author: MIHALAKOS, J. SCHALLER, J.,

text:
    JOAN E. GAY v. THOMAS J. GAY
    (AC 20755)
    Schaller, Mihalakos and Flynn, Js.

      (One judge dissenting)
    Argued March 18
    officially released July 9, 2002

      Campbell D. Barrett, with whom were Jonathan P. Budlong and, on the brief, C. Michael Budlong, for the appellant (plaintiff).

      Karen S. Gersten, for the appellee (defendant).
   Opinion

MIHALAKOS, J.

This case presents an issue of first impression before this court. The plaintiff, Joan E. Gay, now known as Joan E. McNulty, appeals from the order of the trial court modifying the alimony award to be paid by the defendant, Thomas J. Gay. The sole issue is whether the trial court improperly considered capital gains realized by the plaintiff to be income when modifying the defendant’s alimony obligation. We reverse the judgment of the trial court and remand the case for further proceedings.

The following facts and procedural history are relevant to our consideration of the plaintiffs claim. On December 20, 1996, after a thirty-two year marriage, the plaintiff brought an action seeking a dissolution of the marriage based on an irretrievable breakdown of the marriage. The court incorporated by reference a stipulation entered into by the parties dated December 20, 1996. The stipulated agreement provided, inter alia, that the defendant shall pay alimony to the plaintiff in the amount of $730 per month.

On September 29, 1999, the defendant moved for a modification of the alimony payments. In his motion, the defendant claimed that his retirement, and the accompanying decrease in income, constituted a substantial change in circumstances. Furthermore, he noted that the plaintiffs income and assets had dramatically increased so that her circumstances had changed for the better. After hearing arguments on the matter, the court reduced the defendant’s alimony obligation to $1 per year and ordered the parties to exchange copies of their respective federal tax returns for the following three years.

On October 24, 2000, the court rendered its oral decision regarding the parties’ motions for articulation. The court first articulated the basis for its conclusion that there was a bona fide retirement on the part of the defendant. In addition, the court articulated the basis for its conclusion that the parties’ income was now in parity and, therefore, the alimony award should be modified. After making certain adjustments to the net income reflected on the plaintiffs financial affidavit, the court found that the defendant had a net income of $1268 per week and the plaintiff had a net income of $1323 per week. On January 3, 2001, the court issued a further articulation of the order pursuant to the plaintiffs request.

The plaintiff argues that the court improperly considered the capital gains that she realized from her investment accounts to be income. Specifically, she argues that because a capital gain represents the appreciation of an asset it cannot be used as the basis for a finding that there has been a substantial change in circumstances. The defendant argues that the appreciation of any asset is a reasonable basis for a court to modify alimony. We conclude, on the basis of our review of the record, the parlies’ briefs and the relevant case law, that the plaintiff can prevail only if the assets generating the capital gain were acquired by her prior to the divorce and distributed to her pursuant to the divorce decree.

We first set forth our well established standard of review applied in domestic relations matters. “A trial court is in an advantageous position to assess the personal factors so significant in domestic relations cases, and its orders in such cases will not be reversed unless its findings have no reasonable basis in fact or it has abused its discretion, or unless, in the exercise of such discretion, it applies the wrong standard of law.” Crowley v. Crowley, 46 Conn. App. 87, 90, 699 A.2d 1029 (1997).

“[U]nder our statutes and cases, modification of alimony can be entertained and premised upon a showing of a substantial change in the circumstances of either party to the original dissolution decree. . . . Thus, once the trial court finds a substantial change in circumstances, it can properly consider a motion for modification of alimony. After the evidence introduced in support of the substantial change in circumstances establishes the threshold predicate for the trial court’s ability to entertain a motion for modification ... it also naturally comes into play in the trial court’s strueturing of the modification orders.” (Citation omitted.) Borkowski v. Borkowski, 228 Conn. 729, 737, 638 A.2d 1060 (1994); see also General Statutes § 46b-86. The onus to prove the existence of a substantial change in the circumstances is on the party seeking modification. See Crowley v. Crowley, supra, 46 Conn. App. 91.

“[Our Supreme Court] and the Appellate Court have often described financial orders appurtenant to dissolution proceedings as entirely interwoven and as a carefully crafted mosaic, each element of which may be dependent on the other.” (Internal quotation marks omitted.) Smith v. Smith, 249 Conn. 265, 277, 752 A.2d 1023 (1999). In general, the same factors used by the court to establish an initial award of alimony are relevant in deciding whether the decree may be modified. See Borkowski v. Borkowski, supra, 228 Conn. 736; see also General Statutes § 46b-82. “More specifically, these criteria, outlined in General Statutes § 46b-82, require the court to consider the needs and financial resources of each of the parties ... as well as such factors as the causes for the dissolution of the marriage and the age, health, station, occupation, employability and amount and sources of income of the parties.” Borkowski v. Borkowski, supra, 736.

When determining whether there is a substantial change in circumstances, the court is limited in its consideration to conditions arising subsequent to the entry of the dissolution decree. See Schorsch v. Schorsch, 53 Conn. App. 378, 382-83, 731 A.2d 330 (1999). “To permit the trial court to reconsider all evidence dating from before the original divorce proceedings, in determining the adjustment of alimony, would be, in effect, to undermine the policy behind the well established rule of limiting proof of the substantial change of circumstances to events occurring subsequent to the latest alimony order — the avoidance of relitigating matters already settled.” Borkowski v. Borkowski, supra, 228 Conn. 738.

To resolve the issue of whether capital gains may be considered as income for purposes of alimony modification, we must engage in an analysis of the statutory construction. Because capital gain is income derived from the sale of property, we must examine two relevant statutes, § 46b-82, the determination of alimony, and General Statutes § 46b-81, the assignment of property and the transfer of title, and how they relate to one another. “Statutory construction is a question of law and therefore our review is plenary. . . . [0]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In seeking to discern that intent, 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.” (Internal quotation marks omitted.) HUD/Willow Street Apartments v. Gonzalez, 68 Conn. App. 638, 647, 792 A.2d 165 (2002).

Section § 46b-82 mandates that the court consider specific enumerated factors when determining an alimony award, including amount and sources of income. “The court is to consider these factors in making an award of alimony, but it need not give each factor equal weight. ... As long as the trial court considers all of these statutory criteria, it may exercise broad discretion in awarding alimony.” (Internal quotation marks omitted.) Tevolini v. Tevolini, 66 Conn. App. 16, 23, 783 A.2d 1157 (2001). Thus, the court must consider all income of the parties whatever its source may be.

The legislative history of § 46b-82 is, however, inconclusive as to the intended meaning of the word “income.” We must, therefore, look to the ordinary meaning of the word. See General Statutes § 1-1 (a); see also Smith v. Smith, supra, 249 Conn. 281. Income is defined as “a: a gain or recurrent benefit that is [usually] measured in money and for a given period of time, derived from capital, labor, or a combination of both, includes gains from transactions in capital assets, but excludes unrealized advances in value . . . b: value of goods and services received by an individual in a given period of time . . . .” Webster’s Third New International Dictionary (1961).

We further note that a capital gain is the “profit realized on the sale or exchange of a capital asset.” Black’s Law Dictionaiy (6th Ed. 1990). “For income tax purposes, a capital asset is defined as all property held by a taxpayer (e.g. house, car, stocks, bonds), except for certain assets listed in [Internal Revenue Code] § 1221.” Black’s Law Dictionary, supra. Because the profit realized from the sale of an asset is income, a capital gain is income. See 26 U.S.C. § 61. On the basis of the foregoing, “income” includes realized gain from the sale of a capital asset.

This does not complete our inquiry. “It is black letter law that Connecticut is an equitable distribution property state . . . .” (Citation omitted.) Wendt v. Wendt, 59 Conn. App. 656, 663, 757 A.2d 1225, cert. denied, 255 Conn. 918, 763 A.2d 1044 (2000). “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.” (Citation omitted; internal quotation marks omitted.) Smith v. Smith, supra, 249 Conn. 272.

“In fixing the nature and value of the property assigned, and in determining whether alimony will be awarded, and the duration and amount of the award, the court ‘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’ and needs of each of the parties. General Statutes §§ 46b-81 (c) and 46b-82.” Delahunty v. Massachusetts Mutual Life Ins. Co., 236 Conn. 582, 592-93 n.11, 674 A.2d 1290 (1996). In its determination of property assignments, the trial court must also consider “the opportunity of each for future acquisition of capital assets and income . . . [and] the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates.” General Statutes § 46b-81 (c).

“It is well established that a trial court need not assign specific values to the parties’ assets when determining financial orders appurtenant to dissolution proceedings. ... A trial court acts as the trier of fact when it evaluates the marital estate and determines each party’s equitable share.” (Citation omitted.) Smith v. Smith, supra, 249 Conn. 287. “The purpose of a property division pursuant to a dissolution proceeding is to unscramble existing marital property in order to give each spouse his or her equitable share at the time of dissolution. ... By comparison, the purpose of both periodic and lump sum alimony is to provide continuing support. . . . Hence, once the marital property is divided, the court has fulfilled its responsibility, and, therefore, continuing jurisdiction over divided marital property does not further the goal of the statute.” (Citations omitted.) Id., 275.

We conclude that capital gains generated by an asset distributed in the dissolution decree do not fall within the purview of § 46b-86, and by implication, § 46b-82. This is so because the capital gain is merely the appreciation of property previously distributed pursuant to § 46b-81. The court does not have continuing jurisdiction over property distributed at the time of dissolution; General Statutes § 46b-86; and therefore cannot consider the appreciation of such property in its inquiry pursuant to §§ 46b-86 and 46b-82. See also Schorsch v. Schorsch, supra, 53 Conn. App. 385 (mere exchange of asset awarded as property in dissolution decree for cash does not transform property into income).

We must now determine whether capital gains realized on property acquired by the plaintiff after the dissolution is income for purposes of § 46b-82. We conclude that if the asset is property that was acquired by the plaintiff after the dissolution and, therefore, not distributed as part of the property assignment, then it is income that must be considered by the court in an alimony modification.

“A conclusion that there has been a substantial change in financial circumstances justifying a modification of alimony based only on income is erroneous; rather, the present overall circumstances of the parties must be compared with the circumstances existing at the time of the original award to determine if there has been substantial change.” 24A Am. Jur. 2d, Divorce and Separation § 826 (1998).

“A substantial increase in the dependent spouse’s separate property or estate, such as by gift or inheritance, may justify a reduction in alimony.” Id., § 833. “The fact that the wile has acquired a substantial amount of property, or that her property has increased in value, after the entry of a decree for alimony or maintenance is an important consideration in determining whether and to what extent the decree should be modified.” Annot, 18 A.L.R.2d 10, 74, § 23 (1951). “A single factor, such as an increase in property values, is generally not enough by itself for a court to modify a support award. When an increase in income or assets of the payee-spouse is combined with other factors, such as a decrease in the supporting spouse’s ability to pay or the emancipation of a child, changed circumstances may justify modification.” A. Rutkin, Family Law and Practice (1990) § 52.02 (2) (b). Furthermore, “[p]rior property divisions rarely have provided grounds for support modifications. This is true even if the property award subsequently is shown to have a negative impact upon the movant.” Id., § 52.02 (2) (a) (iii).

“Modification of an alimony award may be proper where either the needs of the recipient spouse or the financial ability of the obligor spouse to pay alimony have changed since the original award was made, as well as where the financial circumstances of both parties have changed. . . . Furthermore, as is true for changes in circumstances more generally, temporary fluctuations in the financial circumstances of the parties normally do not afford a basis for such a modification.” 24A Am. Jur. 2d, supra, § 825. “Trial courts should be vested with broad discretion to fashion approaches which will achieve the most equitable results under the facts of each case.” (Internal quotation marks omitted.) Wendt v. Wendt, supra, 59 Conn. App. 667.

The plaintiff argues that her capital gains do not constitute income for purposes of modification of an alimony order. In her argument, the plaintiff finds support in Schorsch v. Schorsch, supra, 53 Conn. App. 378, Denley v. Denley, 38 Conn. App. 349, 661 A.2d 628 (1995), and Simms v. Simms, 25 Conn. App. 231, 593 A.2d 161, cert. denied, 220 Conn. 911, 597 A.2d 335 (1991). Relying on Bartlett v. Bartlett, 220 Conn. 372, 381-83, 599 A.2d 14 (1991), the defendant argues that increases in assets of any sort may form an appropriate reason to modify alimony.

Although we have found no precedent governing the precise issue presently before us, we are persuaded that capital gains realized on the sale of an asset acquired after dissolution may be considered by a court in determining whether there has been a substantial change in circumstances. The case law cited by both parties is instructive.

In Simms, the plaintiff sought modification of alimony on the basis of moneys received by the defendant in exchange for United States treasury bonds that he held at the time of the divorce. See Simms v. Simms, supra, 25 Conn. App. 232-33. This court held that “the defendant’s redemption of the treasury bonds, which he received when he withdrew his share of the capital assets of Bear, Stems and Company, was, as the defendant contends, merely an exchange of assets.” Id., 235. We reasoned that “[although a dramatic increase in the income of one of the parties may constitute a substantial change in circumstances, an increase in the value of assets ordinarily will not.” Id., 234. Furthermore, the defendant declared his capital account as an asset on his financial affidavit. We concluded that “if the capital account is an asset, the defendant’s redemption of the treasury bonds, which he received as a distribution of his capital account, could not be a substantial change in circumstances and could not support a modification of alimony.” Id.

In Denley, the plaintiff also sought a modification of alimony, arguing that because he had lost an important client, his income had decreased substantially. Denley v. Denley, supra, 38 Conn. App. 350. The court denied the motion for modification based, in part, on its inclusion of the profit that the plaintiff had received through the redemption of stock options that had been awarded to him at the time of the dissolution. Id. This court agreed with the plaintiff that “because he was awarded the stock options as property in the dissolution decree, any money that he received from the exercise of those stock options was simply a conversion of an asset and should not have been considered income by the trial court for purposes of assessing whether there had been a substantial change in circumstances.” Id., 353. This court held that the trial court improperly included the redemption of the stock options in income, reasoning that the “mere exchange of an asset awarded as property in a dissolution decree, for cash, the liquid form of the asset, does not transform the property into income.” Id.

Similarly, in Schorsch, the defendant filed a motion for modification of alimony claiming a substantial change in circumstances. Schorsch v. Schorsch, supra, 53 Conn. App. 380. The defendant, however, was receiving payments toward a purchase money mortgage that he held after the sale of real property awarded to him in the dissolution decree. The trial court considered both the principal and interest payments received by the defendant when it denied his motion for modification. This court reversed the trial court on this ground because the principal balance paid on the purchase money mortgage represented the proceeds from the sale of an asset awarded to the defendant at the time of the dissolution. We held that “the principal payments that the defendant is receiving on the purchase money mortgage he holds is merely an exchange of assets and may not be included in the calculation of his income.” Id., 386.

The defendant argues to the contrary and finds support in Bartlett v. Bartlett, supra, 220 Conn. 372. In Bartlett, the defendant was the beneficiary of a revocable trust, the proceeds of which were to be distributed to him upon his mother’s death. Id., 374. Because the trust was revocable and its assets had not yet vested in the defendant, the court did not consider the trust proceeds when it first established the amount of alimony to which the plaintiff was entitled. Id., 373-74. Following the death of the defendant’s mother, the plaintiff sought a modification of alimony, claiming that because the defendant had received the inheritance there was a substantial change in circumstances since the original divorce decree. Id., 374. Our Supreme Court agreed with the plaintiff and held that because the defendant’s inheritance vested upon the death of his mother, “the trial court was bound to consider that inheritance in ruling on the motion for an increase in alimony, despite the fact that the assets of the inheritance had not yet been distributed to him.” Id., 380.

We conclude that the appreciation of an asset that was distributed at the time of the dissolution does not constitute a change in circumstances that the court may consider when deciding whether to entertain a motion for modification of alimony. Furthermore, such an increase in the value of an asset cannot be used as a factor to determine the amount by which alimony is to be modified.

In the present case, the court held that there was a bona fide retirement and, further, that there was a substantial change in the circumstances of the plaintiff. The court first found that the defendant’s net income was $28,228 more per year than the plaintiffs gross income at the time of the dissolution. After noting that the defendant had not experienced a significant change in his net income, the court found that the plaintiff had an increase in net income of $37,492 per year from 1996. In its calculation, the court included $11,430 per year representing the income from capital gains. The court, however, did not make a finding as to when the assets generating the capital gains were acquired.

If the assets were held by the plaintiff at the time of the decree, the court considered conditions antecedent to the last modification, e.g., the dissolution decree, and thereby applied an incorrect legal standard in determining whether there had been a substantial change of circumstances warranting modification. Accordingly, the court must first determine whether the plaintiff acquired the assets generating the capital gains prior or subsequent to the dissolution decree. Therefore, the court’s modification of the dissolution decree without first so doing was an abuse of discretion.

As a final note, we are mindful that capital gains may easily be manipulated by the owner of the asset and are temporary in nature. Further, the capital gains may vary drastically year to year for legitimate reasons. Trial courts have, however, “wide latitude and equitable powers when determining financial orders pursuant to dissolution actions because they require extremely fact sensitive resolutions.” Smith v. Smith, supra, 249 Conn. 284-85. Our decision today does not mandate that the court modify alimony in all cases where a party has realized a capital gain, but merely to consider the gain as part of its inquiry. In the event that the gain constitutes a substantial change in circumstances, the laws of this state compel the court to modify the existing alimony order. The court should be mindful of the transitory nature of capital gains and careful not to eliminate completely the payment of alimony is cases such as this.

The judgment is reversed and this case is remanded for further proceedings to determine whether the assets generating the plaintiffs capital gains were acquired prior to or subsequent to the divorce.

In this opinion FLYNN, J., concurred.

SCHALLER, J.,

dissenting. I respectfully disagree with the resolution of this case because I do not agree with the majority’s conclusion that capital gains may properly be considered as income under some circumstances for the purposes of modification. At the outset, the majority states that the resolution of this issue requires an examination of General Statutes §§ 46b-82 and 46b-81 because capital gain is income derived from the sale of property. I do not believe that §§ 46b-81 and 46b-82 are the only sources of authority that we may rely on to answer this question. Those provisions concern the assignment of property and alimony at the time of dissolution. The majority concludes that they do not answer the question that is presently before us. The majority next looks to the ordinary meaning of the word “income” and determines that capital gain is income based on various dictionary and code definitions of “income,” “capital gain” and “gross income.” I am not persuaded.

Although the issue of whether capital gain constitutes income for purposes of modification apparently has not been decided by this court or our Supreme Court, I conclude that capital gain, however generated, is not properly considered as income. With regard to capital gain generated by an asset distributed in the dissolution, I conclude that such gain is not income. I reach this conclusion on the basis of an analogous line of cases that hold that the profit recovered by conversion of a noncash asset into cash is not income. See Schorsch v. Schorsch, 53 Conn. App. 378, 386, 731 A.2d 330 (1999) (principal payments on purchase money mortgage merely an exchange of assets and may not be included in calculation of income); Denley v. Denley, 38 Conn. App. 349, 353, 661 A.2d 628 (1995) (exchange of stock options for cash does not transform property into income); Simms v. Simms, 25 Conn. App. 231, 235, 593 A.2d 161 (exchange of bonds for cash was merely exchange of assets, not income), cert. denied, 220 Conn. 911, 597 A.2d 335 (1991).

Although these cases did not decide the precise issue before us, they stand for the proposition that the conversion of an asset from one form into another does not constitute income. I conclude, as is consistent with the rationale of these cases, that capital gain from the sale of assets acquired at dissolution is nothing more than a conversion of noncash assets to cash and should not be included in income for purposes of modification.

I also conclude that capital gain generated from an asset acquired subsequent to the dissolution is not income. While it is true that in this latter situation the asset was acquired after the dissolution, I reach this conclusion by further analogy to the principles cited previously. As our case law makes clear, a conversion of an asset from one form to another does not constitute the creation of income. Implicit in this conclusion is the underlying concept that the growth in value of the asset distributed at dissolution is not income when it is converted to another form. Rather, the growth, and resulting cash value when converted, simply represents the accrual in value of that asset itself. In other words, the category the item falls into, namely, either “capital asset” or “income,” does not change because the asset has appreciated in value and then is converted as a matter of form.

I do not believe that this principle becomes any less applicable when considering assets acquired after a dissolution. I do not believe, therefore, that the exchange of a capital asset, whenever acquired, for cash transforms that asset into income. Guided by the case law, I conclude that the appreciation of a capital asset acquired after dissolution, and its conversion in form, merely adds to the asset and represents the accrual of value in the asset itself. The category of the item does not change from capital asset to income because there has been an appreciation and conversion.

On the basis of this conclusion, I note that while I do not agree that the capital gain is income, I do agree with the majority that the appreciation of assets acquired after dissolution may properly be considered as assets of a party’s estate in the court’s determination of whether a modification is appropriate, whether or not the asset has been converted into a different form. See Clark v. Clark, 66 Conn. App. 657, 665, 785 A.2d 1162 (same § 46b-82 criteria are relevant in deciding whether decree may be modified as are relevant in making initial award of alimony), cert. denied, 259 Conn. 901, 789 A.2d 990 (2001). I also note that in my opinion the majority’s conclusion creates the potential for radically underinflated or overinflated modifications because of the frequent fluctuations in the value of capital assets.

In the present case, the defendant asserted a change in circumstances based on a change in the plaintiffs relative income status and assets. In ruling on the defendant’s motion, the trial court improperly considered the plaintiffs capital gains as income. While both income status and assets, or capital gains from the assets, properly may have been taken into consideration by the court, each must be assessed individually. For the foregoing reasons, I respectfully disagree with the majority. I would reverse the judgment and remand the case for a new trial with direction to the court to consider the assets acquired after dissolution separately from its consideration of income.

       Section 8 of the parties’ agreement and stipulation for judgment dated December 20,1996, states in relevant part: “A. The Defendant Husband shall pay alimony to the Plaintiff Wife in the amount of Seven Hundred Thirty (8730.00) Dollars per month, payable in advance on the 1st day of each month, time is of the essence. Said alimony shall be modifiable as provided . . . hereafter. . . . Further, if the Defendant enters into a bona fide retirement. prior to age 65 the alimony shall be subject to modification and it is understood that alimony can not be based upon the Defendant’s retirement income only and shall be based upon his additional earnings or his earning capacity or both as the case may be.”

       The relevant portions of the defendant’s motion for modification provided: “6. The Defendant has retired as of September 1, 1999 and begins collecting his pension as of September 30, 1999.
      “7. Other than his pension, the Defendant has no other source of income.
      “8. The Defendant’s decrease in income is a substantial change in his circumstances since the time of the dissolution.
      * * *
      . “10. The Defendant believes the Plaintiffs income and assets have dramatically increased since the date of dissolution so that her circumstances have significantly changed for the better.”

       The plaintiffs financial affidavit reflected a net income of $709 per week. The court added $195 per week representing a voluntary contribution to an annuity. In addition, the court added $199 per week representing interest and dividends and $220 per week representing capital gains both of which were reflected on the plaintiffs 1999 federal income tax return.

       General Statutes § 46b-86 (a) provides in relevant 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 a substantial change in the circumstances of either party .... This section shall not apply to assignments under section 46b-81 or to any assignment of the estate of a portion thereof of one party to the other party under prior law. . . .”

       General Statutes § 46b-82 provides in relevant part: “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 . . . dissolution of the marriage . . . the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties and the award, if any, which the court may make pursuant to section 46b-81 . . . .”

       General Statutes § 46b-81 provides in relevant part: “(a) At the time of entering a decree . . . dissolving a marriage . . . pursuant to a complaint under section 46b-45, the Superior Court may assign to either the husband or the wife all or any part of the estate of the other. . . .
      “(c) In fixing the nature and value of the property, if any, to be assigned, the court, after hearing the witnesses, if any, of each party, except as provided in subsection (a) of section 46b-51, shall consider the length of the marriage, the causes for the . . . 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.”

       Section 61 of title 26 of the United States Code provides in relevant part: “(a) General definition. Except as otherwise provided in this subtitle, gross income means all income from whatever source derived, including (but not limited to) the following items ... (3) Gains derived from dealings in property . . . .” Furthermore, “[gjross income includes income realized in any form, whether in money, property, or services. Income may be realized, therefore, in the form of services, meals, accommodations, stock, or other property, as well as in cash.” I.R.C. Reg. § 1.61-1 (a).

       We note that the financial affidavit that the parties must submit to the court in all domestic relations matters requires the disclosure of the following for the court’s consideration: (1) weekly income; (2) weekly expenses; (3) liabilities; (4) assets; and (5) health insurance.

       The court found that “[h]er tax returns reflect interest of sixteen hundred and fifty-five, dividends of eight thousand, seven hundred and three, short term capital gain of nine thousand, four hundred and eighteen dollars, and a long-term capital gain of two thousand, twelve dollars for a total of twenty-one thousand, seven hundred, eighty-eight dollars.
      “So, she’s had a really, after a compilation, a net income increase of thirty-seven thousand, four hundred, ninety-two dollars, four years after her divorce.”

       The court’s further articulation dated January 3, 2001, provided in relevantpart: “14. ‘State whether the court determined that the plaintiff[’s] Paine Webber Dean Witter account represents property that was distributed to the plaintiff in the judgment dated December 20, 1996.’
      “The court did not determine that the plaintiffs Paine Webber Dean Witter account represents property that was distributed to the plaintiff in the judgment dated December 20, 1996, for the following reasons:
      “1. The point or proposition was not claimed, asked for or argued.
      “2. No evidence was introduced by the plaintiff to establish the point.
      “3. There are too many missing pieces, so the point or proposition would be purely speculative.”
      In addition, we recognize that the court further stated in its articulation that “the plaintiffs 1999 tax return revealed dividends — and that all short term capital gains were from stock purchase [d] either in 1998 or 1999, and with the exception of one mutual fund that showed a loss, all long-term capital gains were on stock and notes acquired well after the divorce. All those gains were reinvested and included in the value of the Dean Witter account.”
      We do not interpret this statement as a finding because it was included in the court’s specific reasons for not determining whether the account was property that was distributed at the time of the dissolution.


source: Caselaw Access Project

author: DRANGINIS, J. SCHALLER, J.,

license: Public Domain

text:
    ROXANN AMES v. COMMISSIONER OF MOTOR VEHICLES
    (AC 21320)
    Schaller, Mihalakos and Dranginis, Js.

      (One judge dissenting)
    Argued January 18
    officially released July 9, 2002

      Joanne S. Faulkner, for the appellant (plaintiff).

      Gary M. Case, for the appellee (intervening defendant Western Surety Company).
   Opinion

DRANGINIS, J.

The plaintiff, Roxann Ames, appeals from the judgment of the trial court affirming the decision and award by the defendant commissioner of motor vehicles (commissioner) that, in accordance with General Statutes § 14-52, she is not entitled to recover punitive damages and attorney’s fees under the surety bond issued by Western Surety Company (Western Surety). On appeal, the plaintiff, in essence, raises two claims, namely, that (1) the doctrine of res judicata barred the commissioner from finding Western Surety liable under the surety bond for actual damages only and (2) the court improperly concluded, as a matter of law, that § 14-52 precludes an award for punitive damages and attorney’s fees. We affirm the judgment of the trial court.

The following facts are relevant to our resolution of the plaintiffs appeal. The underlying event in this case involved the plaintiff and A.P.L. Auto Consulting, Inc., also known as Discount Auto Sales, a used automobile dealer (dealer). In 1995, the plaintiff purchased a motor vehicle from the dealer. Over protest by the plaintiff, in 1997, the dealer repossessed the vehicle. As a result of the repossession, the plaintiff filed an action against the dealer, alleging, in pertinent part, breach of contract and unfair trade practices in violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. The plaintiff demanded statutory, actual, punitive and treble damages. The court rendered a default judgment in favor of the plaintiff after the dealer failed to appear and awarded damages in the amount of $20,286.40 plus costs of $280.60. The award included punitive damages and attorney’s fees.

Subsequently, the dealer went out of business and failed to pay the judgment. Pursuant to § 14-52, however, the dealer had obtained a surety bond for $20,000, which was issued by Western Surety. After the expiration of the 180 day waiting period of General Statutes § 52-400e, the commissioner invoked the surety bond on the plaintiffs behalf. The commissioner noted the court’s prior award of damages, but found that the plaintiff suffered actual damages of $5650, an amount consisting of her down payment, financing payment and costs. The commissioner then concluded that the balance of the court’s award of attorney’s fees and punitive damages was not “recoverable under the subject bond,” as set forth in § 14-52, and thus ordered Western Surety to pay $5650 to the state of Connecticut for the benefit of the plaintiff.

The plaintiff filed a petition for reconsideration, which the commissioner denied. The plaintiff then appealed to the Superior Court pursuant to General Statutes § 4-183. In affirming the decision of the commissioner, the court concluded that § 14-52, the surety bond requirement statute, precludes an award of punitive damages and attorney’s fees. This appeal followed.

I

The plaintiff first contends that the court’s award of damages of $20,286.40 constituted a final judgment, and, therefore, the doctrine of res judicata barred the commissioner from disturbing that award and finding the surety liable for only $5650. We are not persuaded.

“The doctrine of res judicata holds that an existing final judgment rendered upon the merits without fraud or collusion, by a court of competent jurisdiction, is conclusive of causes of action and of facts or issues thereby litigated as to the parties and their privies in all other actions in the same or any other judicial tribunal of concurrent jurisdiction. ... If the same cause of action is again sued on, the judgment is a bar with respect to any claims relating to the cause of action which were actually made or which might have been made. . . . The applicability of res judicata raises a question of law that is subject to our plenary review. . . . We therefore must determine whether the trial court’s decision is legally and logically correct.” (Citations omitted; internal quotation marks omitted.) Richards v. Richards, 67 Conn. App. 381, 383, 786 A.2d 1247 (2001). “It is axiomatic that in applying the doctrine of res judicata we remain cognizant that [t]he scope of matters precluded necessarily depends on what has occurred in the former adjudication.” (Internal quotation marks omitted.) Id., 384.

We conclude that the doctrine of res judicata did not bar the commissioner’s, and subsequently the court’s, determination in the present case. The issues before the court that rendered judgment against the dealer greatly differed from those before the commissioner and the court in the subsequent action. In the action against the dealer, the court was faced with a controversy solely between the dealer and the plaintiff after the dealer wrongfully had repossessed the plaintiff’s motor vehicle.

The issue regarding the extent of the liability of Western Surety pursuant to the surety bond provision was not before the court in the prior action against the dealer. In fact, it was not until after the judgment was rendered against the dealer that the dealer went out of business, thereby implicating Western Surety in the situation. Moreover, the issues before the commissioner, and subsequently before the court on appeal from the commissioner’s decision, consisted of whether the dealer’s actions triggered the surety bond provision, and Western Surety’s liability, pursuant to § 14-52. The determinations of the commissioner and the court solely referred to Western Surety’s liability and did not disturb the prior judgment regarding the dealer’s liability for wrongful repossession.

We conclude, therefore, that the commissioner’s decision holding Western Surety liable for an amount of $5650 pursuant to the surety bond was not precluded by the doctrine of res judicata.

II

We now address the plaintiffs primary claim that this court should set aside the judgment of the trial court because, pursuant to § 14-52, she was entitled to recover punitive damages and attorney’s fees from Western Surety. Specifically, the plaintiff contends that the phrase contained in § 14-52 (b) (4) that the surety bond will be “provided as indemnity for any loss sustained by any person by reason of any acts of the licensee constituting grounds for suspension or revocation of the license or such licensee going out of business,” necessarily includes punitive damages and attorney’s fees. (Emphasis added.) Therefore, the plaintiff argues, the court improperly concluded, as a matter of law, that § 14-52 precludes an award of punitive damages and attorney’s fees. We are not persuaded.

In this case, because the surety bond itself is not part of the record, nor do the parties invoke its terms, the dispositive issue to determine is whether § 14-52 confers on the plaintiff the right to recover punitive damages and attorney’s fees. That issue is a matter of statutory interpretation, as well as an issue of first impression for this court, over which our review is plenary. See Smith v. Smith, 249 Conn. 265, 280, 752 A.2d 1023 (1999).

Several well settled principles govern our interpretation of § 14-52. “When we construe a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In seeking to discern that intent, 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. . . . Furthermore, [w]e presume that laws are enacted in view of existing relevant statutes . . . because the legislature is presumed to have created a consistent body of law. . . . We construe each sentence, clause or phrase to have a purpose behind it. ... In addition, we presume that the legislature intends sensible results from the statutes it enacts.” (Citations omitted; internal quotation marks omitted.) Southington v. Commercial Union Ins. Co., 254 Conn. 348, 357, 757 A.2d 549 (2000).

“When the words of a statute are plain and unambiguous, we need look no further for interpretive guidance because we assume that the words themselves express the intention of the legislature. . . . When we are confronted, however, with ambiguity in a statute, we seek to ascertain the actual intent by looking to the words of the statute itself . . . the legislative history and circumstances surrounding the enactment of the statute . . . and the purpose the statute is to serve. . . . We note also that [a] statute should not be interpreted in any way to thwart its purpose . . . and that [i]n construing a statute, common sense must be used and courts will assume that [the legislature intended to accomplish] a reasonable and rational result . . . .” (Citations omitted; internal quotation marks omitted.) Caltabiano v. Planning & Zoning Commission, 211 Conn. 662, 666-67, 560 A.2d 975 (1989).

Before directly analyzing the issue, an explanation of basic principles governing suretyship law provides guidance. “[T]he general purpose of a suretyship contract is to guard against loss in the event of the principal debtor’s default. . . . [T]he obligation of a surety is an additional assurance to the one entitled to the performance of an act that the act will be performed. . . . [T]he liability of sureties is to be determined by the specified conditions of the bond .... [W]hen a bond is required by statute, a court will read the statute into the contract between the principal, surety and obligee.” (Citations omitted; internal quotation marks omitted.) Southington v. Commercial Union Ins. Co., supra, 254 Conn. 358-59.

“A legally mandated bond is a secondary obligation required by law, whether the obligee or beneficiary is a government, a class of persons to whom the principal obligor may owe an obligation, or a particular person. . . . When ... a legally mandated bond is deemed to contain terms set forth in the law that requires that it be provided, the legally mandated bond is treated as containing those terms. . . .” Restatement (Third), Suretyship and Guaranty § 71 (1) and (2), pp. 284-85 (1996). General Statutes § 14-52 establishes legally mandated surety bonds for new and used motor vehicle dealers. As a condition for engaging in business, § 14-52 requires motor vehicle dealers to procure a surety bond in the amount of $20,000. General Statutes § 14-52 (b) (4) further provides in relevant part that those legally mandated bonds “shall be conditioned upon the applicant or licensee [the motor vehicle dealer] complying with the provisions of any state or federal law or regulation relating to the conduct of such business and provide as indemnity for any loss sustained by any person by reason of any acts of the licensee constituting grounds for suspension or revocation of the license or such licensee going out of business . . . .” (Emphasis added.)

With those principles in mind, we turn to the dispositive issue at hand, namely, whether the phrase “any loss” encompasses punitive damages and attorney’s fees. We find the term “any loss” to be both generalized and ambiguous, and susceptible on its face to several different interpretations. That ambiguity is demonstrated by Webster’s Third International Dictionary, which defines “any” as “one, indifferently out of more than two . . . one, some, or all indiscriminately of whatever quantity.” Moreover, the statute fails to define “any loss.” Accordingly, we turn to the legislative history behind § 14-52 to construe the meaning of “any loss.” Upon examination of the legislative history and circumstances surrounding the enactment of the surety bond clause of § 14-52, as well as its relationship to other similar legislation, we hold that the legislature did not intend for the phrase “any loss” to encompass punitive damages and attorney’s fees.

In 1984, the legislature amended § 14-52, through No. 84-508 of the 1984 Public Acts, to include a provision mandating that motor vehicle dealers obtain surety bonds. Prior to that amendment, when motor vehicle dealers went out of business, consumers often lacked any “avenue for recovery.” 27 H.R. Proc., Pt. 8, 1984 Sess., p. 2709, remarks of Representative Christine M. Niedermeier. The legislative history surrounding the amendment demonstrates that the legislature added that provision to “provide some financial security to enable consumers to obtain reimbursement for money owed to them” by defunct motor vehicle dealers. (Emphasis added.) Id. Debate in the Senate additionally reveals that the legislature enacted the amendment to protect consumers. See 27 S. Proc., Pt. 9, 1984 Sess., pp. 3153-54, remarks of Senator William A. DiBella. The legislative history again discloses that when the surety bond provision was further amended in 1993 in Public Acts 1993, No. 93-164, § 2, to increase the required amount of the bond posted, that those particular “surety bonds were established to provide some recourse for victims of fraudulent practices by motor vehicle dealers and repairers.” (Emphasis added.) 36 S. Proc., Pt. 9, 1993 Sess., pp. 3219-20, remarks of Senator Thomas A. Colapietro.

The specific use of the word some proves quite revealing and pertinent to our resolution of the issue. By utilizing the word some, our legislature clearly did not intend for those motor vehicle dealer surety bonds to compensate consumers for all losses suffered as a result of a motor vehicle dealer’s actions. The word some demonstrates that the legislature intended to limit the recovery of consumers. The statements of the legislators disclose that the surety bonds were not provided to make consumers whole for all costs or losses associated with a defunct motor vehicle dealer, but rather were meant to provide “some financial security.” (Emphasis added.) 27 H.R. Proc., supra, p. 2709.

Further, the legislature explicitly provided that the surety bonds were enacted to “enable consumers to obtain reimbursement for money owed to them.” (Emphasis added.) Id. Again, the phrase “money owed to them,” demonstrates that the legislature intended to restrict recovery under the surety bonds. The statement that consumers were entitled to recover “money owed” refers to the amounts presently due and owing to consumers by defunct motor vehicle dealerships. It does not refer to, or include, any subsequent costs that may result.

An award of punitive damages, “fulfills the salutary purpose of fully compensating a victim for the harm inflicted . . . .” (Emphasis added; internal quotation marks omitted.) Lord v. Mansfield, 50 Conn. App. 21, 27, 717 A.2d 267, cert. denied, 247 Conn. 943, 723 A.2d 321 (1998). Here, as shown through the legislature’s language, the legislative history clearly demonstrates that the surety bond provision was not enacted to wholly remunerate consumers. We therefore conclude that § 14-52 does not provide for punitive damages.

With particular respect to attorney’s fees, we note that Connecticut adheres to a basic principle regarding awards of attorney’s fees and expenses related to litigation known as the “American rule.” Under the American rule, “attorney’s fees and ordinary expenses and burdens of litigation are not allowed to the successful party absent a [specific] contractual or statutory exception.” (Internal quotation marks omitted.) Rizzo Pool Co. v. Del Grosso, 240 Conn. 58, 72, 689 A.2d 1097 (1997). As our Supreme Court has stated: “[W]hen the General Assembly wanted to authorize the award of attorney’s fees it knew how to do it.” Chrysler Corp. v. Maiocco, 209 Conn. 579, 593, 552 A.2d 1207 (1989).

In other surety contexts, our legislature has enacted statutes that specifically include the award of attorney’s fees. For example, General Statutes § 14-176 stipulates that where title to a motor vehicle is in question, the party seeking the title may be required to obtain a surety bond. General Statutes § 14-176 further provides in relevant part that “[t]he bond shall be in an amount equal to one and one-half times the value of the vehicle . . . and conditioned to indemnify any prior owner . . . and any subsequent purchaser of the vehicle . . . against any expense, loss or damage, including reasonable attorney’s fees . . . .” (Emphasis added.)

The legislature’s inclusion of attorney’s fees in § 14-176 is dispositive of the issue here. “Where a statute, with reference to one subject contains a given provision, the omission of such provision from a similar statute concerning a related subject ... is significant to show that a different intention existed. . . . That tenet of statutory construction is well grounded because [t]he General Assembly is always presumed to know all the existing statutes and the effect that its action or non-action will have upon any one of them.” (Internal quotation marks omitted.) M. DeMatteo Construction Co. v. New London, 236 Conn. 710, 717, 674 A.2d 845 (1996). The legislature’s statement, in the context of § 14-176, that “any loss” includes attorney’s fees, demonstrates that the legislature did not intend that “any loss” provided for in § 14-52, a similar statute, would encompass punitive damages and attorney’s fees. See, e.g., Doe v. Marselle, 236 Conn. 845, 861, 675 A.2d 835 (1996).

Moreover, the legislature’s use of the phrase “any loss” in enacting a statute is not unusual. In various other statutes, when our legislature has utilized the phrase “any loss,” it has further provided that the term “any loss,” “include[s] reasonable attorney’s fees” or punitive damages. See, e.g., General Statutes § 42a-4A-211 (f) (liability to bank for “any loss and expenses, including reasonable attorney’s fees,” incurred by bank as result of cancellation of payment order); General Statutes § 42-1 lOg (any person who suffers “any ascertainable loss” as result of violation of CUTPA entitled to award of actual and punitive damages, including reasonable attorney’s fees); General Statutes §§ 8-265s (b) and 8-286c (b) (“guarantee shall secure the mortgagee up to the amount of the guarantee for any loss incurred by the mortgagee because of default of the mortgagor, including losses in principal balance, interest and fees and expenses due to foreclosure” [emphasis added]).

“Because we must respect the legislative prerogative of choosing the special circumstances under which [attorney’s fees] awards may be made . . . we require a clear expression of the legislature’s intent to create a statutory exception” to the American rule. (Citation omitted; internal quotation marks omitted.) Fleming v. Garnett, 231 Conn. 77, 94, 646 A.2d 1308 (1994). We cannot ascertain any such legislative intent here. Accordingly, we conclude that under § 14-52, the plaintiff was not entitled to recover punitive damages and attorney’s fees in the calculation of “loss.”

The plaintiff presents several arguments in support of her claim that “any loss” as contained in § 14-52 includes punitive damages and attorney’s fees, which we find necessary to address. Citing Levick v. Norton, 51 Conn. 461 (1884), and Gionfriddo v. Avis Rent A Car System, Inc., 192 Conn. 280, 472 A.2d 306 (1984), the plaintiff in her brief asserts that our Supreme Court “has consistently mandated that a surety pay the type of treble or statutory damages at issue herein.” The plaintiffs reliance on those cases is misplaced.

Neither of the cases on which the plaintiff relies stands for the proposition that § 14-52 provides for punitive damages and attorney’s fees, nor do they even invoke a statute similar to § 14-52. In Levick and Gionfriddo, unlike in the present situation, the statutes involved specifically permitted an award of treble damages. The appellants in those cases did not contest whether the statutes permitted punitive damages, but whether the particular actions at issue rendered them liable at all under the applicable statute in the first place. Here, in contrast to Levick and Gionfriddo, the parties do not dispute the defendant’s liability in and of itself, but rather the extent of the defendant’s liability. Accordingly, the principles to be derived from Levick and Gionfriddo simply do not apply here.

The plaintiff further argues that the term “loss” as set forth in § 14-52 necessarily includes punitive damages and attorney’s fees because had the dealer remained in business, those sums would have been included in the amount of her recovery. The plaintiff contends that because she was entitled to recover punitive damages, attorney’s fees and costs as a result of the judgment against the dealer under CUTPA, her award should not be diminished because the dealer went out of business. Moreover, in conjunction with those arguments, the plaintiff claims that to preclude recovery for attorney’s fees, in particular, thwarts the public policy to protect consumers as set forth in CUTPA and § 14-52.

Although we recognize to a certain extent the logic contained in the plaintiffs arguments, as a reviewing court we cannot undermine the function of the legislature to add provisions to statutes that the legislature simply did not intend. “[I]t is the prerogative of the legislature, not the courts, to determine the [special] circumstances under which an award of attorneys’ fees to the prevailing party will be authorized.” Doe v. State, 216 Conn. 85, 111, 579 A.2d 37 (1990).

We therefore conclude that under § 14-52, the legislature did not intend to permit recovery for punitive damages and attorney’s fees under the surety bond. Accordingly, we affirm the judgment and award of the court.

The judgment is affirmed.

In this opinion MIHALAKOS, J., concurred.

SCHALLER, J.,

dissenting. I respectfully disagree with the majority’s analysis of General Statutes § 14-52 and its conclusion that this section precludes the recovery of punitive damages and attorney’s fees. I conclude, contrary to the majority, that the term “any loss” in § 14-52 is clear and unambiguous. Given its plain meaning, I believe “any loss” encompasses punitive damages and attorney’s fees. I would therefore reverse the judgment of the trial court.

The majority concludes that the term “any loss” is “both generalized and ambiguous,” and that the generality and ambiguity surrounding the term is demonstrated by consulting a standard dictionary definition. Indeed, the dictionary definition that the majority uses as support for the term’s lack of clarity supports my position. The majority defines “any” as, “one, indifferently out of more than two . . . one, some, or all indiscriminately of whatever quantity.” That definition of “any,” together with the use of the word in the statute, is clear and comprehensive. As the majority recognizes, when the words of a statute are plain and unambiguous, there is no need to examine legislative history or other sources of guidance. Not only is logic on the side of the plaintiff in this case, as the majority concedes, but the word “any” is plain on its face and, as such, requires no interpretation beyond that which comes from its normal usage.

The only conceivable ambiguity might concern whether punitive damages constitute a “loss.” That concern, however, is resolved under our case law. Punitive damages are awarded in this state “not to punish the defendant for his offense, but to compensate the plaintiff for his injuries.” DeSantis v. Piccadilly Land Corp., 3 Conn. App. 310, 315, 487 A.2d 1110 (1985). Moreover, our Supreme Court has recognized the principle that “a finding of actual loss may support an award of punitive damages”; Hi-Ho Tower, Inc. v. Com-Tronics, Inc., 255 Conn. 20, 34, 761 A.2d 1268 (2000); and that punitive damages may be awarded upon a jury finding of liability, which is the equivalent of a finding of damages. Id. Punitive damages, therefore, represent a special kind of compensation for injury, damage or loss. In this case, the punitive damages awarded to the plaintiff in an unallocated damages award signify the existence of a loss, bringing it within the statutory term “any loss.”

In view of the clarity of the phrase “any loss,” it is not necessary or appropriate to consult legislative history. The term “any loss” should be accorded its plain meaning without more.

In any event, I do not agree with the majority’s analysis of legislative history in this case. Although the majority notes the proposition that an award of punitive damages fulfills the salutary purpose of fully compensating a victim for the harm inflicted, it concludes that the surety provision in question was not enacted to provide consumers with full compensation. The majority supports that conclusion by relying on the use of the word “some” and the term “money owed” in the legislative history.

I do not agree with the proffered analysis. The use of the word “some” does not imply that the legislature intended that a plaintiff should be limited to partial damages but, instead, indicates that only one of many potential means of recovery was being provided. The term “some” was specified, not by the legislature in the statute itself, but by legislators in the course of discussing the legislation. In addition, the majority’s conclusion that the phrase “money owed to them” means amounts presently due, as opposed to subsequent money owed, is not supported by analysis. I see no basis for reading the legislative history so restrictively. Even if legislative history were properly considered in this case, it does not support the majority’s conclusion. In addition, with regard to the analysis of attorney’s fees, even though the legislature chose to specify certain examples of recovery in some instances, that practice does not detract from the comprehensive clarity of the words “any loss” in this instance.

Moreover, I do not agree with the majority’s reliance on the Restatement, Security (1941). Sections 195 and 198 deal with injunction bonds and attachment bonds, respectively, and are not applicable in this case. Similarly, § 73 is inapplicable here because that section applies to penalties. In the present case, however, the judgment awarded the plaintiff compensation for a loss in the form of damages. The award was not a penalty that was assessed against the dealer in addition to compensating the plaintiff for her loss.

Because the award in this case is consistent with the public policy behind § 14-52, that is, that the surety should pay what the principal was obligated to pay, the plaintiff should not be deprived of her compensation by the defendant’s suggestion of ambiguity in a term that could hardly be more straightforward. Because under the clear and broad language of § 14-52, the plaintiff should be allowed to recover from the surety the damages awarded for all her losses, I would reverse the judgment of the trial court.

       General Statutes § 14-52 provides in relevant part: “(a) No person, firm or corporation may engage in the business of the buying, selling, offering for sale or brokerage of any motor vehicle or the repairing of any motor vehicle without having been issued either a new car dealer’s, a used car dealer’s, a repairer’s or a limited repairer’s license. . . .
      “(b) ... (2) Each applicant for a new car dealer’s or a used car dealer’s license shall furnish a surety bond in the amount of twenty thousand dollars. . . .
      “(4) Each such bond required under subdivisions (1) to (3), inclusive, of this subsection shall be conditioned upon the applicant or licensee complying with the provisions of any state or federal law or regulation relating to the conduct of such business and provided as indemnity for any loss sustained by any person by reason of any acts of the licensee constituting grounds for suspension or revocation of the license or such licensee going out of business. Such bond shall be executed in the name of the state of Connecticut for the benefit of any aggrieved party, but the penalty of the bond shall not be invoked except upon order of the commissioner after a hearing held before him in accordance with the provisions of chapter 54.”

       Pursuant to General Statutes § 52-107 and Practice Book § 9-18, Western Surety filed a motion for permission to intervene as a party defendant, which motion was granted.

       Under CUTPA, a trial court, within its discretion, may award punitive damages and attorney’s fees to a prevailing plaintiff. See Thames River Recycling, Inc. v. Gallo, 50 Conn. App. 767, 795, 720 A.2d 242 (1998).

       General Statutes § 52-400e provides in relevant part: “Whenever a judgment in a civil action which relates to activities for which a license is required has been rendered against a business which is licensed by a state or local licensing authority and which remains unpaid for one hundred eighty days after receipt by the judgment debtor of notice of its entry and the judgment has not been stayed or appealed, the state or local licensing authority shall consider such failure to pay, if deliberate or part of a pattern of similar conduct indicating recklessness, as a basis for the revocation, suspension or conditioning of, or refusal to grant or renew such license.

       We note that the plaintiff appears to intertwine part of her res judicata claim with her second claim on appeal regarding the proper recovery under General Statutes § 14-52. The plaintiff seems to contend that res judicata barred the commissioner from altering the original award because § 14-52 provides that the judgment of the original trial court has a preclusive effect. As will be evident from our conclusion, that interpretation of § 14-52 lacks any merit.

       In arriving at our conclusion, we take note of Western Surety Co. v. State, Superior Court, judicial district of New Britain, Docket No. CV 990494408S (December 15, 1999). We find guidance from that decision in which the court addressed and resolved the identical issue that we now face. The trial court in the matter before us also relied on Western Surety Co.

       We further note that our conclusion finds support in the Restatement, Security (1941), and also among many of our sister states that have enacted substantially similar statutes governing motor vehicle dealers and surety bonds. The Restatement takes the view that the obligation of a surety pursuant to a statutorily mandated bond does not include punitive damages. Restatement, Security, supra, §§ 73, 195, 198. Moreover numerous jurisdictions that have considered the exact issue have come to the same conclusion. See Ferris v. Haymore, 967 F.2d 946 (4th Cir. 1992); Harper v. Home Ins. Co., 23 Ariz. App. 348, 533 P.2d 559 (1975); Carter v. Agricultural Ins. Co., 266 Cal. App. 2d 805, 72 Cal. Rptr. 462 (1968); Hubbel v. Aetna Casualty & Surety Co., 758 So. 2d 94 (Fla. 2000); Guardianship of Estate of Smith v. Merchants Mutual Bonding Co., 211 Kan. 397, 507 P.2d 189 (1973); United States Fidelity & Guaranty Co. v. State, 254 Miss. 812, 182 So. 2d 919 (1966); Stumpf v. Pederson, 180 Olda. 408, 70 P.2d 101 (1937); Butler v. United Pacific Ins. Co., 265 Or. 473, 509 P.2d 1184 (1973) (en banc); Dawson v. Reliance Ins. Co., 482 S.W.2d 882 (Tex. Civ. App. 1972).

       The plaintiff in her brief further contends that case law “dictates that a surety’s liability is coextensive with that of its principal.” In raising that argument, the plaintiff again relies on cases that are dissimilar to and do not apply to the present situation. Thus, we find that general statement to be inaccurate, particularly when viewed in the present context.