text:
    MARY L. CARD v. STATE OF CONNECTICUT ET AL. MARY L. CARD v. JOHN J. CASTODIO, JR.
    (AC 18555)
    Foti, Spear and Hennessy, Js.

      Argued September 14, 1999
    officially released March 28, 2000

      Matthew Shafner, with whom, on the brief, were Amy M. Stone and James A. Hall, for the appellant (plaintiff in each case).

      Richard D. Haviland, for the appellee (defendant in the second case).
   Opinion

HENNESSY, J.

The plaintiff, Mary L. Card, appeals from the trial court’s judgment setting aside a jury verdict that had been returned in her favor. On appeal, the plaintiff claims that (1) the court improperly ruled that an expert witness’ opinion on apportionment of damages should have been excluded as speculative and (2) even if the expert testimony should have been excluded, the verdict should stand because the defendant is jointly and severally liable to the plaintiff. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the resolution of this appeal. On July 31, 1992, the plaintiff suffered injuries when the car in which she was riding was struck from the rear by a vehicle driven by the defendant John J. Castodio, Jr. The plaintiff sought treatment for her injuries from Joseph Zeppieri, an orthopedic surgeon. On December 11, 1992, the plaintiff again suffered injuries when the car in which she was riding was struck in a head-on collision by a vehicle operated by William Faman while he was performing duties as an employee of the state of Connecticut. The plaintiff once again sought treatment from Zeppieri. On January 14,1993, the plaintiff was involved in a third accident in which she suffered injuries when another vehicle crossed in front of her car, hooked onto the front end of her car and dragged her car into a parking lot. The plaintiff sought treatment again from Zeppieri.

The plaintiff then filed separate actions against the defendant, Faman and the state of Connecticut, and the driver in the third accident. In all of her complaints, the plaintiff alleged that the accidents were caused by the defendants’ negligence in operating their motor vehicles. The plaintiff settled her claim against the driver of the car in the third accident prior to trial, and the court thereafter granted the plaintiffs motion to consolidate the remaining two cases for trial.

During the trial, Zeppieri testified as an expert witness for the plaintiff on the issues of causation and apportionment of her injuries. Zeppieri testified that while each of the three accidents was a substantial factor contributing to the plaintiffs injuries, it was impossible to determine to a degree of medical certainty how much of the plaintiffs permanent injuries were attributable to each of the three accidents. He therefore concluded that each of the accidents contributed equally to the plaintiffs injuries and that this opinion was based on reasonable medical certainty. An expert for the state testified that the plaintiffs ultimate injury to her neck was entirely attributable to the first accident, which was caused by Castodio.

The court allowed the jury to consider the testimony of both experts regarding causation and apportionment of damages. The jury rendered separate verdicts in favor of the plaintiff, and awarded $33,333.34 in noneconomic damages against the defendant and $33,333.34 in non-economic damages against the state and Faman.

The defendant and the state both filed separate motions to set aside the verdicts, claiming that the court should not have allowed the plaintiff to offer the testimony of Zeppieri when his testimony was speculative and without a factual or scientific basis. The court granted the motions to set aside the verdicts. In its memorandum of decision on the motions to set aside the verdicts, the court noted that “Zeppieri gave no basis for his conclusion that each accident contributed equally to the plaintiffs permanency other than his inability to apportion causation. His conclusion is, therefore, conjecture and surmise. The jury accepted Zeppieri’s conclusion as indicated by its award to the plaintiff of exactly the same noneconomic damages against the state and against Castodio. Accordingly, the verdict must be set aside and a new trial ordered.” The plaintiff appeals from the court’s decision to set aside the verdict against the defendant Castodio.

I

The plaintiff claims first that the court’s decision to set aside the verdict should be reversed because the court applied an incorrect legal standard in ruling that Zeppieri’s opinion on apportionment of the injuries should have been excluded as speculative. We disagree.

“We review the trial court’s action in granting or denying a motion to set aside a verdict by an abuse of discretion standard. State v. Hammond, 221 Conn. 264, 270, 604 A.2d 793 (1992). A trial court may set aside a verdict on a finding that the verdict is manifestly unjust because, given the evidence presented, the jury mistakenly applied a legal principle or because there is no evidence to which the legal principles of the case could be applied. Maroun v. Tarro, 35 Conn. App. 391, 396, 646 A.2d 251, cert. denied, 231 Conn. 926, 648 A.2d 164 (1994).” Connecticut National Bank v. D’Onofrio, 46 Conn. App. 199, 214—15, 699 A.2d 237, cert. denied, 243 Conn. 926, 701 A.2d 657 (1997).

“Generally, expert testimony is admissible if (1) the witness has a special skill or knowledge directly applicable to a matter in issue, (2) that skill or knowledge is not common to the average person, and (3) the testimony would be helpful to the court or jury in considering the issues. . . . State v. Borrelli, 227 Conn. 153, 165, 629 A.2d 1105 (1993) . . . .” (Internal quotation marks omitted.) State v. Grenier, 55 Conn. App. 630, 639, 739 A.2d 751 (1999), cert. granted on other grounds, 252 Conn. 931, 746 A.2d 794 (2000). “In order to render an expert opinion the witness must be qualified to do so and there must be a factual basis for the opinion.” (Internal quotation marks omitted.) Madison Hills Ltd. Partnership II v. Madison Hills, Inc., 35 Conn. App. 81, 93, 644 A.2d 363, cert. denied, 231 Conn. 913, 648 A.2d 153 (1994). “[Ejxpert opinions must be based on reasonable probabilities rather than mere speculation or conjecture if they are to be admissible . . . . To be reasonably probable, a conclusion must be more likely than not.” (Citation omitted.) O’Reilly v. General Dynamics Corp., 52 Conn. App. 813, 817, 728 A.2d 527 (1999).

Zeppieri testified that each accident contributed substantially to the plaintiffs permanent injury on the basis of the fact that the second and third accidents aggravated the injuries caused by the first accident. Because the accidents happened within such a short time of each other, Zeppieri was unable to state with reasonable medical certainty that the disability from the first accident was more or less than the disabilities resulting from the other two accidents. In response to a question by the plaintiffs counsel on how to apportion fairly her present disability, Zeppieri testified: “My rationale in making a judgment is that we have three separate injuries, each of which was a substantial contributor to the total permanency. The most—there is no way to apportion precisely with any greater degree of certainty than we are doing. It’s reasonable to say that each contributed equally to the ultimate outcome for this patient.” Zeppieri further testified that he made that statement with reasonable medical certainty and that it was not a guess.

There is no dispute that Zeppieri was qualified to testily as an expert witness as to the cause and contributing factors of the plaintiffs injury. Zeppieri’s opinion on apportioning the disability equally, however, is based on his inability to apportion the disability with reasonable medical certainty. Although Zeppieri testified that his opinion was correct because no one else could reasonably apportion the damages other than what he suggested, there is no factual basis supporting his opinion to divide the injury equally among the three accidents other than his inability to apportion the damage. We therefore conclude that the court properly found that Zeppieri’s testimony on apportionment of damages was speculation.

The plaintiff claims that Zeppieri’s testimony on apportionment was based on reasonable medical certainty and therefore was not speculation. While Zeppieri did say that his opinion on apportionment was based on “reasonable medical certainty,” we must look at the entire substance of his testimony. Struckman v. Burns, 205 Conn. 542, 555, 534 A.2d 888 (1987), stated that “[w]hether an expert’s testimony is expressed in terms of a reasonable probability that an event has occurred does not depend upon the semantics of the expert or his use of any particular term or phrase, but rather, is determined by looking at the entire substance of the expert’s testimony.” The sum of Zeppieri’s testimony provides that it is impossible to apportion the plaintiffs injury because the accidents were too close in time to gauge fairly which one caused what portion of the ultimate injury. We conclude that Zeppieri’s testimony concerning the apportionment of damages equally among the three accidents was speculation and should not have been heard by the jury—at least not by way of witness testimony. The court did not abuse its discretion, therefore, when it set aside the verdict and ordered a new trial. Our inquiry, however, does not end here. The question remains as to the proper allocation of damages for the plaintiffs injuries.

II

The plaintiff claims that even if it was correct to exclude Zeppieri’s opinion on apportionment, the court improperly granted the motion to set aside the verdict because the defendant is jointly and severally hable to the plaintiff when the injury cannot be apportioned. The defendant claims that he is not jointly and severally liable. Rather, he claims that when liability cannot be apportioned, the final tortfeasor, who takes the victim as he finds her, should be liable for all of the plaintiffs injuries. We disagree with both parties.

Prior to 1986, Connecticut adhered to the common-law doctrine of joint and several liability with no right of contribution among joint tortfeasors. Donner v. Kearse, 234 Conn. 660, 666, 662 A.2d 1269 (1995). With the enactment of tort reform legislation in 1986, however, “the legislature adopted comparative negligence principles, and, consequently, the rules of joint and several liability no longer govern common-law negligence actions in Connecticut.” Babes v. Bennett, 247 Conn. 256, 266, 721 A.2d 511 (1998). “The legislature sought to remedy the growing concerns regarding the cost and availability of liability insurance by abrogating the doctrine of joint and several liability for negligent tortfeasors and thus imposing limitations on a negligent defendant’s obligation to pay damages.” Bhinder v. Sun Co., 246 Conn. 223, 232, 717 A.2d 202 (1998).

General Statutes § 52-572h (c) now provides in relevant part: “In a negligence action to recover damages resulting from personal injury ... if the damages are determined to be proximately caused by the negligence of more than one party, each party against whom recovery is allowed shall be liable to the claimant only for his proportionate share of the recoverable economic damages and the recoverable noneconomic damages . . . .” Under § 52-572h (f), the extent of each party’s negligence, in the form of a percentage, is determined by the trier of fact. The statute is silent, however, as to what happens when liability cannot be apportioned.

Our resolution of this claim is guided by well established rules of statutory construction. “The process of statutory interpretation involves a reasoned search for the intention of the legislature. Frillici v. Westport, 231 Conn. 418, 431, 650 A.2d 557 (1994). In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of this case, including the question of whether the language actually does apply. In seeking to determine that meaning, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter. . . . United Illuminating Co. v. New Haven, 240 Conn. 422, 431, 692 A.2d 742 (1997).” (Internal quotation marks omitted.) Bhinder v. Sun Co., supra, 246 Conn. 230-31. “We also note the rule of statutory construction that statutes in derogation of common law should receive a strict construction and [should not] be extended, modified, repealed or enlarged in [their] scope by the mechanics of construction. Williams Ford, Inc. v. Hartford Courant Co., 232 Conn. 559, 581, 657 A.2d 212 (1995).” (Internal quotation marks omitted.) Bhinder v. Sun Co., supra, 231.

The plaintiff claims that § 52-572h is in derogation of the common law and, because the statute is silent on the issue of inability to apportion negligence among multiple tortfeasors, we should revert to common-law joint and several liability in the present case. A review of the legislative intent behind the enactment of § 52-572h and case law interpreting the statute indicates that § 52-572h is in derogation of the common law. See id., 231. We do not find, however, that the exclusion of language in the statute on matters concerning inability to apportion damages requires us to apply common-law joint and several liability. “[T]he operation of a statute in derogation of the common law is to be limited to matters clearly brought within its scope.” Willoughby v. New Haven, 123 Conn. 446, 454, 197 A. 85 (1937). The matter of apportioning damages among multiple tortfeasors is clearly within the scope of § 52-572h. Reverting to common-law joint and several liability when apportionment of damages among multiple tortfeasors is not possible would defeat the unambiguous intent of the legislature to eliminate joint and several liability.

While one of the purposes of the enactment of § 52-572h was to protect one codefendant from paying the entire judgment at the claimant’s option, “[t]he legislative history of [Public Acts 1987, No.] 87-227 also indicates that the legislature intended to maximize the plaintiffs ability to recover damages from the parties whose negligence caused his injuries.” Babes v. Bennett, supra, 247 Conn. 270. This is true even where a defendant has to bear more than his share of the damages due to the insolvency of another defendant. Id., 271; see General Statutes § 52-572h (g) (1).

In the rare case where damages cannot be apportioned between two or more accidents, the plaintiff who can prove causation should not be left without a remedy. One judicial response to situations in which a jury is unable to make even a rough apportionment of damages is to apportion damages equally among the various accidents. See Loui v. Oakley, 50 Haw. 260, 264, 438 P.2d 393 (1968); Campione v. Soden, 150 N.J. 163, 184, 695 A.2d 1364 (1997); W. Prosser & W. Keeton, Torts (5th Ed. 1984) p. 350. Our legislature’s objective in enacting § 52-572h will be achieved by adopting a similar approach. The trier of fact’s responsibility in cases involving injuries sustained in successive accidents is to apportion the damages among the parties whose negligence caused the plaintiffs injuries. We hold that the trial court should instruct the jury that if it is unable to determine how much of the plaintiffs damages is attributable to each tortfeasor, the jury may make a rough apportionment. “The absence of conclusive evidence concerning allocation of damages will not preclude apportionment by the jury, but will necessarily result in a less precise allocation than that afforded by a clearer record.” Campione v. Soden, supra, 184. If the jury is unable to make even a rough apportionment, it must apportion the damages equally among each party whose negligent actions caused injury to the plaintiff, including settled or released persons as contemplated by § 52-572h (n). On retrial, the court shall instruct the jury on apportionment of damages consistent with this opinion.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff brought separate actions against the defendant John J. Castodio, Jr., and the defendant state of Connecticut et al. stemming from separate automobile accidents. The cases were consolidated, and the jury returned verdicts against the defendants’ in both cases. The court granted a motion to set aside the verdict in each case, and the plaintiff appealed. The plaintiffs appeal was withdrawn as against the state, and her appeal is now directed at the allegedly improper granting of Castodio’s motion to set aside the verdict against him. We refer in this opinion to Castodio as the defendant.

       The action against Faman was withdrawn postverdict.

       The plaintiff withdrew her appeal as to the state.

       “With the enactment of the Tort Reform Act of 1986; Public Acts 1986, No. 86-338, § 3, codified in part under General Statutes (Rev. to 1987) § 52-572h; the legislature adopted comparative negligence principles for negligence actions. Those tort reform provisions were later amended by Public Acts 1987, No. 87-227, § 3.” Babes v. Bennett, supra, 247 Conn. 266-67 n.7.
      General Statutes § 52-572h provides in relevant part: “(c) In a negligence action to recover damages resulting from personal injury, wrongful death or damage to property occurring on or after October 1, 1987, if the damages are determined to be proximately caused by the negligence of more than one party, each party against whom recovery is allowed shall be liable to the claimant only lor his proportionate share of the recoverable economic damages and the recoverable noneconomic damages except as provided in subsection (g) of this section.
      “(d) The proportionate share of damages for which each party is liable is calculated by multiplying the recoverable economic damages and the recoverable noneconomic damages by a fraction in which the numerator is the party’s percentage of negligence, which percentage shall be determined pursuant to subsection (f) of this section, and the denominator is the total of the percentages of negligence, which percentages shall be determined pursuant to subsection (1) of this section, to be attributable to all parties whose negligent actions were a proximate cause of the injury, death or damage to property including settled or released persons under subsection (n) of this section. Any percentage of negligence attributable to the claimant shall not be included in the denominator of the fraction.
      “(e) In any action to which this section is applicable, the instructions to the jury given by the court shall include an explanation of the effect on awards and liabilities of the percentage of negligence found by the jury to be attributable to each party.
      “(f) The jury or, if there is no jury, the court shall specify: (1) The amount of economic damages; (2) the amount of noneconomic damages; (3) any findings of fact necessary for the court, to specify recoverable economic damages and recoverable noneconomic damages; (4) the percentage of negligence that proximately caused the injury, death or damage to property in relation to one hundred per cent, that is attributable to each party whose negligent actions were a proximate cause of the injury, death or damage to property including settled or released persons under subsection (n) of this section; and (5) the percentage of such negligence attributable to the claimant.
      “(g) (1) Upon motion by the claimant to open the judgment filed, after good faith efforts by the claimant to collect from a liable defendant, not later than one year after judgment becomes final through lapse of time or through exhaustion of appeal, whichever occurs later, the court shall determine whether all or part of a defendant’s proportionate share of the recoverable economic damages and recoverable noneconomic damages is uncollectible from that party, and shall reallocate such uncollectible amount among the other defendants in accordance with the provisions of this subsection. (2) The court shall order that the portion of such uncollectible amount which represents recoverable noneconomic damages be reallocated among the other defendants according to their percentages of negligence, provided that the court shall not reallocate to any such defendant an amount greater than that defendant’s percentage of negligence multiplied by such uncollectible amount. (3) The court shall order that the portion of such uncollectible amount which represents recoverable economic damages be reallocated among the other defendants. The court shall reallocate to any such other defendant an amount equal to such uncollectible amount of recoverable economic damages multiplied by a fraction in which the numerator is such defendant’s percentage of negligence and the denominator is the total of the percentages of negligence of all defendants, excluding any defendant whose liability is being reallocated. (4) The defendant whose-liability is reallocated is nonetheless subject to contribution pursuant to subsection (h) of this section and to any continuing liability to the claimant on the judgment. . . .
      “(n) A release, settlement or similar agreement entered into by a claimant and a person discharges that person from all liability for contribution, but it does not discharge any other persons liable upon tire same claim unless it so provides. However, the total award of damages is reduced by the amount of the released person’s percentage of negligence determined in accordance with subsection (f) of this section.”


source: Caselaw Access Project

author: O’CONNELL, C. J.

license: Public Domain

text:
    TODD C. MORRISON v. COMMISSIONER OF CORRECTION
    (AC 18887)
    O’Connell, C. J., and Landau and Hennessy, Js.

      Argued December 2, 1999
    officially released March 28, 2000

      Todd A. Edgington, assistant public defender, for the appellant (petitioner).

      Nancy L. Chupak, deputy assistant state’s attorney, with whom, on the brief, was John T. Redway, state’s attorney, and Russell C. Zentner, assistant state’s attorney, for the appellee (respondent).

       The listing of judges reflects their seniority status on this court as of the date of oral argument.

   Opinion

O’CONNELL, C. J.

The petitioner, Todd C. Morrison, appeals from the dismissal of his habeas corpus petition. He claims that the habeas court improperly determined that (1) a writ of error is the proper route for review of a decision of the sentence review division of the Superior Court and (2) his plea was the result of a plea agreement. We affirm the judgment of the habeas court.

The following facts are relevant to the resolution of this appeal. In 1984, the petitioner entered a plea of guilty of murder in violation of General Statutes § 53a-54a and kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (A), and was sentenced to a total effective term of fifty years in the custody of the respondent commissioner of correction. The petitioner then filed an application for review with the sentence review division. Following a hearing, the sentence review division denied review of his sentence because it was the product of a plea agreement. The petitioner filed a habeas corpus petition, which was dismissed. His petition for certification to appeal was granted by the habeas court and this appeal followed.

The petitioner first claims that it was improper for the habeas court to dismiss his petition because he did not file a writ of error from the sentence review division’s decision. We agree with the habeas court.

A habeas court’s findings of fact are reviewed under the clearly erroneous standard of review. Mercer v. Commissioner of Correction, 49 Conn. App. 819, 822-23, 717 A.2d 763, cert. denied, 247 Conn. 920, 722 A.2d 810 (1998). Questions of law, however, are subject to plenary review. Johnson v. Commissioner of Correction, 36 Conn. App. 695, 700, 652 A.2d 1050, cert. denied, 233 Conn. 912, 659 A.2d 183 (1995). Because this claim involves a question of law, it is subject to plenary review by this court.

The relevant part of General Statutes § 51-196 provides: “The decision of the review division in each case shall be final . . . .” This provision has been interpreted to mean that a defendant is precluded from filing an appeal from a decision of the sentence review division. State v. Nardini, 187 Conn. 109, 117, 445 A.2d 304 (1982). “A decision by the [sentence review division] that a defendant is not entitled to the review procedure is a . . . non-appealable final judgment, [but] ... is reviewable under a writ of error.” C. Tait, Connecticut Appellate Practice and Procedure (2d Ed. 1993) § 2.7 (b), p. 2-15.

The next question is whether a writ of habeas corpus may be substituted for a writ of error. Our Supreme Court discussed this issue in detail and concluded that the great preponderance of judicial authority holds that “ ‘[t]he habeas corpus . . . cannot have the force and effect of a writ of error . . . nor is it designed as a substitute for [it].’ ” In re Bion, 59 Conn. 372, 391, 20 A. 662 (1890). This rule was more recently recognized in Ralls v. Manson, 375 F. Sup. 1271, 1282-83 (D. Conn.), rev’d on other grounds, 503 F.2d 491 (2d Cir. 1974).

Moreover, the decision we announce today is not inconsistent with Staples v. Palten, 214 Conn. 195, 571 A.2d 97 (1990), and State v. Anderson, 220 Conn. 400, 599 A.2d 738 (1991). In Staples, the petitioner raised the same issue that is presented in this case, but properly sought review via a writ of error, which was acted on by our Supreme Court. Staples v. Palten, supra, 195. The petitioner in Anderson also raised a plea agreement issue, but followed the appellate route through this court and then by way of certification to the Supreme Court. In Anderson, however, the petitioner was not seeking to overturn a decision of the sentence review division, but was appealing, in part, from the failure of the Superior Court to provide him with notice of his statutory right to sentence review. State v. Anderson, supra, 403. Also inapposite are cases in which the petitioner sought habeas corpus relief from sentence review on the basis of ineffective assistance of counsel or the denial of the petitioner’s right to counsel. See James L. v. Commissioner of Correction, 245 Conn. 132, 712 A.2d 947 (1998) (ineffective assistance of counsel); Consiglio v. Warden, 153 Conn. 673, 220 A.2d 269 (1966) (denial of right to counsel).

The petitioner’s remedy is properly by writ of error. The habeas court was correct in dismissing the petition. In view of the foregoing, we do not reach the petitioner’s second claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 51-195 allows a person sentenced to confinement for three years or more to file an application for review by the sentence review division, except, where the sentence imposed resulted from the trial court’s acceptance of a plea agreement.

       Practice Book § 72-1 (a) provides: “Writs of error for errors in matters of law only may be brought from a final judgment of the superior court to the supreme court.”

         General Statutes § 51-195 provides in relevant part: “Upon imposition of sentence . . . the clerk shall give written notice to the person sentenced of his right [to file an application for sentence review], . . .”


author: SCHALLER, J.

text:
    STATE OF CONNECTICUT v. JOAO SOARES
    (AC 18848)
    Schaller, Hennessy and Daly, Js.
    Argued November 30, 1999
    officially released April 4, 2000

      Carlos A. Santos, for the appellant (defendant).

      Nancy L. Chupak, deputy assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and David Gulick, deputy assistant state’s attorney, for the appellee (state).
   Opinion

SCHALLER, J.

The defendant, Joao Soares, appeals from the judgment of conviction, rendered after his guilty plea, of possession of marijuana in violation of General Statutes § 21a-277 (b). On appeal, the defendant claims that the trial court improperly denied his motion to vacate the judgment of conviction. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to this appeal. On February 26,1997, the Connecticut statewide narcotics task force, in conjunction with the Waterbury police department, executed a search and seizure warrant for the defendant’s place of business and his home. The officers seized twenty-one ounces of marijuana, $2160 and drug paraphernalia, including scales and rolling papers.

On September 9, 1997, the defendant entered a guilty plea to the charge of possession of a narcotic substance in violation of § 21a-277 (a). The trial court, Iannotti, J., subsequently conducted a plea canvass. Pursuant to General Statutes § 54-1j, the court informed the defendant of the possible deportation consequences resulting from a guilty plea. The defendant responded that he understood the implications of the guilty plea. The court accepted the plea and continued the case for sentencing.

Sentencing occurred on November 21, 1997, at which time the state filed a substitute information charging the defendant with possession of marijuana in violation of § 21a-277 (b). After noting that the only difference from the original canvass would be the penalty, the court inquired as follows:

“The Court: Now, counsel, do either counsel or both counsel want me to recanvass?

“[Assistant State’s Attorney]: No, Your Honor.

“[Defense Counsel]: No, Judge, we’ll waive that.

“The Court: Are you satisfied with the canvass?

“[Defense Counsel]: Yes.

“[Assistant State’s Attorney]: It is my understanding that the information had been amended, Your Honor. It doesn’t appear—

“The Court: The only difference will be the penalty, instead of being fifteen years and fifty thousand dollars, [it] is seven years or a twenty-five thousand dollar fine. Are you aware of that? It’s a lesser penalty.

“The Defendant: Yes, sir.

“The Court: Does anybody want me to recanvass besides that?

“[Defense Counsel]: No, Judge.

“[Assistant State’s Attorney]: No, Your Honor.

“The Court: So you’re waiving the right to recanvass?

“[Defense Counsel]: Yes, we are, Your Honor.”

The court accepted the defendant’s guilty plea to the substituted charge and sentenced him. On May 4, 1998, the United States Immigration and Naturalization Service commenced removal proceedings against the defendant pursuant to § 240 of the Immigration and Nationality Act.

On September 2, 1998, the court, Damiani, J., heard the defendant’s motion to vacate the judgment of conviction. The defendant claimed that Judge Iannotti had failed to advise him of the deportation consequences of pleading guilty to the charge of possession of marijuana. The court denied the motion on two grounds: (1) the original canvass, containing the same factual basis, provided full compliance with § 54-lj; and (2) the waiver by counsel was impliedly agreed to by the defendant because he was present with counsel. This appeal followed. Additional facts will be set forth as necessary.

On appeal, the defendant claims that the court improperly denied his motion to vacate the judgment of conviction of the offense of possession of marijuana because the defendant never was advised of the deportation consequences of his guilty plea pursuant to § 54-lj. Specifically, the defendant argues that the court improperly concluded that Judge Iannotti had properly accepted the defendant’s guilty plea to the charge of possession of marijuana. He claims that Judge Iannotti’s acceptance was not proper because he had previously advised the defendant of the deportation consequences relative to the charge of possession of a narcotic substance and not relative to the charge of possession of marijuana.

At issue in this case is whether the trial court improperly denied the defendant’s motion to vacate. This issue turns on whether the court had adequately informed the defendant of possible deportation consequences at the time he entered a plea of guilty to the amended information. Section 54-lj (c) provides: “If the court fails to advise a defendant as required in subsection (a) of this section and the defendant not later than three years after the acceptance of the plea shows that his plea and conviction may have one of the enumerated consequences, the court . . . shall vacate the judgment . . . .” The defendant argues that the court cannot accept any guilty plea without first warning the defendant of the possible deportation consequences.

We assume, without deciding, that § 54-lj requires that the court canvass a defendant regarding the deportation consequences of a guilty or nolo contendere plea each time a plea is entered. Under the facts of this case, however, we conclude that the court’s reference to the previous canvass was sufficient to meet these requirements.

It is clear from the circumstances here that the court incorporated the earlier warning about deportation consequences into the recanvass at sentencing. In State v. Badgett, 200 Conn. 412, 419-20, 512 A.2d 160, cert. denied, 479 U.S. 940, 107 S. Ct. 423, 93 L. Ed. 2d 373 (1986), our Supreme Court concluded that the trial court’s express mention of waiver of the right to trial, combined with the defendant’s prior election of a jury trial, his experience with criminal proceedings and apparent adequate representation by counsel, satisfy the constitutional requirement that a defendant be informed of the right to a jury trial. See id., 420 (holding that attorney may waive defendant’s constitutional right to be informed of his right to jury trial). The defendant in this case was given a plea canvass with regard to the original charge; the adequacy of the canvass is not contested. He was told, on the occasion of the second plea, that “[t]he only difference in a recanvass will be the penalty . . . .” The record indicates that the trial court incorporated the original canvass into the recanvass, thereby incorporating the deportation instruction.

Where there is substantial compliance with a statute and no constitutionally protected rights are violated, failure to comply strictly with each requirement of the statute does not mandate that the court vacate the defendant’s plea. See State v. Godek, 182 Conn. 353, 362, 438 A.2d 114 (1980), cert. denied, 450 U.S. 1031, 101 S. Ct. 1741, 68 L. Ed. 2d 226 (1981). Although the trial court did not use the specific language set forth in § 54-lj, the court did inform the defendant that a new canvass would encompass a lesser sentence with the remainder of the canvass being exactly the same. In Godek, the court concluded that “it does not follow that every deviation from the specific requirements of either the statute or the rule or both mandates a conclusion of reversible error.” Id., 360.

Moreover, the defendant was arrested and charged with possession of marijuana in violation of § 21a-277 (b). The original information charging the defendant with possession of a narcotic substance in violation of § 21a-277 (a) contained what was deemed to be a clerical error; subsequently, the corrected information was filed. Given the defendant’s knowledge that he possessed marijuana, not a narcotic substance, it was not reasonable for the defendant to assume that the deportation consequences were no longer implicated. In Badgett, the court found that “the slight differences between the charges in the initial information and the . . . substitute information could [not] reasonably have led the defendant to presume that his right to a jury trial would be altered.” State v. Badgett, supra, 200 Conn. 419.

Furthermore, we note that the defendant impliedly waived his right to a recanvass by acceding to his counsel’s express waiver. A waiver can be inferred from the absence of an objection by the defendant. See State v. Patterson, 230 Conn. 385, 396, 645 A.2d 535 (1994), on appeal after remand, 236 Conn. 561, 674 A.2d 416 (1996). Because the defendant can waive the right to the entire plea canvass, the defendant can also waive the right to a specific instruction within the canvass. See id., 393 (because defendant can waive right to equal protection against discriminatory peremptoiy challenges, defendant can also waive right to judicial supervision over voir dire process itself).

When the trial court asked the defendant if he was waiving the right to recanvass, counsel responded, “Yes, we are, Your Honor.” The defendant did not reply. The court properly accepted the defendant’s acquiescence to his counsel’s waiver. “A trial court may properly rely on . . . responses of the [defendant] at the time [he] responded to the trial court’s plea canvass . . . .” (Internal quotation marks omitted.) State v. Casado, 42 Conn. App. 371, 377, 680 A.2d 981, cert. denied, 239 Conn. 920, 682 A.2d 1006 (1996); see also State v. Patterson, supra, 230 Conn. 392 (waiver inferred from absence of objection by defendant); see, e.g., State v. Cooper, 38 Conn. App. 661, 670, 664 A.2d 773 (waiver of right to require state to prove each element of crime may be inferred from absence of objection by defendant), cert. denied, 235 Conn. 908, 665 A.2d 903 (1995), cert. denied, 517 U.S. 1214, 116 S. Ct. 1837, 134 L. Ed. 2d 940 (1996). We conclude that, under the facts presented, the trial court’s recanvass was sufficient to satisfy the requirements of § 54-1j.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 21a-277 (a) provides in relevant part: “Any person who . . . possesses with the intent to sell or dispense . . . any controlled substance which is a hallucinogenic substance other than marijuana, or a narcotic substance . . . shall be imprisoned . . . .”

       General Statutes § 54-lj (a) provides: “The court shall not accept a plea of guilty or nolo contendere from any defendant in any criminal proceeding unless the court advises him of the following: ‘If you are not a citizen of the United States, you are hereby advised that conviction of the offense for which you have been charged may have the consequences of deportation, exclusion from admission to 1he United States, or denial of naturalization, pursuant to the laws of the United Slates.’ ”

       “The Court: Do you understand, sir, that if you’re not a citizen of the United States, these pleas could result in deportation from the United States, exclusion from the admission to the United States or the denial of the right to become a citizen of the United States?
      “[The Defendant]: Yes.”

       General Statutes § 21a-277 (b) provides in relevant part: “Any person who . . . possesses with intent to sell or dispense . . . any controlled substance, except a narcotic substance, or a hallucinogenic substance other than marijuana . . . may ... be fined not more than twenty-five thousand dollars or be imprisoned not more than seven years . . . .”


text:
    STATE OF CONNECTICUT v. LARRY JOHNSON
    (AC 18405)
    Foti, Schaller and Vertefeuille, Js.
    Argued September 27, 1999
    officially released April 4, 2000

      Del Atwell, special public defender, for the appellant (defendant).

      Lawrence J. Tytla, senior assistant state’s attorney, with whom, on the brief, were Kevin T. Kane, state’s attorney, and John P. Gravalec-Pannone, former senior assistant state’s attorney, for the appellee (state).
   Opinion

SCHALLER, J.

The defendant, Larry Johnson, appeals from the judgment of conviction of two counts of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (l), unlawful restraint in the first degree in violation of General Statutes § 53a-95 (a) and assault in the third degree in violation of General Statutes § 53a-61 (a) (l). The defendant claims that (1) the trial court improperly instructed the jury on the applicability of the reasonable doubt standard to every element of the offense in violation of his rights under the constitution of the United States, (2) the prosecution engaged in misconduct that violated his right to a fair trial and (3) the evidence was insufficient to sustain a conviction. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On October 12,1996, the Stonington police department received a report of a sexual assault at a residential boarding house for recovering substance abusers. The victim, an adult female, was a resident in an all female section of the facility. The defendant was a resident of the same facility, residing in the main residence.

Approximately two weeks prior to the assault, and prior to the victim’s reporting to the facility, the defendant and the victim had engaged in consensual sexual activity consisting of “heavy petting.” On the night that she was attacked, the victim considered the defendant a friend. On October 11, 1996, the victim walked to Westerly, Rhode Island, with the defendant. On their return from Westerly, the victim declined the defendant’s request that she accompany him into the woods, which she inteipreted as a proposition for sexual activity.

After the victim and the defendant returned to their quarters, the defendant visited the victim’s room three times, twice claiming to have misplaced a cassette tape. On the third visit, the defendant claimed that he had bribed the director to be allowed to spend some time with the victim. The victim told the defendant that he should not be in her room. The defendant grabbed the victim by her hair, pulled her to her knees, and forced her to perform fellatio on him. The defendant ejaculated, leaving a stain on the carpet in the victim’s room. The victim showered and changed her clothes, but, out of fear, did not report the assault. Later that evening, the defendant returned to the victim’s room and forced her to have intercourse with him.

The next morning, the victim told her neighbor about the incident, which, through a series of communications, resulted in a complaint to the police by the director of the facility. The officer investigating the complaint noted a lump on the back of the victim’s head where she claimed to have been grabbed by the defendant. The director stated in his police statement that he had contacted the victim that evening and asked her if she would allow the defendant to visit her room. The director’s trial testimony did not, however, describe any interaction with the victim, and neither counsel raised a discrepancy between his testimony and his police statement. When first confronted by the police, the defendant claimed that the victim was lying. Later, the defendant admitted that he had had sex with the victim, but claimed that it had been consensual. The director believed that the defendant and the victim were involved in a relationship. The DNA evidence extracted from the carpet in the victim’s room was inconclusive.

I

The defendant claims first that the trial court improperly instructed the jury by defining reasonable doubt as doubt “which has its foundation in the evidence or lack of evidence” and thereby failed to make the reasonable doubt standard applicable to every element of the offense in violation of his rights under the constitution of the United States. We disagree.

The defendant did not preserve his constitutional claim nor did he seek review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). Even under Golding review, this claim of improper jury instruction is controlled by our decision in State v. Ryan, 53 Conn. App. 606, 733 A.2d 273 (1999).

We reasoned in Ryan that “[j]ust as every claim of evidentiary error by the trial court is not truly constitutional in nature . . . every claim of instructional error is not truly constitutional in nature. . . . While our Supreme Court has held that claimed instructional errors regarding the burden of proof or the presumption of innocence can be constitutional in nature so as to satisfy the second Golding requirement . . . not all claims masquerading as constitutional ones concerning the burden of proof or the presumption of innocence have been afforded Golding review.” (Citation omitted; internal quotation marks omitted.) Id., 612. As in Ryan, in which we addressed a jury instruction identical to the instruction used in the defendant’s trial, we conclude that “the trial court’s instruction did not constitute a constitutional violation and, therefore, the defendant’s claim is not entitled to Golding review.” Id.

II

The defendant next argues that the prosecutor’s failure to introduce into evidence allegedly exculpatory material constitutes prosecutorial misconduct. Again, the defendant has not requested Golding review of his unpreserved claim. Even under Golding analysis, we are not persuaded.

Claims of prosecutorial misconduct address whether the facts “disclose a pattern of misconduct pervasive throughout the trial or conduct that was so blatantly egregious that it infringed on the defendant’s right to a fair trial.” (Internal quotation marks omitted.) State v. Sinchak, 47 Conn. App. 134, 145, 703 A.2d 790 (1997), appeal dismissed, 247 Conn. 440, 721 A.2d 1193 (1999), quoting State v. Ricketts, 37 Conn. App. 749, 762, 659 A.2d 188, cert. denied, 234 Conn. 913, 660 A.2d 355, cert. denied, 516 U.S. 977, 116 S. Ct. 481, 133 L. Ed. 2d 409 (1995). In support of this claim, the defendant submits a police statement made by the residence director, which indicates that the victim had consented to a late evening visit by the defendant after the incident at issue. There is no reference to the content of this police statement in the director’s trial testimony.

We recognize that “[i]t is well established, as claimed by the state, that a state’s attorney has a duty, not solely to obtain convictions, but to ensure that all evidence tending to aid in the ascertaining of the truth be laid before the court, whether it be consistent with the contention of the prosecution that the accused is guilty.” (Internal quotation marks omitted.) State v. Mitchell, 169 Conn. 161, 165-66, 362 A.2d 808 (1975). The Supreme Court in Mitchell concluded: “It would not appear that in the circumstances of this case the performance of this duty imposed upon the state’s attorney any obligation to go further than to make known to the court and to the defendant that such evidence exists in the same manner as any other evidence that tends to be exculpatory is revealed.” Id., 166.

Here, the defendant makes no claim that information concerning the victim’s having given the defendant permission to visit her room after the sexual assault was withheld from him and his counsel. In fact, the record suggests that the information was disclosed, and that the defendant had been informed that the victim had granted permission for the visit. The defendant claims that the state’s attorney had a further duty to present that information to the trier of fact when the defendant failed to offer the evidence to the jury. We disagree and conclude that, under the circumstances of this case, the state’s attorney fully performed his duty and was not obligated to present the evidence to the trier of fact. Accordingly, this claim does not satisfy the third Golding requirement.

Ill

The defendant’s final claim is that the evidence was insufficient to establish the threat of force required for conviction of sexual assault in the first degree because his conviction was based solely on testimonial evidence that amounted to circumstantial evidence at best. We are not persuaded.

“We utilize a two-part analysis when reviewing a challenge to the sufficiency of evidence. . . . First, we review the evidence in the light most favorable to sustaining the verdict. . . . We then determine whether, on the facts thus established and the inferences reasonably drawn therefrom, the jury could reasonably have concluded that the cumulative effect of the evidence establishes guilt beyond a reasonable doubt. ... In the review process, the probative force of the evidence is not diminished if it consists in whole or part of evidence that is circumstantial rather than direct. . . .

“[T]he inquiry into whether the record evidence would support a finding of guilt beyond a reasonable doubt does not require the court to ask itself whether it believes that the evidence . . . established guilt beyond a reasonable doubt. . . . Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. . . . This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime charged, the fact-finder’s role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution. The criterion thus impinges upon jury discretion only to the extent necessary to guarantee the fundamental protection of due process of law.” (Citations omitted; internal quotation marks omitted.) State v. Boykin, 27 Conn. App. 558, 563-64, 609 A.2d 242, cert. denied, 223 Conn. 905, 610 A.2d 179 (1992).

The defendant’s claim of insufficient evidence focuses on prior consensual activity between him and the victim, the inconclusive DNA testing of the sperm retrieved from the carpet in the victim’s room, and the defendant’s multiple visits to the victim’s room on the night the incident occurred. The defendant refers to the victim’s denial of a previous relationship with the defendant and the sequence of events consisting of multiple visits as proof of consent. The defendant also asserts that the residence director’s belief that the defendant and the victim were having a relationship, and that the victim had admitted the defendant into her quarters after she had been forced to perform oral sex establish insufficient evidence for conviction. These evidentiary claims involve credibility determinations within the province of the jury.

“As to any conflicting testimony provided by the state’s witnesses, we follow the well established rule that we must defer to the jury’s assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude. . . . This court cannot substitute its own judgment for that of the jury if there is sufficient evidence to support the jury’s verdict. . . . When conflicting testimony is presented, the jury may credit the testimony it finds believable. . . . Therefore, [t]he [jury] can . . . decide what—all, none, or some—of a witness’ testimony to accept or reject.” (Citations omitted; internal quotation marks omitted.) State v. Grenier, 55 Conn. App. 630, 654, 739 A.2d 751 (1999), cert. granted on other grounds, 252 Conn. 931, 746 A.2d 794 (2000).

Construing the evidence in the light most favorable to sustaining the verdict, the record shows that the defendant, by his own testimony, was present in the victim’s room. The record further shows that the victim claimed and the police officer corroborated trauma to the back of the victim’s head. Considering this testimony, in addition to the victim’s testimony concerning the events the night she was assaulted, the jury reasonably could have found that the victim was forced by the defendant to perform sexual acts. The jury was in the best position to resolve any question as to the credibility of the witnesses testifying to these facts. We conclude that the evidence was sufficient to convict the defendant on the charges of sexual assault.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-70 (a) provides in relevant part: “A person is guilty of sexual assault in the first degree when such person ... (1) compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or by the threat of use of force against such other person or against a third person which reasonably causes such person to fear physical injury to such person or a third person . . .

       General Statutes § 53a-95 (a) provides: “A person is guilty of unlawful restraint in the first degree when he restrains another person under circumstances which expose such other person to a substantial risk of physical injury.”

       General Statutes § 53a-61 (a) provides: “A person is guilty of assault in the third degree when: (1) With intent to cause physical injury to another person, he causes such injury to such person or to a third person; or (2) he recklessly causes serious physical injury to another person; or (3) with criminal negligence, he causes physical injury to another person by means of a deadly weapon, a dangerous instrument or an electronic defense weapon.”

       The defendant also claims that he was denied effective assistance of counsel. A claim of ineffective assistance of counsel is not properly raised on direct appeal and should be raised in a petition for a writ of habeas corpus. See State v. Kitt, 8 Conn. App. 478, 480 n.1, 513 A.2d 731, cert. denied, 202 Conn. 801, 518 A.2d 648 (1986). “[W]hen the claim of inadequate counsel is joined with other substantive and procedural claims of error, it is often difficult to make a judgment about the extent to which inadequate counsel has implicated the outcome of the criminal conviction. For that reason, it will ordinarily be necessary to await exhaustion of the direct appeal before the claim of ineffective assistance can be pursued on apetition for [a writ of] habeas corpus.” (Internal quotation marks omitted.) State v. Patrick, 42 Conn. App. 640, 651, 681 A.2d 380 (1996), quoting State v. Henderson, 37 Conn. App. 733, 749, 658 A.2d 585, cert. denied, 234 Conn. 912, 660 A.2d 355 (1995).
      The defendant further claims that the trial court imposed a harsh and excessive punishment. “[W]e have no discretionary power to modify or overturn a sentence that was within the limits fixed by statute for the offense charged, except where a trial court appears to have abused its discretion.” State v. Connelly, 46 Conn. App. 486, 504, 700 A.2d 694 (1997), cert. denied, 244 Conn. 907, 908, 713 A.2d 829, cert. denied, 525 U.S. 907, 119 S. Ct. 245, 142 L. Ed. 2d 201 (1998). “Where the trial court has properly considered all of the offenses proved and imposed a sentence within the applicable statutory limitations, there is no abuse of discretion.” Id. The defendant does not claim that the trial court did not properly consider his claim, nor does he claim that the sentence exceeds statutory limits. The defendant’s claim, therefore, “ ‘is nothing more than an appeal for clemency and a request that this court exercise discretionary authority it does not possess’ id., 503; and thus is not reviewable by this court. “A petition for sentence review ... is the appropriate vehicle by which to have this claim evaluated. See General Statutes § 51-195 et seq.” (Internal quotation marks omitted.) State v. Connelly, supra, 504, quoting State v. Baldwin, 224 Conn. 347, 370-71, 618 A.2d 513 (1993).

       In Golding, the court concluded that “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) State v. Golding, supra, 213 Conn. 239-40.

       Cf. State v. Harris, 147 Conn. 589, 598, 164 A.2d 399 (1960) (duty of state’s attorney to introduce all evidence that tends to aid court in ascertaining truth).


author: MIHALAKOS, J.

text:
    PATRICIA COSTA v. HUMBERTO COSTA
    (AC 18958)
    Fotd, Mihalakos and Zarella, Js.
    Argued January 26
    officially released April 4, 2000

      Abraham I. Gordon, with whom were Ronald D. Japha, and, on the brief, Richard S. Scalo, for the appellant (defendant).

      Matthew J. Broder, for the appellee (plaintiff).
   Opinion

MIHALAKOS, J.

In this appeal from a judgment of marital dissolution, the defendant, Humberto Costa, claims that the trial court improperly (1) awarded the plaintiff, Patricia Costa, a share of his lump sum injury settlement, (2) ordered him to pay the plaintiff $5000 as counsel fees, (3) ordered him to assume ownership and all debts of the plaintiffs business, (4) awarded the plaintiff fifteen years of alimony and (5) issued orders regarding the parties’joint residence and liability for the plaintiffs personal bills. We affirm the judgment of the trial court.

The following facts are pertinent to this appeal. On February 25, 1984, the plaintiff and the defendant were married and subsequently had three children. On October 9, 1998, the marriage was dissolved. At the time of the dissolution, the plaintiff was forty years of age and in fair health. She is a high school graduate and, for most of the marriage, did not work outside of the home. The trial court found that she had an earning capacity of $280 per week.

The defendant is thirty-eight years old and completed two years of high school. For the entire length of the marriage, he operated a pool cleaning business, which was in the plaintiffs name. On October 21, 1991, the defendant was involved in a motor vehicle accident. As a result of the accident, the defendant has serious health problems and receives Social Security disability income of $220.93 per week.

The parties instituted a personal injury action as a result of the defendant’s accident, which ultimately was settled. Under the terms of the structured settlement, the parties received a lump sum payment of $248,000 and the defendant also receives $2061.90 per month for a period of twenty years, which began in September, 1993. In 1994, the parties used the $248,000 received in the settlement to purchase a house in Trumbull. The house was later sold, and the proceeds, approximately $240,000 were placed in escrow.

Despite receiving disability income, the defendant continues to operate the pool business, and the trial court found that he had an earning capacity from his self-employment of $450 per week. The trial court also found that the marriage was dysfunctional and that it would serve no useful purpose to chronicle the causes for the marital breakdown. Finally, the court, in fashioning its orders, applied the pertinent criteria outlined in chapter 815j of the General Statutes.

The trial court ordered the defendant to pay the sum of $1 per year as alimony for a period of fifteen years, which could not be extended beyond that period of time. The marital premises were awarded to the plaintiff, and the defendant retained sole ownership of the business property located on Fairview Avenue in Bridgeport. The defendant was to receive 75 percent, and the plaintiff 25 percent, of the monthly payment of $2061. All of the assets and liabilities of the business were awarded to the defendant. The lump sum proceeds in the escrow account in the amount of $240,000 were divided equally between the plaintiff and the defendant. The defendant appeals from the trial court’s judgment challenging its allocation of assets. Additional facts will be addressed where necessary to the resolution of this appeal.

I

The defendant first claims that the trial court improperly awarded the plaintiff a share of the defendant’s lump sum payment from the structured settlement. We disagree.

“An appellate court will not disturb a trial court’s orders in domestic relations cases unless the court has abused its discretion or it is found that it could not reasonably conclude as it did, based on the facts presented.” Rostain v. Rostain, 213 Conn. 686, 693, 569 A.2d 1126 (1990). “In determining whether a trial court has abused its broad discretion in domestic relations matters, we allow every reasonable presumption in favor of the correctness of its action.” Blake v. Blake, 207 Conn. 217, 229, 541 A.2d 1201 (1988). Appellate review of a trial court’s findings of fact is governed by the clearly erroneous standard of review. “The trial court’s findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) United Components, Inc. v. Wdowiak, 239 Conn. 259, 263, 684 A.2d 693 (1996).

“The distribution of assets in a dissolution action is governed by [General Statutes] § 46b-81, which provides in pertinent part that a trial court may assign to either the husband or the wife all or any part of the estate of the other. ... 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 . . . shall consider the length of the marriage, the causes for the . . . dissolution of the marriage . . . the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income. The court shall also consider the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates. . . . This approach to property division is commonly referred to as an all-property equitable distribution scheme.” (Internal quotation marks omitted.) Lopiano v. Lopiano, 247 Conn. 356, 363-64, 752 A.2d 1000 (1998).

“There are three stages of analysis regarding the equitable distribution of each resource: first, whether the resource is property within § 46b-81 to be equitably distributed (classification); second, what is the appropriate method for determining the value of the property (valuation); and third, what is the most equitable distribution of the property between the parties (distribution).” (Internal quotation marks omitted.) Id., 364.

“The failure to interpret property broadly pursuant to § 46b-81 could result in substantial inequity . . . and would not be in keeping with the equitable nature of dissolution proceedings . . . .” Id., 371. “Although it is well established that trial courts have broad equitable remedial powers regarding marital dissolutions ... it is equally well settled that [c]ourts have no inherent power to transfer property from one spouse to another; instead, that power must rest upon an enabling statute. Passamano v. Passamano, 228 Conn. 85, 88 n.4, 634 A.2d 891 (1993). Thus, the court’s authority to transfer property appurtenant to a dissolution proceeding requires an interpretation of the relevant statute. Statutory construction, in turn, presents a question of law over which our review is plenary.” (Citation omitted; internal quotation marks omitted.) Smith v. Smith, 249 Conn. 265, 272, 752 A.2d 1023 (1999).

In Lopiano v. Lopiano, supra, 247 Conn. 363, our Supreme Court first considered whether, at the time of dissolution, a personal injury award is a property interest encompassed within the meaning of “property” under § 46b-81. The court began its analysis of § 46b-81 and concluded that a personal injury award was marital property and, as such, could be properly distributed, provided the factors recited in § 46b-81 were properly considered.

This case is even more compelling than Lopiano in that the personal injury award was in the name of both the plaintiff and the defendant. Additionally, the settlement in this case did not break down the award, unlike the jury verdict in Lopiano, to reflect past pain and suffering, future pain and suffering, past loss of earnings, future loss of earnings and past medical expenses. Even if the funds contained in the escrow account had been derived solely from the defendant’s shares of the parties’ 1993 tort settlement, such a settlement is to be included in the marital estate and is subject to equitable distribution upon dissolution of the parties’ marriage. See id., 356; Tyc v. Tyc, 40 Conn. App. 562, 672 A.2d 526, cert. denied, 237 Conn. 916, 676 A.2d 398 (1996). The trial court weighed the factors set forth in § 46b-81 and distributed the assets accordingly, and, therefore, properly awarded the plaintiff a share of the defendant’s lump sum and structured injury settlement.

II

The defendant next claims that the trial court improperly awarded the plaintiff attorney’s fees in the amount of $5000. We disagree.

General Statutes § 46b-62 governs the award of attorney’s fees in a dissolution proceeding. Normally, where parties are financially able to pay their own attorney’s fees they should be permitted to do so. See Bornemann v. Bornemann, 245 Conn. 508, 543, 752 A.2d 978 (1998). There is an exception to the rule, however, in that, if denying an award of attorney’s fees would undermine the court’s prior financial orders, then the court, in its discretion, may order the payment of attorney’s fees. See Fitzgerald v. Fitzgerald, 190 Conn. 26, 34, 459 A.2d 498 (1983). “An abuse of discretion in granting counsel fees will be found only if [an appellate court] determines that the trial court could not reasonably have concluded as it did.” (Internal quotation marks omitted.) Bornemann v. Bornemann, supra, 543.

In this case, there is a substantial disparity between the defendant’s and the plaintiffs anticipated future earnings and sources of income. Also, while the plaintiff could afford to pay her own attorney’s fees, “the availability of sufficient cash to pay one’s attorney’s fees is not an absolute litmus test for making an award pursuant to General Statutes § 46b-62. . . . This is because a trial court’s discretion should be guided so that its decision regarding attorney’s fees does not undermine its purpose in making any other financial award.” (Citations omitted; internal quotation marks omitted.) Fitzgerald v. Fitzgerald, supra, 190 Conn. 33-34. In Tirado v. Tirado, 7 Conn. App. 41, 46, 507 A.2d 470 (1986), we upheld a $10,000 attorney’s fee award where the receiving spouse also received $200,000 in alimony, concluding that “we cannot find that the trial court abused its discretion or acted unreasonably in granting the defendant’s request for attorney’s fees, since to do otherwise would undermine the $200,000 alimony award to the defendant.”

Although the trial court did not explain its award of attorney’s fees, the record supports the conclusion that if the plaintiff had to pay her own attorney’s fees, this would undermine the trial court’s financial orders. The trial court awarded the plaintiff attorney’s fees in conjunction with an alimony award of only $1 per year. To set aside the award of counsel fees would force the plaintiff to pay her attorney’s fees out of funds that were granted for her support. It is clear that the court did not intend such a result and specifically awarded $5000 in attorney’s fees to avoid it. The defendant has failed to show that the trial court abused its discretion and, therefore, the court properly awarded the plaintiff attorney’s fees in the amount of $5000.

Ill

The defendant next argues that the trial court improperly ordered the defendant to assume ownership and all debts of the plaintiffs business. We disagree.

The defendant’s claim, which in essence states that from the court’s orders giving him the business, he will lose his Social Security benefits and be unable to support himself, is without merit. The record clearly shows that the defendant was in control of the business and, thus, had no right to collect Social Security benefits in addition to running the business. The evidence presented at trial shows that the defendant, and not the plaintiff had experience in the pool maintenance and repair business. Before, during and after the marriage, it was the defendant who cleaned and repaired the pools. Though the defendant put the business in the plaintiffs name, it was the defendant who had developed the client list since the early 1980s. Furthermore, the defendant performed all of the physical labor and attended to all business matters, such as what services to provide and how much to charge for those services. The plaintiffs only role in the business was to send bills to customers in accordance with the defendant’s instructions. During the first half of 1998, it was the defendant who collected over $15,000 on behalf of the business while also collecting Social Security benefits from the 1991 accident. The trial court’s orders simply corrected the unjust enrichment that the defendant was receiving from both the business and his Social Security benefits. As a result, the trial court’s orders, which left the defendant with the company’s assets, were proper, notwithstanding any effect they may have on his entitlement to Social Security benefits.

IV

Next, the defendant claims that the court improperly awarded fifteen years of alimony to the plaintiff. We disagree.

General Statutes § 46b-82 and the factors contained therein govern whether the court will award alimony in a dissolution action. “The court is to consider these factors in making an award of alimony, but it need not give each factor equal weight.” Kane v. Parry, 24 Conn. App. 307, 313, 588 A.2d 227 (1991). “ ‘As long as the trial court considers all of these statutory criteria, it may exercise broad discretion in awarding alimony.’ ” Id., 314. The court is empowered, after considering the statutory criteria, to award either time limited alimony or unlimited alimony.

The defendant’s reliance on Mathis v. Mathis, 30 Conn. App. 292, 620 A.2d 174 (1993), and Ippolito v. Ippolito, 224 Conn. 905, 615 A.2d 1047 (1992), is misplaced. In both of those cases, the spouse receiving the alimony complained that the award of alimony should not have been time limited. In this case, the spouse providing the alimony complains that the award of alimony was improper.

Here, the court carefully considered the evidence and the pertinent criteria outlined in § 46b-82 and concluded that the defendant was to pay the plaintiff alimony for fifteen years. Considering the parties’ discrepancies in expected future earnings and expenses, and the fact that the plaintiff had a long period of total financial dependence on the defendant, the trial court’s award of alimony was reasonable. The court properly limited the defendant’s alimony payments to the plaintiff to fifteen years because, at the time of trial, the plaintiff had begun occupational training to obtain employment in the future. By setting a time limit to the alimony payments, the court concluded that, in the future, the plaintiff would no longer need any additional support from the defendant. The court provided a reasonable time for the plaintiff to establish herself. The trial court, therefore, properly awarded the plaintiff alimony for fifteen years.

V

Finally, the defendant claims that the court improperly issued orders regarding the parties’ joint residence and liability for the plaintiffs personal bills. We do not agree.

A

The defendant first contends that the trial court improperly awarded the parties’ marital residence to the plaintiff. We disagree.

In this case, it was the plaintiff, not the defendant, who provided each mortgage payment. In fact, the defendant never contributed any money to the monthly payments on the mortgage and the other expenses necessary to maintain the house. Furthermore, it was the plaintiff, not the defendant, who filed an action to quiet title against Adelino DaCosta, Antonio DaCosta and Manuel DaCosta to preserve the property as an asset of the marriage during pendency of this litigation. As a result of those actions, the plaintiff, not the defendant, incurred substantial attorney’s fees. On the basis of these facts, we conclude that the trial court properly awarded the parties’ joint residence to the plaintiff.

B

The defendant also contends that the trial court improperly included the plaintiffs personal debts as joint debt. We disagree.

“Requiring one party to assume the joint liabilities of the parties is authorized by General Statutes § 46b-81 . . . .” Beede v. Beede, 186 Conn. 191, 196-97, 440 A.2d 283 (1982). In this case, all of the plaintiffs allegedly personal credit card and department store debts were incurred during the parties’ marriage. The defendant claims that all the debts were assigned to him for payment from his portion of the house sale proceeds that were being held in escrow. As stated previously, however, the money held in escrow belonged to both of the parties as a marital asset, regardless of its source. The trial court properly treated the debts as joint debts and ordered that they be paid prior to the distribution of the escrow funds.

The judgment is affirmed.

In this opinion the other judges concurred.

       The court’s orders, in regard to the children, are not at issue in this appeal.

       The settlement agreement, provided for a lump sum payment, of $550,000. After the payment of attorney’s fees and medical bills, the parties received payment of $248,000.

       General Statutes § 46b-62 provides in relevant part: “In any proceeding seeking relief under the provisions of this chapter ... 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. . . .”

       These assets include, but axe not limited to, the business’ client list, a van, vacuum cleaners and other tools and supplies necessary to run the business. The trial court, orders also left the defendant in possession of all the accounts receivable from the business.

       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 t,o 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.”