author: O’Connell, J.

text:
    Thomas M. Daniel et al. v. Zoning Commission of the City of Norwalk et al.
    (11792)
    Dupont, C. J., and O’Connell and Speak, Js.
    Argued March 25
    decision released July 20, 1994

      Mitchell J. Rosenfeld, with whom, on the brief, were Patricia E. Rosenberg and Carol S. Ljungquist, for the appellant (defendant Cedar West, Inc.).

      Charles S. Johnson, with whom, on the brief, was Peter J. Ottomano, for the appellees (plaintiffs).
   O’Connell, J.

The defendants appeal from the trial court’s decision sustaining the plaintiffs’ appeal from the decision of the Norwalk zoning commission. The defendants claim that the trial court (1) improperly-concluded that the plaintiffs’ due process rights were violated by the defendant zoning commission’s receipt of evidence after the public hearing, (2) improperly substituted its judgment for that of the zoning commission, (3) improperly based its judgment on inconsistent conclusions, and (4) failed to recognize that it was bound by collateral estoppel to adhere to its previous holding in a companion case. We affirm the decision of the trial court.

Cedar West, Inc., applied to the zoning commission for a special permit to build a development of fourteen single-family houses on its land. The zoning commission held a public hearing on this application on February 21, 1990. The plaintiffs, who own abutting property, appeared at the hearing and opposed the application.

Cedar West had previously applied to the zoning board of appeals for variances. One of these variances would have allowed Cedar West to build a roadway within two feet of the plaintiffs’ property line. This application was pending at the time of the zoning commission’s February 21, 1990 hearing. At the February hearing, Cedar West requested that the zoning commission delay its vote on the special permit application until the zoning board of appeals ruled on the variance applications. After the zoning board of appeals denied the variances on March 15, 1990, Cedar West submitted a revised development plan to the zoning commission. The new plan, among other changes, shifted the roadway twenty-five feet from the plaintiffs’ property line, obviating the need for a variance. There were no public hearings after receipt of the revised plan.

Cedar West’s development also required inland wetlands approval by the conservation commission. The inland wetlands application contained the same revised development plan that had been submitted posthearing to the zoning commission. On May 21, 1990, the plaintiffs appeared before the conservation commission and opposed Cedar West’s application. On June 4,1990, the conservation commission approved the revised plan and granted Cedar West an inland wetlands permit. At its June 20, 1990 regular meeting, without offering the plaintiffs an opportunity to oppose the revised plan, the zoning commission granted Cedar West’s special permit application based on the revised development plan.

The plaintiffs appealed to the trial court from both the zoning commission decision and the conservation commission decision. The cases were consolidated for trial and heard together on September 9, 1991. The trial court upheld the conservation commission’s decision, and there was no appeal. The decision of the zoning commission, however, was reversed, and Cedar West and the zoning commission appealed to this court.

The defendants first claim that the trial court improperly found that the plaintiffs’ due process rights were violated by the zoning commission’s ex parte receipt of evidence after the February 21, 1990 public hearing. Ex parte communication between an applicant and a zoning commission is improper. “[W]hile proceedings before zoning and planning boards and commissions are informal and are conducted without regard to the strict rules of evidence . . . nevertheless, they cannot be so conducted as to violate the fundamental rules of natural justice. . . . The commission could not properly consider additional evidence submitted by an applicant after the public hearing without providing the necessary safeguards guaranteed to the opponents of the application and to the public. This means a fair opportunity to cross-examine witnesses, to inspect documents presented and to offer evidence in explanation or rebuttal. . . .” (Citation omitted; internal quotation marks omitted.) Blaker v. Planning & Zoning Commission, 212 Conn. 471, 477-78, 562 A.2d 1093 (1989).

Rudimentary administrative law “clearly prohibits the use of information by a municipal agency that has been supplied by a party to a contested hearing on an ex parte basis.” (Emphasis in original.) Narooz v. Inlands Wetlands Agency, 26 Conn. App. 564, 569, 602 A.2d 613 (1992). The trial court found that the commission received and considered evidence from Cedar West after the February, 21,1990 public hearing without offering the plaintiffs or the public a chance to cross-examine witnesses, to rebut the evidence, or to inspect the evidence.

An ex parte communication raises a rebuttable presumption of prejudice. Once the plaintiff shows that an improper ex parte communication has occurred, the burden of showing that the communication was harmless shifts to the party seeking to uphold the validity of the zoning commission’s decision. Blaker v. Planning & Zoning Commission, supra, 212 Conn. 480. The presumption of prejudice may be rebutted by evidence that the ex parte evidence or testimony was not received by the commission or was not considered by it and, therefore, did not affect the commission’s final decision. R. Fuller, 9 Connecticut Practice Series: Land Use Law and Practice (1993) § 47.4.

In the trial court, the defendants maintained that the revisions in the development plan, which were the subject of the ex parte communication at issue, satisfied the objections that the plaintiffs had raised to the original plan. Therefore, the defendants reasoned, there was no prejudice. The court responded that “although the ex parte communication and evidence may have made the project more palatable to the plaintiffs, it does not remove the procedural unfairness and prejudice plaintiffs suffered when the project was approved based on the revised plans.” We agree with the trial court that merely making the plans more agreeable to the plaintiffs does not rebut the presumption of prejudice that arose from the ex parte communication. It is not for the defendants unilaterally to determine the nature and degree of modification that will satisfy the plaintiffs and cause them to withdraw their opposition.

On appeal, Cedar West argues that because the plaintiffs had an opportunity to be heard on the revised plan at the conservation commission hearing, their due process rights were not violated. We do not agree. The zoning commission and the conservation commission are two entirely separate and distinct boards with discrete interests and obligations in the municipality. A denial of due process before the zoning commission cannot be cured at a hearing before the conservation commission.

Our analysis of the first claim is dispositive of the appeal because it justifies the trial court’s reversal of the zoning commission’s decision. Accordingly, we do not reach the defendants’ other claims.

The judgment of the trial court is affirmed.

In this opinion the other judges concurred.

       The defendants are the zoning commission of the city of Norwalk and Cedar West, Inc.

       See General Statutes §§ 8-2 and 7-131a (b).


source: Caselaw Access Project

author: Foti, J.

license: Public Domain

text:
    October Twenty-Four, Inc. v. Planning and Zoning Commission of the Town of Plainville et al.
    (12655)
    Dupont, C. J., and Foti and Landau, Js.
    Argued April 25
    decision released August 23, 1994

      Peter J. Zagorsky, for the appellant (plaintiff).

      Thomas P. Byrne, with whom, on the brief, was Steven E. Byrne, for the appellee (named defendant).

      Kenneth R. Slater, Jr., with whom was Stephen J. Anderson, for the appellee (defendant Tomasso Brothers, Inc.).
   Foti, J.

The plaintiff appeals from the judgment rendered in favor of the defendants, the planning and zoning commission of the town of Plainville (commission) and Tomasso Brothers, Inc. (Tomasso). Tomasso filed an application with the commission for site plan approval of an office park. The commission granted the site plan application and the plaintiff, October Twenty-Four, Inc., appealed to the Superior Court. Tomasso moved to dismiss the appeal, and the Superior Court granted the motion. On appeal, the plaintiff claims that the trial court improperly (1) decided that General Statutes § 8-7d (b), rather than General Statutes § 8-7d (a), governed the commission’s consideration of Tomasso’s site plan application, (2) failed to find waiver or estoppel on the part of Tomasso, and (3) failed to consider the constitutionality of General Statutes § 8-7d. We affirm the judgment of the trial court.

The following facts are relevant to this appeal. On December 26,1991, Tomasso filed an application with the commission for site plan approval of an office park in the technical park zone of Plainville. The application was officially received by the commission at its next regularly scheduled meeting on January 14, 1992. On February 11,1992, the commission voted to hold a public hearing on Tomasso’s site plan application. The hearing began on February 25,1992, and was continued to March 10 and 24,1992. The commission approved the site plan on May 12,1992. Notice of the approval was published in a newspaper.

The plaintiff, which owns property adjacent to Tomasso’s property, appealed from the commission’s decision to the Superior Court. Tomasso moved to dismiss the appeal on the ground that its site plan was approved by operation of law on March 20, 1992. It argued that, because the commission failed to act within sixty-five days of the receipt of the application, the plaintiff’s appeal was rendered untimely and moot. The trial judge initially denied Tomasso’s motion to dismiss and deferred ruling on the issue of automatic approval. The plaintiff’s appeal was reviewed at a hearing on April 29, 1993, and the trial court granted Tomasso’s motion to dismiss pursuant to General Statutes § 8-8 (j). The court ruled that (1) the commission had violated the sixty-five day time for decision imposed by General Statutes § 8-7d (b), resulting in the automatic approval of Tomasso’s application on March 20, 1992, and (2) there was no evidence in the record to support a finding of waiver or estoppel by Tomasso. The plaintiff now appeals that judgment of dismissal.

I

The first issue raised by the plaintiff is whether subsection (a) or (b) of General Statutes § 8-7d governs the time constraints for decision on a site plan application where no public hearing is required but the commission decides to hold a discretionary hearing. Both this court and our Supreme Court have held that § 8-7d (b) governs the time constraints for decisions on site plan applications where no public hearing is required. SSM Associates Ltd. Partnership v. Plan & Zoning Commission, 211 Conn. 331, 559 A.2d 196 (1989); Carr v. Woolwich, 7 Conn. App. 684, 510 A.2d 1358, cert. denied, 201 Conn. 804, 513 A.2d 698 (1986), overruled on other grounds, 225 Conn. 432, 632 A.2d 1007 (1993); see footnote 2.

General Statutes § 8-7d, generally, sets mandatory time limits on the review of site plan applications. Section 8-7d (a) sets the time constraints for the rendering of decisions on zoning applications in which a public hearing is required. Section 8-7d (b) provides that “[wjhenever the approval of a site plan is the only-requirement to be met or remaining to be met under the zoning regulations for a proposed building, use or structure, a decision on an application for approval of such site plan shall be rendered within sixty-five days after receipt of such site plan.” Local zoning regulations determine if a public hearing is required for review of a particular application. If no public hearing is required, the time constraints of subsection (b), rather than those of subsection (a), control. Carr v. Woolwich, supra, 7 Conn. App. 699.

In this case, the property that is the subject of Tomasso’s site plan application is located in a technical park zone. The Plainville zoning regulations do not mandate public hearings for site plan applications in a technical park zone. The zoning regulations provide in relevant part: “All buildings and uses of land within a technical park zone shall be subject to the site plan provisions and guides to the Commission of Article 6. The Commission may hold a public hearing on the proposed site plan ... if, in its judgment, the nature of the site plan is such that the public should have an opportunity to be heard.” Plainville Zoning Regulations §551. Since no public hearing was required under the Plainville zoning regulations, General Statutes § 8-7d (b) governs the time constraints for decision by the commission on Tomasso’s site plan application.

The plaintiff relies on the fact that although the Plain-ville zoning regulations do not mandate public hearings for site plan applications in a technical park zone, the commission has the authority, under § 551 of the regulations, to hold a public hearing if it deems necessary. The commission did hold such a hearing on Tomasso’s site plan application, and the plaintiff argues that once the commission voted to hold this hearing it was, in effect, required. Since it was required, the plaintiff argues that the applicable statute would be § 8-7d (a). Because the commission acted within the time constraints required by § 8-7d (a), there could be no automatic approval of Tomasso’s application. We are not persuaded by this argument.

According to the plain language of § 8-7d (a), it applies only to situations where a public hearing “is required.” The statute makes no reference to situations where public hearings are not required but are held at the discretion of the zoning commission. “We are constrained to read a statute as written . . . and we may not read into clearly expressed legislation provisions which do not find expression in its words. . . .’’(Citations omitted; internal quotation marks omitted.) Ghent v. Planning Commission, 219 Conn. 511, 515, 594 A.2d 5 (1991). Under the Plainville zoning regulations, no public hearing was required for review of Tomasso’s site plan application. The fact that the commission decided to hold a discretionary hearing did not transform a permissive regulation into a mandatory one.

Because no public hearing was required, the time constraints of General Statutes § 8-7d (b), and not § 8-7d (a), applied to the commission’s actions. The trial court correctly ruled that the commission was required to render a decision on the application within sixty-five days of its receipt on January 14, 1992. The deadline for rendering a decision was March 20, 1992. A decision was not rendered until May 12,1992. General Statutes § 8-3 (g) provides in relevant part: “Approval of a site plan shall be presumed unless a decision to deny or modify it is rendered within the period specified in § 8-7d.” The commission’s failure to act within sixty-five days of receipt triggered automatic approval of Tomasso’s application in accordance with this statute.

This conclusion is supported by the holdings of SSM Associates Ltd. Partnership v. Plan & Zoning Commission, supra, 211 Conn. 331, and Carr v. Woolwich, supra, 7 Conn. App. 684. In SSM Associates, our Supreme Court held that a site plan application reviewed by the Fairfield plan and zoning commission had been approved by operation of law when the commission failed to render a decision on the application within sixty-five days of its receipt as required by General Statutes § 8-7d (b). The fact that the commission had decided to hold a discretionary public hearing did not alter the conclusion of the court. The court held: “The defendants stipulated that, although the commission held a public hearing to consider the plaintiff’s application, such a hearing ‘was not specifically required by the Fairfield Zoning Regulation.’ In the absence of a regulation whereby ‘a hearing is required,’ the time constraints of § 8-7d (a) were therefore inapplicable.” SSM Associates Ltd. Partnership v. Plan & Zoning Commission, supra, 338.

The plaintiff attempts to distinguish SSM Associates on the basis that the commission in that case failed even to schedule a hearing within the required sixty-five days. By contrast, the commission in this case did hold the first hearing within sixty-five days of receipt of the application. We agree with the defendants that this distinction is irrelevant. The determinative issue in evaluating whether subsection (a) or (b) applies is whether the local zoning regulations require a public hearing before approval of an application. Carr v. Woolwich, supra, 7 Conn. App. 699. The time at which a commission decides to hold a discretionary hearing is of no consequence in calculating the time for decision under § 8-7d (b). Automatic approval will occur if a decision is not rendered within sixty-five days of receipt of the application.

The plaintiff also points to General Statutes § 8-7d (b) which provides that the subsection applies only when “the approval of a site plan is the only requirement to be met or remaining to be met under the zoning regulations ...” The plaintiff argues that Tomasso had the burden of proving this factual predicate, and that Tomasso failed to do so. The plaintiff further alleges that there were other requirements necessary to the completion of the zoning approval process and that the trial court improperly failed to afford it an evidentiary hearing regarding this claim.

General Statutes § 8-8 (k) prescribes trial court procedures on appeals from decisions of municipal zoning boards. Section 8-8 (k) provides for the introduction of additional evidence “if (1) the record does not contain a complete transcript of the entire proceedings before the board ... or (2) it appears to the court that additional testimony is necessary for the equitable disposition of the appeal.” In this case, the entire record developed by the commission was available for the trial court’s review. Whether there were any additional requirements prior to the approval of Tomasso’s project could have been determined from a review of that record. On the basis of the trial court transcript, we can assume that the trial judge found this factual predicate to have been met. This court is entitled to presume that the trial court properly considered all of the evidence that was before it. Chomko v. Patmon, 19 Conn. App. 483, 488-89, 563 A.2d 311, cert. denied, 212 Conn. 819, 565 A.2d 539 (1989). Notably, both Tomasso and the commission have indicated that the record shows no additional requirements, other than site plan approval, that had to be met by Tomasso.

We conclude that General Statutes § 8-7d (b) governs the time for decision on a site plan application where no public hearing is required. The trial court correctly ruled that Tomasso’s site plan application was approved by operation of law on March 20, 1992.

II

The plaintiff next argues that the trial court improperly failed to find waiver or estoppel where Tomasso continued to attend public hearings after automatic approval of the site plan application.

The plaintiff argues that Tomasso’s attendance at meetings and participation in the site plan process after the application was approved by operation of law constituted waiver of the automatic approval. The plaintiff also argues that, because of such conduct, Tomasso should be estopped from claiming automatic approval.

The trial court concluded that Tomasso’s presence at the commission’s meetings after the date of automatic approval did not constitute waiver. Waiver is the “intentional relinquishment of a known right.” Dragan v. Connecticut Medical Examining Board, 223 Conn. 618, 629, 613 A.2d 739 (1992). Examples of actions that have been deemed to result in a waiver of the right to automatic approval generally include cases where the applicant either expressly granted extensions of time or voluntarily withdrew its application. These applicants could not later claim that their applications had been approved by operation of law.

The trial court found as a fact that Tomasso never consented to an extension of time, nor did it intentionally relinquish its right to automatic approval simply by attending meetings. The court noted that there is no requirement that an applicant approach the zoning commission on the day following automatic approval and demand that its application be approved. It was reasonable for Tomasso to await the commission’s decision rather than to risk alienating the commission and being subjected to the strict judicial standards applicable to mandamus actions. The failure to adhere to the time constraints was due solely to the actions of the commission.

This court “will confirm the conclusion of the trier of fact if it is reasonably supported by the evidence and the logical inferences drawn therefrom.” State v. LoSacco, 12 Conn. App. 481, 483-84, 531 A.2d 184, cert. denied, 205 Conn. 814, 533 A.2d 568 (1987). The trier of fact in this case was the judge. In the absence of a conclusion that a finding is clearly erroneous, we are bound by the court’s findings. Practice Book § 4061. The trial court’s determination on the evidence before it was not clearly erroneous. The facts do not reveal any conduct by Tomasso that could be construed as a waiver of its right to automatic approval.

III

Finally, the plaintiff claims that the automatic approval imposed by General Statutes § 8-7d (b) is unconstitutional because it does not expressly provide a right to appeal, as is provided for in automatic approvals of subdivision applications under General Statutes § 8-26 and § 8-8 (c). The plaintiff asserts that this statutory defect deprives it of due process and equal protection under the state and federal constitutions.

Zoning powers and the judicial review of the exercise of those powers are derived from legislative enactment. Upjohn Co. v. Zoning Board of Appeals, 224 Conn. 96, 100, 616 A.2d 793 (1992). Our Supreme Court has held that “[ajppeals to courts from administrative agencies exist only under statutory authority.” (Internal quotation marks omitted.) Circle Lanes of Fairfield, Inc. v. Fay, 195 Conn. 534, 542, 489 A.2d 363 (1985). “Appeals to the courts from the actions of planning and zoning commissions exist only under statutory authority and unless a statute provides for such appeals courts are without jurisdiction to entertain them.” Schwartz v. Hamden, 168 Conn. 8, 10, 357 A.2d 488 (1975). To the extent that the plaintiff suggests the existence of an inherent constitutional right to appeal adverse administrative rulings, it is unsupported by the existing case law.

To be constitutional, a statute authorizing municipal administrative boards to make decisions need not provide for appeals. State v. Vachon, 140 Conn. 478, 485, 101 A.2d 509 (1953); Diaz v. Board of Directors, 2 Conn. App. 43, 48, 476 A.2d 146 (1984). The absence of an express appeal provision does not foreclose other forms of judicial relief where appropriate. If any person claims to be harmed by an order of an administrative board, his constitutional right to due process is protected by his privilege to apply to a court for relief. For example, a person claiming to be harmed could seek a plenary action for relief. This means that the aggrieved person may bring a plenary action, rather than an administrative appeal, against the appropriate officials or municipality in order to obtain judicial review of their actions. Danziger v. Demolition Board, 18 Conn. App. 40, 46, 556 A.2d 625 (1989).

We cannot conclude that General Statutes § 8-7d (b) is unconstitutional because it does not expressly provide for a right of appeal from automatic approval of site plan applications.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 8-8 (j) provides: “Any defendant may, at any time after the return date of the appeal, make a motion to dismiss the appeal. If the basis of the motion is a claim that the appellant lacks standing to appeal, the appellant shall have the burden of proving his standing. The court may, on the record, grant or deny the motion. The court’s order on the motion may be appealed in the manner provided in subsection (o) of this section.”

       General Statutes § 8-7d (a) provides in pertinent part: “Except as provided in subsection (b) of this section, in all matters wherein a formal petition, application, request or appeal must be submitted to a zoning commission, planning and zoning commission or zoning board of appeals under this chapter and a hearing is required on such petition . . . such hearing shall commence within sixty-five days after receipt of such petition . . . and shall be completed within thirty days after such hearing commences. All decisions on such matters shall be rendered within sixty-five days after completion of such hearing. ...”

       The plaintiff also attempts to distinguish Carr v. Woolwich, supra, 7 Conn. App. 684, by pointing to a recent Supreme Court decision, Leo Fedus & Sons Construction Co. v. Zoning Board of Appeals, 225 Conn. 432, 623 A.2d 1007 (1993). The plaintiff argues that Fedus confines Carr to its facts, but the plaintiffs argument is unpersuasive. Carr resulted in two rulings regarding the construction of § 8-7d. It held (1) that the automatic approval doctrine applies even in situations where it is not expressly provided for in the General Statutes, and (2) that the applicability of subsection (a) or (b) is established by reviewing the zoning regulations to determine if a public hearing is required for review of the application. Fedus addresses the first ruling in Carr but leaves the second ruling, which is relevant here, undisturbed.

       Examples include Frito-Lay, Inc. v. Planning & Zoning Commission, 206 Conn. 554, 538 A.2d 1039 (1988), holding that the applicant, having requested that the commission postpone the date of its decision, waived its right to challenge the commission’s alleged failure to adhere to the statutory time limits governing zoning commission decisions, and M & L Homes, Inc. v. Zoning & Planning Commission, 187 Conn. 232, 445 A.2d 591 (1982), holding that an applicant that voluntarily withdrew its application could not later claim that it had been approved by operation of law.

       General Statutes § 8-8 (c) provides: “In those situations where the approval of a planning commission must be inferred because of the failure of the commission to act on an application, any aggrieved person may appeal under this section. The appeal shall be taken within twenty days after the expiration of the period prescribed in section 8-26d for action by the commission.” General Statutes § 8-26d deals with subdivision plans.


author: Landau, J.

text:
    State of Connecticut v. John Denby
    (12216)
    Lavery, Landau and Heiman, Js.

      Argued June 10
    decision released August 23, 1994

      Donald D. Dakers, special public defender, for the appellant (defendant).

      Jack W. Fischer, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Mary Reidy, assistant state’s attorney, for the appellee (state).
   Landau, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of possession of cocaine with the intent to sell or dispense by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b), and of possession of cocaine with the intent to sell within 1000 feet of a school in violation of §§ 21a-278 and 21a-278a (b). The defendant claims that the trial court improperly (1) instructed the jury as to an element of the crime charged, i.e., the intent to sell narcotics within 1000 feet of a school pursuant to General Statutes (Rev. to 1991) § 21a-278a (b), (2) refused to permit the defendant to elicit witness testimony as to his knowledge of the defendant’s drug dependency in violation of the defendant’s right to present a defense, (3) instructed the jury regarding the defendant’s drug dependency, and (4) permitted the state to impeach the defendant by referring to a prior conviction for conspiracy to sell narcotics. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On May 17, 1992, New Haven police officers Andrew Muro and Peter Carusone were working in the Newhallville section of New Haven. Muro received information from an informant that the defendant was selling drugs at 51 Lilac Street, which was approximately 820 feet from the Lincoln Bassett School. He and Carusone, both of whom knew the defendant, drove by the address and saw the defendant on the front porch. They set up a surveillance of the defendant’s activities. Muro watched the front porch from a nearby alley. Carusone remained at a police substation parking lot, ready to assist Muro upon apprehension of the defendant.

Muro observed a female walk up to the porch of the building and heard her say she “wanted one.” The defendant reached into his right pants pocket, pulled out a clear plastic bag, removed an item from it, and handed it to the female. The female then gave the defendant money. A short time later, Muro saw the defendant carry out a second transaction with another individual similar to the previous transaction.

After informing Carusone of his observations, the officers returned to the premises under surveillance where Muro encountered the defendant in the hallway and arrested him. In his right pocket, the defendant had a clear plastic bag containing packets of white powder that field-tested positive for cocaine.

I

The defendant first claims that the trial court improperly failed to instruct the jury on an essential element of the crime charged, thereby depriving him of his federal and state due process rights. He asserts that the trial court failed to instruct the jury that a conviction pursuant to General Statutes (Rev. to 1991) § 21a-278a (b) required the state to prove beyond a reasonable doubt that the defendant specifically intended to sell narcotics in, on or within 1000 feet of the real property of a public or private elementary or secondary school. The defendant contends that a conviction pursuant to § 21a-278a (b) requires a dual intent: (1) the violator must intend to sell the narcotics in his possession; and (2) the violator must intend to sell the narcotics within 1000 feet of a school. This conclusion, the defendant asserts, is supported by the presence of an “irrebuttable presumption” in the statute that any defendant within the 1000 foot zone intended to sell the drugs in his possession. He finds this presumption in the following statutory language: “To constitute a violation of this subsection, an act of transporting or possessing a controlled substance shall be with intent to sell or dispense in or on, or within one thousand feet of, the real property comprising a public or private elementary or secondary school.” General Statutes (Rev. to 1991) § 21a-278a (b). The defendant concedes that this claim was not properly preserved at trial, but contends that it is nonetheless reviewable under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). The defendant’s claim is not of constitutional magnitude and, therefore, does not satisfy the second requirement of Golding.

“It is . . . constitutionally axiomatic that the jury be instructed on the essential elements of a crime charged.” State v. Williamson, 206 Conn. 685, 708, 539 A.2d 561 (1988). “The due process clause of the fourteenth amendment protects an accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged. In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970) . . . .” (Citations omitted.) State v. Gabriel, 192 Conn. 405, 413, 473 A.2d 300 (1984). Consequently, the failure to instruct a jury on an element of a crime deprives a defendant of the right “ ‘to have the jury told what crimes he is actually being tried for and what the essential elements of those crimes are.’ ” Id., 414.

Proof that the defendant specifically intended to sell narcotics within 1Ó00 feet of the real property of a school is not an element of the crime charged. In interpreting § 21a-278a (b), we must adhere to “ ‘well defined principles of statutory interpretation that require us to ascertain and give effect to the apparent intent of the legislature.’ . . . To determine the intent of the legislature, we first consider whether the statutory language ‘yields a plain and unambiguous resolution.’ ... ‘If the words are clear and unambiguous, “it is assumed that [they] express the intention of the legislature”; Mazur v. Blum, 184 Conn. 116, 118-19, 441 A.2d 65 (1981); and we need inquire no further. . . .’ ” (Citations omitted.) State v. Mattioli, 210 Conn. 573, 576, 556 A.2d 584 (1989).

The language of General Statutes (Rev. to 1991) § 21a-278a (b) is clear that any person who violates General Statutes § 21a-278, and who does so within 1000 feet of a school shall be subject to an additional penalty of three years imprisonment. The provision that the defendant characterizes as an “irrebuttable presumption” serves instead to reinforce the requirement that, for an accused to be subject to the additional penalty, any act of transporting or possessing narcotics must be with the intent to sell the same.

The relationship between General Statutes §§ 21a-278a (b) and 21a-278 is similar to that between General Statutes §§ 53a-59a and 53a-59. Section 53a-59a provides for an enhanced penalty if a person commits an assault in the first degree pursuant to § 53a-59 (a) (2) or § 53a-59 (a) (3) and the victim is sixty years old or older. In State v. Campbell, 180 Conn. 557, 564, 429 A.2d 960 (1980), our Supreme Court stated that “[b]y providing for a mandatory one year term of imprisonment, which term may not be suspended or reduced, for the crime of assault in the third degree where the victim is sixty or over the legislature clearly expressed its intent to punish one convicted of that crime more severely than one convicted of assault in the third degree where the victim is under sixty.” Similarly, the legislature designed § 21a-278a to punish one convicted of a violation of § 21a-278 more severely when the prohibited activity occurred within a prescribed distance from a school.

To obtain a conviction pursuant to § 2 la-278a (b), as with § 53a-59a, the state is required to prove the defendant’s intent to commit the substantive underlying crime — in this case, the intent to sell the narcotics in his possession. The fact that the defendant sold narcotics within 1000 feet of a school subjects him to the enhanced penalty. It was not required to prove that the defendant specifically intended to sell within the 1000 foot zone because, by the clear language of the statute, such an intent is not an element of the crime.

We conclude that the trial court properly instructed the jury as to the intent necessary to support a conviction of the crime charged. Because the defendant’s claim is not one of constitutional dimension; State v. Golding, supra, 213 Conn. 239-40; we decline to review the defendant’s unpreserved claim.

II

The defendant further claims that the trial court improperly refused to allow the defendant to elicit certain testimony relating to his defense of drug dependency. He claims that the court’s refusal violated his constitutional right to present a defense.

The following facts are necessary for the resolution of this claim. The defendant and his brother-in-law, Willie Garvin, testified as to the defendant’s drug dependence. The defendant sought to elicit further testimony as to his dependency from Lester Moore. During the defendant’s direct examination of Moore, the defendant inquired as to whether the witness had ever used drugs with the defendant, and the state objected. The trial court, after excusing the jury, heard the parties’ arguments, sustained the state’s objection, and noted the defendant’s exception. The defendant, however, failed to present an offer of proof as to Moore’s testimony, and failed to request that the trial court articulate its reason for sustaining the state’s objection.

In order to evaluate any claim of error, this court must be furnished with “an adequate record on which to review the rulings of the trial court.” State v. James L., 26 Conn. App. 81, 86, 598 A.2d 663 (1991). It is the appellant’s burden to create an adequate appellate record to support his claim. Id., 84. The defendant has failed to meet this burden. “If he wanted to provide this court with an adequate appellate record, he should have presented an offer of proof. An offer of proof, properly presented, serves three purposes. First, it should inform the court of the legal theory under which the offered evidence is admissible. Second, it should inform the trial judge of the specific nature of the offered evidence so the court can judge its admissibility. Third, it thereby creates a record adequate for appellate review.” (Internal quotation marks omitted.) Id., 84-85.

“In the absence of an appropriate offer of proof, this court cannot speculate as to what line of questioning defense counsel intended to follow. A claim on appeal cannot be based on an assumption that the trial court acted improperly. . . . Without an adequate record on which to review the rulings of the trial court, this court must assume that the trial court acted properly.” Id., 85-86.

Ill

The defendant next claims that the trial court improperly instructed the jury regarding the defendant’s drug dependency. He concedes that this claim is unpreserved but again seeks review pursuant to State v. Golding, supra, 213 Conn. 233.

A Golding review permits an appellant tribunal “to respond to the defendant’s claim by focusing on whichever condition is most relevant in the particular circumstances.” Id., 240.

“[T]he language of § 21a-269, which places the ‘burden of proof’ on a defendant invoking the exemption specified by § 21a-278 (b), requires the defendant to carry the burden of persuading the jury by a preponderance of the evidence that he or she is drug-dependent.” State v. Hart, 221 Conn. 595, 609, 605 A.2d 1366 (1992). In Hart, the court “conclude[d] that the state did not have the burden of proving beyond a reasonable doubt that the defendant was not drug-dependent . . . .” Id., 611-12.

“[T]he absence of drug dependency is not an element of the offense of sale of narcotics by a person who is not drug-dependent in violation of § 21a-278 (b). Rather, it is an exemption from liability under § 21a-269. State v. Januszewski, 182 Conn. 142, 166, 438 A.2d 679 (1980), cert. denied, 453 U.S. 922, 101 S. Ct. 3159, 69 L. Ed. 2d 1005 (1981). Therefore, it was not necessary for the state to negate drug dependency, but, rather, the defendant had the burden of proving that she was drug-dependent.” Id., 608.

Because the claimed error does not involve an element of the offense, it is not of constitutional magnitude. The defendant’s claim does not satisfy the second prong of Golding and we decline to review it.

IV

The defendant finally claims that the trial court improperly permitted the state to impeach his testimony by referring to a prior conviction for conspiracy to sell narcotics. The defendant, citing State v. Geyer, 194 Conn. 1, 480 A.2d 489 (1984), argues that the admission of the prior narcotics conviction in a trial in which he is charged with narcotics offenses was unfairly prejudicial.

The defendant testified in his own behalf. His testimony sought to demonstrate that he was drug-dependent, thereby rendering inconsistent the police officers’ account of his intention to sell drugs. When asked on the state’s cross-examination whether he had ever sold drugs, the defendant replied that he had not. The state also asked the defendant whether he dealt drugs to maintain his lifestyle. The trial court ruled that a proper foundation for introducing the defendant’s prior conviction had been laid for the purposes of impeaching his credibility, and allowed the state to question the defendant about his 1989 conviction for conspiracy to distribute narcotics.

“Evidentiary rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice. . . . It is well established that the trial court has discretion on the admissibility of prior convictions. In such instances, the test is whether the prejudicial effect of the evidence did not outweigh its probative value. State v. Rivera, 221 Conn. 58, 72, 602 A.2d 571 (1992).” (Citations omitted; internal quotation marks omitted.) State v. Johnson, 29 Conn. App. 584, 588, 617 A.2d 174 (1992), appeal dismissed, 228 Conn. 59, 634 A.2d 293 (1993).

“Three factors should be examined to determine whether a prior criminal conviction properly has been admitted: (1) the extent to which admission is likely to prejudice the defendant’s cause; (2) the significance of the prior crime as bearing on the defendant’s truthfulness; and (3) the remoteness in time of the prior conviction.” State v. Geyer, supra, 194 Conn. 11.

“ ‘As to the first criterion, a high degree of prejudice can be expected when the prior crime is quite similar to the crime charged because of the jury’s tendency to believe that “if he did it before, he probably did it again.” State v. Carter, [189 Conn. 631, 644, 458 A.2d 379 (1983)].’ ” State v. Rivera, supra, 221 Conn. 73. The defendant argues that it is for this reason that the evidence is overly prejudicial, citing State v. Geyer, supra, 194 Conn. 1. In Geyer, the court held that evidence of the defendant’s prior convictions was inadmissible because they were similar to the charges pending, and, therefore, the resulting prejudice outweighed the probative value as to the defendant’s credibility. The Geyer court, however, was faced with four rather remote prior convictions that tended to engender “a greater prejudice than a single prior conviction might create.” Id., 14. The court weighed the prejudicial possibility of the multiple, similar prior convictions. The court did not hold that if a defendant had a prior conviction or convictions similar to the pending charges, evidence of those convictions were inadmissible as a per se rule. See State v. Rivera, supra, 74.

In State v. Johnson, supra, 29 Conn. App. 588, the court was presented with evidence of a similar prior conviction, but determined that “[w]here . . . a party ‘opens the door’ to a subject that goes directly to the credibility of the witness, he does so at his risk.” (Emphasis added.) In this case, the state questioned the defendant and he testified that he had never sold drugs and that he did not deal drugs to maintain his lifestyle. He also testified that he did whatever handy work necessary to get drugs for his alleged dependency, and that because of his dependency, he would fight to retain drugs rather than consider exchanging them for money. “This testimony suggested the nonexistence of the defendant’s prior conviction [for conspiracy to distribute drugs] and squarely implicated the defendant’s credibility.” Id., 589. Therefore, the defendant opened the door to the introduction of a prior conviction because it went directly to his credibility as a witness. We conclude, therefore, that the trial court did not abuse its discretion in permitting the state to elicit testimony from the defendant with regard to his prior drug related conviction.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 21a-278 (b) provides: “Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any narcotic substance, hallucinogenic substance other than marijuana, amphetamine-type substance, or one kilogram or more of a cannabis-type substance except as authorized in this chapter, and who is not at the time of such action a drug-dependent person, for a first offense shall be imprisoned not less than five years nor more than twenty years; and for each subsequent offense shall be imprisoned not less than ten years nor more than twenty-five years. The execution of the mandatory minimum sentence imposed by the provisions of this subsection shall not be suspended except the court may suspend the execution of such mandatory minimum sentence if at the time of the commission of the offense (1) such person was under the age of eighteen years or, (2) such person’s mental capacity was significantly impaired but not so impaired as to constitute a defense to prosecution.”

       General Statutes (Rev. to 1991) § 21a-278a (b) provides: “Any person who violates section 21a-277 or 21a-278, and who is not, at the time of such action, a drug-dependent person, by manufacturing, distributing, selling, prescribing, dispensing, compounding, transporting with the intent to sell or dispense, possessing with the intent to sell or dispense, offering, giving or administering to another person any controlled substance in or on, or within one thousand feet of, the real property comprising a public or private elementary or secondary school shall be imprisoned for a term of three years, which shall not be suspended and shall be in addition and consecutive to any term of imprisonment imposed for violation of section 21a-277 or 21a-278. To constitute a violation of this subsection, an act of transporting or possessing a controlled substance shall be with intent to sell or dispense in or on, or within one thousand feet of, the real property comprising a public or private elementary or secondary school.” Public Acts 1992, No. 92-82, amended this subsection to increase the distance from a school within which the provision applied to 1500 feet.

       We decline to consider the state constitutional claim in the absence of an independent analysis of the state constitutional provision at issue. We, therefore, consider only the defendant’s federal constitutional claim. State
        v. Perez, 218 Conn. 714, 723, 591 A.2d 119 (1991); State v. McFadden, 25 Conn. App. 171, 173-74 n.4, 593 A.2d 979, cert. denied, 220 Conn. 906, 593 A.2d 971 (1991).

       In State v. Golding, supra, 213 Conn. 239-40, our Supreme Court held that “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail. The appellate tribunal is free, therefore, to respond to the defendant’s claim by focusing on whichever condition is most relevant in the particular circumstances.”

       A trial court’s failure to instruct the jury on an element of the crime charged “warrants a reversal regardless of whether the defendant made a request to charge or took any exceptions to the charge. State v. Williamson, 206 Conn. 685, 708, 539 A.2d 561 (1988) . . . .” State v. Plude, 30 Conn. App. 527, 539, 621 A.2d 1342, cert. denied, 225 Conn. 923, 625 A.2d 824 (1993).

       General Statutes § 53a-59a provides: “(a) A person is guilty of assault of a victim sixty or older in the first degree, when he commits assault in the first degree under section 53a-59 (a) (2) or 53a-59 (a) (3) and the victim of such assault has attained at least sixty years of age or is blind or physically disabled, as defined in section 1-lf.
      “(b) No person shall be found guilty of assault in the first degree and assault of a victim sixty or older in the first degree upon the same incident of assault but such person may be charged and prosecuted for both such offenses upon the same information.
      “(c) Assault of a victim sixty or older in the first degree is a class B felony and any person found guilty under this section shall be sentenced to a term of imprisonment of which five years of the sentence imposed may not be suspended or reduced by the court.”

       General Statutes § 53a-59 provides: “(a) A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument; or (2) with intent to disfigure another person seriously and permanently, or to destroy, amputate or disable permanently a member or organ of his body, he causes such injury to such person or to a third person; or (3) under circumstances evincing an extreme indifference to human life he recklessly engages in conduct which creates a risk of death to another person, and thereby causes serious physical injury to another person; or (4) with intent to cause serious physical injury to another person and while aided by two or more other persons actually present, he causes such injury to such person or to a third person.
      “(b) Assault in the first degree is a class B felony provided any person found guilty under subdivision (1) of subsection (a) shall be sentenced to a term of imprisonment of which five years of the sentence imposed may not be suspended or reduced by the court.”

       “ ‘We have no warrant for interpolating into a criminal statute a requirement it does not now contain.’ . . . Our function is not to improve legislative actions by reading into the statute what is clearly not there. . . .” (Citations omitted.) State v. Plude, 30 Conn. App. 527, 540, 621 A.2d 1342 (1993).

       The following inquiries occurred during direct examination:
      “[Defense Counsel]: Okay, now have you ever used cocaine with John Denby?
      “[Witness]: Yes.
      “[Prosecution]: Objection, leading question, Judge.
      “[Court]: That objection is sustained.”
      The following inquiries occurred during redirect examination:
      “[Defense Counsel]: Okay, now the state asked you in cross-examination if you ever bought drugs from Mr. Denby and you indicated that you had not, is that correct?
      “[Witness]: That’s right.
      “[Defense Counsel]: Have you ever used drugs with Mr. Denby?
      “[Prosecution]: Objection.”

       See footnote 4.

       The following testimony occurred:
      “[Prosecution]: You never sold drugs have you, sir?
      “[Defendant]: Have I sold drugs, no I ain’t sell no drugs.
      “[Prosecution]: Never?
      “[Defendant]: Never.
      “[Prosecution]: Sure about that Mr. Denby?
      “[Defendant]: I’m sure about what?
      “[Prosecution]: How about your conviction in 1989, sir, you’ve been convicted
      Defense counsel objected, the trial court sustained the objection and the state proceeded as follows:
      “[Prosecution]: Mr. Denby, I believe the last thing that you had indicated was that you don’t sell drugs, is that right?
      “[Defendant]: That’s right.
      “[Prosecution]: Do you deal drugs to maintain your lifestyle?”
      Defense counsel’s objection was overruled, and the defendant answered:
      “See my shoe with paint on it, I do handy work or any kind of work like that to get drugs but I do not sell drugs to maintain my lifestyle.”

       The defendant does not claim that the prior conviction should have been excluded because of its remoteness.

       “[W]e note that the language in Geyer suggesting that the crime be referred to as an ‘unspecified’ felony conviction is permissive not mandatory.” State v. Rivera, supra, 221 Conn. 74.


author: Lavery, J.

text:
    Judith Lewis v. Donald Lewis
    (12095)
    Foti, Lavery and Schaller, Js.
    Argued June 6
    decision released August 23, 1994

      Michael S. McKenna, with whom, on the brief, were Jeffrey B. Sienkiewicz and Dolores R. Schiesel, for the appellant (defendant).

      Kenneth B. Caisse, for the appellee (plaintiff).
   Lavery, J.

In this appeal, we are called on to consider the dischargeability in bankruptcy of debts owed to a former spouse by the bankrupt defendant. The parties were divorced on August 30, 1990, ending a two year marriage. In the dissolution decree, the trial court stated that both parties were employed and self-supporting and, therefore, ordered no alimony to either party. The court did, however, order the defendant to pay the plaintiff $50,000. The defendant did not pay the full amount. The trial court found that the defendant owed $38,316 on January 10,1992, when the plaintiff filed the latest in a long series of contempt motions and capiases.

The defendant filed for chapter 7 bankruptcy protection on February 18,1992. He scheduled the debt owed to his wife as an unsecured debt, without describing its nature. On March 4, 1992, the debtor defendant commenced an adversary proceeding in the bankruptcy court alleging that his debt to his wife was discharge-able. Both parties assert that the bankruptcy court, Krechevsky, J., referred this matter to the Superior Court during a pretrial conference. After the pleadings were filed, the defendant did not pursue the matter. The adversary proceeding was dismissed for failure to prosecute on April 28, 1994.

On March 27, 1992, the trustee in bankruptcy appointed to the defendant’s case reported that the defendant lacked assets to pay any of the unsecured creditors. The defendant received a chapter 7 discharge from bankruptcy on May 26, 1992.

The plaintiff moved to have the defendant found in contempt for failing to comply with the dissolution decree on August 13,1992. In his defense, the defendant asserted that the debt owed to the plaintiff was dis-chargeable and had been discharged on May 26,1992. The trial court heard argument on whether the debt was dischargeable under 11 U.S.C. § 523 (a) (5). The trial court ruled on January 6,1993, that the debt was nondischargeable and ordered further proceedings to facilitate collection. The defendant appeals the ruling.

Due to the close interaction between the state proceedings and bankruptcy action in this case, we must first consider whether this case is properly before us. We conclude that it is for the following reasons. First, our actions and the actions of the trial court are not barred by an automatic stay. See 11 U.S.C. § 362 (a). The automatic stay imposed at the commencement of a bankruptcy proceeding terminates upon the debtor’s discharge. 11 U.S.C. § 362 (c) (2) (C). Thus, the stay in this case ended on May 26, 1992.

Second, this action is not moot. Although the adversary proceeding in the bankruptcy court was dismissed in April, 1994, the ruling that is the subject of this appeal arose in the course of a state proceeding. The issue of the dischargeability of the debt arose in the plaintiff’s contempt proceeding when the defendant attempted to avoid having to pay it by claiming that it had been discharged. In essence, the claim of discharge was a defense. Thus, the issue was properly before the trial court and remained unresolved after the parallel action in federal court had ended.

Third, the issue of dischargeability of the debt owed to the plaintiff was properly before the trial court. “State courts of general jurisdiction have the power to decide cases involving federal . . . rights where . . . neither the Constitution nor statute withdraws such jurisdiction. Boston Stock Exchange v. State Tax Commission, 429 U.S. 318, 319 n.3, 97 S. Ct. 599, 50 L. Ed. 2d 514 (1977).” In re Aurre, 60 Bankr. 621, 624 (S.D.N.Y. 1986). In this instance, jurisdiction has not been withdrawn from state courts. 28 U.S.C. § 1334 (b). “Section 523 (c) of the [Bankruptcy] Code provides for a limited exception to this concurrent jurisdiction for questions of dischargeability concerning § 523 (a) (2) (fraud or a false financial statement), § 523 (a) (4) (fraud by a fiduciary, embezzlement or larceny) and § 523 (a) (6) (willful and malicious injury). Therefore, all dischargeability issues other than those concerning § 523 (a) (2), (4) and (6) may be determined by a nonbankruptcy court.” Matter of Carter, 38 Bankr. 636, 638 n.5 (D. Conn. 1984); see also Matter of Brady, Texas, Municipal Gas Corp., 936 F.2d 212, 218 (5th Cir.), cert. denied sub nom. Sanders v. Brady, 502 U.S. 1013, 112 S. Ct. 657, 116 L. Ed. 2d 748 (1991); In re Rosenbaum, 150 Bankr. 994, 996 and n.2 (E.D. Tenn. 1993); In re Balvich, 135 Bankr. 327, 330 (N.D. Ind. 1991).

Fourth, the debtor’s discharge, which occurred prior to this action in state court, did not resolve the dischargeability of this debt. “Unlike dischargeability questions based on § 523 (a) (2), (4) & (6), where debts are automatically discharged unless the creditor asks the bankruptcy court to make a determination of nondischargeability, a debtor’s obligation to a former spouse or child is either discharged or not, pursuant to § 523 (a) (5), based upon the nature of that obligation regardless of whether or not the bankruptcy court has been asked to pass upon the issue. See 11 U.S.C. § 523 (c). The question of dischargeability is, thus, preserved and, should there be any dispute, may be determined by the state courts in connection with proceedings to enforce the obligation.” (Emphasis added.) In re Balvich, supra, 135 Bankr. 330; see also In re Aurre, supra, 60 Bankr. 624 (no action by bankruptcy court required to trigger § 523 [a] [5] exception). Thus, even though the debtor was discharged without a prior determination of the dischargeability of the debt to his former spouse, the question was preserved for adjudication, and was properly before the trial court in the context of proceedings to collect the debt.

The issue on appeal is whether the trial court correctly characterized the $50,000 debt that the defendant owed to the plaintiff as nondischargeable. Section 523 (a) (5) of the Bankruptcy Code denies debtors discharges from debts owed to former spouses for alimony, maintenance or support. In contrast, property settlements to former spouses are dischargeable. Matter of Ammirato, 74 Bankr. 605, 607 (D. Conn. 1987). The determination of whether a debt is dischargeable is made pursuant to federal bankruptcy law. Forsdick v. Turgeon, 812 F.2d 801, 802 (2d Cir. 1987); In re Calhoun, 715 F.2d 1103, 1107 (6th Cir. 1983); In re Silberfein, 138 Bankr. 778, 780 (S.D.N.Y. 1992).

“Courts have a list of factors to examine in determining whether a particular transaction constitutes a nondischargeable duty such as alimony, maintenance or support, or whether it is a property settlement and, therefore, dischargeable. See Freyer v. Freyer, 71 Bankr. 912, 918 (S.D.N.Y. 1987), and cases cited therein. The following factors are taken into account: (1) whether the obligation terminates on the death or remarriage of the debtor’s spouse; (2) whether the payments appear to balance disparate income; (3) whether the payments are made to a third party or the ex-spouse; (4) whether the obligation terminates at the end of a specified event (i.e., children are out of school, debt is satisfied, etc.); and (5) what was the intent of the parties. See Matter of Ammirato, supra, [74 Bankr. 608].” Lesser v. Lesser, 16 Conn. App. 513, 516-17, 548 A.2d 6, cert. denied, 210 Conn. 802, 553 A.2d 615 (1988).

After reciting the relevant factors, the trial court found as a fact that the $50,000 debt was nondischargeable alimony, maintenance or support. On appeal, we must determine whether the trial court’s factual findings are clearly erroneous in view of the evidence and pleadings in the whole record. Practice Book § 4061. Our review persuades us that the trial court’s findings are not clearly erroneous.

The trial court observed that the purpose of a property settlement is to unscramble property ownership, giving to each spouse an equitable share. Here, the trial court found that there was no property ownership to unscramble. The dissolution decree neither required any property to be sold nor tied payment of the $50,000 to the disposition of any particular asset. Thus, the evidence suggests that the $50,000 was not a property settlement.

The trial court noted that the dissolution decree stated that “no alimony is to be awarded to either party.” The trial court stated that this assertion was belied by the intent of the parties as evidenced during a hearing on the proposed decree. The following colloquy occurred at the hearing:

“Attorney Foley: Mrs. Lewis, do you understand that if you don’t ask for any periodic alimony, except the $50,000, that you will not at any time in the future be permitted to return to court and seek alimony from him?

“Mrs. Lewis: Yes.

“Attorney Foley: Do you understand that?

“Mrs. Lewis: Yes.”

Thus, although the decree states flatly that no alimony will be paid, that colloquy suggests that the plaintiff intended that the $50,000 payment was in the nature of alimony.

In a further attempt to divine the intent of the parties, the trial court reviewed the parties’ prenuptial agreement. We note that the prenuptial agreement was not part of the dissolution decree, and was not considered by the court that rendered the parties’ dissolution. The trial court’s use of the agreement, however, was appropriate in the contempt proceeding. Here, the trial court was charged with searching for the intent of the parties at the time of their divorce. See id. The dissolution decree was at best ambiguous, because it both asserted that no alimony would be paid and required a $50,000 payment without characterization or linkage to some specific property to be divided. The prenuptial agreement revealed the parties’ intent regarding alimony upon their divorce at the time the prenuptial agreement was made. To the extent that the agreement reveals the parties’ intent, the trial court properly considered it. In re Brody, 3 F.3d 35, 38 (2d Cir. 1993) (“[a]ll evidence, direct or circumstantial, which tends to illuminate the parties’ subjective intent is relevant”); Matter of Benich, 811 F.2d 943, 945 (5th Cir. 1987) (court may consider extrinsic evidence in determining dischargeability); In re Yeates, 807 F.2d 874, 878 (10th Cir. 1986) (written agreement is persuasive evidence of intent); Shaver v. Shaver, 736 F.2d 1314, 1316 (9th Cir. 1984) (“[i]n determining [dischargeability] the court must look beyond the language of the decree to the intent of the parties”).

The prenuptial agreement provided that the plaintiff had the right to periodic alimony for as many years as the parties were married, at a rate of $10,000 per year. The plaintiff also had a right to receive a building lot. Thus, both parties envisioned alimony payments when they signed the prenuptial agreement. When they were actually divorced, after two years of marriage, the parties agreed that the plaintiff would receive $50,000, which was more than the $20,000 in alimony envisioned in the prenuptial agreement, but would not receive a building lot. Thus, the dissolution decree can be harmonized with the prenuptial agreement, and the intent evidenced in the latter can be used to construe the former. Therefore, the evidence supports the trial court’s finding that the parties intended the $50,000 to be alimony.

The trial court also observed that at the time of the dissolution, the plaintiff owned no house or car and used those provided by the defendant. The dissolution decree permitted the plaintiff to use the defendant’s house and car until the $50,000 payment was made. The trial court interpreted this link between use of the house and car and the payment as demonstrating that the payment was intended to provide a house and transportation for the plaintiff. As both are necessities of life, the trial court concluded that the payment was in the nature of alimony, support or maintenance rather than property settlement.

In sum, the evidence in the record supports the trial court’s interpretation of the $50,000 payment as alimony, support or maintenance. Therefore, the trial court’s conclusion that the debt is nondischargeable is not clearly erroneous.

The judgment is affirmed.

In this opinion the other judges concurred.

       Without explanation, the debt listed as owed to his wife is $75,000. Immediately prior to the filing of the bankruptcy petition, the debt was found by the trial court to be $38,316.

       Because the debtor brought this adversary proceeding to have the debt ruled dischargeable, we can presume that the bankruptcy court had indicated in some manner that the debt would be presumed nondischargeable alimony or support or maintenance of a former spouse pursuant to 11 U.S.C. § 523 (a) (5).

       Title 11 of the United States Code, § 523 (a), provides in pertinent part: “A discharge under section 727 ... of this title does not discharge an individual debtor from any debt. . . (5) to a . . . former spouse . . . for alimony to, maintenance for, or support of such spouse ... in connection with a separation agreement, divorce decree or other order of a court of record, determination made in accordance with State or territorial law by a governmental unit, or property settlement agreement, but not to the extent that — (A) such debt is assigned to another entity, voluntarily, by operation of law, or otherwise ... or (B) such debt includes a liability designated as alimony, maintenance, or support, unless such liability is actually in the nature of alimony, maintenance, or support . . . .”

       Title 11 of the United States Code, § 362 (a), provides in pertinent part: “[A] petition filed under section 301, 302, or 303 of this title . . . operates as a stay, applicable to all entities, of — (1) the commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other action or proceeding against the debtor that was or could have been commenced before the commencement of the case under this title, or to recover a claim against the debtor that arose before the commencement of the case under this title; (2) the enforcement, against the debtor or against property of the estate, of a judgment obtained before the commencement of the case under this title ... (6) any act to collect, assess, or recover a claim against the debtor that arose before the commencement of the case under this title . . . .”

       Title 11 of the United States Code, § 362 (c) (2), provides: “[T]he stay of any other act under subsection (a) of this section continues until the earliest of (A) the time the case is closed; (B) the time the case is dismissed; or (C) if the case is a case under chapter 7 of this title concerning an individual . . . the time a discharge is granted or denied.”

       Title 28 of the United States Code, § 1334 (b), provides in pertinent part: “Notwithstanding any Act of Congress that confers exclusive jurisdiction on a court or courts other than the district courts, the district courts shall have original but not exclusive jurisdiction of all civil proceedings arising under title 11, or arising in or related to cases under title 11.”

       The preservation of this question contrasts with the situation in which a debtor characterizes a debt to a former spouse as a dischargeable property settlement. If the creditor does not challenge that characterization in an adversary proceeding prior to discharge, the injunction invoked by discharge prevents a later determination of dischargeability. See Jones v. Jones, 38 Bankr. 690, 691 (N.D. Ohio 1983). In this case, the defendant did not characterize the debt to his former spouse as dischargeable.

       See footnote 3.


author: Heiman, J.

text:
    State of Connecticut v. Herbert A. Gross
    (12638)
    O’Connell, Heiman and Freedman, Js.
    Argued June 10
    decision released August 23, 1994

      M. Donald Cardwell, for the appellant (defendant).

      Jack W. Fischer, assistant state’s attorney, with whom, on the brief, were Patricia Swords, state’s attorney, Susan M. Naide, assistant state’s attorney, and Matthew Gedansky, deputy assistant state’s attorney, for the appellee (state).
   Heiman, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of operating a motor vehicle while under the influence of intoxicating liquor or drugs in violation of General Statutes § 14-227a (a) (l). The defendant was acquitted on a second count of the information that charged him with a violation of General Statutes § 14-227a (a) (2). On appeal, the defendant claims that the trial court improperly (1) subjected him to double jeopardy, and (2) violated his right to due process of law by admitting into evidence the results of blood alcohol tests when he did not request that they be admitted into evidence pursuant to General Statutes § 14-227a (d). We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. At 11:28 p.m. on February 20,1992, the Vernon police received a telephone complaint about a vehicle located at 13 Ridgewood Drive in Vernon with an intoxicated occupant passed out in the driver’s seat. Officer Daniel Champagne of the Vernon police department responded to the complaint. When Champagne arrived at the scene, he discovered a 1979 El Camino with the engine running and a person seated in the driver’s seat with his head resting against the window of the driver’s side door. There were no other occupants in the vehicle.

The vehicle was resting with its right front tire over the curb of the road and on the lawn of 13 Ridgewood Drive. The remaining three wheels were on the roadway. The headlights were on and the engine was running. The driver appeared to be unconscious.

Champagne went to the passenger side front door of the vehicle, opened it and entered the vehicle. Once inside the vehicle, he placed the gear shift into the park position and shut off the engine. He noticed a heavy odor of alcohol in the vehicle. He exited the vehicle and went to the driver’s side of the vehicle where he opened the driver’s side door and attempted to rouse the occupant. He shined his flashlight on the occupant and shook him. He noted a strong odor of alcohol on the occupant’s breath.

The occupant of the vehicle responded and Champagne asked him to exit the vehicle. The occupant responded by looking around and saying, “where are my friends, where are my friends.” The person exited the vehicle, placed his feet on the ground and held on to the vehicle to maintain his balance. Champagne guided him to the rear of the vehicle. The occupant of the vehicle was identified as the defendant, Herbert A. Gross.

The officer continued to note a strong odor of alcohol coming from the defendant’s breath and also noted that his eyes were red and glassy. The defendant was unable to walk to the rear of the vehicle without holding onto the vehicle for support. Champagne asked the defendant to perform field sobriety tests at the scene. The defendant was unable to recite the alphabet correctly to completion and was unable to name accurately the months of the year sequentially from January to December. Further, the defendant performed unsatisfactorily on the finger to nose test, the standing on one leg test and the walk and turn test. Additionally, the result of the defendant’s horizontal gaze nystagmus test was consistent with the reaction of a person under the influence of intoxicating liquor or drugs. On the basis of all these factors, Champagne placed the defendant under arrest for operating a motor vehicle while under the influence of intoxicating liquor or drugs or both and transported him to the Vernon police station.

At the police station, the entire processing of the defendant, including the rendition of the breath tests, was videotaped. The defendant again performed the field sobriety tests, but this time on camera. The horizontal gaze nystagmus test was not redone. While the defendant’s performance improved in the second series of tests, the defendant became more agitated, belligerent and used profanity. After being advised of the implied consent statute and the consequences of a refusal to agree to testing, the defendant submitted to a breath test. The test was administered on an Intoximeter 3000 machine. The first test was administered at 12:12 a.m. and resulted in a reading of 0.186 of one percent. The second test was administered thirty-five minutes later, and resulted in a reading of 0.139 of one percent.

The jury found the defendant guilty of the offense of operating a motor vehicle while under the influence of intoxicating liquor or drugs or both, but not guilty of operating a motor vehicle while having a blood alcohol content in excess of 0.10 of one percent. This appeal followed.

I

The defendant first asserts that charging him with one count of violating § 14-227a (a) (1) and another count of violating § 14-227a (a) (2) constituted a violation of the double jeopardy prohibition under the fifth amendment to the United States constitution. We are unpersuaded.

The constitutional guarantee against double jeopardy prohibits multiple trials for the same offense as well as multiple punishments for the same offense in a single trial; State v. Woodson, 227 Conn. 1, 7, 629 A.2d 386 (1993); and is applicable to the states through the due process clause of the fourteenth amendment. Benton v. Maryland, 395 U.S. 784, 794, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969); State v. Woodson, supra, 7.

In the context of multiple trials, the double jeopardy provision of the fifth amendment is designed to “protect against a second prosecution for the same offense after acquittal [and] against a second prosecution after conviction . . . .” State v. Haskins, 188 Conn. 432, 472, 450 A.2d 828 (1982). Here, the defendant does not claim that he has been subjected to multiple punishments for the same crime, so we are not concerned with the kind of analysis mandated by Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932), where we are called on to determine whether two offenses constitute the same offense for double jeopardy purposes when the claim arises out of an assertion that the person is being twice punished for the same crime. State v. Nita, 27 Conn. App. 103, 114-15, 604 A.2d 1322, cert. denied, 222 Conn. 903, 606 A.2d 1329, cert. denied, U.S. , 113 S. Ct. 133, 121 L. Ed. 2d 80 (1992). Thus, the double jeopardy claim is grounded on the assertion that prosecution for alternative methods of committing a crime in the same information, but in separate counts, constitutes a violation of the double jeopardy clause, even where the individual is acquitted of one of the alternative methods of committing the crime. We are unpersuaded.

The trial of the defendant did not result in a second prosecution for the same offense after acquittal nor did it result in a second prosecution after conviction. State v. Haskins, supra, 188 Conn. 472. The constitutional right to be free from double jeopardy “ ‘is a guarantee against being twice put to trial for the same offense.’ ” (Emphasis in original.) In re Juvenile Appeal (85-AB), 195 Conn. 303, 308, 488 A.2d 788 (1985), quoting Abney v. United States, 431 U.S. 651, 661, 97 S. Ct. 2034, 52 L. Ed. 2d 651 (1977). Additionally, the defendant makes no claim of multiplicity of punishment. Thus, the defendant’s double jeopardy rights were in no way implicated and his claim to the contrary is without merit.

II

The defendant next asserts that the trial court improperly admitted into evidence the results of the blood alcohol tests when the defendant did not expressly request that they be admitted into evidence pursuant to § 14-227a (d). The defendant concedes that he did not object to the admission of the test results at trial, but asserts that he did raise the issue in his posttrial motion for a new trial. An examination of the record discloses that such a claim was not made in the motion that sought a new trial. The only ground asserted in the postverdict motion for a new trial was the claim of double jeopardy. As an alternative, however, the defendant asserts that this is an issue of constitutional magnitude and that he is entitled to review under the doctrine of State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). We conclude that this claim is not entitled to Golding review.

“[A] defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail.” (Emphasis in original.) Id., 239-40. We are free, however, to respond to the defendant’s claim by focusing on whichever condition is most relevant under the circumstances of the case. We conclude that the defendant cannot satisfy the second prong of Golding, since he has failed to demonstrate that his claim alleges the violation of a fundamental constitutional right. “Robing garden variety claims of [an evidentiary nature] in the majestic garb of constitutional claims does not make such claims constitutional in nature.” State v. Reddick, 33 Conn. App. 311, 331-32, 635 A.2d 848 (1993), cert. denied, 228 Conn. 924, 638 A.2d 38 (1994); State v. Ulen, 31 Conn. App. 20, 37, 623 A.2d 70, cert. denied, 226 Conn. 905, 625 A.2d 1378 (1993). Evidentiary claims are not of constitutional magnitude and are thus not entitled to Golding review. See State v. Robinson, 227 Conn. 711, 741 n.22, 631 A.2d 288 (1993).

We also note that, while we are ordinarily loathe to characterize the method by which review is sought, in this instance we are constrained to characterize the attempt to seek Golding review of this unpreserved claim as an inadequately preserved claim for Golding review. While in the course of his discussion the defendant makes passing reference to “due process,” he makes no attempt to provide us with any rationale for his claim that this represents more than an unpreserved evidentiary claim. Thus, we decline to afford this claim Golding review.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 14-227a (a) provides in pertinent part: “No person shall operate a motor vehicle while under the influence of intoxicating liquor or any drug or both. A person commits the offense of operating a motor vehicle while under the influence of intoxicating liquor or any drug or both if he operates a motor vehicle on a public highway of this state or on any road of a district organized under the provisions of chapter 105, a purpose of which is the construction and maintenance of roads and sidewalks, or on any private road on which a speed limit has been established in accordance with the provisions of section 14-218a, or in any parking area for ten or more cars or on any school property (1) while under the influence of intoxicating liquor or any drug or both . . . .”

       General Statutes § 14-227a (a) provides in pertinent part: “No person shall operate a motor vehicle while under the influence of intoxicating liquor or any drug or both. A person commits the offense of operating a motor vehicle while under the influence of intoxicating liquor or any drug or both if he operates a motor vehicle on a public highway of this state or on any road of a district organized under the provisions of chapter 105, a purpose of which is the construction and maintenance of roads and sidewalks, or on any private road on which a speed limit has been established in accordance with the provisions of section 14-218a, or in any parking area for ten or more cars or on any school property ... (2) while the ratio of alcohol in the blood of such person is ten-hundredths of one per cent or more of alcohol, by weight.”

       General Statutes § 14-227a (d) provides: “In any prosecution for a violation of subdivision (1) of subsection (a) of this section, reliable evidence respecting the amount of alcohol or drugs in the defendant’s blood or urine at the time of the alleged offense, as shown by a chemical analysis of the defendant’s blood, breath or urine, otherwise admissible under subsection (c) of this section, shall be admissible only at the request of the defendant.”

       The fifth amendment to the United States constitution provides in pertinent part: “[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb . . . .”

       See footnote 3.


author: Schaller, J.

text:
    United States Fidelity and Guaranty Company v. Lorenzo Pitruzzello et al. Lorenzo Pitruzzello v. United States Fidelity and Guaranty Company et al. Troy Kreder et al. v. United States Fidelity and Guaranty Company et al.
    (12821)
    Foti, Landau and Schaller, Js.

      Argued May 5
    decision released August 23, 1994

      Steven L. Seligman, with whom, on the brief, was Lester Katz, for the appellant (plaintiff in the first case, named defendant in the second and third cases).

      Jeffrey L. Polinsky, with whom was John R. Serrano, for the appellees (defendants in the first case, plaintiffs in the second and third cases).
   Schaller, J.

The plaintiff in the first case, United States Fidelity and Guaranty Company, appeals from the judgment of the trial court denying its application to vacate an arbitration award made to the defendants, and from the judgments granting the defendants’ applications to confirm the award. The sole issue on appeal is whether, under the defendants’ underinsured motorist coverage, the plaintiff is entitled to credits for payments made to other claimants by or on behalf of the tortfeasor in calculating the offset against damages owed to each of the defendants. We affirm the judgments of the trial court.

The following facts are relevant to this appeal. The defendants, Lorenzo Pitruzzello, Troy Kreder and Louis Catalano, were injured in a motor vehicle accident on December 22,1990, while occupying Kreder’s car. The tortfeasor, Esther E. McAvay, was insured under a policy with a limit of $20,000 per person and $40,000 per accident. Pursuant to that policy, Pitruzzello received $18,000, Kreder and Catalano each received $9000, and a fourth occupant not involved in this appeal received $4000.

The defendants pursued arbitration as required by subsection (c) of General Statutes § 38a-336 (formerly § 38-175c) to secure underinsured motorist benefits from the plaintiff under a $50,000 single limit policy owned by Kreder. At the arbitration proceeding, the parties relied on the same arguments offered here regarding the meaning of the $50,000 limit. Two of the three arbitrators agreed with the defendants’ position, and awarded Pitruzzello $32,000, Kreder $5000, and Catalano $4200. The trial court denied the plaintiff’s subsequent application to vacate or modify the award and granted the defendants’ applications to confirm the award. The plaintiff appeals from that judgment.

Currently, under the tortfeasor’s motor vehicle insurance policy and Kreder’s underinsured motorist policy, Pitruzzello has been awarded a total of $50,000, Kreder, a total of $14,000, Catalano, a total of $13,200, and the nonparty occupant of the Kreder vehicle, $4000. A total of $81,200, therefore, has been awarded to the defendants. The plaintiff contends, however, that the defendants should be compensated no more than they would have been had they been injured by a motorist carrying a $50,000 single limit liability policy. That analysis would limit the defendants to collecting no more than $10,000 from the plaintiff under the underinsured motorist provision, the difference between the underinsured policy limit and the amount recovered from the tortfeasor. The plaintiff argues that the defendants have been overcompensated by $31,200.

The underinsured motorist provision of the motor vehicle policy issued by the plaintiff states in part: “Any amounts otherwise payable for damages under this coverage shall be reduced by all sums . . . [p]aid because of the ‘bodily injury’ by or on behalf of persons or organizations who may be legally responsible . . . ,” Language identical to this was interpreted by our Supreme Court to prohibit an insurer from reducing the damages owed to a claimant under a underinsured motorist policy by taking credits for payments made to other claimants in Stephan v. Pennsylvania General Ins. Co., 224 Conn. 758, 764, 621 A.2d 258 (1993). The Stephan court held that “[t]o interpret ‘the bodily injury’ to mean ‘a bodily injury’ or ‘any bodily injuries’ would be to distort the plain and unambiguous meaning of this simple phrase. . . . We conclude that the policies did not permit Phoenix and Pennsylvania to reduce the damages owed to Stephan by taking credit for payments made to others.” (Citation omitted.) Id., 764-65. A companion case, Buell v. American Universal Ins. Co., 224 Conn. 766, 770-71, 621 A.2d 262 (1993), interpreted similar language in another underinsured motorist policy no differently.

The plaintiff attempts to distinguish Stephan from the present case on the ground that the court in Stephan did not state or imply that the total award could exceed the underinsured motorist limits of the policy issued by the defendant. In that case, the amount of underinsured motorist insurance coverage available to Stephan totaled $800,000 between two policies, the greater of which was for $600,000. Stephan v. Pennsylvania General Ins. Co., supra, 224 Conn. 761. Stephan was found to be entitled to $450,000 damages, reduced by $128,500 in payments already received. Id., 766. The court held that $71,500 in payments made to other injured passengers could not be credited against Stephan. Id., 764-65. The case was remanded with direction to award the claimant $321,500 plus interest, if any. Id., 766.

The plaintiff advances this distinction because of our Supreme Court’s holding in American Motorists Ins. Co. v. Gould, 213 Conn. 625, 569 A.2d 1105 (1990). There, the court held that under the former General Statutes (Rev. to 1989) § 38-175c (b) (2), now § 38a-336 (d), underinsurance coverage is activated only if it is greater than the aggregate of the liability limits of the tortfeasor’s vehicle. Id., 631. The court adopted the analysis of courts in other states, which have construed similar statutes as being intended “ ‘to permit the injured party to recover the amount he would have received had the tortfeasor been insured to the same extent as the injured party.’ Connolly v. Royal Globe Ins. Co., 455 A.2d 932 (Me. 1983). ‘It could not have been intended to place the insured who is injured by an underinsured motorist in a better position than one who is harmed by a motorist having the same insurance as the insured.’ Dewberry v. Auto-Owner Ins. Co., 363 So. 2d 1077, 1081 (Fla. 1978).” American Motorists Ins. Co. v. Gould, supra, 631; see also Mass v. United States Fidelity & Guaranty Co., 222 Conn. 631, 647, 610 A.2d 1185 (1992).

The plaintiff correctly asserts that the individuals injured in the accident in question here, collectively, have been awarded more than they would have been able to recover had the tortfeasor McAvay been insured for $50,000 and no underinsured motorist policy been available to the defendants. The plaintiff claims that in light of the language in Gould surrounding the policy behind General Statutes § 38a-336 (d), the defendants should not be allowed in effect to stack the liability policy of McAvay with the underinsured motorist policy of the defendant Kreder, thus collecting $31,200 more than they otherwise would be able to recover. The defendants argue in response that Gould is inapposite because the issue in that case was the triggering of underinsured motorist coverage, not the determination of the amount of the offset. See Covenant Ins. Co. v. Coon, 220 Conn. 30, 36-37, 594 A.2d 977 (1991) (inter-policy stacking permissible in context of determining amount of award to be paid to claimant, but not in initial determination of whether tortfeasor’s vehicle is underinsured pursuant to § 38a-336); see also Allstate Ins. Co. v. Link, 35 Conn. App. 338, 346-47, 645 A.2d 1052 (1994). Although we could rely on this distinction, the identity of the language of the defendants’ underinsured motorist policy in this case with that of the policy in Stephana. Pennsylvania General Ins. Co., supra, 224 Conn. 758, controls our decision in this case.

It is clear that an insurer may draft an underinsured motorist provision that allows an award of underinsured motorist benefits to be reduced by amounts paid by or on behalf of a tortfeasor to all injured parties both for personal injury and property damages. Allstate Ins. Co. v. Lenda, 34 Conn. App. 444, 453, 642 A.2d 22 (1994). Those cases that have not allowed similar reductions, such as Stephan v. Pennsylvania General Ins. Co., supra, 224 Conn. 758, and Buell v. American Universal Ins. Co., supra, 224 Conn. 766, have been based on the specific language of the underinsured motorist provisions in the policies at issue rather than on a legislative mandate forbidding such reductions. Indeed, this court decided in Allstate Ins. Co. v. Lenda, supra, 453, that § 38a-334-6 of the Regulations of Connecticut State Agencies authorizes policy provisions providing for reductions for amounts paid by a tortfeasor to others. Allstate Ins. Co. v. Lenda, supra, 454-55. The policy at issue in this case, however, contains language identical to that in Stephan and Buell — language that has been interpreted by our Supreme Court to disallow such reductions. There is no evidence of any intent to the contrary by the parties. Thus, according to the specific terms of the defendant Kreder’s policy, the defendants individually will suffer reductions only for amounts paid to them on account of their own bodily injuries.

The specific terms of the underinsured motorist provision of the policy are not vitiated by the relevant language in American Motorists Ins. Co. v. Gould, supra, 213 Conn. 631, and its progeny, regarding the policy behind General Statutes § 38a-336. The legislative intent behind the underinsured motorist statute has been defined repeatedly as “to assure that every insured recovers damages he or she would have been able to recover if the uninsured [or underinsured] motorist had maintained a policy of liability insurance. ’ ’ J. Berk & M. Jainchill, Connecticut Law of Uninsured and Underinsured Motorist Coverage (1993) § 1.3; see also Smith v. Safeco Ins. Co. of America, 225 Conn. 566, 573, 624 A.2d 892 (1993); Bodner v. United Services Automobile Assn., 222 Conn. 480, 499, 610 A.2d 1212 (1992). There is no public policy, however, against allowing an injured party to recover more than he would have had the tortfeasor maintained a policy of liability insurance equal in amount to the underinsured motorist coverage of the claimant, as long as the injured party does not recover more than is necessary to make him whole. Buell v. American Universal Ins. Co., supra, 224 Conn. 775; Rydingsword v. Liberty Mutual Ins. Co., 224 Conn. 8, 18-19, 615 A.2d 1032 (1992). In this case, the defendants are not attempting a double recovery; they are merely attempting to be compensated for their actual damages as found by the arbitration panel pursuant to an underinsured motorist provision identical to that in Stephan v. Pennsylvania General Ins. Co., supra, 224 Conn. 758. They are entitled to the benefits expressly provided by the insurance contract.

We do not conclude, therefore, that underinsured motorist coverage always allows each claimant to recover individual damages up to the limit of the underinsured motorist policy regardless of whether the total payments to all claimants exceed the value of the policy. We hold only that, in this case, the specific terms of the underinsured motorist provision at issue do not entitle the plaintiff to credits for payments made to other claimants in calculating the offset of damages owed to each of the defendants and, therefore, that the collective claimants may recover an amount in excess of the underinsured motorist coverage.

The judgments are affirmed.

In this opinion the other judges concurred.

       United States Fidelity and Guaranty Company is the plaintiff in the first case and a defendant in the second and third cases. We refer to it as the plaintiff in this opinion. Lorenzo Pitruzzello is a defendant in the first case and the plaintiff in the second case. Troy Kreder and Louis Catalano are defendants in the first case and the plaintiffs in the third case. We refer in this opinion to Pitruzzello, Kreder and Catalano as the defendants.

       The plaintiff applied to vacate the award pursuant to General Statutes § 52-418 (a), which provides in part that “[u]pon the application of any party to an arbitration, the superior court . . . shall make an order vacating the award if it finds any of the following defects . . . (4) if the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made.” The alternative application to modify or correct the award was made pursuant to General Statutes § 52-419 (a), which provides in part that “[ujpon the application . . . the superior court . . . shall make an order modifying or correcting the award ... (1) If there has been an evident material miscalculation of figures or an evident material mistake in the description of any person, thing or property referred to in the award . . . .”

       General Statutes § 52-417 allows the filing of an application to confirm an arbitration award.

       We noto that a copy of the automobile insurance policy at issue in this case was not made available to this court. We rely on the fact that the parties agree that the relevant language of the underinsured motorist provision is as quoted in the text of this opinion.

       General Statutes § 38a-336 (d) provides that “an ‘underinsured motor vehicle’ means a motor vehicle with respect to which the sum of the limits of liability under all bodily injury liability bonds and insurance policies applicable at the time of the accident is less than the applicable limits of liability under the uninsured motorist portion of the policy against which claim is made under subsection (b) of this section.”