author: SANTANIELLO, J.

text:
    PAMELA DIBARTOLOMEO ET AL. v. LINWOOD HILL ET AL.
    (14413)
    O’Connell, Schaller and Santaniello, Js.
    Argued January 9
    officially released May 14, 1996

      Laurence V. Pamoff for the appellant (plaintiff Jerry DiBartolomeo).

      Michael S. Taylor, with whom, on the brief, was John B. Farley, for the appellees (defendants).
   SANTANIELLO, J.

In this automobile negligence action, the plaintiff Jerry DiBartolomeo 2appeals from the judgment of the trial court on the issue of damages for his loss of consortium claim. On appeal, he claims that the trial court improperly (1) denied his motion to set aside the verdict and for a new trial or, in the alternative, for an additur, (2) refused to give a Sec-ondino charge as requested and (3) refused to admit into evidence the defendants’ answer to the complaint on the issue of credibility.

In the trial court proceedings, the defendants, Linwood Hill and Hertz Corporation, conceded liability for the automobile accident and for the resulting injuries to Pamela DiBartolomeo, but did not concede that the accident was causally connected to any damages claimed by the plaintiff for loss of consortium. The trial was held before a jury on Pamela DiBartolomeo’s negligence claim and on the plaintiffs loss of consortium claim.

The plaintiff presented testimony concerning the effects of Pamela DiBartolomeo’s injuries on her home and family life, and on her relationship with the plaintiff. The defendants did not present any evidence to contradict that testimony. Although the jury awarded both economic and noneconomic damages to Pamela DiBar-tolomeo for her injuries and found in favor of the plaintiff on his loss of consortium claim, it awarded him zero damages for his loss of consortium. We affirm the judgment of the trial court.

I

The plaintiff first claims that the trial court improperly denied his motion to set aside the verdict and for a new trial, or, in the alternative, for an additur. We disagree.

“The trial court’s refusal to set aside a verdict is entitled to great weight and every reasonable presumption should be given in favor of its correctness. ... If, on the evidence, the jury could reasonably have decided as they did, [the reviewing court] will not find error in the trial court’s acceptance of the verdict . . . .” (Citation omitted; internal quotation marks omitted.) Malm-berg v. Lopez, 208 Conn. 675, 679, 546 A.2d 264 (1988).

The plaintiff argues that the jury should have awarded him damages for his loss of consortium because he put on evidence of his damages, and the defendants put on no contradictory evidence. The jury could properly reject any or all of the evidence presented by the plaintiff. “The jury is under no obligation to credit the evidence proffered by any witness, including experts . . . even if that evidence is uncontroverted. ” Mather v. Griffin Hospital, 207 Conn. 125, 145, 540 A.2d 666 (1988); Barrila v. Blake, 190 Conn. 631, 639, 461 A.2d 1375 (1983); Szilagyi v. Szilagyi, 3 Conn. App. 25, 27, 484 A.2d 469 (1984). The fact that the plaintiffs evidence was not contradicted, therefore, is not determinative of the correctness of the verdict or of the trial court’s refusal to set it aside.

The plaintiff, relying on Malmberg v. Lopez, supra, 208 Conn. 679-80, also claims that it was improper for the trial court to accept the jury’s verdict of zero damages on the loss of consortium claim. The plaintiff further argues that even an award of only nominal damages for his loss of consortium would be inadequate because his wife, whose injuries are the basis of his loss, was awarded “substantial” damages for those injuries. He, therefore, apparently argues that the jury was obligated to award substantial damages to the plaintiff as well.

“The amount of a damage award is a matter peculiarly within the province of the trier of fact, in this case, the jxary.” Mather v. Griffin Hospital, supra, 207 Conn. 138. “On appeal, the conclusion of the trial court from the vantage point of the trial bench cannot be disturbed unless there is a clear abuse of discretion. . . . An appellate court cannot retry the facts of a case or pass upon the credibility of the witnesses. . . . However, it is the court’s duty to set aside the verdict when it finds that it does manifest injustice, and is . . . palpably against the evidence. ... In determining whether a verdict does such injustice, the only practical test is whether the total damages awarded fall somewhere within the necessarily uncertain limits of fair and reasonable compensation in the particular case, or whether the verdict so shocks the sense of justice as to compel the conclusion that the jury were influenced by partiality, prejudice, mistake or corruption. . . . [I]f the amount awarded shocks the sense of justice as to what is reasonable, then the inferred conclusion is that the jury was misguided in reaching its decision.” (Citations omitted; internal quotation marks omitted.) Malmberg v. Lopez, supra, 208 Conn. 679-80.

“A plaintiffs verdict with a nominal damage award ordinarily suggests that the jury found that despite the defendant’s liability, the plaintiff failed to prove damages. . . . The jury’s intent in rendering a plaintiffs verdict with zero damages in a wrongful death action is far less clear.” Id., 681-82. In Malmberg, our Supreme Court concluded that the verdict was ambiguous because the court was unable to determine whether the jury found no liability, or whether it found liability but no damages. Id. A new trial was, therefore, necessary. Id.

In the present case, the verdict is not ambiguous. Here, the defendants conceded liability for the accident and only the issue of damages was tried to the jury. The jury found that the plaintiff did not prove any damages on his loss of consortium claim. In a personal injury case, it may well be that few or no actual damages result from any loss of consortium. A jury in such a case may reasonably find that a defendant is liable for a plaintiffs loss of consortium, but that the plaintiff has failed to prove measurable damages. On a loss of consortium claim in a personal injury action, therefore, a plaintiffs verdict with a zero damages award is not necessarily inadequate or ambiguous. Such a verdict permits the trial court and the reviewing court to infer that the jury did exactly as it intended to do, namely, that it found that although a defendant was liable for any loss of consortium, the plaintiff failed to prove any actual damages. We conclude that that is what occurred in the present case.

Moreover, even were we to conclude that the jury should have awarded nominal damages rather than awarding zero damages in this case, we would not reverse. This court has held that “we will not ordinarily reverse and grant a new trial for the mere failure to award nominal damages. . . . The difference between no damages and nominal damages does not shock the sense of justice and automatically mandate a new trial.” (Citation omitted.) Clay v. Teach, 37 Conn. App. 556, 560, 656 A.2d 1065, cert. denied, 234 Conn. 902, 659 A.2d 1205 (1995). This is particularly the case here, where the plaintiff consented to a supplemental instruction to the jury to the effect that if the jury found that the plaintiff had not proven his loss of consortium damages, it should award him zero damages. Because the parties agreed to this instruction, it became the law of the case. A-G Foods, Inc. v. Pepperidge Farm, Inc., 216 Conn. 200, 212, 579 A.2d 69 (1990).

We have reviewed the evidence of damages resulting from loss of consortium in the present case in the light most favorable to sustaining the verdict. See Mather v. Griffin Hospital, supra, 207 Conn. 138-39. Viewed in that light, with every reasonable presumption indulged in favor of the verdict’s correctness; id., 139; we conclude that the evidence reasonably supports the jury’s verdict. It was, therefore, not improper for the trial court to deny the plaintiffs motion to set aside the verdict and for a new trial, or for an additur.

II

The plaintiffs second claim is that the court improperly failed to give a Secondino charge upon the plaintiffs request. The plaintiff claims that the only “hotly contested” issue was the issue of the severity of the collision. At trial, the plaintiff argued that only the testimony of the defendant Hill could contradict the plaintiffs claims regarding impact and that a Secondino charge should be given because Hill failed to testify. The court refused to give the charge.

We agree with the defendants that the plaintiff has abandoned this issue by his failure to supply an adequate record for review and to brief the issue adequately.

Ill

Finally, in his brief, the plaintiff makes the bare assertion that he offered into evidence, apparently on the issue of credibility, the defendants’ answer. If this assertion was intended to constitute a further claim on appeal, it is inadequately briefed, and we deem it abandoned. Cummings v. Twin Tool Mfg. Co., 40 Conn. App. 36, 45, 668 A.2d 1346 (1996).

The judgment is affirmed.

In this opinion the other judges concurred.

       Both Pamela DiBartolomeo and Jerry DiBartolomeo were plaintiffs in the trial court, but Jerry DiBartolomeo is the sole appellant here. We, therefore, refer to him as the plaintiff throughout this opinion.

        Secondino v. New Haven Gas Co., 147 Conn. 672, 675, 165 A.2d 598 (1960).


source: Caselaw Access Project

author: DALY, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. BILLY JOE SANTOS
    (14990)
    Dupont, C. J., and Foti and Daly, Js.

      Argued December 11, 1995
    officially released May 14, 1996

      Charles L. Howard, with whom, on the brief, was Maria A. Gulluni, for the appellant (defendant).

      Donald A. Browne, state’s attorney, with whom, on the brief, was Stephen J. Sedensky III, assistant state’s attorney, for the appellee (state).
   DALY, J.

The defendant, Billy Joe Santos, appeals from the judgment of conviction, rendered unanimously by a three judge panel, of murder in violation of General Statutes § 53a-54a (a). On appeal, the defendant claims that the trial court improperly (1) concluded that he failed to establish his defense of extreme emotional disturbance and (2) concluded that he acted with intent to cause the death of the victim. We affirm the judgment of the trial court.

The facts are as follows. During the late evening of November 8 or the early morning of November 9,1992, the sixteen year old defendant was visiting 52-56 Sanford Place in Bridgeport. While there, the defendant ingested a narcotic substance and fell asleep in the rented room of Primitivo Rivera. Approximately one hour later, he was awakened by Rivera and Miriam Fernandez who were screaming that the defendant’s friend, Jorge Ramos, had suffered a gunshot wound to the face. The defendant gave Ramos a towel to stop the bleeding and the two exited the house and approached a pickup truck operated by the victim, Lee Ann Strong, and occupied by a passenger, Christina Gay. Gay observed the defendant emerge from the Sanford Place residence and testified that he did not appear to be under the influence of drugs. The defendant asked the victim for assistance to take Ramos to the hospital. She refused and pulled away. The defendant then pulled a .38 caliber revolver, loaded with hollow point bullets, from his waistband, positioned himself, pointed the weapon at the rear of the departing truck, cocked the hammer and discharged a single shot that penetrated the rear window of the truck and struck the victim in the back, perforating a major blood vessel. The truck struck several automobiles parked on Sanford Place. Gay took over the operation of the truck and drove to Park City Hospital where Strong died. The defendant and Ramos continued on foot to a local bar where a call was made for an ambulance that transported Ramos to a hospital.

On November 11, 1992, the defendant went to the detective bureau of the Bridgeport police department and related several different versions of the shooting to Detective Giselle Dospoj. The last version was that when his request for a ride to the hospital was refused, he became angry, pulled out his gun and fired at the truck. A ballistics test indicated that it was the defendant’s weapon that had inflicted the fatal wound.

I

The defendant first claims that the panel misconstrued the statutory standard for extreme emotional disturbance or, alternatively, that the panel’s conclusion that the defendant did not prove the defense was not reasonably supported by the evidence. Because the defendant failed to preserve his claim properly at trial, he seeks review based on the authority of State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), or the plain error doctrine. Under Golding, “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.) Id. “The first two conditions are determinations of whether a defendant’s claim will be reviewed, and the third condition involves a review of the claim itself.” (Internal quotation marks omitted.) State v. Sanders 37 Conn. App. 219, 220, 655 A.2d 805, cert. denied, 233 Conn. 909, 658 A.2d 981 (1995); Wilson v. Cohen, 222 Conn. 591, 603, 610 A.2d 1177 (1992); State v. Graham, 33 Conn. App. 432, 442, 636 A.2d 852, cert. denied, 229 Conn. 906, 640 A.2d 117 (1994). The defendant claims that the panel, by misconstruing the extreme emotional disturbance standard, denied him the constitutional due process right to establish a defense. Because “[ejxtreme emotional disturbance is a recognized legal defense to murder”; State v. Bryan, 34 Conn. App. 317, 321, 641 A.2d 443 (1994); we grant review under the third Golding prong.

Section 53a-54a (a) provides in pertinent part that “it shall be an affirmative defense [to the dime of murder] that the defendant committed the proscribed act or acts under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be ... .” “Extreme emotional disturbance ‘is a mitigating circumstance which will reduce the crime of murder to manslaughter.’ ” State v. Raguseo, 225 Conn. 114, 122, 622 A.2d 519 (1993), quoting State v. Asherman, 193 Conn. 695, 731, 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985). General Statutes § 53a-12 (b) provides: “When a defense declared to be an affirmative defense is raised at a trial, the defendant shall have the burden of establishing such defense by a preponderance of the evidence.”

A

The defendant first contends that the three judge panel applied an incorrect standard in evaluating his affirmative defense. As the defendant concedes, the panel’s verdict first set forth the correct standard for evaluating an extreme emotional disturbance defense as found in § 53a-54a (a). Then, in rejecting the defendant’s extreme emotional disturbance defense, the panel concluded that “the victim’s refusal to agree to the defendant’s request to take Ramos to the hospital when considered from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be did not provide a reasonable explanation for the defendant’s act of shooting at and killing the victim.” The defendant asserts that the panel misconstrued the statutory standard because it concluded that there was not a reasonable explanation for his act. He claims instead that the statute requires a trial court to determine whether there was a reasonable explanation for his emotional disturbance. We disagree.

Our Supreme Court has stated that, in enacting the defense in § 53a-54a (a), “the legislature intended to establish a standard that is objective in its overview, but subjective as to the defendant’s belief . . . .” (Citations omitted; internal quotation marks omitted.) State v. Raguseo, supra, 225 Conn. 127, quoting State v. Elliott, 177 Conn. 1, 7, 411 A.2d 3 (1979). Thus, in applying the reasonable person yardstick, the trier of fact must examine the “reasonableness of the explanation or excuse of the action of the defendant from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be.” (Emphasis added; internal quotation marks omitted.) State v. Raguseo, supra, 127. In a later case, the court asserted that it was “unpersuaded that the above statements in Elliott . . . are inconsistent with the proper construction of § 53a-54a (a).” State v. Ortiz, 217 Conn. 648, 653-54, 588 A.2d 127 (1991). Applications of this standard consistently have been upheld. For instance, in State v. Steiger, 218 Conn. 349, 384, 590 A.2d 408 (1991), the court affirmed a three judge panel’s rejection of an extreme emotional disturbance defense since “there was no reasonable explanation for the defendant’s actions . . . .” (Emphasis added.) Also, the court in State v. D’Antuono, 186 Conn. 414, 422, 441 A.2d 846 (1982), stated that a panel “was not bound to conclude that [the defendant’s testimony] provided ‘a reasonable explanation or excuse’ for his actions.” (Emphasis added.) Finally, in State v. Raguseo, supra, 127, the court reaffirmed its standard for interpreting § 53a-54a (a).

In the present case, the panel’s conclusion precisely tracks the standard for interpreting § 53a-54a (a) as established by our Supreme Court in Elliott. The court moreover has not wavered in applying this standard. Therefore, the panel correctly applied the proper standard in concluding that the defendant had not met his burden of proving that he acted under the influence of an extreme emotional disturbance. We conclude that the defendant has failed to demonstrate that a constitutional violation exists that clearly deprived the defendant of a fair trial.

B

The defendant also argues that the panel improperly found that he had failed to prove the affirmative defense of extreme emotional disturbance by a fair preponderance of the evidence. Our Supreme Court has stated that “in determining whether the defendant has proven the affirmative defense of an extreme emotional disturbance . . . the [trier of fact] must find that: (a) the emotional disturbance is not a mental disease or defect that rises to the level of insanity as defined by the Penal Code; (b) the defendant was exposed to an extremely unusual and overwhelming state, that is, not mere annoyance or unhappiness; and (c) the defendant had an extreme emotional reaction to it, as a result of which there was a loss of self-control, and reason was overborne by extreme intense feelings, such as passion, anger, distress, grief, excessive agitation or other similar emotions.” State v. Elliott, supra, 177 Conn. 9.

“Although this case presents an unusual procedural posture where a three-judge panel serves as the finder of facts (instead of a jury) and where the burden is on the defendant to prove his affirmative defense, the normal rules for appellate review of factual determinations apply and the evidence must be given a construction most favorable to sustaining the court’s verdict. State v. Chetcuti, 173 Conn. 165, 172, 377 A.2d 263 (1977). Moreover, the question is whether upon the facts established and the inferences drawn therefrom the fact-finder could have reasonably concluded that the cumulative effect of the evidence failed to establish that the defendant acted under the influence of an extreme emotional disturbance for which there was a reasonable explanation or excuse. In sum, except where an abuse of discretion is clearly shown, the conclusion of a trial court should be affirmed so long as it is a reasonable one on the basis of the evidence adduced and the inferences drawn therefrom.” State v. Zdanis 182 Conn. 388, 391-92, 438 A.2d 696 (1980), cert. denied, 450 U.S. 1003, 101 S. Ct. 1715, 68 L. Ed. 2d 207 (1981). “ ‘In the final analysis . . . the ultimate determination of the presence or absence of extreme emotional disturbance [is] one of fact for the trier . . . .’ ” State v. Steiger, supra, 218 Conn. 383, quoting State v. Zdanis, supra, 395.

The defendant points to evidence adduced at trial that, after learning that his friend had been shot, the defendant looked scared, mad, angry, shocked and confused when he walked out of the house toward the victim’s truck. In addition, the defendant told the police that the victim’s refusal to transport his friend to the hospital angered him. It was reasonable, however, for the panel to conclude that such evidence did not constitute the “extreme intense feelings” that the Elliott standard requires. In fact, there was evidence presented that contradicts the defendant’s assertion that he was acting under extreme emotional disturbance. Gay testified that the defendant was in control as he approached the truck. There was testimony that as the victim drove away, the defendant positioned himself behind the truck, pointed the gun, cocked the hammer and fired one shot. After the shooting, the defendant then continued to assist his friend by walking with him to a bar and arranging transportation to the hospital. Because the evidence must be given a construction most favorable to sustaining the trial court’s verdict and because the trial court’s findings are reasonably supported by the evidence, we hold that the trial court properly concluded that the defendant did not meet his burden of proving that he had acted under the influence of extreme emotional disturbance.

II

The defendant’s second claim is that there was insufficient evidence for the panel to have found that the defendant possessed the requisite intent to kill. As a subsidiary matter, he also contends that the state failed to prove that he was capable of forming the specific intent to commit murder because of his intoxication. We disagree.

“ ‘In reviewing a sufficiency [of the evidence] claim, we apply a two part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [fact-finder] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . . State v. Greenfield, 228 Conn. 62, 76, 634 A.2d 879 (1993). The specific intent to kill is an essential element of the crime of murder. To act intentionally, the defendant must have had the conscious objective to cause the death of the victim. General Statutes § 53a-3 (11). . . . State v. Raguseo, [supra, 225 Conn. 120]. Intent is generally proven by circumstantial evidence because direct evidence of the accused’s state of mind is rarely available. State v. Greenfield, supra, 77. Therefore, intent is often inferred from conduct; id., 76; and from the cumulative effect of the circumstantial evidence and the rational inferences drawn therefrom. State v. Raguseo, supra, 119. This does not require that each subordinate conclusion established by or inferred from evidence, or even from other inferences, be proved beyond a reasonable doubt because this court has held that a [trier of fact’s] factual inferences that support a guilty verdict need only be reasonable. State v. Crafts, 226 Conn. 237, 244, 627 A.2d 877 (1993). Nevertheless, because intent to cause the death of a person is an element of the crime; State v. Raguseo, supra, 120; that intent must be proven beyond a reasonable doubt. Patterson v. New York, 432 U.S. 197, 204, 97 S. Ct. 2319, 53 L. Ed. 2d 281 (1977); In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970). Furthermore, [i]ntent to cause death may be inferred from the type of weapon used, the manner in which it was used, the type of wound inflicted and the events leading to and immediately following the death. . . . State v. Raguseo, supra, 120. . . . State v. Sivri, 231 Conn. 115, 126-27, 646 A.2d 169 (1994).” (Internal quotation marks omitted.) State v. Mejia, 233 Conn. 215, 223-24, 658 A.2d 571 (1995). Other factors from which intent may be inferred include the presence or absence of a motive to kill; State v. Stanley, 223 Conn. 674, 680, 613 A.2d 788 (1992); any attempt on the part of the defendant to secure medical assistance for the victim; State v. Sivri, supra, 129; and evidence of consciousness of guilt, including conflicting statements to the police. State v. Grant, 219 Conn. 596, 604, 594 A.2d 459 (1991).

A review of the evidence presented at the defendant’s trial, in light of the factors from which intent may be inferred, discloses that there was sufficient evidence to support beyond a reasonable doubt the panel’s conclusion that the defendant intended to kill the victim. The weapon used was a .38 caliber handgun, which the defendant admitted he owned. The gun was loaded with hollow point bullets. The defendant had sufficient motive because, in his statement to the police, he declared that the victim’s refusal to take his friend to the hospital angered him, particularly because, in the defendant’s words, “she knew who I was.” The panel could also infer intent from the defendant’s manner of using the gun: Rivera testified that, before shooting, the defendant readied or positioned himself behind the truck as it pulled away and pointed the gun. Indeed, the defendant stated that he cocked the hammer before firing.

In addition, “ ‘[o]ne who uses a deadly weapon upon a vital part of another will be deemed to have intended the probable result of that act, and from such a circumstance a proper inference may be drawn in some cases that there was an intent to kill. . . (Citations omitted.) State v. Holley, 174 Conn. 22, 26, 381 A.2d 539 (1977); see State v. Mejia, supra, 233 Conn. 225 (shooting victim’s back considered vital area). The shot was fired when the victim was a short distance from the defendant and the bullet entered her upper back three and one-half inches from her spine.

An intent to kill may also be inferred from the defendant’s failure to seek medical assistance for the victim. The defendant continued on to the bar to get transportation for Ramos and did not attempt to aid the victim even though, as he told the police, he saw the truck crash into several parked cars. Finally, the defendant manifested consciousness of guilt in his statements to the police by relating several variations of the event before admitting that he had shot the victim. Thus, construing the evidence in the light most favorable to sustaining the verdict, the panel reasonably concluded beyond a reasonable doubt that the defendant had the specific intent to kill.

Last the defendant contends that in light of the evidence of his intoxication the state did not produce sufficient evidence upon which the panel could have found beyond a reasonable doubt that he could form the specific intent to kill. “Intoxication shall not be a defense to a criminal charge, but in any prosecution for an offense evidence of intoxication of the defendant may be offered by the defendant whenever it is relevant to negate an element of the crime charged .... As used in this section, ‘intoxication’ means a substantial disturbance of mental or physical capacities resulting from the introduction of substances into the body.” General Statutes § 53a-7. In order to prove intent, the state maintains the burden of disproving intoxication beyond a reasonable doubt. State v. Turcio, 178 Conn. 116, 132, 422 A.2d 749 (1979), cert. denied, 444 U.S. 1013, 100 S. Ct. 661, 62 L. Ed. 2d 642 (1980); State v. Crawford, 172 Conn. 65, 69-70, 372 A.2d 154 (1976). Evidence of the defendant’s intoxication, however, does not “automatically [negate] intent. . . . It is for the [trier of fact] to decide, after weighing all the evidence adduced at trial, whether a criminal defendant’s intoxication rendered him incapable of forming the intent required to commit the crime with which he is charged.” State v. Vinal, 198 Conn. 644, 658-59, 504 A.2d 1364 (1986).

The defendant’s claim of intoxication is based on his statement to the police and the testimony of two witnesses that he had ingested a narcotic substance one or two hours before the shooting. A review of the evidence, however, reveals that there was sufficient evidence for the panel reasonably to conclude that the defendant was not so intoxicated as to have been incapable of forming the specific intent to kill. For instance, Gay testified that the defendant was in control and did not appear to be on drugs as he approached the truck. In addition, after Ramos was shot, the defendant immediately held a towel to Ramos’ face and helped him out of the house. Again, there was testimony that the defendant readied himself before firing. After the shooting, the defendant accompanied his friend to a bar to get transportation to a hospital. Thus, viewing the evidence in the light most favorable to sustaining the verdict, the panel reasonably could have concluded beyond a reasonable doubt that the defendant’s intoxication did not prevent him from forming the necessary intent to kill.

The judgment is affirmed.

In this opinion the other judges concurred.

       This appeal was taken originally to the Supreme Court. Pursuant to Practice Book § 4023, the Supreme Court transferred the appeal to this court.

       The three judges were impaneled pursuant to General Statutes § 54-82 which provides in relevant part: “(a) In any criminal case, prosecution or proceeding, the party accused may, if he so elects when called upon to plead, be tried by the court instead of by the jury; and, in such case, the court shall have jurisdiction to hear and try such case and render judgment and sentence thereon.
      “(b) If the accused is charged with a crime punishable by death or imprisonment for life and elects to be tried by the court, the court shall be composed of three judges to be designated by the chief court administrator, or his designee, who shall name one such judge to preside over the trial. Such judges, or a majority of them, shall have power to decide all questions of law and fact arising upon the trial and render judgment accordingly. . . .”

       In evaluating the defendant’s extreme emotional disturbance defense, the three judge panel stated that it had “fully considered the unusual circumstances surrounding the shooting of Ramos and the other circumstances that the defendant was in . . . .”


author: HEIMAN, J.

text:
    LORAINE MALLINSON v. JAY I. BLACK
    (14128)
    Heiman, Spear and Hennessy, Js.
    Argued January 11
    officially released May 14, 1996

      Bernard Pellegrino, for the appellant (plaintiff).

      Lorinda S. Coon, with whom was Elizabeth Fairbanks Flynn, for the appellee (defendant).
   HEIMAN, J.

In this action sounding in negligence, the plaintiff appeals from the judgment rendered after the trial court directed the jury to return a verdict in favor of the defendant. On appeal, the plaintiff claims that the trial court improperly (1) directed a verdict for the defendant after the jury had returned two contradictory and inconsistent verdicts, (2) directed a verdict for the defendant after the second verdict returned by the jury was, in and of itself, inconsistent, (3) posed an interrogatory to the jury prior to its reconsideration of its first verdict, (4) directed a verdict for the defendant before an interrogatory posed to the jury had been answered, and (5) directed a verdict for the defendant when it was clear that the jury was confused and that the jury’s verdicts were illogical and unreasonable in light of the instructions given to it. We affirm the judgment of the trial court.

The following allegations are contained in the plaintiffs “replacement amended complaint.” The plaintiff claimed that she retained the defendant, a professional engineer and land surveyor, to make all necessary surveys, examinations and investigations to locate the divisional lines of the plaintiffs tract of land located in Orange. According to the plaintiff, she informed the defendant that she intended to erect a single-family house in the center of the tract and to leave enough room on the tract for a septic system and an in-ground swimming pool adjacent to the house.

The plaintiff asserted that the defendant accepted the engagement and undertook to establish the correct location of the property’s divisional lines. The plaintiff claimed that the defendant performed the work in a negligent manner and thereby failed to establish properly the north and south boundaries of the property. According to the plaintiff, the defendant failed to ascertain the correct boundary line between the plaintiffs property and the property of Louis Fantarella, a property owner whose land bordered the property of the plaintiff to the north, south and west.

The plaintiff claimed that the defendant advised her that the north divisional line of the property ran along a certain location, plus or minus two feet. According to the plaintiff, the defendant represented that this was the true and correct north divisional line within a small margin of error and that the plaintiff was absolutely safe in erecting an in-ground swimming pool along said line. The plaintiff claimed that, in fact, the defendant’s representation of the location of the north divisional line was incorrect and was approximately twenty to forty feet north of the correct divisional line that divided the plaintiffs and Fantarella’s properties.

The plaintiff asserted that in reliance on the accuracy of the survey, she installed a septic system and an in-ground swimming pool. She claimed that as a result of the defendant’s negligence in ascertaining the proper north divisional line, the septic system and the swimming pool were erected, in part, on land that belonged to Fantarella. The plaintiff asserted that Fantarella sued her, claiming damages and possession of the strip of land where the plaintiffs pool had been installed. The plaintiff further asserted that she settled Fantarella’s lawsuit, and was required to remove the pool as a condition of the settlement. The plaintiff claimed that she suffered losses, such as the cost of building and removing the swimming pool, the counsel fees required to defend the lawsuit brought by Fantarella, the cost of maps, surveys, expert testimony and other expenses in preparing and defending the Fantarella lawsuit, and the cost of prosecuting this action. She also asserted that the property and its improvements have suffered a permanent loss in value.

In his answer, the defendant denied all of the essential allegations of the plaintiffs replacement amended complaint other than the allegation that the defendant was a professional engineer and land surveyor who held himself out to the public as an expert capable of determining the boundaries of property and the divisional lines thereof. The defendant also filed three special defenses. In his first special defense, the defendant asserted that any damages suffered by the plaintiff were caused by acts or omissions of parties over whom the defendant had no control. In his second special defense, the defendant claimed that the plaintiff was contributor-ily negligent because she unreasonably relied on the class D survey prepared by the defendant for purposes other than those contemplated by the parties at the time the survey was prepared, although the plaintiff was repeatedly cautioned by the defendant as to the limited use of a class D survey. Finally, in his third special defense, the defendant asserted that the in-ground swimming pool, as installed, was in violation of local inland-wetland regulations and local setback regulations, was installed without the necessary permits, and would have had to be removed, regardless of the alleged encroachment. The plaintiff denied all of the allegations of the special defenses and the parties were at issue.

After trial, the case was submitted to the jury, and the jury returned a verdict in favor of the plaintiff. After the clerk read the verdict aloud, the jury affirmed that the verdict as read constituted its unanimous verdict. Without accepting the verdict, the trial court excused the jury from the courtroom and asked it to retire to the jury deliberating room. The trial court and counsel then engaged in a colloquy concerning the verdict returned by the jury. Following the colloquy, the trial court summoned the jury back into the courtroom. The jury foreperson confirmed to the trial court that the jury intended to award the plaintiff the amount of damages indicated on the verdict form. The trial court asked the jury to return to the deliberating room, and the court engaged in additional colloquy with counsel. The court then submitted a handwritten interrogatory to the jury. After deliberating, the jury returned a note with an answer to the interrogatory.

The court and counsel engaged in a colloquy concerning the effect on the verdict of the answer to the interrogatory. The trial court then submitted to the jury new plaintiffs verdict forms and defendant’s verdict forms, and again instructed the jury on the law regarding comparative negligence and its impact on any verdict. The trial court also instructed the jury to decide the following question: “Do you intend the verdict of $16,961 that you originally returned to the court to represent 31% negligence on the part of the defendant Jay Black?” The trial court concluded by stating: “So, I will ask you to answer that question and to take these forms and to retire and reconsider.” Neither counsel took exception to the correctness of the trial court’s supplemental instruction on the issue of comparative negligence. The defendant excepted only to the court’s recharging on that issue at all, while the plaintiff excepted to the submission of the oral interrogatory.

The jury retired again to consider its verdict. The jury returned a plaintiffs verdict form showing a recovery for the plaintiff in the amount of $16,962. In this verdict, however, the jury concluded that the plaintiff was 69 percent negligent. The trial court engaged in discussion with counsel regarding the verdict, and the court decided that it was necessary to determine the intent of the jury. After additional colloquy, the trial court decided that it would recall the jury, read the second verdict form into the record, and permit the parties to poll the jury. The plaintiff moved for a mistrial and the court denied the motion.

The jury returned to the courtroom, and the trial court read the second verdict to the jury. Plaintiffs counsel then polled the jury. The clerk called the name of each juror, and plaintiffs counsel asked each juror whether it was that juror’s decision that the plaintiff was 69 percent negligent. Each juror answered the question in the affirmative. After the poll was completed, the trial court asked the jury whether it was the jury’s unanimous finding that the plaintiff was 69 percent contributorily negligent. In unison, the jury responded affirmatively. The trial court accepted the verdict and ordered it recorded. The trial court then reread the verdict to the jury. The trial court next explained to the jury that the verdict was inconsistent, and that in light of the unanimous finding by the jury that the plaintiff was 69 percent contributorily negligent, a verdict in favor of the defendant was mandated. Accordingly, the trial court directed the jury to return a verdict in favor of the defendant. The jury retired and then returned with a defendant’s verdict.

With the permission of the trial court, the plaintiffs attorney again polled the jury. The plaintiffs counsel asked each juror whether the defendant’s verdict was that juror’s decision, and each juror answered affirmatively. The court then accepted and ordered recorded the defendant’s verdict. The plaintiff filed a motion for a new trial and a motion to set aside the verdict. Both motions were denied and this appeal followed.

The plaintiff raises a number of claims on appeal; those claims are, however, interrelated. The principal issue raised in this appeal is whether the trial court properly directed a verdict for the defendant. We conclude that the trial court acted properly in directing the verdict.

“The rules controlling appellate review of a directed verdict are well settled. Directed verdicts are not generally favored. A trial court’s decision to direct a verdict can be upheld only when the jury could not reasonably and legally have reached any other conclusion. . . . Sokolowski v. Medi Mart, Inc., 24 Conn. App. 276, 285-86, 587 A.2d 1056 (1991); see also Bleich v. Ortiz, 196 Conn. 498, 500-501, 493 A.2d 236 (1985). We review a trial court’s decision to direct a verdict for the defendant by considering all of the evidence, including reasonable inferences, in the light most favorable to the plaintiff. Giles v. New Haven, 228 Conn. 441, 444, 636 A.2d 1335 (1994); Berry v. Loiseau, 223 Conn. 786, 819-20, 614 A.2d 414 (1992).” (Internal quotation marks omitted.) Bilodeau v. Bristol, 38 Conn. App. 447, 454, 661 A.2d 1049, cert. denied, 235 Conn. 906, 665 A.2d 899 (1995).

“The verdict of a jury must contain an intelligible finding so that its meaning can be clearly ascertained.” Ferris v. Hotel Pick Arms, Inc., 142 Conn. 72, 73, 157 A.2d 106 (1959). The second verdict rendered by the jury clearly indicated that the jury intended to find the plaintiff to be 69 percent contributorily negligent. Nevertheless, the verdict was inconsistent because it was a plaintiffs verdict with an award of money damages that also indicated that the negligence of the plaintiff was greater than that of the defendant. Any ambiguity was dissipated, however, when the plaintiffs counsel polled the jury and confirmed that the jury had found the plaintiff to be 69 percent negligent. “We have sustained verdicts where they were incorrect as to form or contained irrelevant material but clearly manifested the intent of the jury.” Id., 75.

In addition to the jury poll by the plaintiffs counsel, the trial court’s interrogatory also clarified any uncertainty in the jury’s verdict. The trial court inquired of the jury whether it was the jury’s unanimous finding that the plaintiff was 69 percent contributorily negligent. In response to the trial court’s interrogatory, the jury responded affirmatively. Only after the jury’s answer did the trial court direct the jury to return a verdict in favor of the defendant. Moreover, plaintiffs counsel, at his own request, polled the jury after the rendition of the directed verdict, and each individual juror responded that the verdict was his or her decision.

“To justify the entry of a judgment contrary to a general verdict upon the basis of answers to interrogatories, those answers must be such in themselves as conclusively to show that as a matter of law judgment could only be rendered for the party against whom the [general] verdict was found .... Sullivan v. Nor- walk, 28 Conn. App. 449, 459, 612 A.2d 114 (1992); see Belchak v. New York, N. H. & H. R. Co., 119 Conn. 630, 634, 179 A. 95 (1935); Murteza v. State, 7 Conn. App. 196, 201, 508 A.2d 449 (1986).” (Internal quotation marks omitted.) Bilodeau v. Bristol, supra, 38 Conn. App. 454.

The final verdict returned by the jury, as supplemented by the poll of the jury and its answer to the trial court’s interrogatory, conclusively established that, as a matter of law, judgment could be rendered only in favor of the defendant. The provisions of General Statutes § 52-572h (b) bar a plaintiffs verdict here because the jury found that the plaintiffs negligence was greater than the negligence of the defendant as established by the final verdict form and confirmed by the poll and the answer to the trial court’s interrogatory. The trial court, therefore, properly directed a verdict in favor of the defendant.

The judgment is affirmed.

In this opinion the other judges concurred.

       The verdict form stated in pertinent part:
      “PLAINTIFFS VERDICT
      “In this case the Jury finds that the contributory negligence of the Plaintiff, Loraine Mallinson, if any, was not greater than the negligence of the Defendant, Jay I. Black, and therefore finds the issues for the Plaintiff, Loraine Mallinson, in accordance with the following calculations:
      “1. Fair, just and reasonable compensation for the Plaintiffs, Loraine Mallinson’s injuries:
      Economic Damages: $54,716.00
      Total: $54,716.00
      “2. Percentage of the Plaintiffs, Loraine Mallinson’s, negligence, if any: 31%
      “3. If the Plaintiff, Loraine Mallinson, is found to be contributorily negligent:
      a. Multiply #1 by #2: $16,961.00
      b. Subtraction of #3a from #1: $37,755.00
      VERDICT: $16,961 dollars damages in favor of the Plaintiff, Loraine Mallin-son, against the Defendant, Jay I. Black.”

       See footnote 1.

       The handwritten interrogatory submitted to the jury read as follows: “Do you find that the negligence of the plaintiff, if any, is 31% as indicated on your verdict or do you find as indicated by your award of $16,961 dollars damages that the negligence of the plaintiff, if any, is 69%?”

       The jury returned a written answer to the interrogatory as follows: “No, we found Jay Black negligent. We awarded plaintiff 31% of the $54,716.

        “We found others contributed, therefore our award to plaintiff was only $16,961 which equals the 31%.
      “Your Honor the form is phrased as either or 100% or not. We cannot ascribe 69% to defendant because we don’t feel he is entirely at fault.”

       The second verdict form states in pertinent part:
      “PLAINTIFF’S VERDICT
      “In this case the Jury finds that the contributory negligence of the Plaintiff, Loraine Mallinson, if any, was not greater than the negligence of the Defendant, Jay I. Black, and therefore finds the issues for the Plaintiff, Loraine Mallinson, in accordance with the following calculations:
      “1. Fair, just and reasonable compensation for the Plaintiffs, Loraine Mallinson’s injuries:
      Economic Damages: $54,716.00
      Total: $54,716.00
      “2. Percentage of the Plaintiffs, Loraine Mallinson’s, negligence, if any: 69%
      “3. If the Plaintiff, Loraine Mallinson, is found to be contributorily negligent:

        a. Multiply #1 by #2: $37,754.00
      b. Subtraction of #3a from #1: $16,962.00
      VERDICT: $16,962 dollars damages in favor of the Plaintiff, Loraine Mallin-son, against the Defendant, Jay I. Black.”

       The plaintiff does not claim on appeal that the trial court improperly denied the motion for a mistrial.

       The court inquired as follows: “Ladies and gentlemen, we have heard the verdict that you’ve rendered and the contributory negligence of the plaintiff and I’ll ask if this is your unanimous finding, so say you one and so say you all, as to the finding that the plaintiff was 69 percent contributorily negligent?”

       Neither party raises any claim with respect to the unorthodox manner in which the rendition of the verdict or the polling of the jury took place. “The procedure which has been followed in our courts for many years for receiving, accepting and recording a verdict is outlined in [our case law], . . . Under this procedure, the final assent of the jurors, given after the verdict has been read aloud by the clerk, accepted and ordered recorded by the court, and read aloud a second time by the clerk, makes the verdict. . . .” (Citations omitted.) Ferris v. Hotel Pick Arms, Inc., 147 Conn. 72, 74, 157 A.2d 106 (1959).

       General Statutes § 52-572h (b) provides: “In causes of action based on negligence, contributory negligence shall not bar recovery in an action by any person or his legal representative to recover damages resulting from personal injury, wrongful death or damage to property if the negligence was not greater than the combined negligence of the person or persons against whom recovery is sought including settled or released persons under subsection (n) of this section. The economic or noneconomic damages allowed shall be diminished in the proportion of the percentage of negligence attributable to the person recovering which percentage shall be determined pursuant to subsection (f) of this section.”


author: LAVERY, J.

text:
    CHARLES CASHMAN v. CONCETTA CASHMAN
    (14179)
    Laveiy, Landau and Shea, Js.

      Argued January 22
    officially released May 21, 1996

      Dianne Andersen, with whom, on the brief, was Susan Williams, for the appellant (defendant).

      Patrick R. Gill, for the appellee (plaintiff).
   LAVERY, J.

The defendant appeals from the judgment of the trial court granting the plaintiffs motion to dismiss on the ground that the court lacks personal jurisdiction over the plaintiff. On appeal, the defendant claims that the trial court improperly (1) found that General Statutes § 46b-46 (b) was not applicable to the defendant’s motion for modification, (2) found that § 46b-46 (b) was not satisfied because Connecticut was not the domicile of both parties at the time of dissolution, and (3) concluded that the exercise of personal jurisdiction over the plaintiff would violate due process. We conclude that the trial court improperly found that it lacked personal jurisdiction over the plaintiff and reverse the judgment of the trial court.

The following facts were presented to the trial court by way of the pleadings and documents accompanying the plaintiffs motion to dismiss. The plaintiff and the defendant were married in 1959 and resided in Connecticut prior to their separation in 1980. After the separation, the plaintiff moved to Ardsley, New York. The defendant has continued to reside in Connecticut. In December, 1980, the plaintiff commenced this action for dissolution of marriage in Connecticut while residing in New York state. On February 9, 1983, the trial court rendered a judgment that, inter alia, dissolved the marriage and awarded to the defendant periodic alimony.

On May 26, 1994, the defendant filed a motion for modification of alimony. The plaintiff was personally served with the motion at his home in Purdys, New York. On June 10, 1994, the plaintiff filed a motion to dismiss for lack of personal jurisdiction. On November 4,1994, the trial court held that it lacked personal jurisdiction over the plaintiff and granted the plaintiffs motion to dismiss. In its memorandum of decision, the trial court found that § 46b-46 (b) is not applicable to the defendant’s motion for modification of alimony because the matter is not one for dissolution, annulment, legal separation or custody. The court also found that the domicile requirement of § 46b-46 (b) has not been satisfied because Connecticut was not the domicile of both parties immediately prior to or at the time of dissolution. Finally, the trial court found that it would violate the plaintiffs due process rights to assert jurisdiction in this case. The defendant filed this appeal.

I

The defendant claims that the trial court improperly found that § 46b-46 (b) is not applicable to the defendant’s motion for modification of alimony. The defendant argues that § 46b-46 (b) permits Connecticut courts to exercise personal jurisdiction over nonresidents in matters concerning modification of alimony if the nonresident receives actual notice of the proceeding, the party requesting modification is a resident of Connecticut and Connecticut was the domicile of both parties immediately prior to their separation. We agree.

We begin our analysis of § 46b-46 (b) by examining the text of the statute. “In interpreting the language of a statute, the words must be given their plain and ordinary meaning and their natural and usual sense unless the context indicates that a different meaning was intended. Caldor, Inc. v. Heffernan, 183 Conn. 566, 570, 440 A.2d 767 (1981). When the language is plain and unambiguous, we need look no further than the words themselves because we assume that the language expresses the legislature’s intent. American Universal Ins. Co. v. Del-Greco, 205 Conn. 178, 193, 530 A.2d 171 (1987). Indeed, [a] basic tenet of statutory construction is that when a statute ... is clear and unambiguous, there is no room for construction. . . . State v. Genotti, 220 Conn. 796, 807, 601 A.2d 1013 (1992).” (Internal quotation marks omitted.) Oller v. Oller-Chiang, 230 Conn. 828, 848, 646 A.2d 822 (1994). The plain meaning of § 46b-46 (b) allows the trial court to “exercise personal jurisdiction over the nonresident party as to all matters concerning temporary or permanent alimony” if the specific notice, residency and domicile provisions are satisfied. (Emphasis added.) We interpret the language of the statute to include matters concerning the modification of alimony.

The plaintiff argues that § 46b-46 applies only to initial divorce proceedings and does not apply to proceedings to modify divorce decrees. The trial court agreed with the plaintiff and held that § 46b-46 is not applicable to the defendant’s motion because this matter is not one for dissolution, annulment, legal separation or custody as stated in § 46b-46 (a). We conclude that § 46b-46 (b) is not limited to the proceedings outlined in § 46b-46 (a).

Subsections (a) and (b) of § 46b-46 serve distinct purposes. “Subsection (a) confers jurisdiction upon a court to deal with complaints for dissolution, annulment or legal separation when the defendant is a nonresident or his whereabouts are unknown. Subsection (a) describes the procedures that are to be followed to give such a nonresident party actual notice of the pending proceedings, and authorizes the court to hear the complaint either if the nonresident party has received such notice or if a reasonable effort to afford him notice has been made.” Jones v. Jones, 199 Conn. 287, 290-91, 507 A.2d 88 (1986).

Section 46b-46 (b) is a long arm statute applicable to all matters concerning alimony and support, and is not limited to complaints for dissolution, annulment, legal separation and custody. Subsection (b) allows a court to assert personal jurisdiction over a nonresident defendant for judgments that operate in personam and bind the obligor personally; Beardsley v. Beardsley, 144 Conn. 725, 726-27, 137 A.2d 752 (1957); and imposes greater requirements than does subsection (a). In addition to the notice requirements identified in subsection (a), the party requesting alimony must meet the residency requirement of General Statutes § 46b-44 and show that Connecticut was the domicile of both parties immediately prior to or at the time of their separation.

In Jones v. Jones, supra, 199 Conn. 294, our Supreme Court held that § 46b-46 (b) permits a trial court to modify a dissolution judgment to require a nonresident defendant to pay child support if the nonresident had actual notice of the modification proceedings. We see no reason that our Supreme Court’s reasoning in Jones is not equally applicable to modification of a judgment for the payment of alimony. We conclude that the trial court improperly found that § 46b-46 (b) was inapplicable to the defendant’s motion for modification of alimony.

II

The defendant claims that the trial court improperly concluded that the domicile requirement of § 46b-46 (b) was not satisfied because Connecticut was not the domicile of both parties immediately prior to or at the time of dissolution. The defendant argues that § 46b-46 (b) does not require that both parties be domiciled in Connecticut at the time of dissolution, but requires that both parties be domiciled in Connecticut at the time of their separation. We agree.

The plain language of § 46b-46 (b) states that the operative inquiry to determine whether long arm jurisdiction exists in this case as to matters concerning alimony or child support is whether Connecticut “was the domicile of both parties immediately prior to or at the time of their separation.” This language is plain and unambiguous, and the legislature intended that the trial court’s inquiry should focus on the time of the parties’ separation, not the time of dissolution. In this case, it is undisputed that Connecticut was the domicile of both parties immediately prior to their separation in 1980. It is also undisputed that the defendant meets the residency requirements of § 46b-44 and that the plaintiff received actual notice. We conclude, therefore, that the statutory requirements of § 46b-46 (b) have been met.

III

Having concluded that the requirements of § 46b-46 (b) have been satisfied, we shift our inquiry to whether the exercise of personal jurisdiction in this case comports with the principles of due process. See Frazer v. McGowan, 198 Conn. 243, 252, 502 A.2d 905 (1986); Gaudio v. Gaudio, 23 Conn. App. 287, 298, 580 A.2d 1212, cert. denied, 217 Conn. 803, 584 A.2d 471 (1990). The trial court held that the due process clause precluded it from exercising personal jurisdiction over a nonresident in an action to modify a judgment. We conclude that the due process clause is not violated because the plaintiff purposefully availed himself of the benefits and protections of the laws of Connecticut when he brought this action for dissolution of the marriage.

The due process clause protects an individual’s liberty interest in not being subject to the binding judgments of a forum with which he has established no meaningful contacts, ties, or relations. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 471-72, 105 S. Ct. 2174, 85 L. Ed. 2d 528 (1984). The United States Supreme Court has held that the test to be applied in considering the reach of personal jurisdiction is whether (1) the nonresident party has created a substantial connection to the forum state by action purposefully directed toward the forum state or otherwise invoking the benefits and protections of the laws of the state, and (2) the exercise of jurisdiction based on those minimum contacts would not offend traditional notions of fair play and substantial justice. Asahi Metal Industry Co. v. Superior Court, 480 U.S. 102, 111-12, 107 S. Ct. 1026, 94 L. Ed. 2d 92 (1987); Burger King Corp. v. Rudzewicz, supra, 475-76; Hanson v. Denckla, 357 U.S. 235, 253, 78 S. Ct. 1228, 2 L. Ed. 2d 1283 (1958). As long as it creates a substantial connection with the forum state, even a single act can support jurisdiction. McGee v. International Life Ins. Co., 355 U.S. 220, 223, 78 S. Ct. 199, 2 L. Ed. 2d 223 (1957). The court must look at the totality of the party’s conduct and connection with this state and determine whether the party could have reasonably anticipated being haled into court in Connecticut. Frazer v. McGowan, supra, 198 Conn. 249.

“If a state obtains judicial jurisdiction over a party to an action, the jurisdiction continues throughout all subsequent proceedings which arise out of the original cause of action. Reasonable notice and reasonable opportunity to be heard must be given the party at each new step in the proceeding.” 1 Restatement (Second), Conflict of Laws § 26 (1988); see also Michigan Trust Co. v. Ferry, 228 U.S. 346, 353, 33 S. Ct. 550, 57 L. Ed. 867 (1913). Under the doctrine of continuing personal jurisdiction, once a divorce judgment is granted by a court with personal jurisdiction, neither party can escape jurisdiction in future proceedings that attempt to modify or alter the judgment. McAleavy v. McAleavy, 150 Wis. 2d 26, 31, 440 N.W.2d 566 (1989).

The trial court based its holding on the United States Supreme Court’s decision in Kulko v. Superior Court of California, 436 U.S. 84, 98 S. Ct. 1690, 56 L. Ed. 2d 132 (1978). In Kulko, the court held that the California state courts could not exercise in personam jurisdiction over a nonresident, nondomiciliary parent of minor children domiciled within the state unless the nonresident purposefully derives benefits from any activities relating to the state. Id., 93-94. This case is different from Kulko because the plaintiff purposefully availed himself of the benefits of bringing the action for dissolution in Connecticut.

We hold that the plaintiff established sufficient contacts with Connecticut when he filed this action for dissolution in December, 1980. By bringing this action, the plaintiff could have reasonably anticipated being amenable to further legal proceedings in connection with the Connecticut judgment. See General Statutes § 46b-86 (a). We find that the plaintiff has sufficient contact with Connecticut such that the exercise of jurisdiction in this case does not offend traditional notions of fair play and substantial justice. We conclude, therefore, that the trial court improperly granted the plaintiffs motion to dismiss.

The judgment is reversed and the case is remanded for further proceedings in accordance with this opinion.

In this opinion the other judges concurred.

       General Statutes § 46b-46 (b) provides: “The court may exercise personal jurisdiction over the nonresident party as to all matters concerning temporary orpermanent alimony or support of children, only if: (1) The nonresident party has received actual notice under subsection (a) of this section; and (2) the party requesting alimony or support of children meets the residency requirement of section 46b-44; and (3) this state was the domicile of both parties immediately prior to or at the time of their separation.”

       We recognize that § 46b-46 (b) was amended by No. 95-310 of the 1995 Public Acts, which became effective on January 1, 1996. In its amendment to § 46b-46 (b), the legislature deleted the requirement that Connecticut be the domicile of both parties immediately prior to or at the time of their separation. Public Acts 1995, No. 95-310. We will analyze the defendant’s claims under the statute as it was in 1994 when the plaintiff was personally served with the defendant’s motion for modification of alimony.

       General Statutes § 46b-46 (a) provides in pertinent part: “On a complaint for dissolution, annulment, legal separation or custody, if the defendant resides out of or is absent from the state . . . any judge or clerk of the supreme court or of the superior court may make such order of notice as he deems reasonable. After notice has been given and proved to the court, the court may hear the complaint if it finds that the defendant has actually received notice that the complaint is pending. . . .”

       General Statutes § 46b-86 (a) provides in pertinent part: “Unless and to the extent that the decree precludes modification, any final order for the periodic payment of permanent alimony or support or an order for alimony or support pendente lite may at any time thereafter be continued, set aside, altered or modified by said court upon a showing of substantial change in the circumstances of either party . . . .”