text:
    State of Connecticut v. Stephen P. Cassidy III
    (3039)
    Hull, Borden and Spallone, Js.

      Argued November 15, 1984
    decision released March 12, 1985

      Richard T. Meehan, for the appellant (defendant).

      Jonathan C. Benedict, assistant state’s attorney, with whom, on the brief, was Donald A. Browne, state’s attorney, for the appellee (state).
   Borden, J.

The defendant was tried by a jury on an information charging him with one count of unlawful restraint in the first degree in violation of General Statutes § 53a-95, four counts of sexual assault in the first degree in violation of General Statutes § 53a-70, and one count of assault in the third degree in violation of General Statutes § 53a-61 (a) (1). The trial court submitted to the jury only three counts of sexual assault in the first degree, along with the counts of first degree unlawful restraint and third degree assault. He was convicted of two counts of sexual assault in the first degree, and of the single counts of unlawful restraint in the first degree and assault in the third degree, but acquitted of one count of sexual assault in the first degree. The defendant appealed, claiming that the court erred in altering the information, in denying his motions for judgment of acquittal and for a new trial, and in partially denying his motion to offer evidence of prior sexual conduct of the victim. We find no error.

The information arose out of an incident occurring on February 20,1983. The jury could reasonably have found the following facts: The victim had previously been acquainted with the defendant, with whom she had engaged in sexual relations one or two times prior to the evening in question. Early in the morning hours of February 20, 1983, the victim went to a bar with a friend, where she saw the defendant. She accompanied him and some of his friends to an after-hours bar. They stayed there briefly and then went to the defendant’s house. The victim went upstairs to the defendant’s bedroom, undressed and got into the bed. She was, at that point, willing to have sexual relations with him.

At this stage in the events, the victim’s and the defendant’s recollections diverge. The victim recounted as follows: After she was in the bed, the defendant, who was undressed, yelled, “[l]ady, you came here to get fucked and that’s exactly what you are going to get. I’m going to fuck you until you can’t stand up.” He then lunged at her and forced her to submit to vaginal intercourse. She attempted to leave the room but the defendant grabbed her, turned her around, punched her in the mouth and threw her on the bed on her stomach. After he tied her arms behind her, gagged her, and forced her head down into the bedding, the defendant forcibly performed anal intercourse on her. He then offered to untie and ungag her if she would do everything he said. She assented because she did not want to be hit anymore. After untying her wrists and taking the gag out of her mouth, the defendant again forcibly had vaginal intercourse with her and forced her to perform oral sex with him. Throughout the incident, the defendant called her obscene names and, in her estimation, acted “[ljike a crazy person.” The defendant then told her that she had two seconds to put her clothes on and leave or he would kill her. She quickly put on some of her clothes; the defendant got her coat and, pushing her out the door, said he never wanted to see her again and threatened to kill her if she called the police. She left the house and, after unsuccessfully attempting to get neighbors’ help, flagged down a car which happened to be driven by a police officer. He took her to the police station. She was later taken to a hospital and treated for injuries.

The defendant’s account was as follows: After the victim got into the bed, the defendant, still clothed, got into the bed with her. She proceeded to undress him and had oral sex with him; he then performed oral sex with her. She laid on her back and they had vaginal intercourse. She then asked if she could tie him up. He said no but asked if she would like to be tied up. She consented, and he tied her hands loosely in front of her with her stockings. They had vaginal and anal intercourse while the complainant’s hands were tied. Then, after resuming vaginal intercourse, the complainant’s “whole attitude changed . . . like she didn’t consent to what we were doing.” She started getting hysterical, screaming about her husband who was killed in Vietnam. She said she “shouldn’t be doing this,” and that she wanted to die and wanted to be with her husband. She untied her hands and started swinging at the defendant. He tried to get her off of him and slapped her. She fell onto the bed. The defendant got up, told the victim to put her clothes on and get out of his house, and went into the bathroom. When he returned to the bedroom, she was gone.

I

The defendant’s principal claim on appeal arises from the exclusion of certain evidence by the trial court. Prior to trial, the defendant moved, pursuant to General Statutes § 54-86Í, to offer evidence of the complainant’s prior sexual conduct. The court permitted evidence of the prior sexual conduct between the defendant and the complainant but refused to admit evidence of a sexual encounter between the victim and another man, who testified in the absence of the jury as part of the defendant’s offer of proof. This testimony was to the effect that she and he had gone to her home together about a year before the night in question. They had sexual relations, during which she began “going crazy” and screaming about her husband who was killed in Vietnam. The witness told her to forget about it and went to sleep. Nothing eventful happened for the rest of the night. The next morning she showed him pictures of her husband.

The trial court excluded this testimony in the absence of an offer of proof by the defendant that the victim made a prior false complaint of sexual assault. The defendant argues that the evidence should have been admitted to show a pattern of conduct by the victim, and because it was highly relevant, probative and essential to the defense. He claims that applying the statute in this case violated his constitutional rights of confrontation and to present witnesses in his own behalf. We disagree.

Statutes such as General Statutes § 54-86f, commonly known as rape shield statutes, have been enacted specifically to bar or limit the use of prior sexual conduct of an alleged victim of a sexual assault because it is such highly prejudicial material. Berger, “Man’s Trial, Woman’s Tribulation: Rape Cases in the Courtroom,” 77 Colum. L. Rev. 1, 56-57 (1977). Our legislature has determined that, except in specific instances, and taking the defendant’s constitutional rights into account, evidence of prior sexual conduct is to be excluded for policy purposes. Some of these policies include protecting the victim’s sexual privacy and shielding her from undue harrassment, encouraging reports of sexual assault, and enabling the victim to testify in court with less fear of embarrassment. See id., 54. Other policies promoted by the law include avoiding prejudice to the victim, jury confusion and waste of time on collateral matters. Id., 56. The state’s interests are substantial, but cannot by themselves outweigh the defendant’s competing constitutional interests. See Davis v. Alaska, 415 U.S. 308, 320, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974). The United States Supreme Court has looked to the facts and circumstances of the particular cases before it when determining if the state’s interests in excluding evidence must yield to those interests of the defendant. See, e.g., Chambers v. Mississippi, 410 U.S. 284, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973); State v. Mastropetre, 175 Conn. 512, 521, 400 A.2d 276 (1978); State v. Patnaude, 140 Vt. 361, 369, 438 A.2d 402 (1981). Likewise, we must analyze the defendant’s constitutional claims in light of the facts of this particular case.

Under General Statutes § 54-86f, which has not been previously interpreted, evidence of the victim’s prior sexual conduct is inadmissible unless the trial court determines from an offer of proof at a hearing that it fits into one of the statute’s exceptions. The defendant’s argument focuses on exception (4) of § 54-86f, which permits evidence of prior sexual conduct if it is “so relevant and material to a critical issue in the case that excluding it would violate the defendant’s constitutional rights.”

This statute directs the court to examine the defendant’s constitutional rights, implicating both his sixth amendment right to confront witnesses and his fourteenth amendment due process right to call witnesses on his own behalf. See Chambers v. Mississippi, supra, 294. The record does not make clear that the defendant sought to introduce this evidence for the purpose of cross-examining the victim, but it was implicitly suggested that, if it were allowed, the defendant would have used it in cross-examination of her. This suggestion, combined with the broad mandate of the statute to analyze the defendant’s constitutional rights, causes us to consider the defendant’s claim that his confrontational right was violated, although that claim was not distinctly raised at trial.

By attempting to show that the victim’s conduct with another man was similar to her conduct with him, the defendant sought to bolster his credibility while diminishing hers. We conclude, nonetheless, that exclusion of this evidence did not violate the defendant’s constitutional right of confrontation.

“Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested.” Davis v. Alaska, supra, 316; State v. Esposito, 192 Conn. 166, 178-79, 471 A.2d 949 (1984). “ 'The constitutional standard [for cross-examination] is met when defense counsel is “permitted to expose to the jury the facts from which the jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness.” ’ ” State v. Heinz, 3 Conn. App. 80, 86, 485 A.2d 1321 (1984).

The cross-examination of the victim was unrestricted; the defendant was permitted to question her in detail about the particular events and was permitted to introduce evidence of her prior consensual sexual conduct with him. The victim’s privacy interest and the state’s policy interests yielded in that instance to the defendant’s sixth amendment rights so that he could effectively cross-examine her. Davis v. Alaska, supra, 320; see Rudstein, “Rape Shield Laws: Some Constitutional Problems,” 18 Wm. & Mary L. Rev. 1 (1976) (statutes cannot absolutely bar evidence of prior sexual conduct without violating defendant’s constitutional rights). The cross-examination, without the proffered evidence, was sufficient to provide facts from which the jury could develop opinions and questions about the credibility of the victim. State v. Asherman, 193 Conn. 695, 721, 478 A.2d 227 (1984); but see Davis v. Alaska, supra, 318 (limited cross-examination inadequate to impeach witness’ credibility); State v. Heinz, supra. The court need not allow additional impeachment evidence through another witness just because the defendant is not sure if he developed a large enough doubt in the jury’s mind about the victim’s credibility. See State v. Asherman, supra (inquiry into witness’ bias not constitutionally required; trial court did not abuse its discretion in excluding it).

The court, in this case, was correct in noting that, unless the proffered testimony was to show that the victim previously made a false claim of sexual assault following the claimed similar, consensual sexual conduct, the evidence should be excluded. The relevant conduct was that between the defendant and the victim. Unless she had raised a false claim before, her conduct with another man had no bearing on her conduct with this defendant or on the credibility of her testimony in this case. The defendant was given adequate opportunity to cross-examine her, and the court properly excluded this evidence. State v. Asherman, supra.

The defendant’s right to present witnesses in his own defense is also implicated, and similarly was not infringed. “Just as an accused has the right to confront the prosecution’s witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense.” Washington v. Texas, 388 U.S. 14, 19, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967). The defendant claims he had a right to present this evidence because it established a pattern of conduct by the victim, and it supported his defense of consent by showing another instance where the victim became irascible during a consensual sexual encounter.

In exercising the right to present witnesses in his own defense, the defendant “must comply with established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence.” Chambers v. Mississippi, supra, 302; State v. Mastropetre, supra, 521. The constitution does not require that the defendant be permitted to present every piece of evidence he wishes, although exclusionary rules of evidence cannot be applied “mechanistically” to deprive the defendant of his rights. Chambers v. Mississippi, supra. If the proffered evidence is not relevant, however, the defendant’s right to confrontation is not affected and the evidence was properly excluded. State v. Vaughn, 448 So. 2d 1260 (La. 1983), on rehearing, 448 So. 2d 1266, 1267 (La. 1984); State v. Patnaude, supra; see General Statutes § 54-86f (4); State v. Mastropetre, supra, 517.

“As a general principle, evidence is relevant if it has a tendency to establish the existence of a material fact. ‘ “ ‘One fact is relevant to another fact whenever, according to the common course of events, the existence of the one, taken alone or in connection with other facts, renders the existence of the other either certain or more probable.’ ” ’ State v. Lombardo, 163 Conn. 241, 243, 304 A.2d 36 (1972).” State v. Mastropetre, supra, 517. The fact that about one year before the alleged assault occurred, the victim began a sexual episode with another man, became upset and changed her mind because of her feelings about her dead husband, does not tend to establish that, on this night, the victim became hysterical about her husband, screamed that she wanted to die and be with her dead husband, and struck the defendant. Particularly since there was also evidence of more recent nights which the defendant and the victim had spent together with no similar behavior by her, the defendant’s version would not have been made more probable by this evidence.

One cannot logically infer that the victim acted in the manner described by the defendant simply because of a somewhat similar incident one year beforehand. See State v. Esposito, supra, 172. The evidence, therefore, was legally irrelevant and was properly excluded without denying the defendant his constitutional rights.

Moreover, one similar instance is not sufficient to prove a pattern of conduct. State v. Patnaude, supra, 379. Even in states which expressly permit evidence of prior sexual conduct to establish a pattern of conduct, evidence of one sexual encounter is not enough to do so. See, e.g., Hodges v. State, 386 So. 2d 888, 889 (Fla. Dist. Ct. App. 1980). Commentators who advocate allowing evidence of patterns of similar behavior to establish a defense also suggest that “[a] single past act is not probative of present acts; only related patterns of behavior should be admissible.” (Emphasis added.) Ordover, “Admissibility of Patterns of Similar Sexual Conduct: The Unlamented Death of Character for Chastity,” 63 Cornell L. Rev. 90, 114-15 (1977); see Berger, “Man’s Trial, Woman’s Tribulation: Rape Cases in the Courtroom,” 77 Colum. L. Rev. 1, 59-60 (1977). No other instances of similar conduct were offered; the instances of prior sexual conduct between the defendant and the victim showed no pattern of the same type of behavior. The evidence was properly excluded, therefore, as insufficient to provide a basis for the inference that the victim acted as claimed by the defendant.

In holding that this single past instance of the victim’s sexual conduct was properly excluded, we do not suggest that such evidence is never relevant or admissible. To be admissible, however, such evidence must fulfill the requirements of the statute within the context of the facts and circumstances of the case in which it arises. See State v. Vaughn, supra, 1268; see generally annot., 94 A.L.R.3d 257. The evidence sought to be introduced in this case did not meet those requirements.

II

The defendant’s second claim is that the court impermissibly instructed the jury on only three, rather than four, counts of sexual assault, and that the court improperly amended the information by writing “vaginal,” “anal,” and “oral” next to each count. We disagree.

The defendant’s argument that the jury instructions were improper is without merit. The defendant submitted a request to charge to the court but his request omitted any charge regarding the counts of sexual assault. After the charge, the defendant took no exception, although the state excepted on exactly this point. “The purpose of requiring an attorney to except is not merely formal. An exception serves the important function of alerting the trial court to error while there is time to correct it without ordering a retrial.” State v. Jones, 193 Conn. 70, 88, 475 A.2d 1087 (1984); State v. Jackson, 3 Conn. App. 132, 135, 485 A.2d 934 (1984). The failure to except without an indication of the deprivation of a constitutional right bars appellate review. State v. Jackson, supra. Furthermore, removing one count from the scope of the jury’s guilt-assessing ability could only inure to the defendant’s benefit, making his challenge to it inapt.

The original information charged the defendant with four counts of sexual assault. No bill of particulars was requested by the defendant. After an in-chambers precharge conference, the regularity of which is not challenged; State v. Jones, supra, 89 n.13; the court announced its decision to charge the jury on only three counts of sexual assault. Thereupon, the court charged the jury on one count of unlawful restraint in the first degree, one count of assault in the third degree, and three counts of sexual assault in the first degree. After the jury was excused, but before the jury began its deliberations, the court discussed with counsel the problem of the unparticularized information. After receiving acquiescence by both counsel, the court wrote next to each count of sexual assault one type of the claimed sexual acts so that the jury could relate each count to one of the acts.* *** The jury then began deliberating, taking the modified information with them.

The defendant argues that the court’s actions with regard to the information usurped the function of the state’s attorney to prepare the allegations of an information and the jury’s function to be the sole trier of fact. This argument is without merit.

The defense counsel participated in remedying the perceived ambiguity of the information and specifically consented to the court’s informal remedy. See footnote 6, supra. “An appellant cannot ordinarily claim error in the action of the trial court which he has induced.” State v. Ross, 189 Conn. 42, 47, 454 A.2d 266 (1983); see also State v. Kish, 186 Conn. 757, 769, 443 A.2d 1274 (1982). The defendant’s participation in and agreement to the informal specification of charges prohibits him from challenging it at this time. State v. Jones, supra, 88-89.

The defendant argues alternatively that he should only have been tried on one count of sexual assault, on the theory that only one act of sexual assault was alleged, albeit one involving several acts of sexual intercourse. This argument was rejected under the predecessor to General Statutes § 53a-70. State v. Frazier, 185 Conn. 211, 229, 440 A.2d 916 (1981), cert. denied, 458 U.S. 1112, 102 S. Ct. 3496, 73 L. Ed. 2d 1375 (1982). We reject it under General Statutes § 53a-70 as well.

The defendant suggests that while the legislative intent of the repealed statute was to punish each individual act of assault separately, the legislature, by enacting the current statute, intended only to punish the total course of conduct as one offense.* ** As under the prior statute, however, “each assault upon the victim involved a separate act of will on the part of the defendant and a separate indignity upon the victim. . . . [T]he legislative intention was that each assault should be deemed an additional offense.” Id., 230. To interpret the statute otherwise would be to strip it of all its sense. “[T]he application of common sense to the language of a penal law is not to be excluded in a way which would involve absurdity or frustrate the evident design of the lawgiver.” State v. Belton, 190 Conn. 496, 506, 461 A.2d 973 (1983). “There is ample authority-holding that each separate act of forcible sexual intercourse constitutes a separate crime. 1 Wharton, Criminal Law & Procedure (1957) § 304; 65 Am. Jur. 2d, Rape § 106. A different view would allow a person who has committed one sexual assault upon a victim to commit with impunity many other such acts during the same encounter.” State v. Frazier, supra, 229.

The defendant’s argument must also fail because Practice Book § 817 specifically states that “[n]o . . . information shall be dismissed merely for . . . multiplicity, duplicity or uncertainty, provided an offense is charged.” The court properly charged the jury on three counts of sexual assault.

Ill

Finally, the defendant argues that the verdict was inconsistent. The jury found the defendant guilty on two counts of sexual assault and not guilty on a third. The defendant claims such a verdict is factually and legally inconsistent and cannot stand. We disagree.

“Consistency in the verdict is not necessary.” Dunn v. United States, 284 U.S. 390, 393, 52 S. Ct. 189, 76 L. Ed. 356 (1932); State v. Martin, 189 Conn. 1, 6, 454 A.2d 256, cert. denied, 461 U.S. 933, 103 S. Ct. 2098, 77 L. Ed. 2d 306 (1983); see also annot., 18 A.L.R.3d 259, annot., 16 A.L.R.3d 866. The United States Supreme Court has recently reiterated the Dunn rule, and stated that it rests on a “sound rationale” and should remain standing without exception. United States v. Powell, 469 U.S. 57, 105 S. Ct. 471, 83 L. Ed. 2d 461 (1984). We reject the defendant’s argument that reviewability depends on a distinction between factual and legal inconsistency. We decline to make an “individualized assessment,” since that would involve either “pure speculation, or would require inquiries into the jury’s deliberations that courts generally will not undertake.” Id., 469. We agree with the United States Supreme Court that arguably inconsistent verdicts are generally unreviewable by either the defendant or the state and that the principles of double jeopardy and res judicata do not require otherwise. Id.; see Harris v. Rivera, 454 U.S. 339, 346, 102 S. Ct. 460, 70 L. Ed. 2d 530 (1981). The defendant was “given the benefit of [his] acquittal on the counts on which [he] was acquitted, and it is neither irrational nor illogical to require [him] to accept the burden of conviction on the counts on which the jury convicted.” United States v. Powell, supra, 69.

A review of the evidence indicates that it was sufficient for the jury reasonably and logically to reach the conclusions which it did. State v. Manning, 162 Conn. 112, 122-23, 291 A.2d 750 (1971). “[T]he many possible explanations for the acquittal on one charge did not necessarily indicate that the jury had acted improperly in convicting the defendant on the other[s].” State v. Martin, supra, 7.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 54-86f, as amended by Public Acts 1983, No. 83-113, provides as follows: “admissibility of evidence of prior sexual conduct. In any prosecution for sexual assault under sections 53a-70, 53a-70a, and 53a-71 to 53a-73a, inclusive, no evidence of the prior sexual conduct of the victim may be admissible unless such evidence is (1) offered by the defendant on the issue of whether the defendant was, with respect to the victim, the source of semen, disease, pregnancy or injury, or (2) offered by the defendant on the issue of credibility of the victim, provided the victim has testified on direct examination as to his or her prior sexual conduct, or (3) evidence of prior sexual conduct with the defendant offered by the defendant on the issue of consent by the victim, when consent is raised as a defense by the defendant, or (4) otherwise so relevant and material to a critical issue in the case that excluding it would violate the defendant’s constitutional rights. Such evidence shall be admissible only after a hearing on a motion to offer such evidence containing an offer of proof. On motion of either party the court may order such hearing held in camera, subject to the provisions of section 51-164x. If the proceeding is a trial with a jury, such hearing shall be held in the absence of the jury. If, after hearing, the court finds that the evidence meets the requirements of this section and that the probative value of the evidence outweighs its prejudicial effect on the victim, the court may grant the motion. The testimony of the defendant during a hearing on a motion to offer evidence under this section may not be used against the defendant during the trial if such motion is denied, except that such testimony may be admissible to impeach the credibility of the defendant if the defendant elects to testify as part of the defense.”

       See footnote 1, supra.

       The defendant did not specifically request that he be allowed to cross-examine the complainant about this evidence. Rather, when asked by the court why the evidence was offered, counsel stated only that it was offered to “back up” the defendant’s story. The topic was not raised again during cross-examination of the complainant, having already been precluded by the trial court’s prior ruling. There can be no doubt, however, that if the testimony were allowed, the defendant would have questioned the complainant about it on cross-examination.

       Before admitting evidence of prior sexual conduct, which otherwise meets the requirements of one of the statutory exceptions, General Statutes § 54-86f also requires balancing the probative value of the evidence with its prejudicial potential. We find this balancing test inapplicable to evidence fulfilling the requirements of subsection (4) because, if the defendant’s constitutional rights would be violated by the exclusion of the evidence, no amount of prejudice to the victim could require its exclusion.

       The discussion was as follows:
      “The Court: All right. Now gentlemen, I have a problem. As you know, the Information just has the three counts and I’m wondering if—again, it’s up to you—whether we could label these just in ink, 1, 2, 3 and 4 in the margin as to the first one—in other words, anal, oral, fellatio, so that—
      “Mr. Benedict: I have no—
      “The Court: I don’t know how they will render their verdict under the Information as it is.
      “Mr. Benedict: As far as the State is concerned, it could be done that way or the Clerk, when she goes through the verdict, can simply ask as to the first count, and she can name a specific. Either way.
      “The Court: Mechanically, procedurally—
      “Mr. Benedict: It’s when they come out for a verdict, it’s mechanic.
      “The Court: They could find him guilty of all, not guilty of two or not guilty of one and not guilty to any of them. I think there has to be some sort of specificity, it seems to me. Mr. Kanasky?
      “Mr. Kanasky: I agree. I thought about it last night, your Honor, and I was thinking basically on interrogatory basis. I just dropped it and didn’t consider it again this morning. I think there has to be some distinguishment. I gather it would be easier for the jury in their own mind, although I certainly don’t want to decide what order the Court will put them down.
      “The Court: I don’t have any preference at all in my own mind.
      “Mr. Kanasky: I think it would be proper to indicate on the counts.
      “The Court: Mr. Benedict?
      “Mr. Benedict: That’s probably simpler. Just in the margin next to each of the counts.
      “The Court: What I was thinking, I think the order in which I charged, the order of the statute; I think vaginal, anal, fellatio.
      “Mr. Kanasky: Yes, your Honor.
      “Mr. Benedict: That’s acceptable.
      “The Court: I think that’s the way it’s listed; vaginal, anal, oral. All right. Gentlemen, do you want to look at that in the margin to the left on the Information?
      “Mr. Kanasky: No problem, your Honor.
      “The Court: All right.”

       The court explained this to the jury as follows: “All right. Ladies and gentlemen, first of all, with the consent of counsel, to make your job easier on this Information that you will have in hand, to the left of each of the sexual assault charges you will see a word and a second count says vaginal and third count anal and fourth count fellatio. So that in considering these charges we’ll know when you come back what your verdict is with respect to these various claimed acts. That’s the way in which you can consider each count related to the claimed act of sexual intercourse. I think that’s clear. Counsel have agreed to that being written.”

       The defendant urges this court to review this claim under State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973), because his counsel did not appreciate the problem with the information, and the defendant was deprived of his constitutional rights to a trial by jury and a fair trial. The court’s actions, however, did not remove the case from the jury’s province or effectually direct a verdict, as the defendant suggests. Because the record does not support the defendant’s claim that his constitutional rights were infringed, as required by State v. Evans, supra, 70, we do not reach it. See State v. Taxiltaridis, 2 Conn. App. 617, 620-21, 481 A.2d 98 (1984).

       The statute construed in State v. Frazier, 185 Conn. 211, 440 A.2d 916 (1981), cert. denied, 458 U.S. 1112, 102 S. Ct. 3496, 73 L. Ed. 2d 1375 (1982), was part of a series of sections of the penal code which distinguished between sexual misconduct, several degrees of rape and deviate sexual intercourse, and sexual contact. General Statutes (Rev. to 1975) §§ 53a-65 through 53a-80. These sections of the penal code were repealed or amended by Public Acts 1975, No. 75-619, which combined these various offenses into differing degrees of the single crime of sexual assault. General Statutes (Rev. to 1983) §§ 53a-65 through 53a-73a. The defendant was charged and convicted of sexual assault in the first degree under the code as amended by Public Acts 1975, No. 75-619.

       The jury found the defendant guilty on the counts which the court had denominated as “vaginal” and “anal,” and not guilty on the count marked “fellatio.” See II, supra.

       For example, the jury may have believed that the complainant initially consented to having oral sexual intercourse with the defendant and later recanted her consent.


source: Caselaw Access Project

author: Per Curiam:.

license: Public Domain

text:
    Kevin Myers et al. v. Natalie A. Menghi et al.
    (2594)
    Hull, Boeden and Daly, Js.
    Argued January 11
    decision released March 19, 1985

      Thomas B. Wilson, for the appellants (plaintiffs).

      Allan R. Johnson, for the appellees (defendants).
   Per Curiam:.

The plaintiffs appeal from the judgment on a jury verdict for the defendants. They claim the single error of the court’s refusal to admit into evidence a written statement of the defendant Natalie Menghi.

The plaintiffs had alleged, in part, that the car which Menghi was driving was rolling at the time the minor plaintiff’s bicycle collided with it. They also had alleged that Menghi violated General Statutes § 14-243 (a), which prohibits moving a vehicle from a parked position until such movement can be made in reasonable safety.

During the trial, the plaintiffs offered, as an admission, a written statement that Menghi had given to the investigating police officer. The statement indicated that she was indeed rolling at the time of the accident. The court sustained the defendants’ objection to the admission of that evidence.

The court erred in failing to admit into evidence, as an admission of a party-opponent, Menghi’s statement to the investigating police officer. Bonner v. Winter, 175 Conn. 41, 44, 392 A.2d 436 (1978); Holden & Daly, Connecticut Evidence (1966 & Sup. 1983) § 101. “This admission had a direct and vital bearing on the decisive issue in the case.” Bonner v. Winter, supra, 44-45. Therefore, the court’s erroneous ruling was harmful and the plaintiffs are entitled to a new trial.

There is error, the judgment is set aside and a new trial is ordered.

       The owner of the car, Mary Epolito, is a defendant as well as Natalie Menghi, the named defendant, who was the operator.


author: Per Curiam.

text:
    Walter Johnson et al. v. Katherine Ivimey et al.
    (2001)
    Dupont, C.P.J., Hull and Borden, Js.
    Argued December 4, 1984
    decision released March 19, 1985

      John Ivimey, pro se, with whom, on the brief, was Katherine Ivimey, pro se, the appellants (defendants).

      Robert L. Fisher, Jr., for the appellees (plaintiffs).
   Per Curiam.

The plaintiffs brought suit in contract to recover for repairs and renovations made by them to the home of the defendant Katherine Ivimey. A second defendant, John Ivimey, the husband of Katherine Ivimey, was permitted to intervene as a defendant, pursuant to General Statutes § 46b-37 (b) (4). The defendants appeal from a judgment rendered on a jury verdict for the plaintiffs against Katherine Ivimey only on the complaint and against both defendants on their counterclaim.

After the defendant husband had intervened in the action, the plaintiffs amended their complaint to allege that he had represented himself to be the authorized agent of his wife for the purpose of engaging the plaintiffs to perform the work done to her house. Subsequently, the plaintiffs were allowed to amend their complaint to add a count for unjust enrichment. A counterclaim was filed by the defendants claiming that the work of the plaintiffs was unworkmanlike and incomplete.

Basically, the named defendant claims that the trial court erred (1) in instructing the jury on ratification, (2) in instructing the jury that an agreement existed and that the jury was to decide solely whether the husband was acting as the wife’s agent or whether she had ratified his agreement with the plaintiffs, (3) in failing to direct a verdict for the named defendant on the plaintiff’s complaint, (4) in refusing to allow the defendant husband, who was not an attorney, to represent his wife, (5) in refusing to grant a continuance, and (6) by permitting prejudicial evidence to be introduced under the plaintiffs’ added count of unjust enrichment when, subsequently, the jury was directed to return a verdict in favor of the defendants on this count.

Those claimed errors relating to the charge given by the trial court are not reviewable. The defendant wife did not file a written request to charge and took no exception to the charge. Practice Book §§ 315, 3063; see Schaffer v. Schaffer, 187 Conn. 224, 227-28 n.3, 445 A.2d 589 (1982).

The trial court’s refusal to direct a verdict for the defendant wife on the claimed ground that the plaintiffs’ complaint failed to state a claim upon which relief could be granted was proper. A decision to direct a verdict can only be upheld when a jury could not reasonably and logically reach any other conclusion. Sestito v. Groton, 178 Conn. 520, 522, 423 A.2d 165 (1979). Such is not the case here. In any event, the named defendant’s claim should have been raised by a motion to strike the complaint. Practice Book § 152. Had a motion to strike the complaint been made, it would properly have been denied because the plaintiffs had stated a cause of action. Intertwined with this claimed error is the named defendant’s argument that the trial court should have rendered judgment notwithstanding the verdict because the jury failed to follow the trial court’s charge by not returning a verdict in her favor. Although it is not clear from the record that this claim was made in the defendant’s motion to set aside the verdict, we briefly review it because of her pro se status. It is apparent from the transcript that the jury by following the trial court’s instruction could have found for or against this defendant.

The defendant John Ivimey could only argue his own case in the trial court since he is not a member of the bar in Connecticut. Implicit in the granting of a motion to intervene is the determination that the party has a right which could be adversely affected and that his interest is presently not adequately protected. Horton v. Meskill, 187 Conn. 187, 195-96, 445 A.2d 579 (1982). If the defendant Katherine Ivimey were not representing John Ivimey’s interest, a fortiori, his status as intervenor does not allow him to represent her interests.

Moreover, the amended complaint does not allege a cause of action against John Ivimey based on his liability to the plaintiffs pursuant to General Statutes § 46b-37 (b) (4) but rather as one who represented himself to be an agent for the defendant principal, Katherine Ivimey, even if he were not her agent. Thus, the pleadings indicate that the interests of the defendant husband and the defendant wife are directly adverse. He could, as a pro se, represent his own interests in the case, but not those of his wife since there was not an identity of interest between them at trial. The court properly refused to allow him to represent his wife.

The last two claims of the named defendant are related. She argues that the case should not have been tried with the count alleging unjust enrichment since that theory allowed evidence of insurance to be interjected into the case to her prejudice. The named defendant claims that she was forced by the trial court to deny generally the count in order to close the pleadings, and that, at the conclusion of the trial, this count was effectively taken from the jury by the trial court’s direction of a verdict on that count for the defendants, after evidence relating to the count had been considered by the jury-

It is the contention of the named defendant that the complaint should not have been amended on the eve of trial, and that because it was, the case should have been removed from the trial assignment list. “The trial court has wide discretion in granting or denying amendments before, during, or after trial.” Lawson v. Godfried, 181 Conn. 214, 216, 435 A.2d 15 (1980). Obviously, if one can amend a pleading during or after trial, an amendment does not remove a case from the trial list. Whether a case should proceed to trial lies within the trial court’s discretion and the exercise thereof is subject to reversal only where an abuse of discretion is manifest or when injustice appears to have been committed. Sturman v. Socha, 191 Conn. 1, 5-7, 463 A.2d 527 (1983).

In the present case, the transcript reflects that the trial court inquired as to why a continuance was necessary and no satisfactory answer was proffered. The limited transcript filed with this appeal does not reveal that the defendant Katherine Ivimey requested a continuance. Moreover, we note that the claims advanced in the added third count did not interject any new material issues into the proceedings as the plaintiffs continued to allege that they performed work at the premises in question and the role of the insurance company had already been introduced by the defendants in their counterclaim. The defendant Katherine Ivimey cites us to only one transcript reference concerning the admission of prejudicial evidence introduced at trial, which mentions the payment of insurance proceeds to her. First, the transcript excerpt filed does not indicate who elicited that testimony. Additionally, evidence that the insurance company paid the defendant Katherine Ivimey would be admissible to refute the aliegation in the counterclaim that the plaintiffs contracted with the adjuster and the insurance company. We, thus, conclude that any error in failing to strike the third count was at most harmless error.

There is no error.

       General Statutes § 46b-37 (b) provides in pertinent part: “[I]t shall be the joint duty of each spouse to support his or her family, and both shall be liable for . . . (4) any article purchased by either which has in fact gone to the support of the family, or for the joint benefit of both . . . .”

       This appeal was originally filed in the Appellate Session of the Superior Court. General Statutes § 51-197a (c).

       Both defendants have appealed but the issues raised, briefed and argued, solely involve the judgment against Katherine Ivimey on the plaintiffs’ complaint. The defendant John Ivimey, thus, is not an aggrieved party and we have no jurisdiction over his appeal. Waterbury Trust Co. v. Porter, 130 Conn. 494, 498, 35 A.2d 837 (1944).

       The defendant Katherine Ivimey’s reply brief raises a claim of insufficiency of the evidence. That claim was not articulated in the statement of issues or in her original brief and therefore the plaintiffs were not apprised of this claim. We, thus, refuse to consider it.

       On appeal, the defendant, John Ivimey, presented oral argument. It was not then apparent that he was not aggrieved by any action of the trial court.


author: Daly, J.

text:
    Stanley V. Tucker v. American Insurance Company et al.
    (2512)
    Dupont, C.P.J., Hull and Daly, Js.
    Argued January 8
    decision released March 19, 1985

      Stanley V. Tucker, pro se, the appellant (plaintiff).

      Frederick D. Augenstem, for the appellees (defendants).
   Daly, J.

The plaintiff instituted a three count complaint in the Housing Session against several tenants, the receiver of rents and the surety on the receiver’s bond, seeking to recover unpaid rent and seeking to recover damages on allegations of negligence. From the granting of the defendants’ motion to dismiss, the plaintiff has appealed to this court.

The plaintiff alleges that he is the owner of a two-family residence located at 69 Amity Street in Hartford. He claims, in the first two counts, that there are rents due for which the defendants are responsible. The plaintiff further alleges, in the third count, that the defendant receiver was negligent in not securing the premises after evicting tenants on the first floor, thus permitting a fire and vandalism to occur at the premises. The defendant surety and the defendant receiver, in their motion to dismiss, claim that the Housing Session has no jurisdiction in this matter since a receiver of rents is under the jurisdiction of the appointing court, i.e., the Superior Court for the judicial district of Hartford-New Britain at Hartford, and there is no allegation by the plaintiff that consent was obtained therefrom prior to the institution of this action.

The trial court found, in dismissing the complaint, that this was a suit to have the receiver account to the court and to the plaintiff for her activities in carrying out her duties as a receiver. The plaintiff’s remedy, the trial court concluded, was not the institution of this action but the presentation of his claim before the court in which a foreclosure action involving the same realty is pending or the appointing judge of the receiver. Practice Book § 509. We agree.

“When a receiver is appointed in a foreclosure action to take charge of the property, he holds it as an arm of the court.” New Haven Savings Bank v. General Finance & Mortgage Co., 174 Conn. 268, 270, 386 A.2d 230 (1978); Desiderio v. Iadonisi, 115 Conn. 652, 655, 163 A. 254 (1932); Bergin v. Robbins, 109 Conn. 329, 335, 146 A. 724 (1929). “The nature of the duties imposed by the office demands that the court protect its own officer while acting strictly under the orders of the court. This courts of equity constantly do, in forbidding the bringing of suits against receivers without the consent of the court. Such consent will not be granted where the receiver has kept clearly within the scope of his authority and acted wholly under the direction of the court.” Walsh v. Raymond, 58 Conn. 251, 255, 20 A. 464 (1889).

“A receiver appointed by judicial authority cannot, in the absence of a statute to the contrary, be subjected to suit without the leave of the court whose officer he is, granted in the cause in which he was appointed. . . . He is presumed to be acting according to the will of that court; and to sue him is necessarily to bring in another court to take part in the disposition of the estate which has been put in his charge. The rule that where a court has once acquired jurisdiction over a particular subject-matter, it retains it free from interference by any other court, is that which governs . . . .” Links v. Connecticut River Banking Co., 66 Conn. 277, 284, 33 A. 1003 (1895).

“It would seem that the policy of requiring application for permission to bring suit against the receiver in the original court is so firmly established in this State that a change in that policy should be enunciated either by our Supreme Court or prescribed by statute.” Fink v. Farrington, 9 Conn. Sup. 381, 384 (1941). We believe that the requirement that permission be obtained from the appointing court for the institution of any action against its receiver is logically based and should be upheld.

There is no error.

In this opinion the other judges concurred.

       Although the tenants have been named defendants, they are not involved in this appeal.


text:
    State of Connecticut v. Kathleen E. Kiss
    (2794)
    Hull, Spallone and Daly, Js.
    Argued January 9
    decision released March 19, 1985

      Richard R. Brown, for the appellant (defendant).

      Susan C. Marks, special deputy assistant state’s attorney, with whom, on the brief, were Mark Solak and CarlSchuman, assistant state’s attorneys, for the appellee (state).
   Per Curiam.

The defendant pleaded guilty to a felony, selling cocaine in violation of General Statutes (Rev. to 1981) § 19-480 (a) (now § 21a-277 [a]), on the basis of plea negotiations. After polling the defendant, the trial court accepted the plea of guilty and, on November 8,1983, imposed a sentence, in accordance with the plea bargain, of five years imprisonment, sentence suspended after two years, and three years of probation. On November 15,1983, through new counsel, the defendant moved to withdraw the plea of guilty claiming various infirmities in the trial court’s acceptance of that plea. The trial court was correct in denying that motion on the ground that it was untimely under Practice Book § 720 since it was not filed before the imposition of the sentence.

There is no error.


author: Spallone, J.

text:
    Mario Carrier et al. v. Gerard Rodrigue et al.
    (2719)
    Dupont, C.P.J., Borden and Spallone, Js.
    Argued January 10
    decision released March 19, 1985

      John W. Lemega, with whom, on the brief, was Richard C. Tynan, for the appellants (defendants).

      Neil F. Murphy, for the appellees (plaintiffs).
   Spallone, J.

This action was brought on behalf of a minor child to recover for injuries to the child allegedly caused by the breaking of a glass panel in the back door of an apartment which the child’s parents rented from the defendants. After a jury trial, a verdict was returned for the plaintiffs. The defendants have appealed from the judgment rendered on the verdict.

The sole issue before us is whether the trial court erred in denying the defendants’ motion for a directed verdict and motion to set aside the verdict. The defendants argue that the plaintiffs failed to offer any evidence from which the jury could reasonably infer a causal relationship between the defendants’ alleged negligence and the minor child’s injury.

Our review of the denial of both a motion for a directed verdict and a motion to set aside a verdict is limited. As to each, the evidence will be given the construction most favorable to support the verdict. State v. Ruiz, 171 Conn. 264, 275, 368 A.2d 222 (1976) (denial of motion for a directed verdict); Kalleher v. Orr, 183 Conn. 125, 126-27, 438 A.2d 843 (1981) (denial of motion to set aside a verdict). The trial court’s ruling is entitled to great weight because of its familiarity with the facts and circumstances of the case. Neilson v. D’Angelo, 1 Conn. App. 239, 244, 471 A.2d 965, cert. dismissed, 193 Conn. 801, 474 A.2d 1259 (1984). In this case, our examination of the evidence leads us to conclude that the plaintiffs’ case was sufficient to be presented to the jury; Buckley v. Lovallo, 2 Conn. App. 579, 584, 481 A.2d 1286 (1984); and that the jury could reasonably have decided as it did. Kalleher v. Orr, supra; LaFaive v. DiLoreto, 2 Conn. App. 58, 59-60, 476 A.2d 626 (1984).

There is no error.

In this opinion the other judges concurred.

       The evidence included testimony that the plaintiffs had expressed concern to the defendants about the safety of the glass panel on several occasions; that the defendants retained control of the door and its component parts; that the glass panel was one-eighth of an inch thick and did not have a protective grill; and that, according to an expert witness, the glass panel presented a safety hazard.


text:
    Haritsa X. Halepas v. G. William Malerba Malerba’s Silver City Tire Company, Inc. v. Haritsa X. Halepas et al.
    (2776)
    (2777)
    Dupont, C.P.J., Borden and Daly, Js.
    Argued January 11
    decision released March 19, 1985

      Edmund C. Tiryakian, with whom, on the brief, was James M. Ullman, for the appellants (defendant in the first case, plaintiff in the second case).

      David M. Askinas, with whom, on the brief, was Raynald B. Cantin, for the appellees (plaintiff in the first case, defendants in the second case).
   Per Curiam.

The plaintiff in the first case, Haritsa X. Halepas, brought an action for rent for premises owned by Halepas and occupied by the defendant, G. William Malerba. In a second action, Malerba’s Silver City Tire Company, Inc., brought suit against Haritsa X. and Peter Halepas, for damages and unjust enrichment due to substantial improvements made by it to the premises. The trial court rendered judgment for Halepas in both actions, and Malerba and Malerba’s Silver City Tire Co. appealed.

We have carefully reviewed the claims of error, which primarily attack the factual findings of the trial court, and find them to be without merit. This court does not, and will not, retry facts found by the trial court that are amply supported by the evidence and are not clearly erroneous. See Hobby v. Feldman, 2 Conn. App. 696, 697, 482 A.2d 1226 (1984).

There is no error.

       These eases were consolidated for trial.

       These appeals, originally filed in the Supreme Court, were transferred to this court. General Statutes § 51-199 (c).


text:
    L. Suzio Concrete Company, Inc. v. Mike Salafia Central Connecticut Acoustics, Inc. v. Mike Salafia
    (2123)
    (2124)
    Dupont, C.P.J., Spallone and Daly, Js.
    Argued December 11, 1984
    decision released March 19, 1985

      Jeffrey M. Krupnikoff for the appellants (plaintiff in each case).

      Patrick W. Boatman, for the appellee (defendant in both cases).
   Spallone, J.

In each of these cases, the plaintiff is appealing from the trial court’s decision to dissolve an ex parte prejudgment remedy. The issues presented in each appeal are identical.

The plaintiffs initially brought suit against a corporation, Mike Salafia Builders, Inc., as well as Mike Salafia, individually, for payment for materials and services which they claimed to have furnished the defendants. The plaintiffs withdrew the actions as to the corporation and proceeded only against Mike Salafia, also known as Sebastian J. Salafia. Each plaintiff obtained a postcomplaint prejudgment remedy of attachment of real estate in which the defendant held an interest. Upon the defendant’s motions, the prejudgment remedy of attachment was dissolved in both cases. At the hearings on the motions to dissolve, the defendant claimed that in his dealings with the plaintiffs he had been acting on behalf of the corporation, Mike Salafia Builders, Inc., and was therefore not personally liable for the amounts allegedly due. The plaintiffs argued that they had always transacted business with the defendant personally.

The testimony adduced at the hearings revealed that the defendant had been in the construction business since at least 1970. In 1975, he formed a corporation bearing his name, Mike Salafia Builders, Inc., and since that time did business solely as a corporation. Although both of the plaintiffs had transacted business with the defendant before 1975, the materials and services for which they claimed payment had been provided between the fall of 1981 and the spring of 1982. The defendant never formally announced his incorporation, but, beginning in 1975, he always paid the plaintiffs by corporate check and “Mike Salafia Builders, Inc.” was the name displayed on his signs. The trial court found that sufficient evidence had been produced to show that the plaintiffs had notice that the defendant was transacting business as the representative of a corporation, and granted the motions to dissolve.

The plaintiffs now claim that the court erred (1) in allowing the defendant to raise, at the prejudgment remedy hearing, a defense which must be specially pleaded; (2) in finding that they were dealing with a corporation rather than an individual; and (3) in granting the motions to dissolve the attachment in the absence of sufficient evidence contradicting their claims or supporting that of the defendant.

“The language of our prejudgment remedy statutes; General Statutes § 52-278a et seq.; requires that the court determine ‘whether or not there is probable cause to sustain the validity of the plaintiffs claim’; General Statutes § 52-278d (a); that is to say ‘probable cause that judgment will be rendered in the matter in favor of the plaintiff.’ General Statutes § 52-278c (a) (2). ‘The legal idea of probable cause is a bona fide belief in the existence of the facts essential under the law for the action and such as would warrant a man of ordinary caution, prudence and judgment, under the circumstances, in entertaining it.’ [Emphasis in original.] Wall v. Toomey, 52 Conn. 35, 36 (1884). Probable cause is a flexible common sense standard. It does not demand that a belief be correct or more likely true than false. Texas v. Brown, 450 U.S. 730, 103 S. Ct. 1535, 75 L. Ed. 2d 502 (1983).” Three S. Development Co. v. Santore, 193 Conn. 174, 175, 474 A.2d 795 (1984).

The determination of probable cause in a prejudgment remedy hearing differs from the application of the probable cause standard in criminal cases. Augeri v. C. F. Wooding Co., 173 Conn. 426, 429, 378 A.2d 538 (1977). In the latter, defenses are not weighed because there is no opportunity for the defendant to present them. Id. In a prejudgment remedy hearing, on the other hand, the defendant is afforded, by statute, an opportunity to appear and be heard. This opportunity would be meaningless if the defendant were barred from presenting whatever reasons he may have to show lack of probable cause. Accordingly, “the showing of a clear, factually and legally simple defense, such as infancy or the statute of limitations, may be enough to show a lack of probable cause for the validity of the plaintiff’s claim.” Babiarz v. Hartford Special, Inc., 2 Conn. App. 388, 393, 480 A.2d 561 (1984); Augeri v. C. F. Wooding Co., supra. That the defense may consist of “[fjacts which are consistent with such statements [of facts by the plaintiff] but show, notwithstanding, that he has no cause of action”; Practice Book § 164; does not prevent its presentation at a hearing in probable cause.

While such a hearing involves a weighing of probabilities rather than a full-scale trial; Three S. Development Co. v. Santore, supra; procedural due process requires that the hearing be held in a meaningful manner. Fermont Division v. Smith, 178 Conn. 393, 397, 423 A.2d 80 (1979). Certainly, this could not be done if the defendant were barred from presenting certain defenses at the prejudgment remedy hearing which he would not be barred from raising at trial. Indeed, such a constraint would vitiate the opportunity General Statutes § 52-278e “affords to the defendant whose property has been attached ... to obtain an immediate postseizure hearing at which the prejudgment remedy will be dissolved unless the moving party proves probable cause to sustain the validity of his claim.” Id., 398. We conclude that the trial court did not err in allowing the defendant to raise the defense that he was not personally liable for the amounts alleged to be due.

We next consider whether the trial court was correct in finding no probable cause to sustain the attachment. The fundamental issue before the court, in both cases, was whether the materials and services which the plaintiffs allegedly furnished were supplied to the defendant personally or to Mike Salafia Builders, Inc., the corporation of which the defendant was the president.

The question of whether the defendant disclosed his representative capacity in his dealings with the plaintiff is a question of fact. Murphy v. Dell Corporation, 184 Conn. 581, 582, 440 A.2d 223 (1981). Here, the trial court determined this question by the weighing of probabilities. Our function is merely to determine whether the conclusion of the trial court was reasonable. Three S. Development Co. v. Santore, supra, 176. In performing this function, we recognize that the trial court was vested with broad discretion in determining the probable success of the plaintiffs’ cases and that its determination is not to be overruled in the absence of clear error. Id. Having reviewed these matters, we find that the court’s conclusion in both cases was reasonable.

There is no error.

In this opinion the other judges concurred.

       These appeals were originally filed in the Appellate Session of the Superior Court. General Statutes § 51-197a (c).

       General Statutes § 52-278e states, in part, that “[t]he court or a judge of the court may allow the prejudgment remedy to be issued by an attorney without hearing as provided in sections 52-278c and 52-278d upon verification by oath of the plaintiff or of some competent affiant, that there is probable cause to sustain the validity of the plaintiff’s claim .... The defendant appearing in such action may move to dissolve or modify the prejudgment remedy granted pursuant to this section in which event the court shall proceed to hear and determine such motion expeditiously. If the court determines at such hearing requested by the defendant that there is probable cause to sustain the validity of the plaintiff’s claim, then the prejudgment remedy granted shall remain in effect. If the court determines there is no such probable cause, the prejudgment remedy shall be dissolved. An order shall be issued by the court setting forth the action it has taken.”


text:
    B/M Redev. Corporation v. Raymond Serrano
    (3277)
    Borden, Spallone and Daly, Js.
    Argued January 9
    decision released March 19, 1985

      Ramon A. Pacheco, for the appellant (defendant).

      Thomas C. Clark, with whom, on the brief, was Ann W. Goodwin, for the appellee (plaintiff).
   Per Curiam.

This is an appeal by the defendant from the judgment of the trial court granting immediate possession to the plaintiff in a summary process action. A memorandum of decision was not filed in this case, and the defendant did not seek an articulation of the basis of the trial court’s decision. Practice Book § 3082.

The defendant bore the burden of securing an adequate appellate record. Barnes v. Barnes, 190 Conn. 491, 493, 460 A.2d 1302 (1983). It could have accomplished this by obtaining an articulation under Practice Book § 3082, but it did not. In re Juvenile Appeal (85-1), 3 Conn. App. 158, 161, 485 A.2d 1355 (1985). Under these circumstances, we decline to remand this case sua sponte for articulation. Urban v. Leggio, 1 Conn. App. 226, 228, 470 A.2d 1226 (1984). Since the record before us is completely inadequate, we have no basis upon which to find error.

There is no error.


author: Dupont, C.P. J.

text:
    State of Connecticut v. Judy Cooley
    (2009)
    Dupont, C.P.J., Spallone and Daly, Js.
    Argued November 13, 1984
    decision released March 26, 1985

      Laura A. Cahill, certified legal intern, and Joette Katz, assistant public defender, with whom, on the brief, was Kenneth Rosenthal, assistant public defender, for the appellant (defendant).

      John H. Malone, assistant state’s attorney, with whom, on the brief, were JohnM. Bailey, state’s attorney, and Jeffrey L. Kline, assistant state’s attorney, for the appellee (state).
   Dupont, C.P. J.

The trial court, after a hearing pursuant to General Statutes § 53a-32, found the defendant in violation of one of the conditions of her probation and rendered judgment imposing the defendant’s original sentence of sixty days imprisonment, which had been suspended. The defendant appeals, claiming a violation of her due process rights under the fourteenth amendment to the United States constitution and an abuse of the court’s discretion.

The defendant, after a jury trial, was found guilty of breach of the peace, a violation of General Statutes § 53a-181. The offense arose from a conflict between the defendant and her ex-husband’s present wife. The condition of probation here involved was that the defendant receive “some type of therapeutic or psychiatric counseling ... if recommended by the probation officer.” This condition was imposed on the date of sentencing in early May, 1981; the adult probation officer advised the defendant of it on May 27, 1981, during her initial probation conference. At that time, and, subsequently, on June 2, 1981, the defendant expressed her disagreement with the condition. Nevertheless, on June 8,1981, the defendant was, on her own initiative, interviewed at the Enfield Mental Center where no assessment was made of her mental condition. She did not advise her probation officer of her interview and she continued to express her belief during the interview that the probation condition was unwarranted, too expensive and too difficult for compliance. Meanwhile, on June 3,1981, the probation officer made application for an arrest warrant, charging the defendant with noncompliance with the condition. The warrant was subsequently issued and the defendant was arrested in August of 1981. In October of 1981, the defendant made application for a sentence modification, seeking the removal of that condition of probation, stating therein that the condition was punitive rather than rehabilitative.

On April 13, 1982, the trial court, Wagner, J., conducted a hearing on the violation of probation, and the same hearing was expanded to include the defendant’s motion for removal of the condition. The court granted the latter motion “on an interim basis reserving my right to reinstate it.” At that hearing, the defendant introduced into evidence a psychological assessment, dated March 9, 1982, by a psychologist of the court’s diagnostic clinic, which concluded that nothing which the author knew, either historically or as a result of observation, suggested that the defendant had ever labored under any gross psychiatric symptomatology and that there was no evidence as of the time of the interview, March 5,1982, to suggest that she was psychiatrically disturbed or in need of psychiatric intervention.

On April 27, 1982, the trial court, Klaczak, J., upon the renewal by the state of its claim that the defendant had violated the condition of her probation, held further hearings, culminating in the judgment that the condition of her probation was violated, and that her probation should be revoked and the original sentence reinstated.

The constitutional claim of the defendant was not raised below and any review of it is limited. Practice Book § 3063; State v. Kurvin, 186 Conn. 555, 564-65, 442 A.2d 1327 (1982). The defendant has not advanced an exception to this general rule under State v. Evans, 165 Conn. 61, 69-70, 327 A.2d 576 (1973). Furthermore, the cases cited by her, Vitek v. Jones, 445 U.S. 480, 100 S. Ct. 1254, 63 L. Ed. 2d 552 (1980), and Gagnon v. Scarpelli, 411 U.S. 778, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973), are inapposite. Those cases involved entitlement to a hearing, entitlement to counsel and notification of the hearing. Here, the defendant had a hearing, was notified and was represented by counsel.

The question for appellate review is whether the trial court abused its discretion in revoking probation and invoking the original sentence, after finding a historical violation of one of the conditions. At the time of the finding of the violation, the only evidence as to the underlying need for the condition was that it was not necessary.

The standard of appellate review in a probation revocation hearing distills to a review of the reasonableness of two findings. The findings to be reviewed are whether the condition of probation was violated and whether the beneficial purpose of the condition is still being served. State v. Roberson, 165 Conn. 73, 80, 327 A.2d 556 (1973). Even if the trial court could reasonably determine that the defendant had transgressed the condition of her probation by refusing to acquiesce in its necessity and in refusing over the course of one week to abide by it, it could not have reasonably concluded that the beneficial purpose of it retained any of its original efficacy. The court not only had evidence of the condition’s lack of any rehabilitative value, it was aware of an interim trial court ruling which had, at the least, temporarily suspended the need for the defendant to adhere to the condition. Furthermore, General Statutes § 53a-32 (b) makes it statutorily permissible for a court to find that a violation of a condition of probation exists, and yet modify the condition. Were this not so, factual situations such as here exist would require a rote revocation of probation and imposition of sentence upon a finding that a defendant did not obey a condition of probation. An inquiry into the reasons for the failure to obey the conditions of probation and an assessment by the court as to whether those reasons fall into the category of willful disobedience of the court’s sentence must be made. See Bearden v. Georgia, 461 U.S. 660, 103 S. Ct. 2064, 76 L. Ed. 2d 221 (1983). In doing so, the “whole record” must be examined. General Statutes § 53a-32 (b).

At the time of the revocation of the defendant’s probation, the particular condition, even if violated, was known not to be reasonably related to the rehabilitation of the defendant and to the protection of the public. See General Statutes § 53a-30 (a) (9); United States v. Stine, 646 F.2d 839, 842 (3d Cir. 1981); Higdon v. United States, 627 F.2d 893, 897 (9th Cir. 1980).

The state argues that even if the condition should never have been imposed, the defendant was bound by it, and any violation of it, for any length of time, was, per se, a sufficient ground for the revocation of probation. A defendant is, of course, in legal peril of incarceration at a hearing on the revocation of probation. If a failure to comply with a condition of probation arises from sheer contumacy based upon a defendant’s own assessment that a judicial condition of probation is meritless and the court’s inquiry leads to no other conclusion, probation should be revoked. If, however, the condition serves no rehabilitative purpose and there is undisputed evidence that the condition was unnecessary at its inception, or was without any beneficial purpose as of the date of the hearing, reasonableness of a revocation of the probation is lacking. On the facts of this case, the trial court abused its discretion in revoking the defendant’s probation.

There is error, the judgment is set aside, and the case is remanded for further proceedings.

In this opinion the other judges concurred.

       The appeal was originally filed in the Appellate Session of the Superior Court. General Statutes § 51-197a (c). The revocation of postconviction probation is a final appealable judgment. State v. Parker, 194 Conn. 650, 659 n.8, 485 A.2d 139 (1984).

       At oral argument, the defendant asserted that the probation condition of psychiatric counseling, when left to the discretion of the adult probation officer, is an illegal delegation of judicial authority. General Statutes § 53a-30 (b) expressly allows either the judge or the probation department to impose reasonable conditions of probation and such imposition is not an illegal delegation of the judicial function. State v. Roberson, 165 Conn. 73, 76 n.1, 327 A.2d 556 (1973).


text:
    Pauline Solla v. Rito Solla
    (2555)
    Dupont, G.P.J., Hull and Borden, Js.
    Argued January 8
    decision released March 26, 1985

      Thomas F. Brown, for the appellant (defendant).

      Philip C. Reed, for the appellee (plaintiff).
   Per Curiam.

This is an appeal from a routine dissolution of marriage action in which the defendant claims that the trial court rendered its judgment on the basis of erroneous facts. The particular facts found by the trial court, that the defendant was a high school graduate and a construction worker, were not crucial to the judgment. The court based its financial awards upon the defendant’s net earnings, regardless of his occupation or education. A review of the record makes it clear that the monetary award to the plaintiff and the assignment of property to her were neither arbitrary nor an abuse of discretion. Anderson v. Anderson, 191 Conn. 46, 57, 463 A.2d 578 (1983).

There is no error.


text:
    Borough of Newtown v. Department of Public Utility Control et al.
    (2091)
    Borden, Spallone and Daly, Js.
    Argued January 9
    decision released March 26, 1985

      Raymond T. Connor, for the appellant (plaintiff).

      Phyllis E. Lemell, assistant attorney general, with whom were Lisa H. Oliveri, assistant attorney general, and, on the brief, Joseph I. Lieberman, attorney general, for the appellee (named defendant).

      TedD. Backer, for the appellee (defendant Newtown Water Company).
   Spallone, J.

The plaintiff has appealed from the trial court’s dismissal of its administrative appeal from a decision of the defendant department of public utility control (DPUC) granting a rate increase to the defendant Newtown Water Company (company).

The DPUC issued its decision in this case on February 9, 1982, and a supplemental decision, approving a revised schedule of rates filed by the company, on May 19,1982. In the decision of February 9,1982, the DPUC named the plaintiff and the division of consumer counsel (DCC) as parties.

In appealing from the DPUC’s final decision, the plaintiff served copies of its complaint upon the company and the DPUC within thirty days after the mailing of the notice of that decision, as required by General Statutes (Rev. to 1981) § 4-183 (b). The plaintiff did not cite in or serve a copy of its complaint upon the DCC. Both the company and the DPUC moved to dismiss the appeal because the DCC had not been served. The plaintiff thereafter amended its complaint to cite in the DCC and served a copy of the complaint on the DCC on August 17,1983, ninety-one days after the supplemental DPUC decision was rendered.

The company renewed its motion to dismiss, alleging that the plaintiff failed to comply with § 4-183 (b) because it did not serve the DCC within the thirty day period set forth in that statute. The trial court found that the appeal was fatally defective because it did not comply with the service provisions of § 4-183 (b) and granted the motion to dismiss. We find no error.

The plaintiff argues that the DCC’s status as a party was not clearly apparent on the face of the trial court record. It contends that in the absence of affidavits setting forth facts outside of the record, the court improperly dismissed the action. The “record” which was before the trial court when the motion to dismiss was argued consisted of each paper filed with the clerk of the Superior Court. Practice Book § 250. The DPUC’s decision of February 9,1982, which designated the DCC as a party, was annexed to the memoranda of law accompanying the original motions to dismiss filed by the company and the DPUC. The decision naming the DCC as a party was thus before the trial court and consequently a part of the record. See In re Application of Dodd, 131 Conn. 702, 703, 42 A.2d 36 (1945); Maltbie, Conn. App. Proc. § 314. No facts outside of the record needed to be set forth by affidavit.

The plaintiff also claims that because the DPUC’s supplemental decision of May 19,1982, made no reference to the DCC, the DCC did not have party status. As we have noted, the May 19, 1982 decision served the purpose of setting forth the DPUC’s findings as to a revised schedule of rates submitted by the company. The supplemental decision did not upset the DPUC’s original denomination of the DCC as a party.

The plaintiff additionally argues that because the DCC is neither an adverse nor a necessary party, it did not need to be cited as a party. Section 4-183 (b) requires that “all parties of record” be served with a copy of the petition. Section 4-166 (5) defines “party” as “each person or agency named or admitted as a party, or properly seeking and entitled as of right to be admitted as a party.” Nothing in that definition supports the argument that a “party” must be either necessary or have an interest which is adverse to others who could be parties to the appeal. Since the DCC was a party to the administrative proceedings, it was a party of record within the scope of § 4-183 (b) and should have been cited as a party defendant.

The right to appeal from the decision of an administrative agency exists only under statutory authority. This right may be taken advantage of only by strict compliance with the statutory provisions by which it is created. Royce v. Freedom of Information Commission, 177 Conn. 584, 587, 418 A.2d 939 (1979). “The failure to include a party defendant in the citation is not a defect curable by amendment and renders the appeal subject to dismissal for want of jurisdiction.” Board of Education v. State Board of Education, 38 Conn. Sup. 712, 717, 461 A.2d 997 (1983); see Daniels v. New Haven Police Department, 3 Conn. App. 97, 485 A.2d 579 (1985).

There is no error.

In this opinion the other judges concurred.

       This appeal, originally filed in the Supreme Court, was transferred to the Appellate Session of the Superior Court, and was thereafter transferred to this court. General Statutes § 51-197a (c).

       The DCC is an independent advocate empowered by General Statutes § 16-2a to represent consumer interests in matters affecting Connecticut consumers with respect to public service companies.

       General Statutes (Rev. to 1981) § 4-188 (b) provided as follows: “Proceedings for such appeal shall be instituted by filing a petition in superior court for the judicial district of Hartford-New Britain or for the judicial district wherein the aggrieved person resides or if such person is not a resident of this state to the court for the judicial district of Hartford-New Britain within forty-five days after mailing of the notice of the final decision of the agency or, if a rehearing is requested, within forty-five days after the decision thereon. Copies of the petition shall be served upon the agency and all parties of record within thirty days after mailing of such notice or, if a rehearing is requested, thirty days after the decision thereon, except that service upon an agency may be made by mailing a copy of the petition by registered or certified mail, postage prepaid, to the office of the commissioner of the agency or to the office of the attorney general in Hartford.”


text:
    Susan Goranson v. Administrator, Unemployment Compensation Act, et al.
    (2497)
    Hull, Spallone and Daly, Js.
    Argued January 9
    decision released March 26, 1985

      Jonathan L. Gould, with whom, on the brief, were Barbara C. Deinhardt, and Daniel E. Livingston, for the appellant (plaintiff).

      Thadd A. Gnocchi, assistant attorney general, with whom, on the brief, was Joseph I. Lieberman, attorney general, for the appellee (named defendant).
   Per Curiam.

We have reviewed the record in this matter and we conclude that the trial court did not err.

The plaintiff’s argument is directed specifically to the factual findings of the referee and the board of review of the unemployment compensation commission. The plaintiff conceded in her brief, however, that our review of the facts is limited to determining whether those factual conclusions were “reasonably and logically drawn.” Guevara v. Administrator, 172 Conn. 492, 496, 374 A.2d 1101 (1977), quoting Stapleton v. Administrator, 142 Conn. 160, 165, 112 A.2d 211 (1955), and citing Practice Book §§ 435, 445. We find that the conclusions of the referee and the board were both reasonable and logical.

There is no error.


text:
    Jerome Joshua Klein v. Sandra Phyllis B. Klein
    (2167)
    Borden, Spallone and Daly, Js.
    Argued January 9
    decision released March 26, 1985

      Paul J. Pacifico, with whom, on the brief, was Steven W. Russo, for the appellant (plaintiff).

      Ralph C. Crozier, with whom, on the brief, was Norman K. Chase, for the appellee (defendant).
   Daly, J.

The plaintiff has appealed from the refusal of the trial court to modify the judgment of dissolution.

The factual situation does not appear to be in dispute. On August 30, 1976, a judgment dissolving the marriage of the parties was entered by agreement. The terms of the judgment provided, inter alia, that the plaintiff husband would be allowed to reduce the monthly payments in the event of the defendant wife’s remarriage. The monthly payments would increase if the remarriage went awry. The separation agreement, which was incorporated into the judgment, provided that “remarriage shall be defined to mean cohabitation by the Wife with an unrelated male after and for four continuous months in the same residence so that the Superior Court at Stamford concludes the Wife and said male are living together.” The cessation of cohabitation by the wife would reinstate the increased amount of alimony.

The plaintiff filed a motion for modification, dated September 17,1982, alleging a change of circumstances of the parties, namely, cohabitation by the defendant with a male. It is uncontroverted that the defendant has been living with a French male intermittently for periods of two to three weeks both in Connecticut and France, but never for more than four consecutive weeks.

The trial court concluded that the plaintiff had not sustained his burden of proving cohabitation for four continuous months, and denied the motion to modify.

The plaintiff claims to have proved a remarriage under the agreement, and also raises the specter of public policy. The plaintiff contends that the terms of the separation agreement were not intended to condone the defendant’s lifestyle.

“The interpretation of a contract must be made in accordance with the terms employed in the instrument and a court cannot by that means disregard the words used by the parties or revise, add to, or create a new agreement.” Collins v. Sears, Roebuck & Co., 164 Conn. 369, 374, 321 A.2d 444 (1973). The intention of the parties must be determined from the language of the instrument itself and not from any intention either of the parties may have secretly entertained. Sturman v. Socha, 191 Conn. 1, 10, 463 A.2d 527 (1983); Holden & Daly, Connecticut Evidence (1966 & Sup. 1983) § 83 (b).

There is no question that a span of four continuous months of cohabitation is a necessary factor to constitute remarriage, as defined in the separation agreement, and such a span is lacking here. As has been so aptly stated, “ ‘[although one may sympathize with the position in which the plaintiff finds himself the fact remains that by the separation agreement he made his bed and he cannot now be heard to complain.' ” McAnerney v. McAnerney, 165 Conn. 277, 287, 334 A.2d 437 (1973).

There is no error.

In this opinion the other judges concurred.

       This appeal was originally filed in the Appellate Session of the Superior Court. General Statutes § 51-197a (c).

       The defendant was to receive, during the relevant period, $1833.33 per month if she did not remarry, and amounts ranging from $916.66 to $1375 per month if she did.


author: Borden, J.

text:
    Christine N. Lavigne et al. v. David A. Lavigne
    (2737)
    Hull, Borden and Spallone, Js.

      Argued January 11
    decision released March 26, 1985

      Robert P. Hanahan, with whom, on the brief, was Paul J. Shea, for the appellants (plaintiffs).

      Walter A. DeAndrade, for the appellee (defendant).
   Borden, J.

This case involves the attempt by the named plaintiff, whose marriage to the defendant ended in divorce in 1969, to require the defendant to bear the college expenses of their two adult children, also plaintiffs in the action. The trial court rendered judgment for the defendant, from which the plaintiffs appealed.

Under the second count of the complaint, the plaintiffs claimed that the defendant breached the provision of a separation agreement, entered into at the time of the divorce, obligating the defendant to pay the college expenses of the children. The trial court concluded that it had no jurisdiction to enforce the agreement beyond the age of eighteen of the children and, alternatively, that the agreement did not obligate the defendant to bear college expenses. We find that the court erred in its first conclusion, but that the error was rendered harmless by its alternative conclusion.

I

It is clear that, absent statutory authority, the Superior Court in a dissolution action lacks subject matter jurisdiction to make, and enforce by contempt, orders regarding the education of a child over the age of majority, even when the parties had entered an otherwise valid separation agreement providing for one of the parties to bear those expenses. Hunter v. Hunter, 177 Conn. 327, 416 A.2d 1201 (1979). It is also clear that the part of General Statutes § 46b-66, conferring that jurisdiction where the parties have so agreed in writing, operates prospectively only, from October 1, 1977. Id., 332-33.

The Supreme Court has never specifically said whether this jurisdictional limitation, which is based on the statutory power of the court to terminate marriages and on the statutory definition of the age of majority; see Kennedy v. Kennedy, 177 Conn. 47, 411 A.2d 25 (1979); bars enforcement of such an agreement, entered before October 1, 1977, by a civil action for damages. See id., 53 (“We do not rule, however, on whether the separation agreement of the parties is enforceable as a contract or not, as the record does not reveal the entire contract or whether the circumstances surrounding the making of the contract should be considered.”) We think it quite clear by now, however, that this jurisdictional limitation does not bar such an action. See Hayes v. Beresford, 184 Conn. 558, 564-68, 440 A.2d 224 (1981).

In Hayes v. Beresford, supra, the Supreme Court held not violative of public policy, and enforceable by a suit for damages, a separation agreement, executed in connection with and incorporated into a Mexican divorce decree, providing for support for children until age twenty-three. Although the opinion does not specifically refer to the age of the oldest child at the time of the trial court’s judgment, it is manifest that, at the time of the Supreme Court’s opinion, the child was over the age of eighteen. Id., 559. Furthermore, the reasoning of the opinion is not limited to minor children. It rests, instead, on the principle that, under “judicial supervision, private settlement of the financial affairs of estranged marital partners is a goal that courts should support rather than undermine.” Id., 568. We see nothing in the public policy of our state that would bar a suit on such an agreement. See also Van Wagner v. Van Wagner, 1 Conn. App. 578, 582-84, 474 A.2d 110 (1984) (public policy does not bar enforcement of a foreign contempt order for support of a child beyond age eighteen, valid under the law of the foreign state).

The record in this case indicates that the agreement was entered into after the divorce action was begun, that it was disclosed to the court at the time of the divorce, and that the court, in its judgment, referred to it and specifically adopted some of its provisions, albeit remaining silent as to the specific provision at issue here. We conclude, therefore, that the trial court erred in holding that the agreement was not enforceable by a civil suit for damages.

II

The plaintiffs argue that the trial court also erred in finding that the agreement does not obligate the defendant to bear the children’s college expenses. We disagree.

We first consider our scope of review. Our precedents have not been consistent on the issue of whether the interpretation of a written agreement is a question of fact for the trier, subject to a limited scope of appellate review, or a question of law, subject to a plenary scope of appellate review. One line of cases views the issue as one of fact yielding limited review. See, e.g., Hanson Development Co. v. East Great Plains Shopping Center, Inc., 195 Conn. 60, 65-66, 485 A.2d 1296 (1985); John F. Epina Realty, Inc. v. Space Realty, Inc., 194 Conn. 71, 78, 480 A.2d 499 (1984); Bead Chain Mfg. Co. v. Saxton Products, Inc., 183 Conn. 266, 274-75, 439 A.2d 314 (1981); Heyman v. CBS, Inc., 178 Conn. 215, 227-28, 423 A.2d 887 (1979); Hydro-Hercules Corporation v. Gary Excavating, Inc., 166 Conn. 647, 652-53, 353 A.2d 714 (1974); Hess v. Dumouchel Paper Co., 154 Conn. 343, 349, 225 A.2d 797 (1966). Another line of cases views the issue as one of law yielding plenary review. See, e.g. Robinson v. Weitz, 171 Conn. 545, 551-53, 370 A.2d 1066 (1976); Bria v. St. Joseph’s Hospital, 153 Conn. 626, 632, 220 A.2d 29 (1966); see also Sturman v. Socha, 191 Conn. 1, 11-12, 463 A.2d 527 (1983). Neither line discusses, or seeks to distinguish, the other.

Faced with this divergence, we believe that, at least in a case such as this, review of the trial court’s construction of the agreement is an issue of fact subject to review under the limited standard of whether it is clearly erroneous. Greene v. Scott, 3 Conn. App. 34, 38, 484 A.2d 474 (1984). First, it is axiomatic that, in general, interpretation of an agreement is a search for the intent of the parties. Lar-Rob Bus Corporation v. Fair-field, 170 Conn. 397, 406-407, 365 A.2d 1086 (1976). As in other areas of the law such as torts; DeLuca v. C. W. Blakeslee & Sons, Inc., 174 Conn. 535, 546, 391 A.2d 170 (1978); and criminal law; State v. Haddad, 189 Conn. 383, 398, 456 A.2d 316 (1983); contractual intention presents a classic question of fact. “ ‘The intention of the parties manifested by their words and acts is essential to determine whether a contract was entered into and what its terms were.’ ” Hydro-Hercules Corporation v. Gary Excavating, Inc., supra, 652. “ ‘Intention is an inference of fact, and the [trial court’s] conclusion is not reviewable unless it was one which the trier could not reasonably make.’ ” Heyman v. CBS, Inc., supra, 228. Second, the trial court here reached its determination on the basis of the written agreement, supplemented by “the testimony of live witnesses as to the meaning of [the document] or as to the circumstances surrounding the execution of [that document].” Marion Road Assn. v. Harlow, 1 Conn. App. 329, 332, 472 A.2d 785 (1984). Third, those cases applying the limited standard of appellate review appear to be more numerous and of later vintage than the others. E.g., Hanson Development Co. v. East Great Plains Shopping Center, Inc., supra; John F. Epina Realty, Inc. v. Space Realty, Inc., supra; but see Sturman v. Socha, supra.

Applying this standard, we cannot conclude that the trial court’s finding was clearly erroneous. The agreement is reasonably susceptible of the reading ascribed to it, namely that, while it contemplated that the defendant would pay those expenses, it did not obligate him to do so.

There is no error.

In this opinion the other judges concurred.

       The plaintiffs have withdrawn any claim of error under the first count.

       Paragraph 10 of the agreement, on which the plaintiffs rely, provides as follows: “The Wife shall have custody of the minor children of the marriage, subject, however, to rights of reasonable visitation in the Husband, and the Husband shall pay to the Wife for the maintenance and support for each child twelve years or older, $75.00 per month, and for each child under the age of twelve years $50.00 per month; provided, however, that when any such child is not living in the Wife’s house or by reason of being in school or temporarily employed so that the child does not live with the Wife, the amount payable per month for any such child shall be reduced to fifty per cent of the prescribed amount, it being agreed that such payments shall not be deemed to require the Wife to provide any extra or spedal education nor the educational costs of any such child at private school or at a college or university, and to the extent that any such child be educated at a private school or receive university or college education, the same shall be at the sole expense of the Husband, it being agreed that so long as the Husband makes the support payments for the benefit of each child as herein called for, the Wife will not claim any such child for whom such payments have been made as a dependent in her income tax return.”

       At the time of the divorce, the judicially preferred practice was not to incorporate separation agreements in judgments. See Foley v. Foley, 149 Conn. 469, 471, 181 A.2d 607 (1962); cf. General Statutes § 46b-66.

       The parties agreed at oral argument that the defendant testified in the trial court regarding the agreement and the plaintiffs did not see fit to file a transcript on this appeal. Thus, we have no basis on which to find that testimony at variance with the trial court’s determination.


author: Hull, J.

text:
    Prudent Projects et al. v. Travelers Insurance Company et al.
    (2483)
    Hull, Borden and Spallone, Js.
    Argued January 18
    decision released March 26, 1985

      Andrew Brand, with whom, on the brief, was Thomas B. Wilson, for the appellants (plaintiffs).

      Irving B. Shurberg, for the appellee (named defendant).

      Richard E. Grushin filed a brief for the appellee (defendant Lifetime Drywall Company).
   Hull, J.

This appeal presents the sole issue of whether, by recording a correcting deed more than three years after the original deed had omitted two of the five parcels of land to be conveyed, the rights of two intervening judgment lien creditors can be avoided. We conclude that the trial court was correct in affording to the judgment lienors priority over the claimed equitable rights of the grantee under the original deed. The corrected deed included the two parcels originally omitted.

On September 21, 1973, Francis J. and Lucille M. Buvarsky conveyed five parcels of land, situated in Killingly, to Fay Realty Corporation. By deed dated November 19, 1973, and recorded on November 20, 1973, Fay Realty conveyed three of those parcels to Herman Sheppard, Trustee. Consequently, the two omitted parcels were not conveyed, contrary to the intent of the parties. This error was not discovered until after the two judgment liens of the defendants, Travelers Insurance Company and Lifetime Dry Wall Company, had been recorded against all land owned by Fay Realty without notice of the plaintiffs’ claimed interest therein.

By the time the error was discovered, Sheppard had already conveyed the property, believing that it included all five parcels, to Riverview Park Associates. In an effort to remedy the error, Sheppard and Fay Realty provided Riverview with a corrected deed which was recorded on December 8, 1976. Riverview and Sheppard subsequently conveyed the property to the named plaintiff, Prudent Projects, on December 11, 1976. On October 31,1979, Prudent Projects conveyed the property to Gene Mikel and Ray Mikolinski, the two remaining plaintiffs, who are the present owners of the land.

From the transcript, we glean that at trial the plaintiffs argued that this action, although formally brought as an action to quiet title, should be viewed essentially as an action for reformation to gain judicial confirmation of the modifications of their ownership interests, already reflected by the prior correcting deed. The plaintiffs have appealed from the trial court’s judgment that the defendants each had an interest in the two parcels of land in question by virtue of the judgment liens described above.

An action seeking reformation of a deed is an action in equity. Patalano v. Chabot, 139 Conn. 356, 359-60, 94 A.2d 15 (1952). As such, before reformation can be granted by the court, equitable relief must specifically be requested by the plaintiffs. Practice Book § 139; Bronson & Townsend Co. v. Battistoni, 167 Conn. 321, 327, 355 A.2d 299 (1974). No such relief was requested here and, therefore, the court was limited to a determination of the plaintiffs’ claims at law arising out of their complaint for a judgment quieting title in them under General Statutes § 47-31.

General Statutes § 47-10 clearly states, in pertinent part: “No conveyance shall be effectual to hold any land against any other person but the grantor and his heirs, unless recorded on the records of the town in which the land lies.” In the present case, as against the defendants, there was, in law, no conveyance to Sheppard of the two omitted parcels. Until the reeording of the corrected deed, the owner of record title to the two parcels in question was Fay Realty. “By an attachment of real estate, the plaintiff, in general, obtains a lien upon such interest in the property as the defendant had at the time of that attachment. Fosdick v. Roberson, 91 Conn. 571, 100 Atl. 1059 [1917]. . . . So too, where the statute requires that a conveyance be recorded, and this is not done, an attaching creditor without notice obtains precedence of the holder of that conveyance. Newtown Savings Bank v. Lawrence, 71 Conn. 358, 364, 41 Atl. 1054, 42 id. 255 [1899]; Sanford v. DeForest, 85 Conn. 694, 84 Atl. 111 [1912].” Newman v. Gaul, 102 Conn. 425, 433, 129 A. 221 (1925). The statute required that a conveyance of the two omitted parcels be recorded. This was not done. To hold otherwise would undermine the clear legislative mandate of the recording act; General Statutes § 47-10; and play havoc with the stability and reliability of land titles in Connecticut. Thus, the trial court was correct in concluding that the defendants’ interests take priority over those of the plaintiffs.

There is no error.

In this opinion the other judges concurred.

       In fact, four other judgment liens were also recorded during this period. Those four lienors suffered default judgments in the trial court and are not parties to this appeal.

       This deed was not admitted into evidence, nor was it apparently ever recorded. Nonetheless, its existence is acknowledged in a later deed dated December 8, 1976.

       In fact, had the plaintiffs properly sought equitable relief, their claim would have failed nonetheless. Connecticut, unlike the majority of states, does not allow parties to a reformation to avoid the interests of intervening lien creditors. While most states do allow such a result, this view stems from their consideration of lienors as something less than bona fide purchasers. See annot., 44 A.L.R. 78,103-104. In Connecticut, however, judgment lien creditors are afforded the status of bona fide purchasers and they do obtain priority in title over grantees under unrecorded deeds, Apstein v. Sprow, 91 Conn. 421, 423, 99 A. 1045 (1917); Newtown Savings Bank v. Lawrence, 71 Conn. 358, 364, 41 A. 1054 (1899).