text:
    Bauman and Garrity of Lakeville, Inc. v. George E. Emerson, Inc.
    (5507)
    Dupont, C. J., Borden and Stoughton, Js.
    Argued February 11
    decision released April 26, 1988

      Zbigniew S. Rozbicki, for the appellant (plaintiff).

      Charles F. Brower, with whom was Jeffrey C. Nicholas, for the appellee (defendant).
   Borden, J.

The plaintiff, a plumbing and heating contractor, brought this action against the defendant, a general contractor, for breach of an alleged conditional oral agreement by the defendant to award the plaintiff the mechanical portion of a construction project. The plaintiff appeals from the judgment rendered in favor of the defendant, after a jury trial, claiming that the trial court erred (1) in its instructions to the jury, and (2) in denying the plaintiffs motion to poll the jury after the verdict was announced. We find error.

The plaintiffs theory of recovery, as alleged in its complaint and supported by the evidence, was that the defendant contacted the plaintiff to solicit a bid for plumbing, heating and air conditioning work as a subcontractor on a proposed addition to the Salisbury Bank (bank). The bid was solicited by the defendant in conjunction with its proposed bid to the bank to perform the project as a general contractor. The defendant’s bid had to be submitted to the bank by 2 p.m. on September 1,1983. The plaintiff claimed that the defendant represented that, in order to meet the defendant’s bid submission deadline, the plaintiff had to submit its bid to the defendant by 12 noon on that day so that the defendant could timely submit its bid.

At 11:43 p.m. on September 1, the plaintiff submitted a bid to the defendant. The plaintiff claimed that the defendant’s agent represented to the plaintiff that its bid was the lowest, that the plaintiff would be designated as a subcontractor in the bid to the bank, and further that if the defendant was awarded the general contract, the plaintiff would be awarded the plumbing, heating and air conditioning subcontract. The defendant used the plaintiff’s bid in the bid to the bank. The defendant was awarded the general contract but refused to award the plaintiff the subcontract.

The defendant claimed that no acceptance of the plaintiff’s bid éver took place, and that any representations made by the defendant to the plaintiff regarding whether the plaintiff would be used on the project depended on whether the plaintiff’s bid turned out to be the lowest. Before 2 p.m. on September 1, and while the defendant’s president was en route to the bank to submit the defendant’s bid on the project, the defendant received a lower bid from another subcontractor. After the defendant’s bid was accepted by the bank, the defendant employed that other subcontractor to do the mechanical portion of the project, and executed a formal written contract with that subcontractor after approval of the subcontractor by the owner and architect.

The plaintiff first claims that the court erred by charging the jury that, before it could find that the plaintiff’s bid was accepted by the defendant and a contract formed, the jury first had to conclude that the plaintiff submitted the lowest bid before the time that the defendant delivered its bid to the bank. We agree.

The court erred by instructing the jury that it must first find that the plaintiffs bid was the lowest at the time the defendant submitted its bid on the project to the bank. This fact, however, was not relevant to the plaintiffs theory of the case. The plaintiff’s case was based upon proof that the defendant accepted the plaintiff’s bid orally on September 1 and created a contract by indicating to the plaintiff that, if the defendant was awarded the contract on the project, the defendant would use the plaintiff as a subcontractor. The plaintiff’s legal claim was that its bid constituted an offer to which the defendant’s agent manifested an acceptance subject only to the condition precedent that the defendant be chosen as the general contractor on the project. See generally J. Calamari & J. Perillo, Contracts (3d Ed.) §§ 11-1, 11-2, 11-5.

“A condition precedent is a fact or event which the parties intend must exist or take place before there is a right to performance. A condition is distinguished from a promise in that it creates no right or duty in and of itself but is merely a limiting or modifying factor. If the condition is not fulfilled, the right to enforce the contract does not come into existence. Whether a provision in a contract is a condition the nonfulfilment of which excuses performance depends upon the intent of the parties, to be ascertained from a fair and reasonable construction of the language used in the light of all the surrounding circumstances when they executed the contract.” (Citations omitted.)Lach v. Cahill, 138 Conn. 418, 421, 85 A.2d 481 (1951). The issue of whether or not the plaintiffs bid was the lowest simply was not an issue in this case. Instead, whether the plaintiffs bid was accepted by the defendant as alleged was the central factual and legal dispute for the jury to determine. The challenged instruction, therefore, had the effect of charging the plaintiffs theory of recovery out of the case and, under the circumstances, was tantamount to improperly directing a verdict in the defendant’s favor.

There is error, the judgment is set aside and the case is remanded for a new trial.

In this opinion the other judges concurred.

       The challenged portion of the jury instructions is as follows: “Even though an acceptance of an offer may be oral, it is still binding. It will be a question of fact for you to determine, whether [the] plaintiffs bid was the lowest at the time Mr. Emerson filed his bid with the bank. If you find that it was the lowest bid at that time, you will then consider whether Mr. Emerson had accepted the offer. If you find that it was not the lowest bid at that time, then you would find that the plaintiff had failed to prove by a fair preponderance of the evidence the material allegation of the complaint. ” (Emphasis added.)

       The defendant claims that the plaintiff’s exception to the court’s instructions was inadequate to preserve this claim of error for appellate review. We do not agree.
      After the court’s charge, the following colloquy between the plaintiff’s counsel and the court took place with respect to the challenged instruction:
      “Mr. Rozbicki: Yes, Your Honor, I’m going to take exception to the Court’s charge that the defendant could only accept — I think the Court’s charge to the jury was that they could only find a contract if the defendant accepted the lowest bid, if I understood Your Honor’s—
      “The Court: Just state your exceptions.
      “Mr. Rozbicki: All right. That is my exception, because under the law—
      “The Court: No, all I want — I don’t want argument. I just want a list of your exceptions. ... I just want the exceptions by saying in failing to charge or not charging, that is the way I want the exceptions put forth. I don’t want argument on them.
      “Mr. Rozbicki: I just don’t know whether Your Honor understands my exception?

        “The Court: I understand.
      “Mr. Rozbicki: I just want to protect the record. So, you do not want to hear any comments?
      “The Court: If you have any more exceptions, I want the exceptions stated in a legal fashion.
      “Mr. Rozbicki: The exception, that the plaintiff was precluded from accepting anything less than the lowest bid I think is error because he could have created a contract.
      “The Court: All right.”
      Since the purpose of the requirement to except to the court’s charge in accordance with Practice Book § 315 is to permit the trial court seasonably to “cure any defects or ambiguities in the charge”; Thomas v. Katz, 171 Conn. 412, 414, 310 A.2d 978 (1976); Mihalek v. Cichowski, 4 Conn. App. 484, 486, 495 A.2d 721 (1985); and since the plaintiff raised his claims of error to the extent permitted and desired by the trial court and sufficiently to apprise the trial court of the claim which he now presses on appeal, we' conclude that, under these circumstances, counsel complied with the requirements of Practice Book § 315 to “state distinctly the matter objected to and the ground of objection.”
      The decision in Smith v. Czescel, 12 Conn. App. 558, 562 n.2, 533 A.2d 223 (1987), is distinguishable from this case. In Smith, the truncated exception failed to apprise the trial court adequately of the claim later urged on appeal, and, in Smith, the plaintiff’s counsel did not attempt to protect the record further for appeal after first being cut short by the trial court. Here, by contrast, the plaintiff’s counsel was persistent, and did make as adequate an exception as was possible under the circumstances.

       We note that later in its instructions the court did properly charge on the principles applicable to a condition precedent, when the court instructed the jury as follows:
      “In this case, [the] plaintiff claims that the acceptance of the bid was subject to a condition. That condition was that the defendant’s proposal to perform the work for the bank had to be accepted. If the defendant’s proposal was accepted, then the plaintiff would perform the plumbing and heating work on the bank.”
      Shortly thereafter, the court also adequately instructed the jury on the principles of acceptance in the context of subcontractor and general contractor bidding as follows:
      “An invitation to bid or a request to a subcontractor to submit a bid is not an offer or a contract but, rather, an invitation to the subcontractor to make an offer. Accordingly, the submission of a bid by a subcontractor gives rise to no rights on his part, unless and until the bid is accepted by the general contractor.
      “Accordingly, if you find from the evidence that the only communication from the defendant to the plaintiff was to invite the submission of the bid for the plumbing and heating work in connection with the Salisbury Bank job, you would not find a basis from that evidence alone that the defendant made an offer to anyone, including the plaintiff, to enter into a contract. This in and of itself would not be the basis for you to find a contract, unless the defendant accepted the plaintiff’s bid as a condition of his bid on the contract of the Salisbury Bank job.”
      While we recognize that a jury charge need not be perfect; Novella v. Hartford Accident & Indemnity Co., 163 Conn. 552, 570, 316 A.2d 394 (1972); we cannot say that the court’s later instructions sufficiently corrected its earlier misstatement of the law. The jury was still told that the plaintiff could not prevail, and that the issue of whether the defendant had accepted the plaintiffs offer need not be considered, unless the jury first found the plaintiffs bid to be the lowest. Under the circumstances of this case, the court effectively precluded the jury from considering its later instructions on acceptance and conditions precedent. Consequently, we cannot say that the charge, as a whole, fairly presented the case to the jury in such a way that injustice was not done to the plaintiff under the established rules of law, because the charge failed to assist the jury in applying the law correctly to the facts which they might reasonably have found to have been established. Id.

         The plaintiff’s remaining claims of error are not likely to recur at the new trial. Accordingly, we need not address them.
      In its brief, the defendant presents an alternate ground upon which the judgment may be affirmed, namely, that the evidence was insufficient to support a finding that a contract existed between the parties. There is, however, sufficient evidence in the record which, if believed by the jury, would support the plaintiffs claim that a contract subject to a condition precedent had been formed.


source: Caselaw Access Project

author: Spallone, J.

license: Public Domain

text:
    Beverly C. Oneglia v. Raymond R. Oneglia
    (5629)
    Spallone, Daly and Norcott, Js.
    Argued January 12
    decison released April 26, 1988

      Steven H. Levy, for the appellant (plaintiff).

      Joseph J. Gallicchio, for the appellee (defendant).
   Spallone, J.

The plaintiff appeals from the decision of the trial court denying her motion to open the judgment previously rendered in a dissolution action.

The plaintiff claims the trial court erred (1) in prohibiting her from calling the defendant to the witness stand during the hearing on the motion to open, and (2) in prohibiting her from obtaining discovery of the defendant’s assets in order to determine whether the defendant had fraudulently misrepresented his financial position. We find no error.

The following facts are not in dispute. A final judgment dissolving the marriage of the parties was rendered on April 15, 1986. The judgment incorporated, by mutual assent, all the terms and conditions of a separation agreement previously entered into by the parties on February 7,1986. On July 30,1986, the plaintiff filed a motion to open the judgment, alleging that there was a discrepancy between the financial statement supplied to her by the defendant during settlement negotiations, and the sworn financial affidavit submitted to the court by the defendant on the day of the dissolution hearing. The financial affidavit filed with the court, the plaintiff claimed, disclosed an additional source of gross income in the amount of $634 per week, which had not been included on the statement the defendant had given her earlier. The plaintiff asked that the court open the April 15 judgment and allow her “adequate time for complete discovery.”

Approximately two months after filing her motion to open, the plaintiff filed a motion for disclosure and production. The defendant filed an objection to the request for discovery and the parties appeared before the court on October 27,1986, to argue the discovery motion. The court, Moraghan, J., postponed the decision on the motion for discovery, scheduling another hearing for October 30 for the purpose of determining whether the plaintiff possessed enough preliminary evidence on the question of fraud to justify a full-blown discovery process. Prior to the hearing on October 30, the plaintiff served the defendant with a subpoena duces tecum and the defendant responded by filing a written objection with the court on the morning of the hearing.

At the October 30 hearing, the plaintiff called the defendant as the first witness. The court sustained the defendant’s objection to the subpoena and, instead, the plaintiff was called to the stand. The plaintiff testified that during the negotiations preceding the drafting of the February 7 settlement agreement, the defendant had supplied her with a copy of a recently completed bank loan application which represented his assets and liabilities. The plaintiff further testified that she had believed that document to be a complete and accurate accounting of the defendant’s financial status at that time, and that she had relied on those representations when assenting to the separation agreement. It was not until after the judgment of dissolution was entered that the plaintiff discovered the discrepancy in gross income and also that the defendant had failed to include his interest in a pension plan in the sworn financial affidavit.

At the conclusion of the plaintiff’s testimony, the court found that the plaintiff had not put forth sufficient indicia of fraud to justify an opening of the judgment and further discovery. The court therefore granted the defendant’s motion to quash the subpoena and denied the plaintiff’s motion to open.

Initially, we note the unique procedural posture of this case. The crux of the plaintiff’s claims on appeal is that she had a right to conduct discovery and to compel the defendant to testify, based only on her filing of a motion to open. This is clearly an incorrect premise; until the court acts on a motion to open, the earlier judgment is still intact and neither our rules of practice nor our statutes provide for such a thing as post-judgment discovery. The trial court’s position on these motions was straightforward: If the plaintiff was able to substantiate her allegations of fraud beyond mere suspicion, then the court would open the judgment for the limited purpose of discovery, and would later issue an ultimate decision on the motion to open after discovery had been completed and another hearing held. Because here the court found that the plaintiff did not meet the threshold requirement of substantiating her allegations of fraud, our function on appeal is solely a determination of whether the court abused its discretion in so finding.

The plaintiff claims that there were two frauds perpetrated by the defendant, one on her and one on the court. The first, the discrepancy in the gross income figures, could not have been a fraud on the court because the defendant accurately represented the higher income in the documents filed with the court; it was only the plaintiff who could have been misled. Conversely, the second claim of fraud, the failure of the defendant to include his interest in a pension plan on the financial affidavit, was only a misrepresentation to the court; the plaintiff testified that she had been aware of the pension plan at all times.

Here, we are confronted with allegations of fraud which the trial court found did not exist. Prior to the entry of the final judgment, the plaintiff chose to rely on a financial statement that the defendant had submitted to a bank in conjunction with an application for a loan. Such a statement is a very different accounting from that required by the court in a financial affidavit filed in conjunction with a dissolution. Financial statements submitted to banks are limited to a listing of assets and liabilities and do not contain any provisions for listing basic expenses such as food, utilities, medical and dental insurance or costs, child support, clothing and other items of everyday living. Loan officers are concerned with an applicant’s net worth and not with his, or her, everyday expenditures. The plaintiff’s decision to rely on a financial statement issued to a bank hardly constitutes fraud on the part of the defendant. Nor can her assertion that the failure of the defendant to list his pension on the affidavit constitute fraud on the part of the defendant.

The plaintiff was aware of the pension and is charged with the knowledge that the additional income of $634 per week was contained in the defendant’s court-required financial affidavit. Despite the omission of the pension information and the inclusion of the additional income, the plaintiff seemingly chose not to inspect the affidavit thoroughly or to question its accuracy, and agreed to the entry of judgment which incorporated the separation agreement previously entered into by the parties.

The trial court, after hearing the testimony of the plaintiff, expressly found that she knew of the defendant’s pension plan and, despite the fact that she may not have known the extent of the defendant’s equity in the plan, she took no steps to secure the information and allowed the court to rely on the affidavit as presented. Furthermore, the court expressly found that there was no evidence of fraud presented by the plaintiff to warrant the opening of the judgment. There is no indication that the court abused its discretion in making these findings.

In family matters, the court exercises its equitable powers. The balancing of equities is a matter which falls within the discretion of the trial court. Kakalik v. Bernardo, 184 Conn. 386, 395, 439 A.2d 1016 (1981). For that reason, equitable remedies are not bound by formula but are molded to the needs of justice. Hebrew University Assn. v. Nye, 26 Conn. Sup. 342, 348-49, 223 A.2d 397 (1966). “ ‘The scope of our review of a trial court’s exercise of its broad discretion in domestic relations cases is limited to the questions of whether the trial court correctly applied the law and could reasonably have concluded as it did. Leo v. Leo, 197 Conn. 1, 4, 495 A.2d 704 (1985); Rose v. Rose, 10 Conn. App. 391, 393, 523 A.2d 914 (1987).’ Voloshin v. Voloshin, 12 Conn. App. 626, 629, 533 A.2d 573 (1987).” Crocker v. Crocker, 13 Conn. App. 129, 132, 534 A.2d 1251 (1987).

There is no error.

In this opinion the other judges concurred.

       During the course of the hearing, the court stated that it would treat the defendant’s objection as a motion to quash the subpoena.

       General Statutes § 52-197 (a) provides in relevant part: “In any civil action, the court, upon motion of either party, may order disclosure . . . (Emphasis added.) Practice Book § 218 provides in relevant part: “In any civil action . . . where the court finds it reasonably probable that evidence outside the record will be required, a party may obtain . . . discovery of information . . . (Emphasis added.) For us to say that these provisions apply only when there is a cause of action currently pending is to state the obvious. Until and unless the trial court opened the previous judgment, there could be no “civil action” within the meaning of General Statutes § 52-197 or Practice Book § 218.


author: Foti, J.

text:
    State of Connecticut v. Monica Golding
    (5107)
    Dupont, C. J., Stoughton and Foti, Js.

      Argued November 6, 1987
    decision released May 3, 1988

      Joseph G. Bruckmann, assistant public defender, with whom on the brief, was Joette Katz, public defender, for the appellant (defendant).

      Mary H. Lesser, special assistant state’s attorney, with whom, on the brief, were Alan Reisner and James G. Clark, assistant state’s attorneys, for the appellee (state).
   Foti, J.

The defendant appeals from the judgment of conviction after a jury trial, of larceny in the second degree in violation of General Statutes § 53a-123 (a) (4), and of general assistance fraud in violation of General Statutes § 17-282. The defendant raises the following claims on appeal: (1) her rights not to be placed in jeopardy twice under the fifth and fourteenth amendments to the United States constitution were violated by trying her for violation of two statutes which constitute a single offense; (2) Public Acts 1984, No. 84-471, which amended General Statutes § 17-282, is unconstitutionally vague; (3) the judgment of conviction for the offense of general assistance fraud was improper because the court failed to give instructions on an essential element of the offense; (4) she was deprived of her constitutional right to a unanimous jury verdict; and (5) her due process rights were violated by the order of restitution as a condition of her probation. We find no error.

From the evidence presented, the jury could reasonably have found the following facts. On September 8, 1983, the defendant signed, under oath, a statement of her rights and responsibilities as applicant for public assistance. The first paragraph of that form states: “I agree to notify the Town Welfare Department of any changes in my income, assets and changes in any other information furnished in this application.” On November 7,1983, the defendant informed her social worker in the department of social services that eight people were living with her. As a result, her assistance was reduced from $266.65 to $33.15 per month. On December 27, 1983, after she informed the social worker that there were only three people living in her household, the defendant’s monthly allotment was increased to $262.70 from that date until July 3,1984. She also signed eligibility forms in March, May and July, 1984, which indicated that there were three occupants in her apartment and that she had no outside income. Between December 27, 1983, and July 31, 1984, the defendant failed to tell her social worker that she was receiving income from an independent source.

The benefits the defendant received from January, 1984, through July, 1984, therefore, were based on the representation that the defendant had three occupants living with her and no outside income. During that period of time, there were nine people living in the defendant’s apartment. During June and July of 1984, the defendant received income from a private source in the amount of $610.50. The difference between the amount the defendant was paid by the city from January through July of 1984, and the amount she was entitled to for that period was $877.90.

The defendant received a sentence of eighteen months suspended with three years of probation on the charge of larceny, and one year suspended with three years of probation on the charge of general assistance fraud. The sentences were concurrent and there were two conditions of probation: restitution in the amount of $877.90, and 200 hours of community service.

I

The defendant’s first claim is that by imposing multiple punishments for two offenses that arose from a single transaction her constitutional protection against being placed in double jeopardy was violated. The defendant was charged by information with violating General Statutes §§ 17-282 and 53a-123 (a) (4). By an amended bill of particulars, it was specified that she violated General Statutes § 17-282 when she “defrauded and assisted in defrauding the city of Hartford in obtaining support from said city.” The amended bill of particulars also specified that she violated of General Statutes § 53a-123 (a) (4) when, “with intent to appropriate property to herself she wrongfully obtained such property from the city of Hartford.”

The double jeopardy clause of the fifth amendment to the United States constitution and article I, § 8, of the Connecticut constitution protects against multiple punishments for the same crime. Brown v. Ohio, 432 U.S. 161, 165, 97 S. Ct. 2221, 53 L. Ed. 2d 187 (1977); State v. Wright, 197 Conn. 588, 592, 500 A.2d 547 (1985). “This clause ‘ “prohibits not only multiple trials for the same offense but also multiple punishments for the same offense. Brown v. Ohio, [supra]; State v. Devino, 195 Conn. 70, 73, 485 A.2d 1302 (1985) “Double jeopardy analysis in the context of a single trial is a two-step process. First, the charges must arise out of the same act or transaction. Second, it must be determined whether the charged crimes are the same offense. Multiple punishments are forbidden only if both conditions are met.” ' ” (Citations omitted.) State v. Palmer, 206 Conn. 40, 51-52, 536 A.2d 936 (1988), quoting State v. Boucino, 199 Conn. 207, 222, 506 A.2d 125 (1986).

The test for whether multiple punishments are permitted “where the same act or transaction constitutes a violation of two distinct statutory provisions . . . is whether each provision requires proof of a fact which the other does not.” Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932). “This test is applied with reference to the bill of particulars or charging documents.” State v. Trujillo, 12 Conn. App. 320, 336, 531 A.2d 142 (1987).

Larceny in the second degree requires specific intent to deprive another of property permanently. State v. Raffone, 161 Conn. 117, 127-28, 285 A.2d 323 (1971); see State v. Perez, 181 Conn. 299, 435 A.2d 334 (1980). General assistance fraud does not require the permanent deprivation of property. One of the elements of general assistance fraud is that the fraudulently obtained funds be used in “support for any person not entitled to” the funds. Larceny in the second degree does not contain such an element. The amended bill of particulars in this case specifies as to the larceny count that the defendant intended to appropriate property to “herself,” whereas no such requirement exists for the count of general assistance fraud. Therefore, the test for whether multiple punishments are permitted under Blockburger has been met. It is possible to commit one of the offenses in the manner described in the bill of particulars without first having committed the other offense.

Although both offenses charged in the information and described by the amended bill of particulars arose out of the same transaction, they constitute two separate offenses. Thus, the defendant may be punished for each offense without violating her constitutional protection against double jeopardy.

II

The defendant claims that General Statutes § 17-282, as amended by Public Acts 1984, No. 84-471, § 1, is unconstitutionally vague because the statute does not provide for the penalty for the crime of general assistance fraud within its specific term, so that it was unclear to the defendant what penalty she could receive. In fact, the act specifically refers for the penalties for its violation to General Statutes §§ 53a-122 to 53a-125b which sections establish the penalties for larceny, depending upon the amount involved. The defendant violated the public act and became subject to the penalties it imposed. The trial court committed no error in sentencing the defendant under Public Acts 1984, No. 84-471, § 1.

Ill

The defendant next claims the court erred in failing to instruct the jury that they must find the precise sum involved in order to convict for general assistance fraud, in violation of General Statutes § 17-282 and Public Acts 1984, No. 84-471, § 1. The defendant neither requested a charge on the “amount involved” nor objected after the jury was instructed. She therefore seeks review under State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973). Before an Evans review can proceed, each of the following questions must be answered affirmatively: (1) does the defendant raise an issue which, by its terms, implicates a fundamental constitutional right? (2) does a limited review of the record show that the defendant’s claim is truly of constitutional proportions and not simply characterized as such by the defendant? (3) was there, in fact, based on the record, a deprivation of a constitutional right of a criminal defendant? and (4) did the deprivation deny the defendant a fair trial, thereby requiring that the conviction be set aside? State v. Foshay, 12 Conn. App. 1, 23, 530 A.2d 611 (1987); State v. Thurman, 10 Conn. App. 302, 306-307, 523 A.2d 891, cert. denied, 204 Conn. 805, 528 A.2d 1152 (1987).

Although the defendant’s claim that the court failed to instruct the jury adequately on an essential element of the crime charged satisfies the first requirement of Evans, her claim cannot meet the second requirement. A review of the record does not show the defendant’s claim to be truly of constitutional proportions, but is simply characterized by her as such. The trial court instructed adequately as to the elements of the offense charged, which does not include the penalty provision. That penalty provision, which depends upon “the amount involved,” does not change the elements of the offense.

IV

The defendant next claims that the court erred in its instructions to the jury on the element of defrauding a public community thereby depriving the defendant of a unanimous verdict on each of the two counts. Although the defendant raised no objection to the jury instruction, nor requested a different charge, we will review this claim under the Evans bypass rule. State v. Jackson, 13 Conn. App. 288, 294, 535 A.2d 1327 (1988).

The court instructed the jury that a person can be found guilty of larceny if “a person is guilty of defrauding a public community who files a claim for benefits which he knows is false, or knowingly accepts the benefits from a claim which he knows is false.” The court then instructed the jury that the same element of defrauding a public community should be applied to the offense of general assistance fraud. The defendant seeks to have both convictions reversed.

Jurors should be instructed that they must unanimously agree on the same alternative where a trial court charges a jury that the commission of any one of several alternative actions would subject a defendant to criminal liability, and those actions are conceptually distinct from each other, and the state has presented some evidence supporting each alternative. State v. Benite, 6 Conn. App. 667, 674-75, 507 A.2d 478 (1986).

The state’s theory at trial was that both acts constituted a single larceny or fraud, and that the jury had to find that both acts were committed before finding the defendant guilty. The evidence presented at trial demonstrated that the defendant accepted benefits based on two separate acts: an affirmative false statement regarding the number of occupants; and the failure to inform the city regarding the income she derived through her employment. Both of these nondisclosures resulted in a total larceny in the amount of $877.90. No evidence was presented or elicited as to the specific amounts for each act which may have constituted a separate larceny.

Although the court did, in reading the definitional portion of the statute, use the disjunctive “or”; General Statutes §§ 53a-119 (6) (1) and 53*119 (6) (2); in its instruction, it also adopted the state’s claim in its charge that in order to find the defendant guilty of the larceny, the jury must find that the defendant had committed both acts, not either. The court instructed: “It is the state’s claim, that the information if received was not true, and that the occupants, instead of being three as were related in the form were nine, and that the defendant had some earned income during the months of June and July, which she did not report to the City of Hartford or Mr. Chasse. The state claims that had the correct information been known, she would have received a lesser amount of money, and that by not receiving that information, she got eight hundred and some dollars more than she should have got.” (Emphasis added.)

The court instructed further: “Now, ladies and gentlemen, if your recollection deals with some utility bills, or if your recollection deals with whether or not utilities were included in the rental, and that there was a failure to disclose when there should have been disclosure, and there was money received that should not have been received, the same rationale would apply that would apply to the number of occupants and to the failure to disclose income if that were the case.” (Emphasis added.)

We must consider the trial court’s instruction to the jury as a whole. A single instruction to the jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge. State v. Truppi, 182 Conn. 449, 458, 438 A.2d 712 (1980), cert. denied, 451 U.S. 941, 101 S. Ct. 2024, 68 L. Ed. 2d 329 (1981). Viewed as a whole, the court’s charge to the jury made it clear that it was the jury’s duty to determine whether the state had met its burden on every element of the crime charged beyond a reasonable doubt, and that both acts, the affirmative false statement and the failure to inform the city of the additional income, were required to be so proven, as an element of both crimes. Read as a whole, the instruction was consistent with the theory of trial that the defendant had committed a single crime which defrauded the city of $877.90.

V

The defendant’s last claim is that the condition of probation requiring her to make restitution in the amount of $877.90 is unconstitutional under the fourteenth amendment to the United States constitution and article I, § 8, of the Connecticut constitution. We disagree.

The defendant contends that the jury might not have agreed that the defendant obtained $877.90 by defrauding the city of Hartford, and that the amount of restitution ordered was therefore arbitrary. The jury’s responsibility is limited to the application of the law as charged to the facts as are found, to determine guilt or innocence. The jury was not involved in sentencing and it is irrelevant whether the jury found that restitution in a particular amount was reasonable. It is the responsibility of the sentencing judge to impose a penalty within the statutory limits. A sentence which is within statutory limits is not generally subject to modification by a reviewing court. United States v. Bernard, 757 F.2d 1439, 1444 (4th Cir. 1985); State v. Huey, 199 Conn. 121, 126, 505 A.2d 1242 (1986); State v. Nardini, 187 Conn. 109, 119, 445 A.2d 304 (1982). Within these limits, the court has wide discretion which includes requiring the making of restitution as a condition of probation. General Statutes § 53a-30 (a) (4); State v. Waterman, 7 Conn. App. 326, 352, 509 A.2d 518, cert. denied, 200 Conn. 807, 512 A.2d 231 (1986).

“The trial court’s discretion, however, is not completely, unfettered. As a matter of due process, information may be considered as a basis for a sentence only if it has some minimal indicium of reliability. United States v. Baylin, 696 F.2d 1030, 1040 (3d Cir. 1982). As long as the sentencing judge has a reasonable, persuasive basis for relying on the information which he uses to fashion his ultimate sentence, an appellate court should not interfere with his discretion.” (Citations omitted.) State v. Huey, supra, 127.

There was evidence at the trial, including the testimony of the welfare worker and the welfare checks themselves, that the total overpayment to the defendant amounted to $877.90. We conclude the amount of restitution ordered was related to the offense and had sufficient indicia of reliability to satisfy due process.

There is no error.

In this opinion the other judges concurred.

       General Statutes (Rev. to 1983) § 17-282 provides: “penalty for fraud OR deception. Any person who defrauds or assists in defrauding any town as to the support of its paupers, or deceives the selectmen thereof in obtaining support for any person not entitled to the same, shall be fined not more than one thousand dollars or imprisoned not more than one year or both.”

       General Statutes § 53a-123 provides: “larceny in the second degree: class C felony, (a) A person is guilty of larceny in the second degree when he commits larceny as defined in section 53a-119 and . . . (4) the property is obtained by defrauding a public community, and the value of such property is two thousand dollars or less.”

       General Statutes § 53a-118 (a) (3) defines “deprive” as: “(A) to withhold it or cause it to be withheld from him permanently or for so an extended a period or under such circumstances that the major portion of its economic value or benefits is lost to him; or (B) to dispose of the property in such manner or under such circumstances as to render it unlikely that an owner will recover such property.”

       Public Acts 1984, No. 84-471 provides: “an act concerning the penalty FOR GENERAL ASSISTANCE FRAUD AND DISTRIBUTION OF FUNDS FOR EMERGENCY SHELTER SERVICES.
      “Section 1. Section 17-282 of the general statutes is repealed and the following is substituted in lieu thereof:
      “Any person who defrauds or assists in defrauding any town as to the support of its paupers, or deceives the selectmen thereof in obtaining support for any person not entitled to the same, shall be [fined not more than one thousand dollars or imprisoned not more than one year or both] SUBJECT TO THE PENALTIES FOR LARCENY UNDER SECTIONS 53a-122 TO 53a-125b, INCLUSIVE, DEPENDING ON THE AMOUNT INVOLVED.”
      The defendant concedes that the act is not unconstitutionally vague on grounds that it fails to specify the applicable sentence for a course of conduct commencing prior to July 1, 1984, and ending after that date.

       General Statutes § 53a-119 (6) provides in relevant part: “A person is guilty of defrauding a public community who (1) authorizes, certifies, attests or files a claim for benefits or reimbursement from a local, state or federal agency which he knows is false; or (2) knowingly accepts the benefits from a claim he knows is false . . . .”

       General Statutes § 53a-30 provides: “conditions of probation and conditional discharge, (a) When imposing sentence of probation or conditional discharge, the court may, as a condition of the sentence, order that the defendant: . . . (4) make restitution of the fruits of his offense or make restitution, in an amount he can afford to pay or provide in a suitable manner, for the loss or damage caused thereby and the court may fix the amount thereof and the manner of performance. . . .”


author: Bieluch, J.

text:
    Lawrence P. Czajkowski v. Planning and Zoning Board of the City of Milford et al.
    (5401)
    Dupont, C. J., Bieluch and Foti, Js.
    Argued January 14
    decision released May 3, 1988

      Bruce L. Levin, for the appellant (named defendant).

      Thomas J. Ryan, with whom was John M. Claydon, Jr., for the appellee (plaintiff).
   Bieluch, J.

The defendant planning and zoning board of the city of Milford (board) appeals from the judgment of the trial court sustaining the plaintiffs appeal from the board’s decision approving an application to subdivide certain property of the defendant Michael Kivic which abuts land owned by the plaintiff. The trial court found that one of the two lots created by the division of the property did not comply with the minimum requirements of the city’s zoning regulations for lot width. The board claims in this appeal that the court misinterpreted and misapplied the applicable zoning regulations, and thereby erred in sustaining the plaintiff’s appeal. We find no error.

The following undisputed facts are relevant to this appeal. On January 16, 1985, the defendant board approved a two lot subdivision of an “L” shaped piece of property running between Orange Avenue and Stiles Street in Milford. Lot No. 1 of the proposed subdivision has an area of 18,605 square feet, a frontage on Orange Avenue of 111.20 feet and a depth of approximately 162 feet. Lot No. 2 of the proposed subdivision has an area of 32,438 square feet and the following dimensions: north-204.52 feet; east-228.52 feet; south-71.34 feet on Stiles Street and 115.74 feet on adjoining property; and west-103.05 feet on the same adjoining property and 119.76 feet on Lot No. 1, having the shape of an inverted or reverse L.

Section 3.2.9 of the zoning regulations of the city of Milford states: “Each lot shall comply with the minimum requirements of the Zoning Regulations for the Zoning District in which it is located.” The subdivision in question is located in the R-18 residential district. Section 3.1.4.1 of the zoning regulations states the minimum requirements for this district as follows: lot area-18,000 square feet; lot width-100 feet; and lot depth-125 feet.

The plaintiff appealed to the trial court as an abutting owner under the provisions of General Statutes § 8-28, alleging that his property would be adversely affected and depreciated in value by the increased traffic hazards and nonconformity of the subdivision. The plaintiff claimed that the action of the board was illegal in that Lot No. 2 of the subdivision did not comply with the minimum requirements for the zoning district in which it was located.

The trial court sustained the plaintiffs appeal, finding that Lot No. 2 did not have the required lot width of 100 feet. Therefore, the lot did not comply with the minimum requirements of the zoning regulations for the R-18 district in which it was located. The board has appealed from the court’s conclusion that it had acted illegally in approving the subdivision.

The board’s sole claim on appeal is that the court misconstrued and misapplied the applicable zoning regulations in determining that Lot No. 2 did not meet the minimum requirements for lot width. Specifically, the board claims that the court erroneously measured lot width at the forty feet setback line from Stiles Street, the minimum front yard requirement, and failed to take into account the extension of the front yard to forty feet beyond the jog or projection of the adjoining land between the street and the rear portion of the lot. The board argues that the court should have measured the required lot width at a setback line delineated at forty-feet from the adjoining land projecting between the rear of Lot No. 2 and Stiles Street. This would have produced a lot width in excess of 100 feet and would have been, according to the board, a “rational result or reasonable application of the zoning regulations.”

“Lot width” is defined in § 11.2 of the Milford zoning regulations as: “The horizontal distance between side lot lines measured parallel to the street line and along the building setback line for the front yard.” The “building setback line” is defined also in the same section of the zoning regulations as: “The line within a lot defining the minimum required horizontal distance between the principal building or use to be erected and an adjacent street or lot line.” “Front yard” is defined also in § 11.2 as: “An open, unoccupied space extending across the full width of the lot between the front wall of the principal building and the street line. The depth of the required front yard shall be measured horizontally from and perpendicular to the nearest point of the front lot line toward the nearest part of the building on the lot.” (Emphasis added.) Section 3.1.4.1 of the zoning regulations sets the minimum requirement for the front yard or building setback line in Zone R-18 as forty feet, and for the lot width as one hundred feet, to be measured at the required minimum building setback line of forty feet.

The trial court found that the width of Lot No. 2 on the proposed subdivision as measured by the requirements of the zoning regulations was approximately 71.34 feet, the length of the frontage on Stiles Street, and was, therefore, insufficient to qualify as a subdivision lot. Under the zoning regulations, the front yard definition states that the front yard is that space between the front wall of the building and the street line for the full width of the lot. Therefore, if the front yard is of sufficient width between the building and the street line, the lot is conforming. Because the proposed building line of Lot No. 2 was set at approximately 143 feet from the street line, or forty feet from where the rear width of the lot extended to more than 100 feet, the front yard was not for the full width of the lot as required by the definition. This would allow the creation of a lot with a nonconforming front yard.

The trial court did not err in its interpretation of the zoning regulations in question, or in its application of this interpretation to the facts of this case. The board urges us to find that Lot No. 2 meets the requirement for lot width in that the property is more than 100 feet wide along the building setback line as this line was defined by the board. This position completely ignores these words of the definition of lot width in the zoning regulations: “The horizontal distance . . . measured . . . along the building setback line for the front yard” (Emphasis added.) The building setback line is defined as “the line within a lot defining the minimum required horizontal distance between the principal building or use to be erected and an adjacent street or lot line.” The minimum requirement for the front yard according to the zoning regulations is forty feet. It is impossible to measure the lot width requirement here without taking into account the front yard definition of “open, unoccupied space extending across the full width of the lot” at the “minimum building setback line” of forty feet. The court correctly did so, measuring the width of the lot at the minimum setback or front yard line of forty feet from the street line. The court’s conclusion that at this point the width of Lot No. 2 was less than the required minimum of 100 feet is clearly supported by the record.

The Milford zoning regulations must be interpreted in light of our ordinary rule that “ ‘[wjhere the language of the statute is clear and unambiguous, the courts cannot, by construction, read into statutes provisions which are not clearly stated.’ Point O’Woods Assn., Inc. v. Zoning Board of Appeals, 178 Conn. 364, 366, 423 A.2d 90 (1979). ‘A zoning ordinance is a local legislative enactment, and in its interpretation the question is the intention of the legislative body as found from the words employed in the ordinance. . . . The words employed are to be interpreted in their natural and usual meaning.’ (Citations omitted.) Lawrence v. Zoning Board of Appeals, 158 Conn. 509, 511, 264 A.2d 552 (1969).” Harlow v. Planning & Zoning Commission, 194 Conn. 187, 193-94, 479 A.2d 808 (1984). “Construction of zoning regulations is a regular function of the courts. See, e.g., Pascale v. Board of Zoning Appeals, 150 Conn. 113, 116, 186 A.2d 377 (1962). The full panoply of principles of statutory construction are available to aid in the construction of local ordinances. Manchester v. Manchester Police Union, 3 Conn. App. 1, 6, 484 A.2d 455 (1984); see Shelby Mutual Ins. Co. v. Della Ghelfa, 3 Conn. App. 432, 489 A.2d 398 (1985), [aff’d, 200 Conn. 630, 513 A.2d 52 (1986)].” East Lyme v. Waddington, 4 Conn. App. 252, 259 n.2, 493 A.2d 903 (1985).

A general rule of interpretation of zoning regulations is that the language used in the ordinance should be examined in light of other provisions in the ordinance. Pascale v. Board of Zoning Appeals, supra, 117. “It is a standard rule of construction that, ‘whenever feasible, the language of an ordinance will be construed so that no clause is held superfluous, void or insignificant.’ Planning & Zoning Commission v. Synanon Foundation, Inc., 153 Conn. 305, 309, 216 A.2d 442 [1966].” Melody v. Zoning Board of Appeals, 158 Conn. 516, 521, 264 A.2d 572 (1969).

In light of these principles of construction, the trial court properly held that “the definition of ‘front yard’ is integral in reaching a correct interpretation of the definition of ‘lot width.’ ” The trial court did not err in defining the width of Lot No. 2 in this context. The trial court applied the applicable zoning regulations in conjunction with each other and interpreted the language of the relevant zoning requirements in their natural and usual meaning.

There is no error.

In this opinion the other judges concurred.

       The other defendants involved in this action were Michael Kivic, the owner of the property in question, and William R. Towle and Joseph Duhamel, the applicants for permission to subdivide Kivic’s property. None of these defendants is involved in this appeal by the named defendant-.


author: Dupont, C. J.

text:
    Michael Fazio et al. v. Carrie Brown et al.
    (5061)
    Dupont, C. J., Borden and O’Connell, Js.
    Argued December 3, 1987
    decision released May 3, 1988

      Gregory P. Lynch, with whom, on the brief, was Theodore R. Tyma, for the appellants (defendants).

      Salvatore C. DePiano, with whom was Bryan Gentile and, on the brief, Edward F. Czepiga II, for the appellees (plaintiffs).
   Dupont, C. J.

The defendants appeal from the judgment of the trial court which set aside the jury’s verdict for the named minor plaintiff as inadequate and ordered a new trial limited to the issue of damages, after the plaintiff refused to accept an additur. We find no error.

The plaintiffs, Michael Fazio, a minor, and his father, Vincent Fazio, brought suit against the defendants in two counts. In the first count, Michael Fazio sought to recover damages for personal injuries he sustained as a result of a collision between the motorcycle he was operating and an automobile operated by the named defendant. The second count of the complaint sought past and future medical expenses incurred by Vincent Fazio on behalf of his son. The defendants denied being negligent and, by way of a special defense, alleged that the plaintiff was contributorily negligent.

The jury could reasonably have found the following facts. On January 28,1980, the plaintiff, Michael Fazio, a fourteen-year-old high school student, was riding a motorcycle when he was struck by an automobile operated by the defendant. Fazio had been riding his motorcycle along a grassy area adjacent to the road, causing him to traverse the entrances to several driveways. The accident occurred as Brown was turning into the driveway of her residence. There was disputed testimony as to whether it was completely dark at the time the accident occurred. There was no dispute, however, that at the time of the accident, Fazio was dressed in dark clothes, and that his motorcycle had neither headlights nor taillights.

As a result of the accident, Fazio suffered a severe injury to his left leg, which injury was diagnosed as an open comminuted fracture of the tibia. For approximately four years following the accident, he was required to wear a protective brace on his leg. During this time period, the wounds to his leg continually excreted fluids of a malodorous nature. As a result of the accident, Fazio’s left leg is approximately one and one-quarter inches shorter than his right leg, resulting in a permanent limp. There was uncontroverted testimony that Fazio suffered a 65 percent permanent disability of his left leg, correlating to a 25 percent disability of his whole body.

The jury returned a verdict on the first count of the complaint in favor of the minor plaintiff in the amount of $15,570. The jury found the plaintiff Michael Fazio to be 30 percent contributorily negligent, and reduced the award to $10,899.

The named plaintiff subsequently filed a motion for additur and a motion to set aside the verdict. Ruling from the bench, the court stated that it found the award on the first count to be so inconsistent with the injuries suffered as to constitute "manifest injustice,” and that the verdict shocked the conscience of the court. The court, accordingly, granted the motion for additur and increased the award to the named plaintiff on the first count to $136,000, resulting in a net verdict of $95,200 because Michael Fazio’s contributory negligence equaled 30 percent. The court further ordered that if both parties did not accept the additur, the court would set aside the verdict on the first count as to damages only and order a new trial on the issue of damages.

The named plaintiff did not accept the additur and the court granted his motion to set aside the verdict as to the first count of the complaint. A new trial was ordered solely on the issue of damages. The defendants claim that the trial court (1) abused its discretion in setting aside the jury verdict as inadequate, and (2) erred in ordering a new trial limited solely to the issue of damages.

“There are serious constitutional issues posed by setting aside a jury verdict. This is so because ‘ “[ljitigants have a constitutional right to have issues of fact decided by the jury.” Bambus v. Bridgeport Gas Co., 148 Conn. 167, 169, 169 A.2d 265 (1961). “The right to a jury trial is fundamental in our judicial system, and . . . the right is one obviously immovable limitation on the legal discretion of the court to set aside a verdict, since the constitutional right of a trial by jury includes the right to have issues of fact as to which there is room for reasonable difference of opinion among fair-minded men passed upon by the jury and not by the court.” Camp v. Booth, 160 Conn. 10, 13, 273 A.2d 714 (1970); Jacobs v. Goodspeed, 180 Conn. 415, 429 A.2d 915 (1980); Gosselin v. Perry, 166 Conn. 152, 168, 348 A.2d 623 (1974).’ ” Zarrelli v. Barnum Festival Society, Inc., 6 Conn. App. 322, 326, 505 A.2d 25, cert. denied, 200 Conn. 801, 509 A.2d 516 (1986), quoting Barbieri v. Taylor, 37 Conn. Sup., 1, 2, 426 A.2d 314 (1980).

“A court should be especially hesitant to set aside a jury’s award of damages .... The assessment of damages ‘defies any precise mathematical computation’; Floyd v. Fruit Industries, Inc., 144 Conn. 659, 675, 136 A.2d 918 (1957); and, therefore, establishing damages . . . is a task peculiarly within the expertise of a jury.” Zarrelli v. Barnum Festival Society, Inc., supra, 326.

“Once a trial court has acted to set aside a jury’s verdict, however, its decision is entitled to great weight. Hearl v. Waterbury YMCA, 187 Conn. 1, 3, 444 A.2d 211 (1982). ‘This is so because “[f]rom the vantage point of the trial bench, a presiding judge can sense the atmosphere of a trial and can apprehend far better than [an appellate court] can, on the printed record, what factors, if any, could have improperly influenced the jury.” Birgel v. Heintz, 163 Conn. 23, 26, 301 A.2d 249 (1972).’ Zarrelli v. Barnum Festival Society, Inc., supra, 327. Accordingly, our function on appeal is to determine whether the trial court’s decision to set aside the jury verdict constituted a ‘ “clear abuse of discretion.” ’ Gerrety Co. v. Palmieri, 11 Conn. App. 226, 230, 526 A.2d 555 (1987).” Creem v. Cicero, 12 Conn. App. 607, 610, 533 A.2d 234 (1987).

“The standard of review for an appellate court in a case like this was first stated in Briggs v. Becker, 101 Conn. 62, 66-67, 124 A. 826 (1924). ‘[T]he 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.’ It is important to note that Briggs and the cases that have followed, do not require a direct showing of partiality, prejudice, mistake or corruption, but rather stand for the proposition that if 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.” (Footnote omitted.) Zarrelli v. Barnum Festival Society, Inc., supra, 327-28.

We conclude that the trial court did not abuse it discretion in setting aside as inadequate the jury’s verdict on the first count. The severity of the injuries suffered by Michael Fazio was not disputed and the severity was, in fact, admitted at trial several times by the defendants.

In this case, there was an “objectively ascertainable catastrophic injury”; Shea v. Paczowski, 11 Conn. App. 232, 235, 526 A.2d 558 (1987); admitted by the defendants and supported by uncontroverted evidence. Given the undisputed evidence as to the duration, extent and permanency of Michael Fazio’s injuries, the trial court did not abuse its discretion in finding that the jury’s verdict shocked the court’s sense of justice and was entirely disproportionate to the injury. Id., 233; Mulcahy v. Larson, 130 Conn. 112, 114, 32 A.2d 161 (1943).

The defendants do not only claim that the verdict could not have shocked the court’s sense of justice. They also urge this court to find that the action of the trial court in setting aside the jury verdict violated their constitutional right to have issues of fact decided by a jury. While we recognize, as we observed earlier, that “the right [to a jury trial] is one obviously immovable limitation on the legal discretion of the court to set aside a verdict”; Zarrelli v. Barnum Festival Society, Inc., supra, 326; it is not an absolute limitation. “ ‘[I]t is the court’s duty to set aside the verdict when it finds that “it does manifest injustice, and is . . . palpably against the evidence . ... ” State v. Chin Lung, 106 Conn. 701, 704, 139 A.2d 91 (1927).’ ” Zarrelli v. Barnum Festival Society, Inc., supra, 327, quoting Barbieri v. Taylor, supra, 3. Here, the court did not improperly trespass on the province of the jury.

The defendants also claim that the trial court was without authority to order a new trial limited to the issue of damages. We disagree. Following a decision to set aside a verdict, “the trial court may restrict the new trial to a given issue or issues, and on appeal we may exercise a like discretion.” Murray v. Krenz, 94 Conn. 503, 508, 109 A. 859 (1920). A new trial may be ordered on the issue of liability only without the necessity of a trial on the issue of damages. Nash v. Hunt, 166 Conn. 418, 431, 352 A.2d 773 (1974). A new trial may also be ordered on the issue of damages after a motion to set aside the verdict as inadequate should have been granted, if the original verdict has determined liability. McNamee v. Woodbury Congregation of Jehovah’s Witness, 194 Conn. 645, 647, 484 A.2d 940 (1984); see Leabo v. Leninski, 9 Conn. App. 299, 302, 518 A.2d 667 (1986).

There is no error.

In this opinion the other judges concurred.

       Kenneth L. Brown, the husband of the named defendant, is the owner of the automobile and was also named as a defendant.

       The trial court set aside the jury’s verdict as to the first count of the plaintiffs’ complaint. The trial court did not disturb the jury’s verdict as to the second count of the complaint, which count is not at issue in this appeal. The jury returned a verdict on the second count in the amount of $29,000.

       General Statutes § 52-228b provides: “setting aside of verdict in action claiming money damages. No verdict in any civil action involving a claim for money damages may be set aside except on written motion by a party to the action, stating the reasons relied upon in its support, filed and heard after notice to the adverse party according to the rules of the court. No such verdict may be set aside solely on the ground that the damages are excessive unless the prevailing party has been given an opportunity to have the amount of the judgment decreased by so much thereof as the court deems excessive. No such verdict may be set aside solely on the ground that the damages are inadequate until the parties have first been given an opportunity to accept an addition to the verdict of such an amount as the court deems reasonable.”


text:
    Victor Hurtado v. Sara M. Hurtado
    (4749)
    Dupont, C. J., Bieluch and Foti, Js.
    Argued January 14
    decision released May 3, 1988

      Lorraine W. Osborne, with whom, on the brief, was Brenda A. Mallick, for the appellant-appellee (defendant).

      Ernest C. LaFollette, for the appellee-appellant (plaintiff).
   Dupont, C. J.

The defendant wife appeals from the judgment rendered in this fully contested dissolution action, challenging the award of custody of the parties’ two minor children to the plaintiff husband and the subsequent denial of her request to modify the custody order. The plaintiff cross appeals, challenging the trial court’s distribution of the parties’ assets.

The court dissolved the parties’ marriage and awarded sole custody of their minor children to the plaintiff, with reasonable visitation rights in the defendant. The court did not award periodic alimony to either party, but ordered the defendant to pay support in the amount of $50 per week for each minor child. In dividing the parties’ assets upon dissolution, the trial court awarded two residential properties to the defendant, and ordered the defendant to pay to the plaintiff $25,000 for his interest in the real property. The defendant subsequently filed a motion to modify the custody order, alleging a substantial change of circumstances arising from the plaintiffs removal of the minor children from the United States. The trial court denied the defendant’s motion to modify on the grounds that the parties’ minor children were no longer in this jurisdiction, that any modification order that it might issue would be impossible to enforce, and that the defendant failed to notify the plaintiff of the modification proceedings.

The defendant has raised three claims of error on appeal. She argues that the trial court erred in relying on a family relations study and on the testimony of a family relations officer, both of which incorporated hearsay statements of a psychiatrist, and that she was denied her right to due process of law in that she was hampered in the presentation of her testimony at trial because of her alleged difficulties in speaking the English language. She also claims that the court erred in concluding that custody to the plaintiff was in the best interests of the parties’ minor children. In an amended appeal, the defendant claims that the trial court erred in denying her motion to modify the order of custody. The plaintiff, in his cross appeal, argues that the trial court erred in its distribution of the parties’ assets by awarding both residential properties, which property constituted the parties’ sole real estate, to the defendant while awarding sole custody of the minor children to the plaintiff. We find no error on the appeal, error on the amended appeal, and no error on the cross appeal.

I

We first address the evidentiary issue raised by the defendant that the trial court erred in relying on the testimony of a family relations officer and on a report prepared by him and accepted into evidence, both of which were based, in part, on the conclusions of a non-testifying psychiatrist. We are unable to review this claim on the merits because it was not properly preserved for appellate review.

The defendant avers in her brief that her counsel properly “objected to any references to testimony about [the psychiatrist’s] report and to any reliance by the court on the family relations study which was based on the [psychiatrist’s] report.” The defendant has neglected, however, to indicate which pages of the transcript reflect such objections.

Furthermore, Practice Book § 4185 provides in pertinent part that an appellate court “shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial.” At the time that the family relations report was proffered into evidence, the defendant failed to raise distinctly the claim she now makes on appeal and did not perform all of the procedural prerequisites mandated in § 288.

The defendant, a native of Ecuador who has lived in the United States for the past twenty years, next claims that she was denied due process of law because of her “language problem.” The defendant’s specific claim is that although her English is “adequate for normal situations,” it “was totally inadequate” for the purpose of a custody trial and, therefore, “she was highly prejudiced by her inability to express herself clearly to the court.” The defendant did not request an interpreter at the time of trial, nor did she raise the issue of her language problem at any time during the trial. The defendant, however, requests review of her claim under the doctrine set forth in State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). She argues that she was deprived of a fundamental constitutional right and a fair trial. Implicit in the seeking of such a review is the belief that the Evans doctrine applies to civil cases. Based upon our analysis of State v. Evans, supra, itself and more recent Connecticut cases, we conclude that it does. See Adolphson v. Zoning Board of Appeals, 205 Conn. 703, 716, 535 A.2d 799 (1988); Marsh, Day & Calhoun v. Solomon, 204 Conn. 639, 647-48, 529 A.2d 702 (1987); Mazur v. Blum, 184 Conn. 116, 120 n.5, 441 A.2d 65 (1981); State v. Evans, supra; Page v. Welfare Commissioner, 170 Conn. 258, 267, 365 A.2d 1118 (1976); see also Texaco, Inc. v. Golart, 206 Conn. 454, 460, 538 A.2d 1017 (1988). In this case, however, although the defendant’s claim on its face implicates a fundamental constitutional claim, that of due process, the record, when viewed in a limited way, does not support the claim. The defendant has simply characterized her claim as constitutional and it deserves no review. State v. Thurman, 10 Conn. App. 302, 306-307, 523 A.2d 891, cert. denied, 204 Conn. 805, 528 A.2d 1152 (1987).

The defendant’s third claim of error is that the trial court erred in awarding custody to the plaintiff father in contravention of the minor children’s best interests. We disagree.

Our standard of review in domestic relations cases is a very narrow one. “We will not reverse a trial court’s rulings with regard to custody and financial orders unless the court incorrectly applied the law or could not reasonably have concluded as it did. Timm v. Timm, 195 Conn. 202, 210, 487 A.2d 191 (1985).” O’Neill v. O’Neill, 13 Conn. App. 300, 302, 536 A.2d 978 (1988).

Pursuant to General Statutes § 46b-56 (b), in making a determination of custody, the governing standard is the best interests of the child. Yontef v. Yontef, 185 Conn. 275, 282, 440 A.2d 899 (1981). In the present case, our review of the trial court’s lengthy and well reasoned memorandum of decision concerning the issue of custody indicates that the trial court correctly applied this standard to the evidence properly before it.

The defendant, however, attempts on appeal effectively to curtail the trial court’s discretion by alleging the existence of a presumption in favor of the mother as the proper custodial parent, citing Claffey v. Claffey, 146 Conn. 104, 148 A.2d 140 (1959) and L’Manian v. L’Manian, 14 Conn. Sup. 306 (1946).

Our Supreme Court’s decisions in Presutti v. Presutti, 181 Conn. 622, 627-28, 436 A.2d 299 (1980), and Simons v. Simons, 172 Conn. 341, 350, 374 A.2d 1040 (1977), are dispositive of this issue. In those cases, the court “declined to adopt the defendant’s assertion that there was a presumption favoring the mother as a custodial parent . . . Presutti v. Presutti, supra, 627. “[A]ny such [factor] ‘[is] merely [an element] in the larger question of what is in the best interests of the child. If the child’s best interests . . . require for him to be placed in the custody of the father rather than the mother’ ” then that must be the custodial order. Id., 628, quoting Simons v. Simons, supra, 350. Furthermore, we conclude that there is no presumption in favor of the mother or the father as a custodial parent, outside of the parameters of factors indicative of the best interests of the child. “Neither the applicable statutes nor the case law on the subject recognize any presumption in custody matters that the party against whom it operates must bear the burden of rebutting.” Presutti v. Presutti, supra, 628. There was ample evidence from which the trial court could have concluded that sole custody to the father was in the minor children’s best interests.

II

In her amended appeal, the defendant argues that the trial court erred in denying her motion to modify the original custody order. The defendant’s statement in support of her motion to modify averred that approximately ten months after the trial court’s judgment dissolving the parties’ marriage and awarding sole custody to the plaintiff, the plaintiff removed the parties’ two minor children from the United States to somewhere in South America. The defendant contended that the removal of the children from the country constituted a “deleterious and substantial change in circumstances sufficient to justify a modification” of the custody order. The trial court denied the motion to modify because the “children [were] not within the jurisdiction of this court at this time [and because the modification] requested is impossible to enforce. Finally, [the plaintiff] has to be cited before [the] court for [modification].” The defendant challenges the court’s denial, claiming that (1) the court has jurisdiction under the Uniform Child Custody Jurisdiction Act to determine the merits of the motion to modify, and (2) the plaintiff’s conduct in taking the children to South America is grounds for modification of the custody order.

We first address the trial court’s ruling that it was without jurisdiction to decide the motion for modification because the children were not presently residing within this state and because of enforcement difficulties. Our Supreme Court’s decision in Presutti v. Presutti, supra, is controlling on this point. “While it is true that, as a practical matter, the court’s exercise of its continuing jurisdiction over the education, care, custody and visitation of a child under General Statutes § 46b-56 is made more difficult where the custodial parent resides outside of the country, it would be inaccurate to say that in such cases the court loses all control over the [minor children]. In a context applicable in principle here, we have said that the mere lack of power to enforce a judgment extraterritorially does not deprive a court having the parties before it of jurisdiction to render a judgment that may be enforced on grounds of comity in any other jurisdiction.” (Citations omitted.) Id., 628-29. In this case, therefore, it was error for the trial court to conclude that it was without jurisdiction simply because the children were no longer present in this state and because of assumed enforcement problems.

A trial court’s continuing jurisdiction over matters concerning the custody of a child is established not by an independent statutory definition of “continuing jurisdiction” but is, rather, dependent on those provisions encompassed within the Uniform Child Custody Jurisdiction Act (hereinafter UCCJA). General Statutes §§ 46b-90 through 46b-114. General Statutes § 46b-56 (a) provides that “[i]n any controversy before the superior court as to the custody or care of minor children . . . the court may at any time make or modify any proper order regarding the education and support of the children and of care, custody and visitation if it has jurisdiction under the provisions of chap ter 815o. ” (Emphasis added.) The UCCJA as adopted in this state is contained in chapter 815o of our General Statutes. Therefore, with respect to the principle that in dissolution actions, our Superior Courts retain continuing jurisdiction over the custody and support of a minor child of the parties whether residing in this state or elsewhere; Morabito v. Wachsman, 191 Conn. 92, 103, 463 A.2d 593 (1983); Fagan v. Fagan, 131 Conn. 688, 690, 42 A.2d 41 (1945); the only relevant inquiry that the trial court should have made in this case was whether it had jurisdiction under the provisions set forth in the UCCJA.

Under the UCCJA, the physical presence of the children is not a prerequisite for jurisdiction. General Statutes § 46b-93 (c). This state has jurisdiction if either (1) this state is the home state of the children at the time of the commencement of the proceeding, or (2) this state has been the children’s “home state within six months before the commencement of the proceeding and the [children are] absent from this state because of [their] removal or retention by a person claiming [their] custody . . . and a parent . . . continues to live in this state”; General Statutes § 46b-93 (a) (1) (B); or (3) it is in the best interests of the children that a court of this state assume jurisdiction in that the children and at least one of the parents have a “significant connection with this state,” and “there is available in this state substantial evidence concerning the [children’s] present or future care, protection, training and personal relationships”; General Statutes § 46b-93 (a) (2) (A), (B); or (4) it appears that no other state would have jurisdiction under prerequisites substantially in accordance with factor (2), above, and it is in the best interests of the children that a court in this state assume jurisdiction. General Statutes § 46b-93 (a)(4)(A), (B).

Whether this state is the “home state” of the children at the time of the commencement of the proceeding, or whether a court of this state has jurisdiction under the “best interests of the child” test of the UCCJA are matters which cannot initially be determined on appeal. Kioukis v. Kioukis, 185 Conn. 249, 257, 440 A.2d 894 (1981). Accordingly, it is necessary to remand this case to the trial court to determine whether any of the conditions of § 46b-93 are satisfied in this case. If the court finds that a condition is satisfied, then it “shall” exercise jurisdiction to determine the merits of the defendant’s motion for modification of the custody order. General Statutes § 46b-93 (a).

We next address the trial court’s ruling that in order for it to exercise jurisdiction, the defendant had to obtain service of process on the plaintiff in South America, which the defendant failed to do. We disagree and conclude that, under the unique procedural posture of this case, it was not necessary for the defendant to have served the plaintiff in order for the court to exercise jurisdiction.

The following procedural history is relevant to this issue. In March, 1984, the plaintiff brought this action for dissolution. On October 7,1985, the trial court dissolved the marriage and granted custody to the plaintiff, with visitation rights in the defendant. On October 25, 1985, the defendant moved to open the judgment, which motion was denied by the trial court on December 5, 1985. On December 19,1985, the defendant appealed to this court, challenging the order of custody. In August, 1986, during the pendency of this appeal, the plaintiff apparently left this country with the parties’ two minor children and went to Colombia, South America. In September, 1986, the defendant received a letter from the plaintiff informing her of a post office address to use for the purpose of sending payments for child support. The defendant had not seen the children, spoken to them, or received any communications from them since they were removed from this country. On November 11, 1986, the defendant filed a motion to modify the order of custody. The defendant sent notice of the proceeding to the attorney for the plaintiff on appeal, who was also the plaintiff’s attorney at trial. In a supplemental brief in opposition to the amended appeal, counsel for the plaintiff does not dispute the fact that notice of the motion to modify was received, nor does counsel dispute the allegation made by the defendant that the plaintiff had actual knowledge of the commencement of the proceeding. Rather, counsel for the plaintiff argues that due process considerations and the mandates of General Statutes § 46b-95 required personal delivery of notice to the plaintiff in South America.

A custody order cannot be modified without adequate notice and an opportunity to be heard. General Statutes § 46b-94. General Statutes § 46b-95 provides that “[njotice required for the exercise of jurisdiction over a person outside this state shall be given in a manner reasonably calculated to give actual notice . . . . ” (Emphasis added.) This statutory provision enumerates four methods by which notice “may be” made. These methods are not exclusive. Any method of serving notice may be employed as long as it is “given in a manner reasonably calculated to give actual notice” and meets due process requirements as they exist at the time of the proceeding. See Unif. Child Custody Jurisdiction Act § 5, 9 U.L.A. 131-32 (referring to § 5 of the UCCJA, which section is similar to General Statutes § 46b-95). We conclude that service upon the plaintiffs appellate and trial attorney was adequate in light of the circumstances here which indicate that due process requirements were satisfied.

Pursuant to Practice Book § 77 (c), in any action seeking a dissolution of marriage and in the absence of a specific withdrawal, “counsel will continue of record for all postjudgment purposes until 180 days have elapsed from the entry of judgment or, in the event an appeal or a motion to open a judgment is filed within such 180 day period, until final judgment on that appeal or determination of that motion, whichever is later.” In this case, accordingly, service of notice of the motion to modify the award of custody upon the plaintiffs attorney of record at the time of the dissolution judgment was proper under § 77 (c).

Furthermore, service of process on appellate counsel was adequate notice to the plaintiff to confer jurisdiction because it satisfied due process considerations in that there is a present, ongoing attorney-client relationship between the attorney served and the plaintiff, and the order sought to be modified is the same order presently challenged on appeal.

We need not address the defendant’s claim that the plaintiff’s actions in removing the children from this country are grounds for a modification of the custody order. In the event that the trial court, on remand, determines it has jurisdiction pursuant to General Statutes § 46b-93, that court must then determine whether the removal of the children constitutes a material change in circumstances altering the court’s prior finding of the children’s best interests. Hall v. Hall, 186 Conn. 118, 122, 439 A.2d 447 (1982).

Ill

The plaintiff, in his cross appeal, argues that the trial court erred in its distribution of the parties’ assets by awarding both residential properties to the defendant while awarding sole custody of the minor children to the plaintiff.

Pursuant to General Statutes § 46b-81, a trial court in a dissolution action has the discretion to assign to either spouse all or any part of the property owned by the other-spouse. Debowsky v. Debowsky, 12 Conn. App. 525, 526, 532 A.2d 591 (1987). This statutory provision for the assignment of property is permissive, not mandatory. Id. Such award rests in the sound discretion of the trial court and will not be disturbed unless it appears that such discretion has been abused. Charpentier v. Charpentier, 206 Conn. 150, 154, 536 A.2d 948 (1988); Carpenter v. Carpenter, 188 Conn. 736, 741-42, 453 A.2d 1151 (1982); O’Neill v. O’Neill, 13 Conn. App. 300, 306, 536 A.2d 978 (1988). The trial court in this case properly considered all mandatory statutory criteria in making its property division, and did not abuse its discretion.

There is no error on the defendant’s appeal.

There is error on the defendant’s amended appeal, the judgment rendered on the defendant’s motion for modification of the custody order is set aside and the cause remanded to the trial court for further proceedings consistent with this opinion.

There is no error on the plaintiff’s cross appeal.

In this opinion the other judges concurred.

       Pursuant to Practice Book § 479, family case study reports are admissible if the author is available for cross-examination. See also Stewart v. Stewart, 177 Conn. 401, 405 n.1, 418 A.2d 62 (1979).

       Our review of the transcript indicates that although counsel for the defendant objected to the admission of the psychiatrist’s report on hearsay grounds, which report was excluded by the trial court, counsel stated that it had “[n]o objections” to the introduction into evidence of the family relations study report, which report set forth the opinion of the psychiatrist who had examined the defendant.

       During his summation to the trial court, counsel for the defendant stated: “Reference was made to Plaintiffs exhibit A, which was the custody study done by [the] Family Relations Officer. I must point out that a number of the statements made in the report were clearly hearsay, were unsubstantiated. There was reference made to a psychiatric report which, I may point out, is not even in evidence but is mentioned in the report. I think the Court should take that into consideration in making its determination as to whether that information is properly before it.” Although the defendant raised the issue of hearsay, she did not preserve the issue by formally objecting to its introduction into evidence.

       A claim .pursuant to State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973), may be analogous to a claim of plain error. See J. Ranucci, “State v. Evans: The Unexceptional Exception,” 61 Conn. B.J. 359, 363 (1987).

       The defendant was required to have the plaintiff “cited” before the court by notifying him of the legal proceedings. There was no requirement that he be named in a new citation. See General Statutes §§ 46b-94 and 46b-95.

       Although the trial court denied the motion for modification, the merits of the motion were never addressed. Such denial, therefore, is more properly deemed a dismissal of the defendant’s motion for lack of jurisdiction.

       Although subsection (a) of General Statutes § 46b-93 sets forth other circumstances whereby a court of this state may exercise jurisdiction, they are not pertinent to the present case.

       Notice “may be: (1) By personal delivery outside this state in the manner prescribed for service of process within this state; (2) in the manner prescribed by the law of the place in which the service is made for service of process in that place in an action in any of its courts of general jurisdiction; (3) any form of mail addressed to the person to be served and requesting a receipt; or (4) as directed by the court including publication, if other means of notification are ineffective.” General Statutes § 46b-95 (a).