author: Bieluch, J.

text:
    State of Connecticut v. Meyer Biller
    (2073)
    Spallone, Daly and Bieluch, Js.

      Argued October 11
    decision released December 17, 1985

      M. Mitchell Morse, for the appellant (defendant).

      Christopher Malany, special deputy assistant state’s attorney, with whom, on the brief, were John Waddock and Carl Schuman, assistant state’s attorneys, for the appellee (state).
   Bieluch, J.

This appeal arises out of the defendant’s conviction, after a jury trial, on a charge of interfering with an officer in violation of General Statutes § 53a-167a. The defendant has raised eight claims of error with regard to his conviction. We find no error.

The jury could reasonably have found the following facts. On March 12, 1981, a fire took place at a house owned by Wilken Shaw located at 79 Hallock Street in New Haven. At the scene of the fire, Joseph Toscano, an arson control assistant inspector assigned to the office of the New Haven State’s Attorney, saw the defendant approach Shaw and his daughter-in-law, Willa Shaw. Toscano watched as the defendant spoke to the Shaws and provided them with some documents which Wilken Shaw signed. Toscano then approached the defendant and the Shaws with another officer, Joseph Howard. As the officers approached the trio, they heard the defendant state to the Shaws that he would contact the insurance companies.

Toscano identified himself to the defendant who responded by acknowledging that he knew Toscano’s identity. Toscano then asked the defendant if he was licensed to act as a public adjuster in this state. Toscano also, at that time, saw the documents which Shaw had signed. He believed that one of those documents was a retainer for the services of a public adjuster. Because he knew that the defendant no longer was licensed as a public adjuster, Toscano ordered the defendant’s arrest for violating General Statutes § 38-71, which prohibits acting as a public adjuster without a license.

At some time during these events, the defendant tore up certain documents which Shaw had signed and placed the pieces in his pocket. After the arrest, Howard handcuffed the defendant. When the officers attempted to search his pockets, however, the defendant resisted this effort and struggled to prevent them from doing so. The officers then led the defendant to a police car. There, the police succeeded in entering the defendant’s pockets and retrieving the remnants of the torn documents.

The defendant was charged with violation of General Statutes § 38-71, acting as a public adjuster without a license, and of General Statutes § 53a-182, disorderly conduct. By substitute information, the second count was changed to interfering with a police officer in violation of General Statutes § 53a-167a. The defendant pleaded not guilty to both counts of the substituted information and, after a trial, the jury was unable to agree on a verdict on the first count and a mistrial was declared as to that count. The jury, however, found the defendant guilty on the second count.

I

The defendant’s first three claims of error are: (1) that the court erred in denying his motion to dismiss the substituted information against him based upon his claim that his original arrest had been illegal; (2) that the court improperly restricted the evidentiary hearing on the motion to dismiss so as to prevent the defendant from presenting evidence which would have demonstrated that the police originally lacked probable cause to arrest him; and (3) that because they were acting illegally, the police were not in the performance of their duties as required by General Statutes § 53a-167a. We find these claims to be without merit.

At the outset, we note that the defendant does not appeal from the mistrial declared on the first count of the information lodged against him. Only the charge upon which he was convicted and sentenced is at issue here. Since we conclude that the illegality of the defendant’s initial arrest is not, per se, a defense to the charge of interfering with an officer, these claims of error must fail.

In State v. Privitera, 1 Conn. App. 709, 476 A.2d 605 (1984), this court held that “the legality of the police officer’s conduct is not an element of the crime defined by General Statutes § 53a-167a (a), and that, in a prosecution under that statute, to the extent that the state’s case is based on the conduct of a police officer in making an arrest, by virtue of General Statutes § 53a-23 the illegality of that arrest is not a defense [to that charge].” Id., 719. But even more so here, the defendant’s conviction pursuant to the same statute as in Privitera bears no fundamental relationship to the legality of his initial arrest. Rather, it is his conduct after arrest which supported this charge and is at issue.

Our holding by no means renders any and all police misconduct irrelevant. A violation of General Statutes § 53a-167a only occurs when interference with the officer is “in the performance of his duties.” “If [the officer] is acting under a good faith belief that he is carrying out that duty, and if his actions are reasonably designed to that end, he is acting in the performance of his duties.” State v. Privitera, supra, 722. Thus, the question is not whether there was probable cause for the defendant’s original arrest, or whether that arrest was otherwise illegal. The test is whether the officer is acting in good faith within the scope of his duties as an officer or is pursuing a personal intent or frolic of his own. Id. Thus, in the present case, the lack of probable cause to arrest the defendant on the original charges was irrelevant to the court’s jurisdiction over his prosecution for violation of § 53a-167a, and his motion to dismiss this charge was properly denied. Similarly, the court’s failure, at the hearing on the motion to dismiss the information, to admit further evidence on the issue of the officers’ probable cause to arrest the defendant cannot be found to be improper, since such evidence was irrelevant to the court’s jurisdiction over the charge now on appeal.

II

The defendant next claims that his actions in preventing the police from searching his pockets immediately after his arrest did not amount to a material interference with the performance of the duties of those officers. We disagree.

The defendant’s argument is, essentially, that by his actions, he merely delayed the officers’ search of his pockets until he was away from the public spotlight at the scene of the fire. That, he argues, does not constitute interference with the performance of the officers’ duties, but merely with the timing thereof. We see no meaningful distinction in this case. The defendant’s argument seems to be that unless he successfully prevented the police from obtaining the tom documents from his pockets, he merely attempted to interfere with the police, at best. General Statutes § 53a-167a, however, defines “interfering” to include obstmction, resistance, hindrance or endangerment. To “obstruct” is defined as “to be or come in the way of: hinder from passing, action, or operation.” To “resist” is defined as “to withstand the force or the effect of: be able to repel or ward off.” To “hinder” is defined as “to make slow or difficult the course or progress of.” “Endangerment” is defined as “the act of placing in danger or the state of being placed in danger.” Webster, Third New International Dictionary. At the very least, the delay caused to the officers in this case was sufficient to raise a jury question regarding whether there had been an interference in violation of General Statutes § 53a-167a.

III

The defendant next claims that the court erred in its charge to the jury. He claims that the court erred in four respects in charging the jury on the elements of General Statutes § 53a-167a and in referring to General Statutes § 53a-23, which abrogates the common law right to resist an illegal arrest. We have carefully reviewed the defendant’s exceptions to the charge and we conclude that they are without merit. “In considering a charge, critical dissection is not required. The charge as a whole must be considered from the standpoint of its effect on the jury in guiding them to a proper verdict.” State v. Taxiltaridis, 2 Conn. App. 617, 620, 481 A.2d 98 (1984). The test must be whether “the court’s instructions, taken as a whole, fairly and adequately presented the case in such a way that injustice was not done to either party under the established rules of law.” Id. We conclude that the defendant’s claims are based on a narrow reading of brief excerpts from the charge which are taken out of context and do not do justice to the parties. In this manner, the defendant incorrectly characterizes as error the court’s proper and complete guidance of the jury to its verdict.

IV

The defendant next claims that the court erred in permitting the prosecutor to argue, in his closing remarks to the jury, facts which were not in evidence. This claim is made despite the defendant’s failure to object to those remarks at trial and despite his own prior statement to the jury which was to the same effect as that to which he now objects. The factual argument which the defendant raises by this issue was the prosecutor’s comment that the defendant “tore up the documents when the police officers wanted them.” (Emphasis added.) This statement was made by the prosecutor in paraphrase of a written statement in evidence which Wilken Shaw had given to a private investigator for the defendant. That written statement was that “the men wanted the form he had, but, he tore it up rather than give it to them.” We conclude that the prosecutor’s comment was an accurate and unobjectionable paraphrasing of the original written statement given by Wilken Shaw to the defendant’s investigator. His rephrasing of the evidence was proper summation or argument to the jury.

V

The defendant’s penultimate claim is that the trial court erred in ruling, in response to the defendant’s motion in limine, that his prior conviction on two counts of falsely certifying as to the administration of an oath, a violation of General Statutes § 53-368, could be admitted into evidence for the purpose of impeaching the defendant’s testimony if he chose to testify. This claim is based on the fact that these convictions were the subject of an appeal at the time when the trial court ruled on the defendant’s motion. We conclude that the trial court did not err here.

The trial court, in its discretion, may admit evidence of a prior conviction for impeachment purposes despite the pendency of an appeal. State v. Schroff 3 Conn. App. 684, 689, 492 A.2d 190 (1985). The court must, however, also permit defense counsel to point out the pending appeal to the jury. Id. Thus, in the present case, it was not error to deny the defendant’s motion in limine.

The defendant has also argued that the use of the convictions then on appeal as a factor in his sentencing was improper. In addition to our conclusion above, that the use of those convictions for impeachment was proper, we hold that their use in sentencing was also proper. The trial court has broad discretion in sentencing and in the absence of an abuse of that discretion, we will not reverse the sentence imposed. State v. Rose, 168 Conn. 623, 638, 362 A.2d 813 (1975). In the present case, the trial court only acknowledged that the “[t]wo felony convictions in the past even though they are on appeal, must be considered.” We cannot conclude that the trial court’s use of those convictions in sentencing was an abuse of discretion.

VI

Finally, the defendant claims that the court erred in denying his motion to strike the testimony of Wilken Shaw after the state failed to produce a recorded statement given by Shaw to the police. The state produced a transcript of the recorded statement, asserting that the recording itself had been erased in accord with New Haven police department policy. The defense, however, claimed that this was insufficient compliance with Practice Book §§ 748 through 755. Thus, the defense moved, pursuant to § 755, that the testimony of Shaw be stricken or that, in the alternative, a mistrial be declared. The court denied that motion. In this we also find no error.

Whether sanctions should be imposed for nondisclosure in a given case, such as the present one, requires the weighing of the state’s culpability in failing to produce the statement against the amount of prejudice incurred by the defendant due to the loss of the statement. State v. Myers, 193 Conn. 457, 467, 479 A.2d 199 (1984); State v. Shaw, 185 Conn. 372, 386, 441 A.2d 561 (1981), cert. denied, 454 U.S. 1155, 102 S. Ct. 1027, 71 L. Ed. 2d 312 (1982); State v. Zayas, 3 Conn. App. 289, 295-96, 489 A.2d 380 (1985). We must agree with the court in State v. Myers, supra, which concluded that the erasure of the recording by the police, in circumstances similar to those in the present case, was unexcused. Id., 469. We also note, however, that the court in Myers found that the prejudice to the defendant arising from the erasure did not warrant a reversal of the conviction, and we reach the same conclusion here.

A transcript of Shaw’s recorded testimony, signed by him, was offered to the defense in lieu of the recording itself. The defense claimed that this transcript was insufficient and moved for permission to conduct a voir dire examination of Howard who had already testified and who had recorded the statement from Shaw. The trial court denied that motion but encouraged the defendant to cross-examine Shaw regarding whether the transcript accurately reflected the recorded statement he had previously given. The court further ordered the state to make available to the defendant the person who had transcribed the statement from the recording. The defense did not avail itself of either of these opportunities. Under these circumstances, we cannot conclude that the court erred in denying the defendant’s motion to strike Shaw’s testimony. Granting such a motion “would be a heavy sanction to the government for loss of a piece of evidence on which there was other primary evidence.” State v. Shaw, supra, 386, citing United States v. Miranda, 526 F.2d 1319, 1324 (2d Cir. 1975), cert. denied, 429 U.S. 821, 97 S. Ct. 69, 50 L. Ed. 2d 82 (1976).

There is no error.

In this opinion the other judges concurred.

       Because the specific timing of this event is important and is not sufficiently established, we cannot clarify this sequence of events any further. In view of our holding, such further clarification is unnecessary.

       General Statutes § 53a-167a (a) provides: “A person is guilty of interfering with an officer when he obstructs, resists, hinders or endangers any peace officer or fireman in the performance of his duties.”

       Counsel asserts that any such objection would have been futile and that he was, therefore, not obligated to object. Grant v. Pagter, 133 Conn. 646, 649, 53 A.2d 380 (1947); Tracy v. O’Neill, 103 Conn. 693, 699, 131 A. 417 (1925). He further asserts that because this error rises to the level of a violation of constitutional rights, the failure to object should be excused pursuant to State v. Evans, 165 Conn. 61, 71, 327 A.2d 576 (1973). Because we find no colorable claim, as alleged, of violation of a fundamental constitutional right, we need not consider Evans further.

       We note at the outset that this motion was repeated at the close of the defendant’s case and was then denied a second time. The record indicates that it was only at the time of this second motion that the appeal was disclosed to the court.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Frances Coombs v. George J. Phillips et al.
    (3448)
    Dupont, C. J., Borden and Spallone, Js.
    Argued November 8
    decision released December 17, 1985

      Peter W. Rotella, for the appellant (plaintiff).

      Thomas J. Keramidas, with whom were Roy L. Smith and, on the brief, Robert Clark, for the appellees (defendants).
   Per Curiam.

The plaintiff is appealing from the judgment rendered for the defendants after a trial to the court. The only issue presented to us and briefed by the plaintiff is whether the trial court, in construing a warranty deed most strongly against the grantor, effectively ignored the intent of the parties.

The plaintiff, by warranty deed dated June 30,1953, conveyed certain land to the defendants. In 1983, the plaintiff, claiming the deed to be ambiguous, brought an action in two counts. In the first count, the plaintiff sought to quiet title to the premises and, alternatively, in the second count, she sought a reformation of the deed. The defendants posed several special defenses which were based upon theories of laches, adverse possession and absolute ownership.

The court found that the plaintiff’s claims were based upon mutual mistake and that she did not meet her burden of proof on that issue. It therefore rendered judgment for the defendants on both counts.

Subsequently, the defendants sought an articulation regarding their special defenses, which the trial court denied stating that, since judgment was rendered for the defendants, their motion for articulation was moot. The defendants did not seek review of the court’s action pursuant to Practice Book § 3108, and they have not appealed. We, therefore, have no occasion to pass on the validity of the defendants’ claim to the disputed parcel.

The issue raised by the plaintiff attacks the factual findings of the trial court. During the trial, the court was required to resolve opposing claims and to pass upon the credibility of testimonial and documentary evidence and to determine the weight it should be afforded. It was free to accept or reject any portion of the evidence presented by either party. Leo v. Leo, 197 Conn. 1, 6, 495 A.2d 704 (1985); Kinney v. Kinney, 5 Conn. App. 484, 486, 500 A.2d 569 (1985). The trial court found that the map of the property in question prepared by the plaintiff’s expert was influenced by the wishes of the plaintiff and, therefore, was not a detached professional expression of the boundary lines defined in the deed.

On review, this court cannot retry the case. We are limited to a determination of whether the decision made is legally and logically consistent and supported by the evidence. Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980); Brey v. Brey, 1 Conn. App. 397, 399, 472 A.2d 354, cert. denied, 193 Conn. 806, 477 A.2d 806 (1984). This court will not substitute its view of the facts for that of the trial court, nor will it reverse the decision of that court unless that decision is found to be “clearly erroneous in light of the evidence and the pleadings in the record as a whole.” Damora v. Christ-Janer, 184 Conn. 109, 113, 441 A.2d 61 (1981); Jones v. Litchfield, 1 Conn. App. 40, 42, 467 A.2d 936 (1983), cert. denied, 192 Conn. 802, 470 A.2d 1218 (1984). Where a matter has been heard and fairly tried, it shall not again be called into question and retried upon appeal. See Meshberg v. Bridgeport City Trust Co., 1 Conn. App. 10, 14, 467 A.2d 685 (1983). Since the language of the grant was ambiguous, and because the court concluded that the testimony of the plaintiff’s expert was suspect, the trial court properly construed the deed against the plaintiff, the grantor. See Lake Garda Improvement Assn. v. Battistoni, 160 Conn. 503, 514-15, 280 A.2d 877 (1971).

The evidence amply supports the factual findings of the trial court and we can find no basis to support any finding of error.

There is no error.


text:
    Carlton Kraft v. Joseph Maile
    (4097)
    Dupont, C. J., Borden and Spallone, Js.
    Argued November 7
    decision released December 17, 1985

      Joseph Maile, pro se, the appellant (defendant).

      John K. Currie, for the appellee (plaintiff).
   Per Curiam.

This appeal by the defendant attacks a judgment rendered by the trial court on the ground that the court found facts without evidence to support those facts. An appellate court may not retry facts and its duty upon review when such a claim is made is limited to a determination of whether the trial court’s judgment was clearly erroneous in this respect. A careful review of the record and briefs in this appeal leads to the conclusion that the trial court was not in error.

There is no error.


author: Hull, J.

text:
    Gregory Pulaski v. Charles J. Ledwith
    (3046)
    Hull, Daly and Bieluch, Js.
    Argued November 15
    decision released December 17, 1985

      Dennis F. Gaffney, for the appellant (defendant).

      James M. S. Ullman, for the appellee (plaintiff).
   Hull, J.

The plaintiff, who was seriously injured in an altercation with the defendant, brought suit against him claiming damages in the first count of the substitute complaint for an intentional assault and in the second count for negligence. The defendant filed an amended counterclaim for damages alleging trespass in the first count, assault in the second count and invasion of privacy in the third count. The trial court awarded damages of $28,410 to the plaintiff on the complaint and found for the plaintiff on the counterclaim. The trial court filed a lengthy memorandum of decision setting forth in detail its factual findings.

The court made the following conclusions: “The defendant intentionally and willfully struck the plaintiff with force and caused the plaintiff to suffer personal injuries as a result thereof. The defendant used excessive force beyond the necessities of the situation, even if the defendant believed the use of force to be reasonable. There was no threat of immediate harm to justify such apprehension in the defendant. The defendant had no privilege of self-defense after the plaintiff was helpless. The defendant’s use of force was unreasonable.”

The defendant appeals claiming, in essence, three principal grounds of error: (1) that there was insufficient evidence to support the findings; (2) that the court’s conclusions of law were inconsistent with the findings of fact; and (3) that General Statutes §§ 52-174 and 4-104 do not authorize a court to determine medical questions without the benefit of medical testimony.

The defendant’s appeal on the first two issues, despite his vigorous protestations to the contrary, is a blatant and futile attempt to retry the facts. This we cannot do. Jones v. Litchfield, 1 Conn. App. 40, 42, 467 A.2d 936 (1983), cert. denied, 192 Conn. 802, 470 A.2d 1218 (1984). “[The Appellate Court,] of course, may not retry a case. Johnson v. Flammia, 169 Conn. 491, 497, 363 A.2d 1048 (1975). The factfinding function is vested in the trial court with its unique opportunity to view the evidence presented in a totality of circumstances, including its observations of the demeanor and conduct of the witnesses and parties, which is not fully reflected in the cold, printed record which is available to us. Appellate review of a factual finding, therefore, is limited both as a practical matter and as a matter of the fundamental difference between the role of the trial court and an appellate court. See Styles v. Tyler, 64 Conn. 432, 450, 30 A. 165 (1894).” Kaplan v. Kaplan, 186 Conn. 387, 391, 441 A.2d 629 (1982). The question for this court is solely whether the trial court’s factual findings are clearly erroneous. Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980).

We conclude that the facts set out in the court’s memorandum of decision are supported by the evidence and are not clearly erroneous in light of the evidence and the pleadings in the whole record. Id. We also reject the defendant’s claim that the court’s conclusions of facts and law are inconsistent. On the contrary, the court’s conclusions are legally and logically correct and find support in the underlying facts set out in the memorandum of decision.

The defendant’s next claim is that the court erred in finding the cause and extent of the plaintiff’s injuries without a medical expert being called as a witness. The medical evidence introduced consisted of: (1) the plaintiff’s hospital records admitted under General Statutes § 4-104, (2) a report of the physician who treated the plaintiff admitted under General Statutes § 52-174 (b), and (3) x-rays.

The plaintiff relies on a statement in Boland v. Vanderbilt, 140 Conn. 520, 525, 102 A.2d 362 (1953), that “[t]he causal relation between an injury and its later physical effects may be established by the direct opinion of a physician, by his deduction by the process of eliminating causes other than the traumatic agency, or by his opinion based upon a hypothetical question.” The defendant offers no authority for the proposition that the medical expert involved must appear in person. Such a claim belies the remedial purpose of General Statutes §§ 52-174 (b) and 4-104. Once in evidence, the expert’s report and the hospital records are subject to the same standards of credibility as any other evidence. See Boland v. Vanderbilt, supra, 526.

The defendant had three avenues available to challenge the plaintiff’s presentation of his medical testimony: (1) he could have called the treating physician as a witness; 6(2) he could have offered his own medical testimony; and (3) he could have moved the court to draw an unfavorable inference from the plaintiff’s failure to offer the treating physician as a witness. Grabowski v. Fruehauf Trailer Corporation, 2 Conn. App. 167, 169-70, 477 A.2d 685 (1984). The defendant pursued none of these alternatives. Instead, he lay back, as a sheep in a manger, and on appeal seeks a retrial of the factual basis of the court’s medical findings despite his own inaction.

We have carefully examined the medical exhibits in the case and conclude that they adequately support the court’s factual conclusions concerning the cause and the serious effects of the plaintiffs injuries. The defendant’s other claims of error are without merit.

There is no error.

In this opinion the other judges concurred.

       Although characterized by the court and the plaintiff as conclusions of law, these findings are more properly viewed as mixed conclusions of law and fact.

       The defendant also appealed from the judgment for the plaintiff on the counterclaim, but properly conceded in oral argument that if the trial court’s factual and legal conclusions concerning the complaint were upheld by this court, the judgment on the counterclaim would necessarily follow the same course.

       General Statutes § 4-104, provides in pertinent part: “Any and all parts of any [hospital] record or copy, if not otherwise inadmissible, shall be admitted in evidence without any preliminary testimony . "

       General Statutes § 52-174 (b) provides in part: “In all actions for the recovery of damages for personal injuries or death, pending on October 1, 1977, or brought thereafter, any party offering in evidence a signed report and bill for treatment of any treating physician . . . may have the report and bill admitted into evidence as a business entry and it shall be presumed that the signature on the report is that of the treating physician . . . and that the report and bill were made in the ordinary course of business.”

       General Statutes § 52-174 (c) specifically provides in pertinent part: “This section shall not be construed as prohibiting either party or the court from calling the treating physician ... as a witness.”


text:
    City of Hartford v. Stanley V. Tucker et al.
    (3285)
    Hull, Daly and Bieluch, Js.
    Argued November 11
    decision released December 24, 1985

      Stanley V. Tucker, pro se, the appellant (named defendant).

      Frederick D. Augenstern, for the appellees (third party defendants Frances Gionfriddo et al.).

      Michael G. Durham, for the appellee (third party defendant Western Surety Co.).

      James F. Kane, for the appellees (third party defendants Frank Smith et al.).

      Larry P. Levesque, for the appellee (plaintiff).
   Per Curiam.

The named defendant has appealed the dismissal of his third party complaints against the receivers of rents and their respective sureties as a result of the defendant’s failure to obtain the requisite prior permission of the court.

We carefully reviewed the named defendant’s claims in these matters and find them to be without merit. See Tucker v. American Ins. Co., 3 Conn. App. 397, 399, 488 A.2d 1278 (1985).

There is no error.

       There are four cases involved in this appeal which present the same issues: Hartford Superior Court docket numbers 287787, 287788, 287789 and 287790.


text:
    State of Connecticut v. Richard J. Mastrianni
    (2933)
    Dupont, C. J., Hull and Spallone, Js.
    Argued December 3
    decision released December 24, 1985

      John P. McKeon, for the appellant (defendant).

      JohnM. Massameno, assistant state’s attorney, with whom, on the brief, was Frank A. lannotti, deputy assistant state’s attorney, for the appellee (state).
   Per Curiam.

The defendant was charged with three counts of professional gambling in violation of General Statutes § 53-278b and two counts of using a telephone to transmit and receive gambling information in violation of General Statutes § 53-278d (a). The pertinent evidence was derived from court ordered electronic surveillance obtained, under General Statutes § 54-41a et seq., at the request of the state’s attorney for the Hartford Judicial District. As a result of information derived from the investigation, search warrants were issued and thereafter the defendant, among others, was arrested. The defendant filed a motion under General Statutes § 54-41m to suppress the contents and fruits of the wiretaps. The court denied this motion. The defendant thereafter pleaded nolo contendere to a substitute information charging him with one count of professional gambling and one count of using a telephone to transmit and receive gambling information and, after imposition of sentence, filed this appeal.

We have carefully considered the defendant’s claims and find them to be without merit. The issues raised amount to little more than a wholesale and hypertechnical attack on the procedures set forth in General Statutes § 54-41d concerning the necessary findings which the panel of judges must make before issuing an order authorizing the interception of a wire communication and those requirements established by General Statutes § 54-41e concerning the contents of the statement which must be made by the panel of judges issuing such an order. These statutory provisions represent a carefully constructed part of this state’s wiretapping and electronic surveillance law and fully carry out the General Assembly’s obvious intent that such procedures protect the rights of targets of such court authorized wiretaps.

The issues raised by the defendant are definitively disposed of by Moore v. United States, 461 F.2d 1236, 1238 (D.C. Cir. 1972); State v. Ross, 194 Conn. 447, 456-60, 481 A.2d 730 (1984); State v. Levine, 5 Conn. App. 207, 209-210, 497 A.2d 774, cert. denied, 197 Conn. 816, 500 A.2d 1337 (1985); State v. Formica, 3 Conn. App. 477, 480, 489 A.2d 1060, cert. denied, 196 Conn. 806, 494 A.2d 903 (1985).

There is no error.


text:
    Board of Education of the City of Hartford v. Local 818, Council 4, AFSCME, AFL-CIO
    (3581)
    Dupont, C. J., Hull and Borden, Js.
    Argued October 2
    decision released December 24, 1985

      H. Maria Cone, assistant corporation counsel, with whom, on the brief, was Richard H. Goldstein, corporation counsel, for the appellant (plaintiff).

      J. William Gagne, Jr., with whom, on the brief, was Barbara J. Collins, for the appellee (defendant).
   Hull, J.

In this action, the plaintiff, Hartford board of education (board), appeals from the judgment of the trial court denying its application, brought pursuant to General Statutes § 52-418, to vacate an arbitration award. The board claims on appeal that the award impermissibly conflicted with the underlying collective bargaining agreement between the parties and, therefore, the court erred in refusing to vacate it. Because we conclude that the award not only was consistent with the agreement but also conformed to the submission, we find no error.

The following facts, disclosed by the record, are relevant. The defendant, Local 818 of Council 4, American Federation of State, County and Municipal Employees (union), and the board entered into a collective bargaining agreement. In the agreement, the parties consented to grieve certain disputes, including those concerning employee discipline. One of the union members (employee), was fired by the board. The union, claiming that the discharge was not justified, grieved the disciplinary action to arbitration. An arbitration hearing was held by a three member panel from the Connecticut state board of mediation and arbitration. When the parties were unable to agree on the issue to be submitted, the arbitrators chose the union’s formulation and framed the issue as follows: “Whether or not [the employee] was discharged for just cause. If not, what should the remedy be?” The arbitrators, finding that the employee had not been terminated for just cause, rendered an award ordering, inter alia, that the employee be reinstated.

In support of its application to vacate, the board made three claims: (1) the arbitrators exceeded their authority by adopting a standard for termination that conflicts with the contractually established standard; (2) the arbitrators misapplied the doctrine of progressive discipline; and (3) the arbitrators’ award exceeded the scope of the submission. The trial court denied the board’s application to vacate and the board appealed to this court pursuing essentially the same claims of error.

The board claims that the arbitrators issued an award that conflicts with the underlying collective bargaining agreement and thereby exceeded their authority. In support of this contention, the board relies on Article XII of the contract in which the parties agreed that “[a]ll disciplinary actions shall be applied in a fair manner and shall not be inconsistent with the infraction for which the disciplinary action is being applied.” The board argues that the just cause standard adopted differs from the fair manner standard and, accordingly, its use by the arbitrators rendered their award invalid.

The scope of judicial review of arbitration awards is very narrow. “Our courts favor arbitration as a means of settling differences and uphold the finality of arbitration awards except where an award clearly falls within the proscriptions of § 52-418 of the General Statutes. International Union v. Fafnir Bearing Co., 151 Conn. 650, 653, 201 A.2d 656 [1964]; United Electrical Radio & Machine Workers v. Union Mfg. Co., 145 Conn. 285, 288, 141 A.2d 479 [1958].” Norwich R. C. Diocesan Corporation v. So. N. E. Contracting Co., 164 Conn. 472, 475, 325 A.2d 274 (1973). Subsection (a) (4) of General Statutes § 52-418, the subsection under which the board pursues its claims of error, provides in part that an award is invalid “if the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made.” Generally, “any challenge to an award pursuant to General Statutes [§ 52-418 (a) (4)] on the ground that the arbitrators exceeded or imperfectly performed their powers is properly limited to a comparison of the award with the submission. Caldor, Inc. v. Thornton, 191 Conn. 336, 340, 464 A.2d 785 (1983); Bruno v. Department of Consumer Protection, 190 Conn. 14, 18, 458 A.2d 685 (1983).” Trumbull v. Trumbull Police Local 1745, 1 Conn. App. 207, 212, 470 A.2d 1219 (1984). If the award conforms to the submission, the arbitrators have not exceeded their powers. Bic Pen Corporation v. Local No. 134, 183 Conn. 579, 584, 440 A.2d 774 (1981).

There are limited circumstances in which a court will conduct a broader review of an arbitrator’s decision. Where one party claims that the award, as issued, is inherently inconsistent with the underlying collective bargaining agreement, the court will compare the agreement with the award to determine whether the arbitrator has ignored his obligation to interpret and apply that agreement as written. Hudson Wire Co. v. Winsted Brass Workers Union, 150 Conn. 546, 553, 191 A.2d 557 (1963). This additional analysis is conducted pursuant to such a claim because “an arbitrator’s ‘award is legitimate only so long as it draws its essence from the collective bargaining agreement. When the arbitrator’s words manifest an infidelity to this obligation, courts have no choice but to refuse enforcement of this award.’ ” Darien Education Assn. v. Board of Education, 172 Conn. 434, 437, 374 A.2d 1081 (1977), quoting United Steelworkers v. Enterprise Wheel & Car Corporation, 363 U.S. 593, 597, 80 S. Ct. 1358, 4 L. Ed. 2d 1424 (1960). If, for example, there was evidence that “revealed that [the arbitrator] had reached his decision by consulting a ouija board, [it would] not suffice that the award conformed to the submission.” Darien Education Assn. v. Board of Education, supra, 437-38. It must be emphasized, however, that merely claiming inconsistency between the agreement and the award will not trigger judicial examination of the merits of the arbitration award. Rather, in the face of such a claimed inconsistency, this court will review the award only to determine whether it “draws its essence from the collective bargaining agreement.” United Steelworkers v. Enterprise Wheel & Car Corporation, supra, 597.

In this case, a comparison of the contract and the award does not support the board’s claim that the arbitrators failed to interpret the agreement as written. The award ordered reinstatement of the employee because he had not been terminated for “just cause.” The contract required that disciplinary actions be applied in a “fair manner” and consistent with the nature of the infraction for which the disciplinary action was taken. A requirement of just cause for termination and a requirement of fairness in discipline are not so inconsistent as to give rise to an inference that the arbitrators did not reach their decision by interpreting the parties’ agreement.

This conclusion that the arbitrators acted properly is supported by an examination of their memorandum of decision. In the memorandum, the arbitrators stated that “[i]t is [our position] that any disciplinary acts taken under Article XII against any employee must always be taken for just cause.” (Emphasis added.) It is clear from this language that the arbitrators were interpreting the terms of the agreement. “It is true that the award rather than the finding and conclusions of fact controls and, ordinarily, the memorandum of an arbitrator is irrelevant. American Brass Co. v. Torrington Brass Workers’ Union, 141 Conn. 514, 522, 107 A.2d 255 [1954]; Von Langendorff v. Riordan, 147 Conn. 524, 527, 163 A.2d 100 [1960]. There is no legal doctrine, however, which dictates the exclusion of an aribtrator’s opinion or which forbids its examination in the determination whether ... an arbitrator in his award has demonstrated infidelity to his obligation.” International Union v. Fafnir Bearing Co., supra, 654. Here, an examination of the award and of the arbitrators’ memorandum of decision reveals no infidelity. Accordingly, the trial court did not err by refusing to vacate the award on this ground.

The other claim of error raised by the board is that the arbitrators “misapplied the doctrine of progressive discipline.” This is merely another way of asserting that the “arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made.” General Statutes § 52-418 (a) (4). The general rule, as outlined above, is that review of a claim that the arbitrators have exceeded their authority is limited to a comparison of the award with the submission. Trumbull v. Trumbull Police Local 1745, supra, 212. The comparison is made to determine if the award and the submission conform. Once the court determines that the two do conform, its inquiry is ended. Waterbury v. Waterbury Police Union Local 1237, 176 Conn. 401, 404, 407 A.2d 1013 (1979). The submission, here, was “[wjhether or not [the employee] was discharged for just cause. If not, what should the remedy be?” The award was “[t]he grievant was not discharged for just cause in accordance with the collective bargaining agreement between the parties.” The award conformed precisely to the submission. Under such circumstances, this court need not look further.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 52-418 provides in pertinent part as follows: “(a) Upon the application of any party to an arbitration, the superior court for the judicial district in which one of the parties resides or, in a controversy concerning land, for the judicial district in which the land is situated or, when the court is not in session, any judge thereof, shall make an order vacating the award if it finds any of the following defects: (1) If the award has been procured by corruption, fraud or undue means; (2) if there has been evident partiality or corruption on the part of any arbitrator; (3) if the arbitrators have been guilty of misconduct in refusing to postpone the hearing upon sufficient cause shown or in refusing to hear evidence pertinent and material to the controversy or of any other action by which the rights of any party have been prejudiced; or (4) if the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made.”

       The board does not contest that, under the agreement, the arbitrators have the authority to frame the issue where the parties can not agree.

       The board phrased the issue as follows: “Whether [the employee] was discharged in accordance with Article XII of the collective bargaining agreement between the Hartford Board of Education and Buildings and Grounds Supervisors Local 818.”

       The full text of the award provides: “The grievant was not discharged for just cause in accordance with the collective bargaining agreement between the parties. The grievant shall be suspended without pay for two (2) weeks. Said suspension commencing August 14, 1980 (the date of termination) and continuing for ten (10) working days (2 weeks). The grievant shall then be reinstated and the Board of Education shall make him whole for all losses including seniority and other benefits and back-pay less monies received from Workmens Compensation, Unemployment Compensation and any other earnings.”

       In this appeal, the board did not argue separately that the award exceeded the scope of the submission. This ground of error was, however, incorporated into the board’s two other claims.

       The board also claimed on appeal that the arbitrators erred in ordering a payment of back pay without ordering a hearing to determine damages. This claim was not, however, raised below. “We need not consider this claim because the defendant has not demonstrated that ‘it was distinctly raised at the trial or arose subsequent to the trial.’ Practice Book § 3063; Chaplin v. Balkus, 189 Conn. 445, 447, 456 A.2d 286 (1983); State v. McCall, 187 Conn. 73, 87-88, 444 A.2d 896 (1982).” Aetna Life & Casualty v. Miscione of Connecticut, Inc., 193 Conn. 435, 437, 476 A.2d 577 (1984).

       The board contends that the parties agreed to be bound by such a doctrine by incorporating in their contract an employee discipline procedure which begins with a mild sanction and increases in severity until culminating in termination of the employee.


author: Daly, J.

text:
    Errol Atkins v. Bridgeport Hydraulic Company
    (3608)
    Spallone, Daly and Bieluch, Js.
    Argued October 9
    decision released December 24, 1985

      Ernest C. LaFollette, for the appellant (plaintiff).

      PaulE. Knag, with whom was Gregory B. Nokes, for the appellee (defendant).
   Daly, J.

This appeal arises from an action claiming wrongful termination of employment under common law and under the Fair Employment Practices Act, General Statutes § 46a-60 (a) (4). The plaintiff, Errol Atkins, instituted a two count complaint against the defendant, Bridgeport Hydraulic Company, alleging wrongful discharge from employment and seeking reinstatement and damages. From the granting of the defendant’s motion for summary judgment, the plaintiff has appealed.

The facts are not in dispute. The plaintiff had been employed by the defendant from November, 1971, until January 28,1983. The plaintiff lodged three complaints with the Commission on Human Rights and Opportunities (CHRO). The first complaint, filed on August 17, 1982, claimed that he had been denied a promotion due to his race. The second, filed on September 1, 1982, alleged that he received a disciplinary suspension because of his race and because he had initiated the first complaint. The third, filed subsequent to the termination of his employment, on February 1, 1983, claimed that his discharge was retaliatory and racially motivated.

On September 7,1983, the CHRO dismissed all three complaints as being unsupported by the evidence. A request for reconsideration was denied by letter dated September 30,1983, which noted that the time period applicable to an appeal was thirty days for service upon the parties. The plaintiff let the time limit pass and served the defendant with notice on the thirty-first day, Monday, October 31, 1983. The CHRO, although not named as a party, was provided with a copy of the action against the defendant.

The trial court, in rendering summary judgment for the defendant, found that the plaintiff had failed to follow the statutory route of appeal, and that the independent action was not an appeal and was therefore improper. In his appeal to this court, the plaintiff claims that the trial court incorrectly concluded from the dismissals by the CHRO that this action was not an appeal, and that the plaintiff could not bring a separate and independent action.

The plaintiff contends that the present action constitutes an appeal to a court from a decision by an administrative agency. In the sense of transferring jurisdiction from one court to another, however, this is not an “appeal” but merely “a process, under the misleading name of appeal, for invoking the judicial power to determine a legal injury complained of, or the legality of an act done by the officers of another department.” (Citations omitted.) Sheehan v. Zoning Commission, 173 Conn. 408, 411, 378 A.2d 519 (1977), quoting Mahno’s Appeal, 72 Conn. 1, 6, 43 A. 485 (1899). While purportedly challenging the action of the CHRO in dismissing his complaints, the plaintiff has proceeded against the defendant seeking to compel reinstatement and the award of monetary damages.

Even if we assume arguendo that the plaintiff has filed an appeal, General Statutes § 4-183 (b) provides in pertinent part: “Copies of the petition shall be served upon the agency and all parties of record . . . within thirty days after mailing of the notice of the decision thereon, except that service upon an agency may be made by the appellant mailing a copy of the petition by registered or certified mail, postage prepaid, without the use of a sheriff or other officer, to the office of the commissioner of the agency or to the office of the attorney general in Hartford.” The plaintiff failed to serve process timely or properly within the proscriptions of the statute.

“Without a citation signed by competent authority, the officer to whom it is given for service receives no power or authority to execute its command, and becomes ‘little more than a deliveryman.’ ” Sheehan v. Zoning Commission, supra, 413; Village Creek Homeowners Assn. v. Public Utilities Commission, 148 Conn. 336, 339, 170 A.2d 732 (1961). “The citation is a matter separate and distinct from the sheriff’s return and is the important legal fact upon which the judgment rests. ... A proper citation is essential to the validity of the appeal and the jurisdiction of the court.” (Citations omitted.) Village Creek Homeowners Assn. v. Public Utilities Commission, supra. The purpose of General Statutes § 4-183 (b) is not to obviate the need for a citation, but rather to permit service upon the administrative agency in a manner different from ordinary civil actions, that is, by registered or certified mail.

Appeals to courts from administrative agencies may only be brought under statutory authority and only by strict compliance with the statutory provisions by which they are allowed. Royce v. Freedom of Information Commission, 177 Conn. 584, 587, 418 A.2d 939 (1979); Newtown v. Department of Public Utility Control, 3 Conn. App. 416, 488 A.2d 1286 (1985); Board of Educations. State Board of Education, 38 Conn. Sup. 712, 717, 461 A.2d 997 (1983). Statutory time provisions which specify when an appeal must be taken are designed to facilitate a speedy determination of the case. The element of time represents not merely a procedural limitation but is an essential part of the remedy. “Such provisions are mandatory, and, if not complied with, render the appeal subject to [dismissal].” (Citations omitted.) Norwich Land Co. v. Public Utilities Commission, 170 Conn. 1, 6, 363 A.2d 1386 (1975).

Where the last day to appeal fell on Sunday, as was the case here, service of process on the following day did not satisfy the statutory requirements. Souza v. Great Atlantic & Pacific Tea Co., 25 Conn. Sup. 174, 176, 199 A.2d 170 (1964). Furthermore, restrictions on the service of process on Sundays were abolished upon the repealing of General Statutes § 52-71 by Public Acts 1976, No. 76-415, § 9.

The process of filing a complaint based on a discriminatory practice is clearly outlined in General Statutes § 46a-83 (a) which provides in pertinent part that “after the filing of any discriminatory practice complaint, the chairman of the commission shall refer the same to a commissioner or investigator to investigate and if . . . [he] determines . . . that there is reasonable cause for believing that a discriminatory practice has been or is being committed as alleged in the complaint, he shall endeavor to eliminate the practice complained of by conference, conciliation and persuasion.”

If these informal procedures are unsuccessful, the CHRO must certify the complaint, hold a hearing and order appropriate relief. General Statutes §§ 46a-84, 46a-86. Thereafter, any party aggrieved by a final order of the CHRO may appeal to the Superior Court. General Statutes § 46a-95 (j). Under the discriminatory practice statutes, the CHRO is charged “with initial responsibility for the investigation and adjudication of claims of employment discrimination. That the act does not provide an unconditional private right of action for claimants like the plaintiff is underscored by the terms of General Statutes § 46a-99, which expressly provides such a direct right of action when the allegedly discriminatory employer is a state agency.” Sullivan v. Board of Police Commissioners, 196 Conn. 208, 216, 491 A.2d 1096 (1985). “Because the plaintiff failed to follow the administrative route prescribed by the legislature for his claim of discrimination, he lacks the statutory authority to pursue that claim in the Superior Court.” Osborn v. Rocklen Automotive Parts & Service, Inc., 4 Conn. App. 423, 425, 494 A.2d 622 (1985).

“The plaintiff had available to him administrative remedies that could have afforded him meaningful relief under the statutes that govern his claim of discrimination. His failure to exhaust his appellate review procedures after bringing his complaint to the CHRO forecloses his access to judicial relief, because it deprived the trial court of jurisdiction to hear his complaint.” Id., 425-26; Sullivan v. Board of Police Commissioners, supra, 217-18.

Count two alleges that, in terminating the plaintiff, the defendant violated Connecticut’s public policy regarding employment practices. A cause of action for wrongful discharge is only recognized where public policy is clearly contravened. Sheets, v. Teddy’s Frosted Foods, Inc., 179 Conn. 471, 475, 427 A.2d 385 (1980). “A finding that certain conduct contravenes public policy is not enough by itself to warrant the creation of a contract remedy for wrongful dismissal by an employer. The cases which have established a tort or contract remedy for employees discharged for reasons violative of public policy have relied upon the fact that in the context of their case the employee was otherwise without remedy and that permitting the discharge to go unredressed would leave a valuable social policy to go unvindicated.” Wehr v. Burroughs Corporation, 438 F. Sup. 1052, 1054 (E.D. Pa. 177). In Sullivan, the public policy against age discrimination was adequately enforceable through statutory remedies and did not warrant judicial recognition of an independent cause of action.

The trial court was correct in ruling that the plaintiff’s attempt to bring an independent cause of action did not constitute an appeal and that the failure to exhaust the appellate review procedures under the Fair Employment Act deprived the trial court of jurisdiction to hear the plaintiff’s claims.

There is no error.

In this opinion the other judges concurred.


author: Dupont, C. J.

text:
    Claudia Emerick v. Roger Emerick
    (2941)
    Dupont, C. J., Hull and Spallone, Js.
    Argued October 3
    decision released December 24, 1985

      Lloyd Frauenglass, for the appellant-appellee (plaintiff).

      Roger Emerick, pro se,the appellee-appellant (defendant).

      Richard W. Dyer, for the minor child.
   Dupont, C. J.

In this appeal by the plaintiff wife and cross appeal by the defendant husband from a judgment dissolving their marriage, numerous claims of error are made. The issues are whether the trial court erred in rendering orders providing for (1) a prospective award of joint custody of the parties’ minor child when neither party had sought joint custody, (2) an automatic change of custody if the minor child of the parties were permanently removed from Connecticut, (3) financial awards, division of property and counsel fees, and (4) a prohibition preventing both parties from bathing or sleeping with the child, or spanking her.*

The trial court found that the plaintiff and the defendant had been married for five years, and had one minor child who was residing with the plaintiff at the time of the dissolution of the marriage. It further found that the plaintiff earned approximately $19,000 per year, that the defendant earned approximately $30,000 per year, and that both parties had worked outside of the home during their marriage. The principal asset of the marriage was the family home which the court found to have an equity value of $100,000. In its view, “[bjoth the plaintiff and the defendant are thoughtful, caring, loving, competent parents and both have a great deal to offer their daughter. The child loves them both but primarily identifies with and is attached to her mother.” The court also found that the plaintiff was prepared to leave the state, precluding any meaningful relationship between the child and the defendant, and that the defendant displayed an “obsessive, single-minded, apparently consuming passion to control, possess and dominate his wife and daughter’s lives and has interminably and mercilessly rummaged and meddled with his wife’s privacy throughout the course of the dissolution action.” The court, in addition, found that the permanent removal of the child from Connecticut would not be in her best interests.

On the basis of these findings of fact, the trial court specifically did not order periodic alimony but gave the plaintiff lump sum alimony of $22,180, with interest at 9 percent per annum, to be evidenced by the defendant’s promissory note and mortgage on the marital home. The note was to be paid at the rate of $350 per month, with the remaining principal and interest due thereon to be paid in full upon refinancing, the defendant’s death, or the passage of five years. Various items of personalty were awarded to both parties. The defendant was ordered to pay $115 per week as child support, except if the minor child resided with the defendant, in which case the amount was to be lowered to $85 per week. The defendant was to maintain medical insurance, but, to the extent it was insufficient, both parties were to pay one half of unreimbursed expenses. The court awarded counsel fees to the plaintiff, and counsel fees to the child’s counsel to be paid one-third by the plaintiff and two-thirds by the defendant.

The court also ordered both parties to participate in psychological counselling to help establish communication between them, as prescribed by the family relations division of the court, and ordered the defendant to participate in a separate program to amelioriate his present tendencies of domination over both the plaintiff and his daughter. It further ordered that upon “satisfactory participation and completion of . . . psychological counseling, as measured by marked improvement in the comportment of the Defendant” that joint custody be awarded to the parties approximately one and one-half years after the judgment date, with interim custody to be with the plaintiff, subject to the reasonable visitation rights of the defendant. These rights of visitation were elaborately enunciated and were to remain the same, whether custody was joint or sole. The court also ordered that “[i]n the event of . . . a removal [of the child from Connecticut by either party], custody, without further order . . . shall vest immediately and solely in the remaining parent.” Another order of the court prohibited either parent from bathing with, sleeping with, or spanking the child.

I

The trial court’s judgment awarding joint custody of the minor child to the parties, if the condition of behavioral modification of the defendant were met in the future, is claimed to be error by the plaintiff because neither party sought or agreed to joint custody. Assuming that the court, without motion by either party or without agreement of the parties, may award joint custody, the plaintiff claims that, on the facts of this case, it was error to conclude that joint custody was in the best interests of the minor child.

Embodied in the issue of whether the court, without motion by either party or without agreement of the parties, may order joint custody is the issue of whether to do so denied the plaintiff due process because it deprived her of notice and of an opportunity to be heard on the question.

In this case, both parties sought sole custody of the child, but neither sought joint custody. Counsel for the child and the family relations officer recommended that custody be awarded to the plaintiff. The trial court was not bound to accept the expert opinion of the family relations officer or the opinion of the minor child’s counsel. Yontef v. Yontef, 185 Conn. 275, 281, 440 A.2d 899 (1981). The question, however, is whether the trial court was prohibited from rendering a sua sponte award of future joint custody upon a present finding that joint custody was in the best interest of the child, given the fulfillment of a specific condition. Two statutes are involved in the determination of whether a trial court may award joint custody upon its unilateral determination that the best interests of the child dictate it.

General Statutes § 46b-56 (a) provides: “Subject to the provisions of section 46b-56a, the court may assign the custody of any child to the parents jointly . . . according to its best judgment upon the facts of the case and subject to such conditions and limitations as it deems equitable.” The second statute, General Statutes § 46b-56a, is entitled “Joint custody. Definition. Presumption. Conciliation” and provides an amplification of General Statutes § 46b-56 (a).

On two occasions, the Connecticut Supreme Court has dealt with certain aspects of the propriety of joint custody awards. In Strohmeyer v. Strohmeyer, 183 Conn. 353, 439 A.2d 367 (1981), the court held that it was a denial of the due process requirements of fair notice and a reasonable opportunity to be heard to award joint custody when one parent had not sought custody at all, and the other had no knowledge that joint custody was being considered by the court. The case, however, was decided before the passage of General Statutes § 46b-56a and prior to the amendment of General Statutes § 46b-56 (a), which made the award of joint custody subject to the provisions of General Statutes § 46b-56a.

The Strohmeyer court remanded the case for further proceedings and made it clear that, under the then existing legislation, a trial court might inquire into the feasibility of joint custody even when one party has not contested custody in the other, as long as due process requirements are satisfied. The question to be decided in the present case is whether, after the 1981 passage of General Statutes § 46b-56a, the Strohmeyer holding remains intact.

Joint custody is an increasingly favored viable alternative to sole custody in one parent, with reasonable rights of visitation in the other, when the parents have agreed to it. Whether joint custody, without the agreement of both parents, is a workable alternative to the goal of preserving a dual parental relationship with a child outside the former marital relationship is a subject of debate. See annot., “Propriety of Awarding Joint Custody of Children,” 17 A.L.R.4th 1013 (1982); 2 McCahey, Child Custody & Visitation Law and Practice (1983) ch. 13; Novinson, Post Divorce Visitation, 1983 111. L. Rev. 121; note, “Developments in the Law—The Constitution and the Family,” 93 Harv. L. Rev. 1156 (1980); note, “Joint Custody Awards: Toward the Development of Judicial Standards,” 48 Fordham L. Rev. 105 (1979).

Joint custody awards when workable have undoubted societal and psychological merit. Judicial awards of joint custody of children are decisionally grounded upon express statutory prowsions or general statutory authority to award custody in the best interest of the child. There are two types of express statutory authority. One type of statute simply states that joint custody may be awarded, and the other type of statute defines the term and explicates the guidelines for such an award, sometimes creating a presumption in its favor where the parties have agreed to it. Statutes are generally silent as to whether a court may, sua sponte, grant an award of joint custody. McCahey, supra, § 13.07 [2].

Our statutes providing for awards of joint custody are modeled after the California statutes on the same subject. See remarks of Representative Robert Farr, 24 H. Proc., Pt. 20, 1981 Sess., pp. 6769-70. General Statutes § 46b-56a (a) defines joint custody but does not do so in the same terms as the California statutes. Since our statute was intended to track California’s statute, we interpret our definition as including joint legal custody, meaning joint decision making, and joint physical custody, meaning a sharing of continued contact with both parents. Further, joint physical custody is severable from joint legal custody. The last sentence of the definitional subsection provides: “The court may award joint legal custody without awarding joint physical custody where the parties have agreed to merely joint legal custody.” Joint physical custody, thus, is conditional upon an agreement for joint legal custody. The question is, however, whether there can be joint legal custody, even without joint physical custody, unless there is an agreement of the parties. See Balbirer & McLachlan, “Family Law,” 56 Conn. B.J. 26, 65 (1982). The succeeding sections of the statute provide the answer. A court may award joint legal custody, with or without joint physical custody, if the parties agree to joint custody or if one party seeks joint custody.

The second part of the statute, § 46b-56a (b), establishes a presumption that joint custody is in the best interests of the minor child where the parties have agreed to such an award or have agreed to it in open court. It has been held that whether such an agreement, in fact, has been made is a question for the trial court, and that without such an agreement, sole custody may be awarded. Timm v. Timm, 195 Conn. 202, 487 A.2d 191 (1985). This subsection also provides that if the court chooses not to enter a joint custody order, the court must state its reasons for the denial. The statute does not provide that, without agreement, joint custody may, nevertheless, be awarded.

Subsection (c) of General Statutes § 46b-56a deals with the situation where only one parent seeks an order of joint custody. Upon motion, the statute allows the court to order both parties to submit to conciliation. A conciliator is, by statutory definition, a clergyman, a physician, a domestic relations officer or a person experienced in marriage counselling. General Statutes § 46b-53 (a). The need for “conciliation,” as here used, implies that a point of view needs to be unified, that compatibility is otherwise lacking, or that reconciliation of ideas must be had, before joint custody can work.

The subsection does not expressly provide for an award of joint custody if the parties have become united on the question of joint custody, after conciliation. In such cases, however, once the recalcitrant party, after conciliation, has agreed to joint custody, the provisions of General Statutes § 46b-56a (b) become operative and the court can then award joint custody. The statute, read as a whole, reflects a legislative belief that joint custody cannot work unless both parties are united in its purposes. Therefore, joint custody cannot be an alternative to a sole custody award where neither seeks it and where no opportunity is given to the recalcitrant parent to embrace the concept. Further, it is significant that the statute contains no additional subsection providing for a procedure in the event neither parent seeks joint custody.

The trial court erred in awarding joint custody, subject to proof of the meeting of certain conditions by the father, at a future time, absent an agreement by the parties, or absent a motion by one of them for conciliation after a motion has been made seeking joint custody. The hearing ordered to be held in the future, on whether the father had been rehabilitated to the extent of being a suitable co-custodian, may cure the lack of notice at the original hearing that joint custody might be awarded, but it cannot cure the statutory premise of General Statutes § 46b-56a that a joint custody award requires agreement of the parents or a motion made by one of them.

Since it was error to award joint custody without agreement of the parties pursuant to General Statutes § 46b-56a, or after motion by one of them, it is unnecessary to discuss the claim of the plaintiff that the court erred in concluding that joint custody was in the best interests of the minor child.

II

As part of its joint custody award, the trial court ordered that permanent removal of the child by either party from this state would result in automatic shifting of custody to the other. The paramount concern in awarding custody is the best interest of the child. Hall v. Hall, 186 Conn. 118, 121, 439 A.2d 447 (1982); Presutti v. Presutti, 181 Conn. 622, 626, 436 A.2d 299 (1980); Guss v. Guss, 1 Conn. App. 356, 360, 472 A.2d 790 (1984). “A child’s best interests, however, cannot be prospectively determined.” Guss v. Guss, supra, 360-61. The judicial hands of a future court cannot be bound by an earlier court’s determination that the best interests of a child as to custody remain constant. A transfer of custody cannot be automatically accomplished upon the happening of a future event, in this case, removal of the child from Connecticut.

III

The financial awards of the trial court, its award of counsel fees to the plaintiff and its award of counsel fees to the minor child’s counsel to be paid in part by both parties, were well within the discretion of the trial court. So often and so consistently have the appellate courts of this state reiterated the proposition that such awards will not be disturbed unless the trial court clearly abused its discretion, that no citation is necessary.

IV

Both parties appeal from the trial court’s order prohibiting them from bathing or sleeping with their child or spanking her. There was no evidence that the plaintiff had disciplined the child by spanking her, and some that the defendant had done so, with psychiatric testimony that the child feared her father and that this fear was exacerbated when she was spanked by him. There was evidence that both parents had showered and slept with the child. A psychiatrist testified that it was harmful for the child to do so with her father, but not with her mother. The plaintiff and the defendant claim that the order unconstitutionally infringes upon their parental rights.

The United States Supreme Court has long recognized that freedom of personal choice in matters of family life is one of the liberties protected by the due process clause of the fourteenth amendment. See, e.g., Bellotti v. Baird, 443 U.S. 622, 637-38, 99 S. Ct. 3035, 61 L. Ed. 2d 797, reh. denied, 444 U.S. 887, 100 S. Ct. 185, 62 L. Ed. 2d 121 (1979); Cleveland Board of Education v. LaFleur, 414 U.S. 632, 639-40, 94 S. Ct. 791, 39 L. Ed. 2d 52 (1974); Roe v. Wade, 410 U.S. 113, 152-53, 93 S. Ct. 705, 35 L. Ed. 2d 147, reh. denied, 410 U.S. 959, 93 S. Ct. 1409, 35 L. Ed. 2d 694 (1973); Eisenstadt v. Baird, 405 U.S. 438, 453, 92 S. Ct. 1029, 31 L. Ed. 2d 349 (1972); Loving v. Virginia, 388 U.S. 1, 12, 87 S. Ct. 1817, 18 L. Ed. 2d 1010 (1967); Pierce v. Society of Sisters, 268 U.S. 510, 535, 45 S. Ct. 571, 69 L. Ed. 1070 (1925). “The [United States Supreme Court] has frequently emphasized the importance of the family. The rights to conceive and to raise one’s children have been deemed ‘essential,’ Meyer v. Nebraska, 262 U.S. 390, 399 [43 S. Ct. 625, 67 L. Ed. 1042] (1923), ‘basic civil rights of man,’ Skinner v. Oklahoma, 316 U.S. 535, 541 [62 S. Ct. 1110, 86 L. Ed. 1655] (1942), and ‘[r]ights far more precious . . . than property rights,’ May v. Anderson, 345 U.S. 528, 533 [73 S. Ct. 840, 97 L. Ed. 1221] (1953). ‘It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.’ Prince v. Massachusetts, 321 U.S. 158, 166 [64 S. Ct. 438, 88 L. Ed. 645] (1944). The integrity of the family unit has found protection in the Due Process Clause of the Fourteenth Amendment, Meyer v. Nebraska, supra, at 399, the Equal Protection Clause of the Fourteenth Amendment, Skinner v. Oklahoma, supra, at 541, and the Ninth Amendment, Griswold v. Connecticut, 381 U.S. 479, 496 [85 S. Ct. 1678, 14 L. Ed. 2d 510] (1965) (Goldberg, J., concurring).” Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972); see also note, “Developments in the Law—The Constitution and the Family,” supra, 1350-53.

The previously cited cases arose in the context of total deprivation of custody of a child, or termination of parental rights, or in the context of statutory mandates relating to the education of all children within a particular state, rather than, as in the present case, in the context of a limitation or restriction on custody or visitation rights. The question here is whether a parent has the same constitutional rights in all instances.

General Statutes § 46b-56 (b) provides that the court, in making any order with respect to custody or visitation, shall be guided by the best interests of the child. In doing so, the court considers the recommendations of professionals and the rights of parents, but is ultimately concerned with the best interests of the child. Gallo v. Gallo, 184 Conn. 36, 43, 440 A.2d 782 (1981). In that case, the trial court restricted the father’s visitation rights with his child, by prohibiting overnight visitations if a woman unmarried to the father was present. The Supreme Court upheld the restriction, limited to a particular woman. There was no claim made by the father that his constitutional right to associate freely or to live with others of his choice was infringed and the case was decided on the ground that the trial court could have concluded reasonably that the welfare of the child was better served if his visits with his father contained the particular limitation.

There are many instances in which expert medical testimony may establish that certain things are physically or psychologically detrimental to a child’s best interests. For example, some children cannot eat certain foods without dire consequences, others must be given particular medication, and others cannot psychologically endure, or endure well, certain practices of their parents. When there is evidence to substantiate such situations, and the trial court finds the evidence credible, and finds that the child’s best interests require a limitation on visitation or custody consonant with the child’s particular needs, it should enter orders which reflect those particular needs.

The constitutional right of a parent to have the right to raise a child without state interference is not necessarily involved when a court, within the context of a dissolution of marriage action brought by one of the parents, must determine what limitations, if any, consistent with the best interests of the child, should be placed on visitation rights and custody.

In this case, since there was no evidence that the plaintiff had spanked her child, and no evidence that showering and sleeping with her child was detrimental to the child’s best interests, the order of the trial court, as to her, cannot stand. Since there was evidence which the trial court could have found credible that it was not in the best interests of the child to be spanked by her father, or to bathe or to sleep with him, its orders as to him were not clearly erroneous.

There is error in part, the judgment is set aside and the case is remanded with direction to render judgment as on file except that those portions of the judgment relating to joint custody, to an automatic change of custody, and to orders concerning discipline and hygiene of the minor child as they relate to the plaintiff shall be omitted.

In this opinion the other judges concurred.

       The plaintiff appeals from that portion of the judgment relating to child custody and automatic change of custody as well as orders relating to the discipline and hygiene of the minor child. The defendant cross appeals as to numerous orders contained in the judgment and as to postjudgment orders. The defendant has briefed thirty-three issues, if the issues are charitably counted in favor of tallying the lowest number. One of them, denial of the defendant’s motions for articulation by the trial court, is not considered because of the defendant’s failure to seek review by this court pursuant to Practice Book § 3108. The defendant filed a motion requesting this court to review its denial of relief to the plaintiff who had moved in this court to require the trial court to articulate further. Sixteen issues, not appearing in his amended preliminary statement of issues, are not considered. Presutti v. Presutti, 181 Conn. 622, 626, 436 A.2d 299 (1980); Barrett v. Central Vermont Railway, Inc., 2 Conn. App. 530, 535-36, 480 A.2d 589 (1984). Others are not considered, being deemed collateral to, or extraneous to, the claims of law upon which this decision rests. See Guss v. Guss, 1 Conn. App. 356, 359-60, 472 A.2d 790 (1984). The parties have filed six briefs and reply briefs, including a brief of counsel for the minor child of the parties. Two of the issues discussed in the brief of counsel for the child are not considered because they relate to the rebuttal of the defendant’s claims that almost every party and officer of the court engaged in malpractice or deception which claims are unrelated to the errors of law asserted. A claim that the court erred in excusing the plaintiff from attending post-judgment court hearings is briefed by both parties and claimed in the defendant’s amended preliminary statement of issues but is not considered because of the insufficiency of the record provided. Another claim, that the trial court should not have ordered the defendant to desist from contact with the plaintiff's employer, relatives, friends and associates, is also not considered. See Practice Book §§ 3082, 3108. In view of this court’s decision, it is unnecessary to address the claimed error of that portion of the judgment which ordered the defendant to participate in and complete separate psychological counseling before joint custody of the child would be awarded.

       Joint custody of the child was never awarded to the parties nor was any hearing ever held to establish the prerequisites for it. The plaintiff and her daughter had vanished from this jurisidiction by the time of oral argument in this court. Both the plaintiff, in her claim for relief in her complaint, and the defendant, in his claim for relief in his cross complaint, sought sole custody of their child. On October 4,1983, the defendant filed a “Claim for Relief” requesting that “[t]he parties have joint custody of the minor child ...” with the child to live with him and the plaintiff to have specific visitation as outlined by him. He also sought a number of other orders, including the surrendering of the passports of the plaintiff and the child to the court, the payment by the plaintiff to him of $5000 within one month if a dog, “Buckwheat,” had been put to death, payment by the plaintiff to him of $100,000 within two months, $20,000 “to partially cover costs incurred during divorce,” and $95 per week in support from the plaintiff. On October 31,1983, he filed a “Claim for Relief-Amendment I” in which he sought additional detailed orders relating to attorney’s fees and “parental kidnapping prevention.” These “claims for relief” are proposals for specific orders made on the eve of trial for the guidance of the court. The claim for relief by a defendant in a dissolution action is contained within the answer and cross complaint. Practice Book § 456. The defendant never amended his claim for relief to seek joint custody. The defendant’s statement of issues on appeal claims error in the assignment of custody. The plaintiff’s statement of issues on appeal claims error in the award of joint custody when both parties sought sole custody. In this case, neither party sought joint custody or moved for joint custody pursuant to General Statutes § 46b-56a (c).

       The court’s order obviously relates to the permanent removal of the child from Connecticut because its orders relating to visitation expressly allow removal by one parent during periods when there is no interference with the visitation rights of the other parent.

       General Statutes § 46b-56 (b) provides in part: “In making . . . any order with respect to custody or visitation, the court shall be guided by the best interests of the child . . . . ”

       General Statutes § 46b-56a provides: “(a) For the purposes of this section, joint custody means an order awarding legal custody of the minor child to both parents, providing for joint decision-making by the parents and providing that physical custody shall be shared by the parents in such a way as to assure the child of continuing contact with both parents. The court may award joint legal custody without awarding joint physical custody where the parents have agreed to merely joint legal custody.
      “(b) There shall be a presumption, affecting the burden of proof, that joint custody is in the best interests of a minor child where the parents have agreed to an award of joint custody or so agree in open court at a hearing for the purpose of determining the custody of the minor child or children of the marriage. If the court declines to enter an order awarding joint custody pursuant to this subsection, the court shall state in its decision the reasons for denial of an award of joint custody.
      “(c) If only one parent seeks an order of joint custody upon a motion duly made, the court may order both parties to submit to conciliation at their own expense with the costs of such conciliation to be borne by the parties as the court directs according to each party’s ability to pay.”

       When Strohmeyer v. Strohmeyer, 183 Conn. 353, 440 A.2d 899 (1981) was decided, General Statutes § 46b-56 (a) allowed the court to assign custody to “the parents jointly,” without any other statutory guidance specifically related to joint custody.

       The state of Michigan has the only statute of which this court is aware which mandates that in custody disputes between parents, the parents must be advised of the possibility of joint custody, apparently allowing such an award, sua sponte, thereafter. Mich. Comp. Law Ann. § 25.312 (6a) (1). The courts of at least one state have interpreted a general statute allowing courts to make such custody orders as the circumstances of the case make reasonable and just, to allow a sua sponte determination of joint custody, provided the record supports that determination, even if the parties had no notice, although notice is preferable. Beck v. Beck, 86 N.J. 480, 432 A.2d 63 (1981). The Beck court makes it clear that even if no party seeks joint custody, it is a possible award as long as both parents are willing to care for their children. Seymour v. Seymour, 180 Conn. 705, 433 A.2d 1005 (1980), decided before the passage of General Statutes § 46b-56a, provides a judicial clue that joint custody is not an appropriate award, even assuming notice to the parties, where the parties have failed to make it work, although both are fit and capable of being sole custodians.

       California Civil Code §§ 4600 through 4608. The Connecticut statutes are not, however, duplicates of California’s statutes.

       The difference between a sole custodian and a joint legal custodian is that the sole custodian has the ultimate authority to make all decisions regarding a child’s welfare, such as education, religious instruction and medical care whereas a joint legal custodian shares the responsibility for those decisions. See note, “Joint Custody Awards,” 48 Fordham L. Rev. 105, 110 (1979).

       Even if an award of joint custody were statutorily permissible without the agreement of the parties or without the motion of one party for joint custody, it remains doubtful that such an award would withstand appellate review absent notice to the parties that the trial court was considering an award of joint custody. See Cappetta v. Cappetta, 196 Conn. 10, 15, 490 A.2d 996 (1985).

       The trial court in the present case found that it was in the best interests of the child to remain in Connecticut as of the date of its judgment. If a trial court so finds, its orders may prohibit removal of a child from the state. See Presutti v. Presutti, 181 Conn. 622, 436 A.2d 299 (1980); Bozzi v. Bozzi, 177 Conn. 232, 413 A.2d 834 (1979); Raymond v. Raymond, 165 Conn. 735, 345 A.2d 48 (1974); see also note, “Joint Custody Awards,” 48 Pordham L. Rev. 105, 121 n.89 (1979). The plaintiff, in removing the child of the parties from this jurisdiction has frustrated the visitation rights of the father, and, at any future hearing relating to custody, may have provided the trial court with a ground for the transfer of custody to the defendant, the present noncustodial parent. See In re Marriage of Wood, 141 Cal. App. 3d 671, 190 Cal. Rptr. 469 (1983).