,000. The defendant moved to modify or dissolve the prejudgment attachment on October 13,1989. The trial court held a hearing at which it received evidence and heard testimony from both of the plaintiffs and from the defendant. The court concluded that the plaintiffs had failed to meet their burden of showing probable cause that the defendant had acted with malice in .fact, thus limiting their recovery to actual damages. The court therefore reduced the plaintiffs’ prejudgment attachment to $7500. In an articulation filed on July 2,1990, the court, citing Moore v. Stevenson, 27 Conn. 14 (1858), defined malice in fact as “improper or unjustifiable motives indicative of ill will or an intent or desire to injure.”

I

The Appeal

The plaintiffs claim, in essence, that the trial court improperly defined malice in fact in terms of “ill will or an intent or desire to injure.” We agree.

In acting on a prejudgment remedy motion, the trial court “ ‘must evaluate the arguments and evidence produced by both parties” to determine whether there is probable cause to sustain the validity of the plaintiffs’ claim. Augeri v. C. F. Wooding Co., 173 Conn. 426, 429, 378 A.2d 538 (1977); L. Suzio Concrete Co. v. Salafia, 3 Conn. App. 404, 488 A.2d 1280 (1985); General Statutes § 52-278d (a). The court should not, however, make a full and final decision on the plaintiffs’ claim, as “[t]he hearing in probable cause for the issuance of a prejudgment remedy is not contemplated to be a full scale trial on the merits . . . Three S. Development Co. v. Santore, 193 Conn. 174, 175, 474 A.2d 795 (1984); Augeri v. C. F. Wooding Co., supra. Instead, the trial court, vested with broad discretion, need determine only the likely success of the plaintiffs’ claim by weighing probabilities. Three S. Development Co. v. Santore, supra, 176.

This court’s role in reviewing the trial court’s ruling on a prejudgment remedy motion is limited. “It is not to duplicate the trial court’s weighing process, but rather to determine whether its conclusion was reasonable. Tn the absence of clear error, this court should not overrule the thoughtful decision of the trial court, which has had an opportunity to assess the legal issues which may be raised and to weigh the credibility of at least some of the witnesses.’ [Augeri v. C. F. Wooding Co., supra, 429.]” Id.

The trial court in this case clearly used an improper standard to find that there was no probable cause that the defendant had acted with malice in fact. Since 1858, Connecticut courts have defined malice in fact as any improper or unjustifiable motive. Bleich v. Ortiz, 196 Conn. 498, 504, 493 A.2d 236 (1985); Proto v. Bridgeport Herald Corporation, 136 Conn. 557, 564, 72 A.2d 820 (1950); Corsello v. Emerson Bros., Inc., 106 Conn. 127, 132, 137 A. 390 (1927); Hassett v. Carroll, 85 Conn. 23, 37, 81 A. 1013 (1911); Wynne v. Parsons, 57 Conn. 73, 80, 17 A. 362 (1889); Hotchkiss v. Porter, 30 Conn. 414, 421 (1862); Moore v. Stevenson, supra, 28. Malice in fact has never been construed to require proof of “personal pique, ill will [or] hatred” on the part of a perpetrator of a libel. Moore v. Stevenson, supra, 27. It can also be proved by “conduct evincive of similar feelings or motives, as if the publication was at the time known to be false, or made without authority, or such authority as would be regarded as entitled to credence among upright and careful men, or manifesting an entire indifference whether the charge is true or false . . . . ” Id., 28-29. The trial court in this case, therefore, clearly erred when it limited its definition of malice in fact to acts indicative of “ill will or an intent or desire to injure.” Accordingly, we reverse the judgment of the trial court and remand the case for a new hearing on the defendant’s motion.

II

The Cross Appeal

In her cross appeal, the defendant claims that the trial court improperly found that her challenged statement (1) was not protected by the constitutional guarantee of free speech regarding fair comment on a matter of public concern and (2) accused the plaintiffs individually and personally of dealing drugs. Although we are remanding the case on the plaintiffs’ appeal, we address these issues because they may recur on rehearing.

As noted above, the trial court, ruling on a prejudgment remedy motion, is vested with broad discretion in determining the probable success of the plaintiffs’ claim. Three S. Development Co. v. Santore, supra, 176. In so doing, the court must evaluate not only the plaintiffs’ claim but also any defenses raised by the defendant. Augeri v. C. F. Wooding Co., supra, 429. This is because “a good defense . . . will be enough to show that there is no ‘probable cause that judgment will be rendered in the matter in favor of the plaintiff.’ ” Id. We will reverse the trial court’s decision on a prejudgment remedy motion only in cases of clear error. Id.

The trial court in this case properly considered both the plaintiffs’ claim and the defenses presented in weighing the probability that the plaintiffs’ claim would succeed. We find that the court’s evaluation of the defendant’s arguments was not clearly erroneous and therefore affirm the judgment of the trial court on the defendant’s cross appeal.

The judgment of the trial court is reversed as to the issue raised on the appeal and the case is remanded for a new hearing in accordance with this opinion. The judgment of the trial court is affirmed as to the issues raised on the cross appeal.

In this opinion the other judges concurred.

       In her motion, the defendant requested only that the prejudgment attachment be dissolved. She was allowed orally to amend her motion after the hearing to seek, in the alternative, a modification.

       General Statutes § 52-237 provides: “In any action for a libel the defendant may give proof of intention; and unless the plaintiff proves either malice in fact or that the defendant, after having been requested by him in writing to retract the libelous charge, in as public a manner as that in which it was made, failed to do so within a reasonable time, he shall recover nothing but such actual damage as he may have specially alleged and proved.” It is undisputed that in this case the plaintiffs not only failed to request a retraction but in fact refused the defendant’s offer to have a retraction published. Therefore, under this statute, the plaintiffs must prove that the defendant acted with malice in fact to recover general damages.


author: Foti, J.

text:
    State of Connecticut v. Ramon Sanchez
    (8772)
    Dupont, C. J., O’Connell and Foti, Js.
    Argued March 19
    decision released June 11, 1991

      Laurence P. Nadel, public defender, for the appellant (defendant).

      Leah Hawley, assistant state’s attorney, with whom, on the brief, were John Bailey, state’s attorney, and Paul Murray, assistant state’s attorney, for the appellee (state).
   Foti, J.

The defendant, Ramon Sanchez, who is also known as Rafael Sanchez, appeals from the judgment of conviction, rendered after a jury trial, of possession of narcotics with intent to sell in violation of General Statutes § 21a-277 (a), sale of narcotics in violation of General Statutes § 21a-277 (a), the use of a person under eighteen years of age to violate General Statutes § 21a-277 in violation of General Statutes § 21a-278a (c), and conspiracy to sell narcotics in violation of General Statutes §§ 21a-277 (a) and 53a-48 (a). He claims that the trial court improperly admitted a deposition into evidence.

The jury reasonably could have found the following facts. On September 22, 1988, at approximately 7:30 a.m., two Hartford police department detectives began surveillance of Park and Wolcott Streets because they had received information of suspected drug trafficking in that area. They were dressed in plain clothes and in a parked unmarked car on Wolcott Street approximately 100 yards from Park Street. For approximately thirty minutes, they observed several known narcotics users approach the defendant and another man standing together on Park Street. In each instance, after a brief conversation the parties would walk to a vehicle parked across the street and exchange money and objects with a young girl in the car. The detectives observed seven to twelve of these transactions during their thirty minute surveillance. On the basis of their training and experience, they concluded that these transactions involved the sale of narcotics.

After arresting the two men, the detectives approached the automobile and observed a young female, who appeared to be thirteen or fourteen years old, in the back seat. After removing her from the car, the detectives found two packets containing white powder on the seat, money on the floor and thirteen packets of white powder under the seat. The packets were subsequently found to contain cocaine and heroin.

The young female, E, was turned over to the juvenile authorities because she was thirteen years of age. Prior to her release from juvenile custody, E was deposed by the state’s attorney’s office due to her impending departure for Puerto Rico. Upon her release two days later, she immediately left for Puerto Rico.

Because E was unavailable, the state requested and was allowed to admit her deposition into evidence at the defendant’s trial. The defendant claims that the trial court should not have allowed the deposition of E into evidence because the state had failed to prove that the witness was unavailable, that there was no finding that the minor deponent was competent, and that the Spanish interpreter of the deponent had not been sworn.

A deposition may be used as evidence at trial if the deponent is unavailable. Practice Book § 793. “Unavailability” is defined in Practice Book § 803 under subsection (5) to include a situation in which a deponent is absent from the trial or hearing and the party seeking to have the deposition admitted shows that he has been unable to procure the witness’ attendance by subpoena or by other reasonable means. The sufficiency of the showing as to the unavailability of the witness is a question addressed to the discretion of the trial court. State v. Weinrib, 140 Conn. 247, 252, 99 A.2d 145 (1953); State v. Summerville, 13 Conn. App. 175, 180, 535 A.2d 818 (1988). On appeal, the trial court’s rulings on the admissibility of evidence are accorded great deference and will be disturbed only upon a showing of clear abuse of discretion. State v. Erhardt, 17 Conn. App. 359, 367, 553 A.2d 188 (1989).

The party moving for admission of a statement of an unavailable witness has the burden of proving the declarant’s unavailability. State v. Frye, 182 Conn. 476, 481, 438 A.2d 735 (1980). The mere assertion that a witness cannot be found does not amount to a good faith effort. State v. Summerville, supra, 181. In the absence of the jury, the state presented evidence of the following unsuccessful efforts to locate E in order to demonstrate that E was not available. The state contacted an investigator for the juvenile court from the public defender’s office and also a juvenile division probation officer in an attempt to locate E. The investigator was unsuccessful in attempting to contact E’s grandmother in Springfield, Massachusetts, by telephone and through the welfare office. The probation office had no information regarding E’s whereabouts. The probation department was ordered by the juvenile court to transport E to the airport for return to Puerto Rico upon her release and her juvenile record disclosed no means of locating her. Even the investigation stemming from information presented by the defendant to the state as to E’s whereabouts proved fruitless. The court also determined that the state’s stated reason for deposing E was the probable unavailability of her testimony at trial, and the defendant did not object to that procedure.

The court found that the state had acted reasonably in attempting to secure E’s appearance, and that, since E was found to be unavailable, her deposition was admissible. The facts found and the conclusions drawn were rational, logical and reasonable. The defendant has, therefore, failed to show an abuse of discretion in the trial court.

The defendant next claims that E’s deposition should not have been admitted as evidence because E had not been determined to be competent. At the time of the deposition, E was thirteen years old. The defendant did not object to her testimony on competency grounds until the state sought to admit the deposition at trial. He now argues that he had no burden to object at the time the deposition was taken. The trial court held that the defendant had waived the objection by not claiming it at the time of the deposition. We agree.

“ ‘The incompetency of a witness is determined at the time [she] is offered, or, if the ground of incompetency is discovered during the trial, upon objection promptly made at that time. \ . . ” Manning v. Michael, 188 Conn. 607, 610, 452 A.2d 1157 (1982), quoting 81 Am. Jur. 2d, Witnesses § 139, p. 180. Challenges to competency must be made when the witness is first sworn if the grounds are then known, otherwise as soon as the grounds became evident. C. Tait & J. LaPlante, Connecticut Evidence (2d Ed.) § 7.11, p. 158.

“In Connecticut, the examination to determine the competency of a witness is usually conducted by counsel under direction of the court, except insofar as the court may find it advisable to intervene. See State v. Orlando, 115 Conn. 672, 676, 163 A. 256 (1932).” State v. Paolella, 211 Conn. 672, 688, 561 A.2d 111 (1989).

Although it is true that children, unlike adults, are not presumed to be competent, they are, nevertheless, not presumed to be incompetent. See General Statutes § 54-86h; State v. James, 211 Conn. 555, 563-65, 560 A.2d 426 (1989).

The defendant had an opportunity to object to E’s competency at her deposition. Having failed to do so, he cannot attempt to undertake a competency determination at trial because E is no longer available. This is a situation that the defendant should have anticipated because it was the stated purpose for the deposition. Nor can the defendant point to anything on the record that indicates E’s incompetence as a witness. Accordingly, by failing to object to E’s testimony at the time of the deposition, the defendant has waived his right to object on the basis of competency to the admission of E’s deposition at trial.

Lastly, the defendant argues that the deposition should not have been admitted because the record does not disclose whether the interpreter took the interpreter’s oath at the deposition when he translated Spanish and English. The defendant did not object at the time of the deposition, but did object, for the first time, at trial.

In the absence of the jury, Antonio Salazar, the official court interpreter who interpreted for E, testified that the interpreter’s oath, General Statutes § 1-25, had been administered to him on several occasions, and is readministered to him approximately twice per year. Although he does not take this oath each time he appears in court, he considers himself bound by the oath each time he interprets at a legal proceeding, including the deposition in question. He testified that he had made a fair and accurate interpretation of the literal meaning of what was said by all parties involved in this deposition.

The trial court found that the defendant had waived any objection by not raising a challenge at the time of the deposition, and that Salazar had complied with the spirit of the law.

Even the failure to swear a witness that may occur either by knowing silence or by the mere failure to notice the omission may be waived. See State v. Paolella, supra, 687-88. If the defendant wanted to raise this issue, he should have done it at the taking of the deposition when a defect of this nature could have been remedied. In failing to raise this issue at the time of the deposition, the defendant waived his right to object to the omission of the interpreter’s oath. We cannot conclude that the failure to administer the interpreter’s oath at the deposition resulted in any manifest injustice in this case. In light of this waiver, we need not address the state’s claim that the interpreter’s oath is a continuing oath, and is 'not required to be readministered for every legal proceeding.

The judgment is affirmed.

In this opinion the other judges concurred.

       Following the jury verdict, the defendant entered a plea of guilty to a part B information charging him with being a persistent offender.

       The defendant has not claimed on appeal that the statement was neither relevant, nor reliable or trustworthy, but rather only that the evidence should have been excluded because the state’s failure to make diligent efforts to secure E’s attendance at trial violated his confrontation rights under the United States and Connecticut constitutions.

       Although Practice Book § 803 (5) requires a finding that the state showed that it was unable to “procure [E’s] attendance by subpoena or by other reasonable means” the defendant argues that a different standard is required. The defendant argues that the court must find that the state used reasonable diligence to produce the witness before it can find that she was unavailable. This standard is a paraphrase from Barber v. Page, 390 U.S. 719, 720, 88 S. Ct. 1318, 20 L. Ed. 2d 255 (1968), and was formulated in C. Tait & J. LaPlante, Connecticut Evidence (2d Ed.) § 11.3.2. The defendant argues that reasonable diligence is both the correct standard, and much higher than the one provided in our rules of practice. Notwithstanding the defendant’s attempts to shade the word diligence with connotations from other areas of the law, we find that any differences between the standard required by the United States Supreme Court and the one provided by our rules of practice are purely semantic and devoid of any significance.

       The trial court also, after examining the deposition, held that there was nothing in the deposition itself to indicate that E was incompetent.


author: O’Connell, J. Foti, J.,

text:
    Rhode Island Hospital Trust National Bank v. Martin Trust
    (9037)
    Daly, O’Connell and Foti, Js.
    Argued November 2, 1990
    decision released June 11, 1991

      Chester J. Bukowski, Jr., with whom, on the brief, was Peter C. Schwartz, for the appellant (defendant).

      Ann M. Siczewicz, for the appellee (plaintiff).
   O’Connell, J.

The issue here is whether a prejudgment remedy (P JR) may be extended to include a temporary injunction in order to permit an appeal of the temporary injunction under General Statutes § 52-278L We hold that it cannot.

The following facts are dispositive of this appeal. The plaintiff alleges that the defendant is indebted to it on a guarantee agreement that pertains to the development of certain Connecticut property. The defendant is a New Hampshire resident who submitted to Connecticut jurisdiction in the guarantee agreement. The plaintiff applied for a prejudgment attachment and also an order to show cause why a temporary injunction should not issue. Following a hearing, the court granted an attachment and simultaneously granted a temporary injunction ordering the defendant to bring certain securities into Connecticut and turn them over to a deputy sheriff for attachment. The defendant then filed this appeal.

As a threshold matter it is important to note what issue is not before us. The defendant is not asking us to determine if the temporary injunction, considered independently, satisfies the final judgment criteria for appeal. Temporary injunctions generally are not appeal-able because they are interlocutory in nature, but an exception exists if the temporary injunction meets the requirements of a final judgment. See Doublewal Corporation v. Toffolon, 195 Conn. 384, 389-90, 488 A.2d 444 (1985).

PJRs, however, are immediately appealable because they are statutorily decreed to be final judgments for purposes of appeal. General Statutes § 52-2781. Thus, it is advantageous for the defendant to convince us that this temporary injunction is in fact a PJR, thereby gaining automatic appealability rather than attempting the more arduous task of satisfying the final judgment criteria required for a temporary injunction.

The defendant argues that the temporary injunction is appealable because, under the circumstances of this case, it is a prejudgment remedy. A prejudgment remedy is not simply a judicial remedy that is issued prior to judgment. Prejudgment remedy is a statutorily defined term that is expressly limited to only (1) an attachment, (2) a foreign attachment, (3) a garnishment or (4) an action of replevin. General Statutes § 52-278a (d). Expressio unius est exclusio alterius. When legislation defines the terms used therein such definition is exclusive of all others. Neptune Park Assn. v. Steinberg, 138 Conn. 357, 362, 84 A.2d 687 (1951). Whether a temporary injunction should become the fifth PJR must be determined by the legislature, not this court. “Where statutory language is clearly expressed, as here, courts must apply the legislative enactment according to the plain terms and ‘cannot read into the terms of a statute something which manifestly is not there in order to reach what the court thinks would be a just result.’ ” Johnson v. Manson, 196 Conn. 309, 315, 493 A.2d 846 (1985), cert. denied, 474 U.S. 1063, 106 S. Ct. 813, 88 L. Ed. 2d 787 (1986), quoting Rosnick v. Aetna Casualty & Surety Co., 172 Conn. 416, 422, 374 A.2d 1076 (1977); State v. Malm, 143 Conn. 462, 467, 123 A.2d 276 (1956).

This court’s refusal to expand the statutory definition of P JRs beyond those PJRs enumerated by legislation does not produce a result foreign to our jurisprudence. There are other procedures in our law that afford a party a remedy prior to the rendering of judgment (e.g., writ of Ne Exeat, temporary mandamus, and appointment of receiver). Like temporary injunctions, however, their temporal relation to the judgment does not qualify them for immediate appeal-ability under the PJR appeal statute.

The defendant incorrectly asserts that the PJR legislation allows for hybrid remedies. In defining a PJR, General Statutes § 52-278a (d) provides in pertinent part that a PJR “means any remedy or combination of remedies that enables a person by way of attachment, foreign attachment, garnishment or replevin to deprive the defendant in a civil action of . . . his property prior to final judgment . . . .” (Emphasis added.) It is apparent from a plain reading of this statute that the combination of remedies is limited to a combination of the four remedies set forth therein. We find no justification to construe this unambiguous statute to mean that the possible remedies that can combine to qualify as a PJR are limitless as long as one of the four statutorily defined PJRs is included in the mix. We hold that the “combination of remedies” language refers only to any combination of the four statutorily defined PJRs. Accordingly, combining a prejudgment attachment with a temporary injunction does not transform the latter into a PJR.

The defendant also argues that, because the parties and the trial court treated the injunction as an intrinsic component of the PJR, we are bound to do likewise. This argument ignores the principle that the issue before us implicates the jurisdiction of this court. We can hear appeals only from final judgments; General Statutes §§ 51-197a, 52-263; Practice Book § 4000; and neither the parties nor the trial court can confer jurisdiction upon us. Ebenstein & Ebenstein, P.C. v. Smith Thibault Corporation, 20 Conn. App. 23, 25, 563 A.2d 1044 (1989). Accordingly, the form of the PJR application and whether the court’s orders granting the attachment and the temporary injunction were in fact one order or two separate orders are irrelevant because of the jurisdictional problem posed by the defendant’s appeal. The treatment of these orders as a PJR by the trial court and the parties cannot circumvent this jurisdictional barrier.

The defendant’s reliance on E. J. Hansen Elevator, Inc. v. Stoll, 167 Conn. 623, 356 A.2d 893 (1975), is misplaced. Hansen was decided shortly after the PJR statutes were enacted in response to “[t]he decisions of the United States Supreme Court in Fuentes v. Shevin, 407 U.S. 67, 92 S. Ct. 1983, 32 L. Ed. 2d 556 [1972]; Lynch v. Household Finance Corporation, 405 U.S. 538, 92 S. Ct. 1113, 31 L. Ed. 2d 424, rehearing denied, 406 U.S. 911, 92 S. Ct. 1611, 31 L. Ed. 2d 822 [1972]; and Sniadach v. Family Finance Corporation, 395 U.S. 337, 89 S. Ct. 1820, 23 L. Ed. 2d 349 [1969] . . . ." E. J. Hansen Elevator, Inc. v. Stoll, supra, 624. As originally passed in 1973, these statutes did not include a section pertaining to appeals. Public Acts 1973, No. 73-431. In 1975, Hansen discussed the history of PJRs and concluded that the four statutory PJRs met the case law definition of final judgments and thus were immediately appealable. The following session of the General Assembly enacted Public Acts 1976, No. 76-401 (now General Statutes § 52-2781) which codified the Hansen holding that a PJR order granting an attachment, a foreign attachment, a garnishment or replevin was a final judgment for purposes of appeal. Hansen did not consider whether any other remedy should be treated as a PJR.

We conclude that the prejudgment remedy statute may not be extended to include a temporary injunction so as to permit an appeal of an injunction under the PJR appeal statute. Accordingly, this court lacks jurisdiction to review this appeal.

The appeal is dismissed.

In this opinion, Daly, J., concurred.

Foti, J.,

dissenting. I must respectfully disagree with the view of the majority that we are without jurisdiction to entertain this appeal. I would conclude that jurisdiction is not lacking because the granting of the plaintiffs application for a preliminary injunction here is a final judgment within the context of General Statutes § 52-278a because it is an integral part of the prejudgment remedy.

By its complaint, the plaintiff, a Rhode Island banking institution, seeks to recover funds allegedly due it pursuant to an agreement between it and the defendant. By the agreement, the defendant, a resident of New Hampshire, guaranteed 50 percent of a promissory note from a limited partnership of which he is a partner to the plaintiff. The defendant also guaranteed, by the agreement, the payment of all interest on the note and the punctual completion of a facility being built by the partnership.

The plaintiff filed an application for the prejudgment remedy of attachment seeking an order of attachment of eleven million dollars of property belonging to the defendant. By separate request entitled “application for preliminary injunction and order to show cause” the plaintiff also sought an order compelling the defendant to bring the defendant’s stock certificates in a company known as The Time Limited, Inc., into the state of Connecticut to secure the order of attachment.

The court found, after a hearing, that the loan was in default, and that the balance owed at that time was $9,641,066 plus interest of $236,820 with a per diem interest of $2,945. The defendant argued to the trial court that probable cause had not been established. He further argued that his assets far exceeded the plaintiff’s claim making a prejudgment remedy unwarranted, and that no equitable relief in the form of a mandatory injunction was available to the plaintiff because it was not a creditor, in that it had not yet obtained a judgment.

The court, by a single order, granted a prejudgment remedy of attachment in the amount of $7,743,955 in favor of the plaintiff, and further ordered the defendant to bring into Connecticut and turn over to a Connecticut deputy sheriff, public securities in an amount sufficient to satisfy the attachment, and private securities if the public securities were not sufficient to satisfy the attachment.

1 agree that we must first determine whether we have jurisdiction to entertain this appeal. The plaintiff argues that the appeal should be dismissed because the court’s granting of its application for a preliminary injunction is not a final judgment.

Although an order granting a prejudgment remedy following a hearing is deemed a final judgment for purposes of appeal; General Statutes § 52-278d; the granting or denying of a temporary injunction, absent a statutory exception, is generally considered interlocutory and therefore is not an appealable final judgment; Board of Education v. Shelton Education Assn., 173 Conn. 81, 88, 376 A.2d 1080 (1977). It is also clear that a temporary restraining order is not a prejudgment remedy. General Statutes § 52-278a (d).

Neither party disputes the general principle that, in the absence of statutory exceptions, a decision granting a temporary injunction is not immediately appeal-able because it is not a final judgment. Olcott v. Pendelton, 128 Conn. 292, 295, 22 A.2d 633 (1941). “The question before us is whether the form or the content of the trial court’s orders removes [this appeal] from the general rule.” (Emphasis added.) Doublewal Corporation v. Toffolon, 195 Conn. 384, 389, 488 A.2d 444 (1985).

A threshold question to be answered in determining whether this order is an exception to the general rule is whether the order appealed from is, in fact, one order or two separate orders for purposes of appealability. The majority contends that the attachment and the preliminary mandatory injunction are two independent orders, and that, therefore, only the attachment portion of the order may be appealed. I agree with the majority that a combination of remedies must be comprised solely of statutorily defined prejudgment remedies for the combination to qualify as a prejudgment remedy under General Statutes § 52-278a. This analysis, however, leads me to a conclusion different from that of the majority. I conclude that under these circumstances the attachment and the mandatory injunction are so mutually dependent that they form a single prejudgment remedy, an attachment.

The defendant has a right to appeal the prejudgment remedy order, but, if he can appeal only the attachment portion of the remedy, that review would be essentially an empty right because the attachment alone is a nullity unless there is something to attach.

The trial court itself, in discussing the intent behind General Statutes § 42a-8-317 (6), characterized an attachment under the facts presented to be ineffectual unless accompanied by the ability to reach the defendant’s assets. The court, in its memorandum of decision, stated: “This court concludes that despite the position espoused by the defendant . . . the legislature of this state by enacting this statute specifically intended to provide a mechanism for a creditor to effect an attachment of stock certificate located in a foreign state.”

To hold that the attachment and the preliminary mandatory injunction are independent orders leads to a bizarre result where the attachment is appealable, but the portion of the order which effectuated the prejudgment remedy is not. “An interpretation of a statute that would have it function in a ‘difficult and possibly bizarre’ fashion must be avoided. Texaco Refining & Marketing Co. v. Commissioner, 202 Conn. 583, 593, 522 A.2d 771 (1987) . . . .” (Citation omitted.) Ford Motor Credit Co. v. B. W. Beardsley, Inc., 208 Conn. 13, 19, 542 A.2d 1159 (1988). We must use common sense in construing a statute and assume that the legislature intended to accomplish a reasonable and rational result and to avoid absurd results; King v. Board of Education, 203 Conn. 324, 332-33, 524 A.2d 1131 (1987). It appears clear from the record that both the parties and the court considered the injunctive element a necessary part of the prejudgment remedy. The plaintiff in its trial brief described the relief requested as a prejudgment remedy consisting of an attachment and an injunction, and at the hearing the plaintiff’s counsel stated: “We are conditioning the attachment with an injunction.”

The plaintiff’s position both at trial and on appeal is that the injunction is an essential and inseparable portion of the prejudgment relief since it could not attach the securities unless they were first transported into this state. Further, the plaintiff’s application for prejudgment remedy specifically refers to its application requesting the court to compel the defendant to bring certain stock certificates into this state, and its application for preliminary injunction states that “[s]aid preliminary injunction is required in order to reach securities that could not otherwise be attached or levied upon and to aid the court’s jurisdiction in securing a proper prejudgment remedy against the defendant.”

The court treated the mandatory injunction as an integral part of the prejudgment remedy as is evident by the order. The court did not intend to grant relief in the form of a “temporary restraining order” but rather the court’s reasoning is that General Statutes § 42a-8-317 (6) is a necessary and appropriate mechanism by which to effectuate an attachment under the particular facts of this case. This order in the form of a temporary mandatory injunction is an integral part of the prejudgment remedy. The form and content of the order remove this appeal from the general rule. Cf. Doublewal Corporation v. Toffolon, supra. I must therefore conclude that this appeal was taken from a judgment deemed to be final and appealable under General Statutes §§ 52-278d and 52-278a (d). The defendant is thus entitled to review of the merits of his appeal which I now address.

The defendant first argues that the court’s order to compel is improper in that that court lacked jurisdiction over his out-of-state securities because the plaintiff is not a creditor of his under General Statutes § 42a-8-317. He claims that since the statute must be confined to its terms and made applicable only to creditors, the plaintiff, a litigating party at the outset of this lawsuit, is a mere claimant, not yet found to be a creditor by virtue of a rendered judgment.

The defendant’s contention presupposes the meaning of the term “creditor” in General Statutes § 42a-8-317 (6) to mean “judgment creditor.” I do not agree. A judgment creditor is merely one category of creditor. Creditor is defined in the Uniform Commercial Code: “ ‘Creditor’ includes a general creditor, a secured creditor, a lien creditor and any representative of creditors, including an assignee for the benefit of creditors, a trustee in bankruptcy, a receiver in equity and an executor or administrator of an insolvent debtor’s or assignor’s estate.” General Statutes § 42a-l-201 (12). By the express terms of the statute, remedy afforded by General Statutes § 42a-8-317 (6) is available to all creditors and is not limited to judgment creditors.

The defendant next claims that the court’s order to compel is improper because the record fails to demonstrate that damages would not be an adequate remedy or that the plaintiff would be irreparably harmed if the order did not issue.

To obtain temporary injunctive relief the plaintiff must establish that protectable interests are at stake, that it will prevail, to a reasonable certainty, subsequent to a final hearing on its application for permanent injunction, and also irreparable injury and lack of an adequate remedy at law. Covenant Radio Corporation v. Ten Eighty Corporation, 35 Conn. Sup. 1, 3, 390 A.2d 949 (1977). “The principal purpose of such an injunction is to preserve the status quo until the rights of the parties can be finally determined after a hearing on the merits. Deming v. Bradstreet, 85 Conn. 650, 659, 84 Atl. 116 [1912]. In deciding whether it should be granted . . . the court is called upon to balance the results which may be caused to one party or the other, and if it appears that to deny ... it may result in great harm to the plaintiff and little to the defendant, the court may well exercise its discretion in favor of granting ... it, unless indeed, it is very clear that the plaintiff is without legal right.” Olcott v. Pendelton, supra.

The court must consider the probable outcome of the litigation, and whether an irreparable loss will result unless the status quo is preserved. “These considerations involve essentially the application of familiar equitable principles in the context of adjusting the rights of the parties during the pendency of litigation until a final determination on the merits.” Griffin Hospital v. Commission on Hospitals & Health Care, 196 Conn. 451, 458, 493 A.2d 229 (1985).

The court, after a finding of probable cause, effectuated the plaintiffs right of attachment, by the order to compel, recognizing that without that injunctive relief the plaintiffs right of attachment would be meaningless. The prejudgment remedy of attachment provides necessary security for the creditor by protecting it from the uncertainties of future events. The defendant’s present ability to satisfy his probable present debt is the status quo that must be maintained for the prejudgment remedy to be meaningful. The court properly concluded that the plaintiff could be irreparably harmed unless it was allowed to secure the defendant’s property because property that is here today may be gone tomorrow.

The defendant argues that an equitable remedy is inappropriate in this case because there is a sufficient remedy at law. Although money damages would be a sufficient remedy in this case, and the defendant maintains a net worth several multiples in excess of the requisite amount, there is no assurance that a judgment obtained against the defendant would not be valueless. Only present security for the enforceability of that probable future judgment ensures the purpose of the prejudgment remedy to preserve the status quo.

I would, in sum, conclude that this appeal was taken from a final judgment, and affirm the judgment on the merits.

       General Statutes § 52-2781 provides in pertinent part: “An order (1) granting or denying a prejudgment remedy following a hearing under section 52-278d or (2) granting or denying a motion to dissolve or modify a prejudgment remedy under section 52-278e or (3) granting or denying a motion to preserve an existing prejudgment remedy under section 52-278g shall be deemed a final judgment for purposes of appeal.”

       The parties refer to the injunction as a preliminary injunction. We believe that they are referring to a temporary injunction and use that term in this opinion. See General Statutes § 52-471 et seq.

       The order of the court set forth as follows: “[A] prejudgment remedy of attachment in the sum of $7,743,955 may be granted in favor of the plaintiff.
      “The defendant is further ordered to bring into Connecticut public securities in the amount sufficient to satisfy the attachment, and private securities if the public securities do not so satisfy the attachment. These securities are to be turned over to a Connecticut deputy sheriff for attachment in accordance with the terms of this order.”

       Immediate review of temporary injunctions is also authorized for appeals arising out of labor disputes; General Statutes § 31-118; French v. Amalgamated, Local Union 376, 203 Conn. 624, 628, 526 A.2d 861 (1987); or for appeals involving matters of substantial public interest. Laurel Park, Inc. v. Pac, 194 Conn. 677, 678 n.1, 485 A.2d 1272 (1984).

       Although the defendant expressly stated that he is appealing “[fjrom the court’s order granting aprejudgment remedy" (emphasis added), he does not contest the finding of probable cause for the PJR attachment. His appellate brief pertains solely to the order granting the temporary injunction.

       General Statutes § 52-278a provides in pertinent part: “The following terms, as used in sections 52-278a to 52-278g, inclusive, shall have the following meanings, unless a different meaning is clearly indicated from the context: . . .

      “(d) ‘Prejudgment remedy’ means any remedy or combination of remedies that enables a person by way of attachment, foreign attachment, garnishment or replevin to deprive the defendant in a civil action of, or affect the use, possession or enjoyment by such defendant of, his property prior to final judgment but shall not include a temporary restraining order.” (Emphasis added.)

        The parties properly agree that the “temporary restraining order” referred to in this statute is not relevant to this appeal. Such a temporary restraining order is a measure applicable only to the time between the issuance of a notice of hearing on a PJR and the hearing itself. See General Statutes § 52-278c.

       The expression of one thing implies the exclusion of another thing.

       Although the defendant has appealed from the court’s order granting the prejudgment remedy dated April 3, 1990, his statement of issues on appeal is limited to the mandatory injunction, and does not attack the finding of probable cause for the attachment.

       A prejudgment remedy is defined as any “remedy or combination of remedies that enables a person by way of attachment ... to deprive the defendant in a civil action, or affect the use, possession or enjoyment by such defendant of, his property prior to final judgment but shall not include a temporary restraining order.” (Emphasis added.) General Statutes § 52-278a (d).

       General Statutes § 42a-8-317 as pertinent provides: “creditors’ rights. (1) Subject to the exceptions in subsections (3) and (4), no attachment or levy upon a certificated security or any share or other interest represented thereby which is outstanding is valid until the security is actually seized by the officer making the attachment or levy, but a certificated security which has been surrendered to the issuer may be reached by a creditor by legal process at the issuer’s chief executive office in the United States. . . .
      “(6) A creditor whose debtor is the owner of a security is entitled to aid from courts of appropriate jurisdiction, by injunction or otherwise, in reaching the security or in satisfying the claim by means allowed at law or in equity in regard to property that cannot readily be reached by ordinary legal process.”

       See State v. Figueroa, 22 Conn. App. 73, 83, 576 A.2d 553 (1990) (Lavery, J., dissenting).

       General Statutes §§ 49-86 and 49-89 demonstrate by their language that one may be a creditor without first having judgment rendered in his favor. Also General Statutes § 52-285 provides that unless the requirements for the recording of a certificate of attachment are followed “such estate shall not be held against any other creditor” which also shows that one may be a creditor prior to judgment.

       Because I have concluded that the court had the statutory authority to compel the defendant to deliver his out-of-state securities into Connecticut in order to effectuate the prejudgment attachment, there is no need to discuss the court’s inherent power to act in this regard.


author: Heiman, J.

text:
    Susan Graham v. William L. Graham
    (9047)
    Lavery, Heiman and Cretella, Js.
    Argued March 26
    decision released June 11, 1991

      Norman J. Voog, with whom, on the brief, was Allen Gary Palmer, for the appellant (defendant).

      Joseph Dimyan, for the appellee (plaintiff).

      Susan S. Reynolds, for the minor child.
   Heiman, J.

In this dissolution action the defendant claims that the trial court abused its discretion (1) in ordering him to pay periodic alimony, child support, and all costs incurred in connection with his occupancy of the marital home when the total of these payments exceeds his earning capacity, (2) in awarding the plaintiff a disproportionate share of the marital assets in light of its other financial orders and its refusal to return to the defendant his investment in the marital home, and (3) in awarding the plaintiff $15,000 as counsel fees in light of the other financial awards it made to the plaintiff. In addition, the defendant claims, as a nonfinancial issue, that the trial court improperly admitted into evidence a custody study that was previously ordered by the court, because the study contained prejudicial hearsay and because Practice Book § 479 exceeds the constitutional scope of the inherent rulemaking power of the Superior Court. We affirm the judgment of the trial court.

The facts necessary to a resolution of this matter may be briefly summarized as follows. The parties were married in Yorktown Heights, New York, on August 6, 1978. One child was born of this union on September 16,1984. The plaintiff was thirty-one years of age at the time of the dissolution. She was a high school graduate and had obtained certification in graphic design from the Art Institute of Boston in 1988. She is self-employed as a graphic designer and enjoys good health. She has an earning capacity of $50,000 to $54,000 per year. The defendant was thirty-four years of age at the time of the judgment. After completing high school he attended Franklin Institute of Boston where he obtained an associates degree in electrical engineering. He became employed by the Perkin-Elmer Corporation and, while so employed, obtained a bachelor of arts degree in electrical engineering. Shortly after receiving this degree, he left the employ of PerkinElmer to join the plaintiff in a graphic design business. While at Perkin-Elmer, the defendant demonstrated an earning capacity of $25,000 per year. He enjoys good health.

After a fully contested trial, the trial court expressly found (1) that each of the parties had contributed to the breakdown of the marriage but that the “evidence establishes that the defendant is more culpable in producing that result,” (2) that the defendant has a stock portfolio, acquired through “family largess and his father’s substantial investment talent,” with a value in excess of $200,000, and (3) that the parties were the owners of a marital domicile that had a value of $440,000 with an equity of approximately $248,000 taking into account a mortgage encumbrance of $167,000, and a $25,000 debt to the defendant’s parents. The marital domicile was the second home that had been purchased by the parties during the course of their marriage. The parties purchased their first home for $104,500. The funding for the purchase of this home came from a loan from the defendant’s parents in the amount of $50,000 ($25,000 of which remains due), $30,000 to $40,000 from the defendant’s stock portfolio, and the balance from a mortgage. That property was sold for $234,500. The parties then purchased a second marital domicile for $375,000. The funding for the purchase of this home was derived from the net proceeds of the sale of the first house, $82,000 from defendant’s stock portfolio, and a $176,000 mortgage.

The trial court entered the following financial orders and orders concerning division of property. The defendant was ordered to pay the sum of $125 per week as support for the minor child. He was also ordered to pay periodic alimony at the rate of $200 per week for a term of five years from the date of the decree, or until the death of the plaintiff, the death of the defendant, the plaintiff’s remarriage and/or the plaintiff’s cohabitation with an unrelated male, whichever shall first occur. In addition, the court ordered that the marital domicile be sold and that 65 percent of the net proceeds be distributed to the plaintiff and 35 percent to the defendant. The net proceeds were to be calculated after deducting the encumbrances, the expenses of the sale, the adjustments, and the repayment of the $25,000 debt due to the defendant’s parents. The trial court also ordered that the defendant was to have exclusive use and occupancy of the marital domicile until the property was sold. The defendant was ordered to pay all costs incurred in connection with his occupancy. He was also ordered to pay the plaintiff’s counsel fees in the amount of $15,000 within twelve months from the date of the court’s decree. The trial court also ordered that the defendant was to retain all right, title and interest in his stock portfolio of approximately $200,000. Each party was ordered to refrain from conducting any business under the name of Graham Design within the state of Connecticut, and each party was to retain all accounts, assets and receivables from that business that each then possessed, with certain exceptions.

I

The defendant first claims that the trial court abused its discretion by ordering him to pay alimony, child support and all costs in connection with his occupancy of the marital domicile when these payments exceed his earning capacity, as found by the trial court, by $435 per week. We do not agree.

It is axiomatic that trial courts are vested with broad and liberal discretion in fashioning orders of custody and the type, duration and amount of alimony and support that is proper, applying to each case the standards and guidelines of the General Statutes. Ayers v. Ayers, 172 Conn. 316, 321-22, 374 A.2d 233 (1977). If the trial court in exercising its broad discretion in the award of alimony and support, or in dividing property, considers all of the relevant statutory criteria its award cannot be disturbed unless it appears that such discretion has been abused. Debowsky v. Debowsky, 12 Conn. App. 525, 526, 532 A.2d 591 (1987). An examination of the record discloses that the trial court properly considered all relevant statutory criteria.

The trial court is not required to give equal weight to each of the specified criteria it considers in determining its award, nor is any single criterion preferred over the others. Carpenter v. Carpenter, 188 Conn. 736, 740-41, 453 A.2d 1151 (1982). Where, as here, it is apparent that the trial court considered all mandatory factors in fashioning its orders, we are not permitted to vary the weight that the trial court placed upon the statutory criteria in reaching its decision. Kinney v. Kinney, 5 Conn. App. 484, 487, 500 A.2d 569 (1985), cert. denied, 199 Conn. 804, 506 A.2d 146, cert. denied, 479 U.S. 818, 107 S. Ct. 78, 93 L. Ed. 2d 33 (1986).

The defendant appears to relate his dissatisfaction with the trial court’s orders to some veiled claim that earning capacity represents a cap on weekly orders. We do not agree. In fashioning its weekly orders, the trial court was aware of the fact that the defendant had a stock portfolio with a value in excess of $200,000 and expressly found that the parties “enjoyed a standard of living which exceeded their earning capacity.” The trial court also knew that the defendant had invaded the corpus of his assets in order to provide additional monies to meet the parties’ desires for material things. “ ‘In fixing the amount of alimony and support, the estate of the husband and his income, age, health and earning capacity are the circumstances primarily to be considered.’ ” Stoner v. Stoner, 163 Conn. 345, 353, 307 A.2d 146 (1972).

Our examination of the entire record leads us to conclude that the orders of the court with respect to weekly orders were proper and not an abuse of discretion.

II

The defendant next launches an attack upon the order of the trial court dividing the marital assets. He claims that the trial court awarded the plaintiff a disproportionate share of the marital assets in view of its financial orders and its refusal to return to the defendant, at a minimum, his investment in the marital domicile as found by the trial court. We disagree.

General Statutes § 46b-81 (a) expressly provides that at the time of entering a decree dissolving a marriage, the trial court may assign to either party all or any part of the estate of the other. General Statutes § 46b-81 (c) sets out the criteria that the trial court must apply in determining a proper distribution of the assets of the parties.

The trial court is accorded wide discretion in determining the proper allocation of the assets of the parties. Szilagyi v. Szilagyi, 3 Conn. App. 25, 29, 484 A.2d 469 (1984). 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. McPhee v. McPhee, 186 Conn. 167, 177, 440 A.2d 274 (1982). In determining the assignment of marital property under General Statutes § 46b-81, the trial court may properly consider the standard of living of the parties and weigh it in light of the other statutory factors. Blake v. Blake, 207 Conn. 217, 232, 541 A.2d 1201 (1988).

The trial court must consider all of the statutory criteria and no single criterion is preferred over another. The weight to be accorded to each factor is a matter of the exercise of the trial court’s discretion. Weinstein v. Weinstein, 18 Conn. App. 622, 633, 561 A.2d 443 (1989).

The trial court exercised its discretion properly and did not abuse it in its orders concerning the distribution of property.

Ill

The defendant claims that the trial court improperly admitted a family relations custody study into evidence. Among other reasons, the defendant asserts that Practice Book § 479 exceeds the constitutional scope of the rulemaking power of the Superior Court. Because this claim is not directed to any issue relating to the award of custody of the minor child, we decline to review this evidentiary ruling.

Although the issue concerning the admissibility of the report itself is clearly raised in this appeal, the defendant does not, either in his preliminary statement of issues or in the issues set forth in his brief, claim that the trial court improperly awarded custody to the plaintiff. Rather, his quarrel is with an underlying evidentiary ruling, when he has not attacked the final order of custody as being incorrect.

We decline to decide the issue raised because the defendant did not appeal the trial court’s award of custody to the plaintiff and thus, he cannot demonstrate any probable harm that he has suffered because of the evidentiary ruling. Starzec v. Kida, 183 Conn. 41, 49, 438 A.2d 1157 (1981).

Further, because the defendant failed to attack the judgment of the trial court awarding custody, the evidentiary issue is moot. “ Tt is a well-settled general rule that the existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow.’ ” State v. Smith, 207 Conn. 152, 178, 540 A.2d 679 (1988); Accurate Forging Corporation v. UAW Local No. 1017, 189 Conn. 24, 26, 453 A.2d 769 (1983).

IV

The defendant’s final claim is that the trial court abused its discretion or committed plain error in its award of counsel fees to be paid by the defendant to the plaintiff in the amount of $15,000. We disagree.

The factual predicate upon which the defendant relies is the fact that the plaintiff was awarded the family business that he claims was the parties’ sole source of income during the last five years of their marriage, and the fact that the plaintiff was awarded 65 percent of the net proceeds from the sale of the marital domicile.

In the first instance, the defendant’s claim that the plaintiff was awarded the family business is not supported by either the trial court’s memorandum of decision or the judgment. The power to order the payment of attorney’s fees is derived from General Statutes § 46b-62. The trial court is authorized to 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 General Statutes % 46b-82.

“The trial court exercises broad discretion in determining whether to allow counsel fees, and, if so, in what amount. In exercising that discretion, the court must consider the statutory criteria set out in General Statutes §§ 46b-62 and 46b-82 and the respective financial abilities of the parties.” Lawler v. Lawler, 16 Conn. App. 193, 205, 547 A.2d 89 (1988), appeal dismissed, 212 Conn. 117, 561 A.2d 128 (1989). Although the trial court should consider the liquid funds available to a party when determining whether to award attorney’s fees; Koizim v. Koizim, 181 Conn. 492, 501, 435 A.2d 1030 (1980); even “ ‘ “the availability of ‘sufficient cash’ to pay one’s attorney’s fees is not an absolute litmus test . . . . ” ’ ” Palazzo v. Palazzo, 9 Conn. App. 486, 489, 519 A.2d 1230 (1987). “Whether a spouse has ‘ample liquid funds’ with which to pay counsel fees . . . can only be determined by examining the total financial resources of the parties in light of the statutory criteria.” (Citation omitted.) Venuti v. Venuti, 185 Conn. 156, 163, 440 A.2d 878 (1981). Additionally, the trial court must exercise its discretion so that its decision as to counsel fees does not undermine its purpose in making awards with respect to alimony, support and division of assets. Palazzo v. Palazzo, supra.

Here, other than periodic alimony and support, the only source of liquid assets that at some time in the future may be available to the plaintiff would be her share in the net proceeds from the sale of the marital domicile. Under our criteria, the plaintiff did not possess sufficient ample liquid funds with which to pay counsel. In addition, the trial court reasonably could have concluded that it wanted to preserve the plaintiffs share of the proceeds from the sale of the marital domicile for her use, unencumbered by charges against that fund for attorney’s fees. See Eslami v. Eslami, 218 Conn. 801, 820-21, 591 A.2d 411 (1991); Devino v. Devino, 190 Conn. 36, 38-39, 458 A.2d 692 (1983).

The trial court’s memorandum of decision clearly reflects that it properly weighed and considered the factors necessary to a proper resolution of the counsel fees issue. O’Neill v. O’Neill, 13 Conn. App. 300, 306, 536 A.2d 978, cert. denied, 207 Conn. 806, 540 A.2d 374 (1988).

The trial court did not abuse its discretion nor did it commit plain error in awarding attorney’s fees.

The judgment is affirmed.

In this opinion the other judges concurred.

       “[Practice Book] Sec. 479. case study reports
      “Whenever, in any family relations matter, a case study has been ordered, the case shall not be disposed of until the report has been filed as hereinafter provided, and counsel and the parties have had a reasonable opportunity to examine it prior to the time the case is to be heard, unless the court shall order that the case be heard before the report is filed, subject to modification on the filing of the report.
      “Any report of a case study shall be made in quadruplicate, shall be filed with the clerk, who will impound such reports, and shall be mailed to counsel of record. Said report shall be available for inspection only to counsel of record and to the parties to the action, unless otherwise ordered by the court.
      “Said report shall be admissible in evidence provided the author of the report is available for cross-examination.”

       General Statutes § 46b-81 (a) provides: “At the time of entering a decree annulling or dissolving a marriage or for legal separation pursuant to a complaint under section 46b-45, the superior court may assign to either the husband or wife all or any part of the estate of the other. The court may pass title to real property to either party or to a third person or may order the sale of such real property, without any act by either the husband or the wife, when in the judgment of the court it is the proper mode to carry the decree into effect.”

       General Statutes § 46b-81 (c) provides: “In fixing the nature and value of the property, if any, to be assigned, the court, after hearing the witnesses, if any, of each party, except as provided in subsection (a) of section 46b-51, shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income. The court shall also consider the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates.”

       General Statutes § 46b-62 provides: “In any proceeding seeking relief under the provisions of this chapter and sections 17-323a, 17-323b, 45-162, 46b-l, 46b-6,46b-204,47-14g, 51-348a and 52-362, 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 section 46b-82. If, in any proceeding under this chapter and said sections, the court appoints an attorney for a minor child, the court may order the father or mother, or both, to pay the reasonable fees in whole or in part from the estate of the child. If the child is receiving or has received state aid or care, the reasonable compensation of the attorney shall be established by, and paid from funds appropriated to, the judicial department.”

       General Statutes § 46b-82 provides: “At the time of entering the decree, the superior court may order either of the parties to pay alimony to the other, in addition to or in lieu of an award pursuant to section 46b-81. The order may direct that security be given therefor on such terms as the court may deem desirable, including an order to either party to contract with a third party for periodic payments or payments contingent on a life to the other party. In determining whether alimony shall be awarded, and the duration and amount of the award, the court shall hear the witnesses, if any, of each party, except as provided in subsection (a) of section 46b-51, shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, 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 section 46b-81, and, in the case of a parent to whom the custody of minor children has been awarded, the desirability of such parent’s securing employment.”