author:
      LAVERY, J.
      FREEDMAN, J.,

text:
    SPEARHEAD CONSTRUCTION CORPORATION v. RICHARD A. BIANCO ET AL.
    (13090)
    O’Connell, Lavery and Freedman, Js.

      Argued February 21
    decision released September 5, 1995

      Daniel W. Moger, Jr., for the appellant-appellee (plaintiff).

      Theodore R. Tyma, with whom, on the brief, was Thomas E. Minogue, Jr., for the appellees-appellants (defendants).
   LAVERY, J.

The chief issues in this much litigated building contract case are: (1) what are the rights if any of a prevailing party in an arbitration award who fails to confirm the award within the statutory period and what effect does the statutorily unconfirmed award have; and (2) is the trial court bound by the findings of the attorney trial referee as to the date from which postjudgment interest runs. We reverse the judgment of the trial court.

The facts are as follows. The plaintiff had contracted to build an addition to the defendants’ house in Greenwich when a dispute arose. The matter was arbitrated in accordance with the terms of the contract. The arbitration award, dated June 14, 1988, provided that the plaintiff would obtain from the Greenwich building department the approvals necessary for the owner’s permanent records, including construction drawings, a certificate of occupancy and all plumbing, electrical and heating and ventilation approval as was usual for the town. The award further provided that when the documents had been received by the plaintiff, they would be turned over to the defendants and that the defendants would immediately pay to the plaintiff the sum of $101,000 for full and final payment for the work completed on their residence. The award further provided that upon payment, the plaintiff would immediately remove the lien placed on the defendants’ residence, and that the $101,000 to be paid by the defendants would be placed in an escrow account administered by the plaintiffs attorney with the understanding that the funds would immediately be used to pay subcontractors and materialmen who were owed money on account of the work performed on the defendants’ residence. The payments to the subcontractors and materialmen were to be made first to remove all liens and foreclosure actions brought against the defendants on account of the work done by the plaintiff.

Neither party sought either to confirm or vacate the award within the time permitted by statute.

Performance under the award was thwarted. The documents specified in the arbitration award were a certificate of occupancy, stamped construction drawings and usual building department approvals. The town officials had erroneously approved plans that omitted a smoke detector in the maid’s room. That omission was noted after work was completed and the plans were fulfilled. The town would not issue a certificate of occupancy for the addition until the relatively inexpensive smoke detector was installed. The defendants refused to allow the plaintiff or its agents on the premises. The defendants did not pay the $101,000, and on September 19, 1990, the plaintiff brought this action seeking enforcement of the arbitration award plus interest or, in the alternative, arbitration anew.

Before the trial in this case, two of the plaintiffs subcontractors brought their own actions against the defendants, with one settling and the other going to judgment. L & M Company (L & M), the roofer, settled with the defendants for $18,000. W. G. Glenney Company (Glenney), which did business as Continental Lumber Company, tried its mechanic’s hen foreclosure action to judgment in the Fairfield judicial district. In that action, the court, Spear, J., found that “[a]s the [defendants] have prevented [the contractor] from installing the detector and thereby obtaining the certificate, the debt is due now.” The defendants sought to reduce the Glenney claim by application of the apportionment statute, General Statutes § 49-36 (b). Their argument was that the sum of Glenney’s claim for $55,185.81, L & M’s claim for $44,000 and that of another claimant for approximately $6700 exceeded $101,000. The trial court made a factual finding, based on the settlement of the L & M claim for $18,000, that the aggregate of the claims against the defendants’ property did not exceed their $101,000 debt and denied apportionment. This court upheld that ruling because the L & M claim, when settled for $18,000, reduced the debt owed by the defendants from $101,000 to $83,000, which exceeded the remaining liens for $55,185.81 and $6700. W. G. Glenney Co. v. Bianco, 27 Conn. App. 199, 208, 604 A.2d 1345 (1992). This case was tried before an attorney trial referee, who found that the plaintiff had satisfied the terms of the arbitration award and determined that the sums thereunder should be paid. The referee found that the defendants should receive a credit of $81,628.31 for sums paid directly to the subcontractors. The referee also found that the plaintiff was entitled to the full arbitration award and that the fact that the defendant had bargained away the lien for $18,000 was irrelevant to the terms of the award. The attorney trial referee recommended that the arbitration award of June 16, 1988, be confirmed and refused to rewrite its terms or to correct or modify any of its conditions. The referee concluded that an award may be confirmed under General Statutes § 52-417 after the one year period.

The plaintiff and the defendants filed numerous motions to correct. For purposes of this appeal the important motion is the plaintiffs motion to correct, which provides in pertinent part: “8. The finding should be corrected to add the following omissions:

“a. The principal amount due the plaintiff is $27,814.19. This amount is arrived at by giving the [defendants] credit against a $101,000 award for their payments of $55,155.81 to Glenney and $18,000 to L & M.
“b. To this award must be added interest at the statutory rate of 10% for 4V2 years, or $12,516.39. (The arbitration award dated June 16, 1988, has not been paid. [Section] 37-4aandthe [American Institute of Architects (ALA)] contract both provide for interest.)”

In response to the various motions to correct, the attorney trial referee made the following reply: “[T]he effect of the findings is to confirm the arbitration award (finding in the plaintiffs favor) and leaves the resolution of the exact sum to the wording of that award. Insofar as interest is collectible under the terms of the award, [General Statutes §] 37-3a would apply (and indeed AIA contract confirms same). Plaintiffs paragraph 8a in [its] motion to correct accurately reflects the findings of the referee, but the discrepancy comes from the problematic compromise of a claim for less than the award figures. The referee accepts the correction therein and confirms the amount due as $12,516.39± plus statutory interest from the date of the award.”

The attorney trial referee further responded: “The trier accepts as confusing some of the mathematical contortions caused by her avoidance of rewriting the award and the attempt to adjust a compromised claim the defendants paid after the award. ... In essence, the decision has the affect of confirming the arbitration award.”

The trial court in its memorandum of decision interpreted the attorney trial referee’s decision to have given the defendants $36,000 credit, which is the amount of the L & M claim rather than the $18,000 actually paid to the subcontractor. The trial court rendered judgment for the plaintiff in accordance with the referee’s report in the amount of $9445, representing the difference between the arbitrator’s award of $101,000, and $91,555, the sum of the award paid to Glenney and the amount claimed by L & M. The trial court found that the fact that the defendants were able to compromise the claim should inure to their benefit rather than that of the plaintiff. In addition, the trial court found that the plaintiff was entitled to prejudgment interest for money detained “after it becomes payable.” See General Statutes § 37-3a. It did not award the plaintiff interest from June 16, 1988, the date of the arbitration award, since at that point the plaintiff was obliged to obtain certain documents for the benefit of the defendants. Instead, the trial court calculated interest as of September 19, 1990, when this action was instituted, on the theory that by that date the defendants were wrongfully withholding money from the plaintiff. This appeal followed.

The issues claimed in the plaintiffs appeal are:

“1. Whether, when trial was delegated to an attorney trial referee whose reports came back with obvious mistakes, the Court erred in entering judgment contrary to the referee’s other factual findings.
“2. Whether the Court’s damage award against [the] defendants, who were collaterally estopped by how much another court had found these same defendants owed the plaintiff in prior litigation with the plaintiffs subcontractors, was erroneously inconsistent with the first court’s findings.
“3. Whether it was error to give the defendants credit against what they owed their builder for an amount merely claimed by the builder’s subcontractor as opposed to the lower amount the defendants actually paid the subcontractor.
“4. Whether interest should have been calculated from [the date of] the arbitration award as the referee found or from the date of the complaint as the court found.”

The issue claimed in the defendants’ cross appeal is whether “the trial court [erred] in concluding that the plaintiff was not barred from confirming the arbitration award where it failed to make any application to confirm the award within one year after the award was rendered pursuant to the provisions of General Statutes § 52-417?”

The standard governing our review is the clearly erroneous standard, succintly set forth in Barbara Weisman, Trustee v. Kaspar, 233 Conn. 531, 541, 661 A.2d 530 (1995), and need not be repeated here.

We first must deal with the unique procedural posture of this appeal because neither party sought an application to confirm or vacate the arbitration award pursuant to the relevant statutes. We must decide whether the trial court is limited to the statutory proceedings specified in General Statutes § 52-417 (application to confirm), § 52-418 (application to vacate) or § 52-419 (modification or correction of award). We find that those statutory procedures are not the exclusive means for judicial enforcement of an arbitration award but rather are an expeditious means to turn a voluntary contractual proceeding into a judgment of the court for purposes of executing on, or enforcement of, the arbitration award. See General Statutes § 52-420 (“[a]ny application . . . shall be heard in the manner provided by law for hearing written motions at a short calendar session ... in order to dispose of the case with the least possible delay”).

Support for this position exists in both statutory and case law. General Statutes § 52-408 provides that arbitration agreements, which include a provision that the parties will be bound by the arbitrator’s decision, “shall be valid, irrevocable and enforceable, except when there exists sufficient cause at law or in equity for the avoidance of written contracts generally.” (Emphasis added.) This is an explicit statutory expression that agreements to arbitrate are written contracts and can be enforced, or avoided, in accordance with general principles of contract law.

In addition, our Supreme Court has commented on its ability to overturn arbitration awards for reasons other than those in § 52-418 (a) (4) and has noted that there are common law grounds for vacating awards: “We have historically construed narrowly the two common law grounds for vacating an arbitration award. We denominate the constitutionality and public policy exceptions as common law grounds although we have, on occasion, implied that the basis for these grounds is to be found within the statutory scheme of § 52-418 (a) (4). . . .It is more appropriate to recognize that the power to determine the constitutionality of a statute and the power to strike an arbitration ruling as violative of public policy exist apart from any particular grant of authority from the legislative branch. Because of the multiple sources authorizing judicial review of arbitration awards, we therefore deem inaccurate the implication in these earlier cases that § 52-418 (a) (4) is the sole source of the court’s power of review.” (Emphasis added.) Garrity v. McCaskey, 223 Conn. 1, 6, 612 A.2d 742 (1992).

We agree with the trial court’s denial of the defendants’ motion for summary judgment that claimed that the plaintiff was prevented from suing on the arbitration award because it failed to confirm the award within the statutory period and we adopt its reasoning. The trial court, Rush, J., ruled as follows: “The court notes that the statute providing for an application for an order confirming the award utilizes the permissive word ‘may’ while the provisions relating to a Motion to Vacate, Modify or Correct an Award mandate that such motions be made within 30 days from notice of the award. Compare General Statutes § 52-417 with General Statutes § 52-420 (b). There axe no provisions contained in General Statutes § 52-417 which require that an application to confirm in an arbitration award must be made. In the absence of a motion to confirm the award, the parties would be left to their common law remedies. Under our common law, prior to the statute providing for an Application to Confirm an Award, an arbitration award was in the nature of a judgment and the remedy for a party to an arbitration was to bring an action on the award. Lehrman v. Prague, 115 Conn. 484, 488 [162 A. 15] (1932); [Bridgeport v. Eisenman], 47 Conn. 34, 37-38 (1879); Shelton v. Alcox, [11 Conn. 240, 244 (1836)]; 1 Swift’s Digest (1848) pp. 447-78; 2 Swift’s Digest (1953) Forms pp. 480-82. ‘An arbitration award, confirmed or not, has the preclusive effect regarding issues of law and fact litigated before and determined by the arbitration panel.’ Robinson v. Southern New England Telephone Co., [Superior Court, judicial district of Middletown, Docket No. 59448 (May 27, 1992) (6 Conn. L. Rptr. 455)].” Spearhead Construction Corp. v. Bianco, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV900112172S (September 17, 1992) (7 Conn. L. Rptr. 380, 381).

In addition to the issue of interest discussed later in this opinion, another point of contention between the parties is whether the defendant will get credit for the $18,000 actually paid to L & M or for the $36,000 L & M had claimed. The trial court awarded the defendants the full $36,000 credit. We disagree with the trial court. It missed the conclusion of the attorney trial referee’s findings. The referee’s findings are clear on this point. In her original findings dated December 4, 1992, the referee found: “17. [The] plaintiff has done all that it needs to do to satisfy the terms of the Arbitration Award and the sums awarded thereunder should be paid.

“18. The defendants will receive a credit for sums paid directly to the subcontractors, which formed a term of the Award. ($81,628.31)

“19. The plaintiff had a right to receive $36,400.00 for [L & M]; the fact that [the] defendant ‘bargained’ the lien away with a payment of $18,000.00 is irrelevant to the terms of the Award.”

In its response to the plaintiffs motion to correct, the attorney trial referee found in pertinent part: “The effect of the findings is to confirm the arbitration award (finding in the plaintiffs favor) and leaves the resolution of the exact sum to the wording of that award. . . . Plaintiffs paragraph 8a in [its] motion to correct accurately reflects the findings of the referee, but the discrepancy comes from the problematic compromise of a claim for less than the Award figures. The referee accepts the correction therein and confirms the amount due as $12,516.39± plus statutory interest from the date of the award.

“Defendant’s Motion to Correct: Insofar as the correction above satisfies objection 1, it is noted. There should be no doubt that the trier’s recommended decision’s effect is to confirm the arbitration award. . . .

“In essence, the decision has the effect of confirming the arbitration award. . . .”

Testimony was procured concerning issues surrounding that award to assure that it had been rendered according to statute. The plaintiffs motion to correct provided as follows: “8. The finding should be corrected to add the following omissions:

“a. The principal amount due the plaintiff is $27,814.19. This amount is arrived at by giving the [defendants] credit against a $101,000 award for their payments of $55,155.81 to Glenney and $18,000 to L & M.”

The referee put in her corrected finding an incorrect figure of $12,516.39. This is actually the amount of statutory interest from the date of the award that would be based on an amount due of $27,814.19.

The trial court was bound to give the defendants credit only for the $18,000. First, the trial court was collaterally estopped from finding that the amount awarded was in excess of $18,000 as this figure was a subject of the litigation in W. G. Glenney Co. v. Bianco, supra, 27 Conn. App. 199. In this case, a finding that the defendants are entitled to credit for the amount L & M claimed instead of what L & M was paid would be contrary to our decision in W. G. Glenney Co. Collateral estoppel precludes such an inconsistency. Aetna Casualty & Surety Co. v. Jones, 220 Conn. 285, 596 A.2d 414 (1991), held that a judgment in a prior case precluded a party in the prior case from relitigating issues necessarily decided in the prior case. Second, the clear language of the arbitration award awarded the plaintiffs $101,000, which was to be put in escrow by the plaintiffs attorney to pay subcontractors and materialmen. The fact finder, as well as this court in W. G. Glenney Co., found that the defendants paid L & M $18,000. The trial court and the defendants are bound by those findings and awards and had no authority to give the defendants the benefit of their bargain.

The final issue is the date from which interest should run. The attorney trial referee awarded interest from the date of the arbitration award and the trial court awarded interest from the date this action began. The trial court found that interest should not commence from the date of the arbitration award because it had not become payable as required by General Statutes § 37-3a. Under § 37-3a, an allowance of prejudgment interest turns on “whether the detention of the money is or is not wrongful under the circumstances. Cecio Bros., Inc. v. Feldmann, 161 Conn. 265, 275, 287 A.2d 374 (1971). Newington v. General Sanitation Service Co., 196 Conn. 81, 90, 491 A.2d 363 (1985). Such a fact-bound determination lies within the trial court’s discretion. Nor’easter Group, Inc. v. Colossale Concrete, Inc., 207 Conn. 468, 482, 542 A.2d 692 (1988); King v. Board of Education, 203 Conn. 324, 341, 524 A.2d 1131 (1987); Newington v. General Sanitation Service Co., supra [90]; Bertozzi v. McCarthy, 164 Conn. 463, 467, 323 A.2d 553 (1973).” (Internal quotation marks omitted.) Associated Catalog Merchandisers, Inc. v. Chagnon, 210 Conn. 734, 748-49, 557 A.2d 525 (1989). The attorney trial referee in her findings found that performance under the award was thwarted by the defendants’ refusal to allow the plaintiff or its agents on the premises. We held in Piloto v. Kapur, 22 Conn. App. 282, 284, 576 A.2d 1315, cert. granted, 216 Conn. 813, 580 A.2d 67 (1990), appeal withdrawn, that it was inappropriate for the trial court to invade the fact finder’s province and make the determination of whether an interest award was appropriate. The person best able to make this equitable determination is the attorney trial referee who heard the case and is most familiar with the facts. Metcalfe v. Talarski, 213 Conn. 154, 160, 567 A.2d 1148 (1989). In this case, we disagree with the trial court’s changing the date from which interest should run. Since the referee found that the defendants thwarted the plaintiffs performance it was not an abuse of her discretion to award interest from the date of the award.

In Chmielewski v. Aetna Casualty & Surety Co., 218 Conn. 646, 675-76, 591 A.2d 101 (1991), the Supreme Court stated: “[A] trial court has discretion, under General Statutes § 37-3a, to award prejudgment interest on an arbitration award retroactively to some date prior to the date of the trial court’s judgment affirming the award. Middlesex Mutual Assurance Co. v. Walsh, 218 Conn. 681, 701, 590 A.2d 957 (1991). Implicit in that determination is the conclusion that the prior date may be the date of the arbitration award. We also reasserted the well established propositions that § 37-3a provides for interest on money detained after it becomes due and payable, that the question under that statute is whether the money was wrongfully withheld, and that the ultimate determination is one to be made in view of the demands of justice rather than through the application of any arbitrary rule. Id., 702, quoting Cecio Bros., Inc. v. Feldmann, [supra, 161 Conn. 275]. It is equally well established that we will not overrule the trial court’s award of interest absent a clear abuse of discretion. Metcalfe v. Talarski, [supra, 213 Conn. 160].” (Internal quotation marks omitted.)

In this case, the attorney trial referee did not abuse her discretion and the trial court should not have overruled her on the award of interest.

The judgment is reversed and the case is remanded to the trial court with direction to give the defendants credit on the arbitration award for the amount actually paid to L & M, and to award interest on the corrected amount of the arbitration award from the date of the award.

In this opinion O’CONNELL, J., concurred.

FREEDMAN, J.,

concurring. I concur in the result reached by the majority. I concur that General Statutes § 52-417 is not the exclusive method available to confirm an arbitration award. I also concur in the majority’s well reasoned conclusions regarding the issues of credit for the L & M claim and the awarding of interest.

Where I disagree with the majority is in its conclusion that after an arbitration award is made pursuant to the terms of a contract, where there is no issue regarding the validity of the contract itself, the award may thereafter be avoided “in accordance with general principles of contract law.” General Statutes § 52-408 provides in pertinent part that an arbitration provision in a contract is “valid, irrevocable and enforceable, except when there exists sufficient cause at law or in equity for the avoidance of written contracts generally.” “This means that an arbitration agreement, like any other, can be declared void for fraud, misrepresentation, duress or undue influence, among other reasons not pertinent here.” Dewart v. Northeastern Gas Transmission Co., 140 Conn. 446, 449, 101 A.2d 299 (1953). It does not mean that an arbitration award already made pursuant to a valid contract, as is the case here, may thereafter be avoided by applying the general principles of contract law to the award itself.

An arbitration award may be vacated, modified or corrected if the award violates any one or more of the proscriptions contained in General Statutes § 52-418 (vacating an award) or § 52-419 (modifying or correcting an award). In order to vacate, modify or correct such award, however, an application must be made to the Superior Court within thirty days from the time the party seeking such relief receives notice of the award. See General Statutes § 52-420 (b). No such application was made in this matter.

In addition, there are two common law “grounds for vacating an arbitration award: (1) the award rules on the constitutionality of a statute . . . [and] (2) the award violates clear public policy . . . .” (Citations omitted.) Garrity v. McCaskey, 223 Conn. 1, 6, 612 A.2d 742 (1992). Neither ground is at issue in this matter.

The trial court, therefore, was bound to confirm the arbitration award, not because the award did not violate the general principles of contract law but because (1) the defendants failed properly to pursue their remedies pursuant to §§ 52-418 and 52-419 and (2) there existed no common law ground for vacating the award.

Accordingly I agree with the result.

       General Statutes § 52-417 provides: “At any time within one year after an award has been rendered and the parties to the arbitration notified thereof, any party to the arbitration may make application to the superior court for the judicial district in which one of the parties resides or, in a controversy concerning land, for the judicial district in which the land is situated or, when the court is not in session, to any judge thereof, for an order confirming the award. The court or judge shall grant such an order confirming the award unless the award is vacated, modified or corrected as prescribed in sections 52-418 and 52-419.”
      General Statutes § 52-418 (a) provides: “Upon the application of any party to an arbitration, the superior court, for the judicial district in which one of the parties resides or, in a controversy concerning land, for the judicial district in which the land is situated or, when the court is not in session, any judge thereof, shall make an order vacating the award if it finds any of the following defects: (1) If the award has been procured by corruption, fraud or undue means; (2) if there has been evident partiality or corruption on the part of any arbitrator; (3) if the arbitrators have been guilty of misconduct in refusing to postpone the hearing upon sufficient cause shown or in refusing to hear evidence pertinent and material to the controversy or of any other action by which the rights of any party have been prejudiced; or (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.”
      General Statutes § 52-419 provides: “(a) Upon the application of any party to an arbitration, the superior court for the judicial district in which one of the parties resides or, in a controversy concerning land, for the judicial district in which the land is situated, or, when the court is not in session, any judge thereof, shall make an order modifying or correcting the award if it finds any of the following defects: (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; (2) if the arbitrators have awarded upon a matter not submitted to them unless it is a matter not affecting the merits of the decision upon the matters submitted; or (3) if the award is imperfect in matter of form not affecting the merits of the controversy.
      “(b) The order shall modify and correct the award, so as to effect the intent thereof and promote justice between the parties.”
      General Statutes § 52-420 provides: “(a) Any application under section 52-417, 52-418 or 52-419 shall be heard in the manner provided by law for hearing written motions at a short calendar session, or otherwise as the court or judge may direct, in order to dispose of the case with the least possible delay.

        “(b) No motion to vacate, modify or correct an award may be made after thirty days from the notice of the award to the party to the arbitration who makes the motion.
      “(c) For the purpose of a motion to vacate, modify or correct an award, such an order staying any proceedings of the adverse party to enforce the award shall be made as may be deemed necessary. Upon the granting of an order confirming, modifying or correcting an award, ajudgment or decree shall be entered in conformity therewith by the court or judge granting the order.”

       General Statutes § 49-36 (b) provides: “When there are several claimants and the amount of their united claims exceeds that price, the claimants, other than the original contractor, shall be first paid in full, if the amount of that price is sufficient for that purpose; but, if not, it shall be apportioned among the claimants having the liens, other than the original contractor, in proportion to the amount of the debts due them respectively; and the court having jurisdiction thereof, on application of any person interested, may direct the manner in which the claims shall be paid.”

       Interest on $27,814.19 for four and one-half years, from the June 18,1988 award to December 14, 1992, the date of the plaintiffs motion to correct, or 10 percent per annum amounts to $12,516.39. See paragraph 8b of the plaintiffs motion to correct, supra.

       General Statutes § 37-3a provides: “Except as provided in sections 37-3b, 37-3c and 52-192a, interest at the rate of ten per cent a year, and no more, may be recovered and allowed in civil actions or arbitration proceedings under chapter 909, including actions to recover money loaned at a greater rate, as damages for the detention of money after it becomes payable. Judgment may be given for the recovery of taxes assessed and paid upon the loan, and the insurance upon the estate mortgaged to secure the loan, whenever the borrower has agreed in writing to pay such taxes or insurance or both. Whenever the maker of any contract is a resident of another state or the mortgage security is located in another state, any obligee or holder of such contract, residing in this state, may lawfully recover any agreed rate of interest or damages on such contract until it is fully performed, not exceeding the legal rate of interest in the state where such contract purports to have been made or such mortgage security is located.”

       General Statutes § 52-418 provides in pertinent part: “(a) Upon 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: (1) If the award has been procured by corruption, fraud or undue means; (2) if there has been evident partiality or corruption on the part of any arbitrator; (3) if the arbitrators have been guilty of misconduct in refusing to postpone the hearing upon sufficient cause shown or in refusing to hear evidence pertinent and material to the controversy or of any other action by which the rights of any party have been prejudiced; or (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.”

       General Statutes § 52-419 provides in pertinent part: “(a) Upon the application of any party to an arbitration, the superior court . . . shall malee an order modifying or correcting the award if it finds any of the following defects: (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; (2) if the arbitrators have awarded upon a matter not submitted to them unless it is a matter not affecting the merits of the decision upon the matters submitted; or (3) if the award is imperfect in matter of form not affecting the merits of the controversy.”

       General Statutes § 52-420 (b) provides: “No motion to vacate, modify or correct an award may be made after thirty days from the notice of the award to the party to the arbitration who makes the motion.”


source: Caselaw Access Project

author: O’CONNELL, J.

license: Public Domain

text:
    WILLIAM JENKS v. JANE JENKS
    (12017)
    O’Connell, Heiman and Spear, Js.
    Considered June 6
    decision released September 5, 1995

      Charles F. Brower, for the appellant (plaintiff).

      Steven H. Levy, for the appellee (defendant).
   O’CONNELL, J.

This case is now before us on remand from the Supreme Court. We previously considered it in Jenks v. Jenks, 34 Conn. App. 462, 642 A.2d 31 (1994), in which we concluded, inter alia, that the trial court had abused its discretion in opening the stipulated marriage dissolution decree on the ground of duress. The Supreme Court, after granting certification, concluded that the evidence supported opening the judgment and reversed our decision and remanded the case to this court “for consideration of any preserved issue or issues not yet resolved.” Jenks v. Jenks, 232 Conn. 750, 756, 657 A.2d 1107 (1995).

We commence our determination of which, if any, preserved issues remained unresolved by quoting from our prior decision. “Initially, the plaintiff claims that (1) there was no legal basis for opening the judgment and (2) the trial court improperly allowed an expert to give an opinion. In two amended appeals, the plaintiff claims additionally that the trial court improperly (1) evaluated the respective financial positions of the parties in granting the allowance to the defendant to defend the appeal, (2) considered whether the plaintiff was justified in taking the appeal in granting the allowance to defend, and (3) found the plaintiff in contempt of court for failure to commence alimony payments on a specific date.” Jenks v. Jenks, supra, 34 Conn. App. 463.

The Supreme Court decision disposed of the first two claims, which related to the original appeal, by deciding that there was a factual basis for opening the judgment. In our previous decision, we disposed of the plaintiff s first two claims relating to the amended appeal.

The sole appellate issue yet to be resolved is whether the trial court improperly found the plaintiff in contempt of court for failure to commence alimony payments on a specific date. We did not reach the merits of that issue in our previous decision because the parties had stipulated that, if we held that the judgment had been improperly opened, the contempt issue would concomitantly fall.

Following the opening of the judgment, the trial court, Pickett, J., held a full hearing and, on December 15, 1992, rendered an amended judgment that included a periodic alimony award of $100 per week. Specifically, the court ordered that “[t]he plaintiff shall pay as periodic alimony the amount of $100.00 per week to the defendant until January 1, 2002, or for a period of 9 years. This period represents less than one-half of the length of the marriage.”

The plaintiff interpreted this order as requiring nine years of payments ending on January 1, 2002, with an initial payment due on January 7, 1993. Accordingly, the plaintiff began making payments on that date. On February 9, 1993, the defendant filed a motion for contempt, alleging that the order required that payments commence on December 15,1992. On February 22,1993, the court, Pickett, J., held a hearing at which the plaintiff argued for the correctness of his interpretation of the order but he conceded that the trial court’s interpretation controlled and offered to make the two missing payments if the court so required. The court, nonetheless, found the plaintiff in contempt and ordered him to pay an arrearage of $200, plus $200 in attorney’s fees and a $25 filing fee.

The correct interpretation of the trial court’s alimony order is not the issue before us. Rather, the narrow question for us to decide is whether the plaintiff acted contemptuously in delaying the commencement of payments for two weeks.

To constitute contempt a party’s conduct must be wilful. Connolly v. Connolly, 191 Conn. 468, 482-83, 464 A.2d 837 (1983). “The contempt remedy is particularly harsh . . . and may be founded solely upon some clear and express direction of the court. . . . One cannot be placed in contempt for failure to read the court’s mind.” (Citations omitted; internal quotation marks omitted.) Blaydes v. Blaydes, 187 Conn. 464, 467, 446 A.2d 825 (1982).

A good faith dispute or legitimate misunderstanding of the terms of an alimony or support obligation may prevent a finding that the payor’s nonpayment was wilful. In the present case, the plaintiff was making the required $100 per week payments at the time of the hearing on the motion for contempt. He advanced a reasonable basis for starting his payments when he did and expressed a willingness to make the two “missing payments” if the trial court’s interpretation of the amended order so required.

Our Supreme Court addressed a similar situation in Connolly v. Connolly, supra, 191 Conn. 483, in which it held that “[t]he [payor’s] conduct cannot be reasonably viewed as wilful disobedience of a court order. He had adequately demonstrated a willingness to make up the requisite payments once the court concluded he was legally bound to do so.”

When the trial court in the present case interpreted its alimony order to require the making of the “missing payments,” it should have accepted the plaintiffs offer to make them without finding him in contempt. Tomanelli v. Tomanelli, 5 Conn. App. 149, 150, 497 A.2d 91, cert. denied, 197 Conn. 814, 499 A.2d 63 (1985). “The fact that [an alimony] order had not been complied with fully . . . does not dictate that a finding of contempt must enter. It is within the sound discretion of the court to deny a claim for contempt when there is an adequate factual basis to explain the failure to honor the court’s order.” Marcil v. Marcil, 4 Conn. App. 403, 405, 494 A.2d 620 (1985). We conclude that there was an inadequate basis to find that the plaintiffs nonpayment was wilful. Consequently, the contempt finding cannot stand.

The judgment opening the stipulated judgment of dissolution is affirmed, the finding of contempt is reversed and the case is remanded with direction to deny the defendant’s motion for contempt.

In this opinion the other judges concurred.

       “Mr. Brower [Plaintiffs Attorney]: I don’t think it is a contemptuous act .... I would ask that there be no finding of contempt and that Mr. Jenks make up the payments. . . . [H]e certainly didn’t sit there and wait for nature to take its course. He commenced payments when he thought he should, and when I thought he should.
      “I read [the alimony order] several times. That is the way I interpreted it. I don’t think it is contempt. If Your Honor construes it that way, you are the one that wrote it, we will live by it. But it is not contempt, I don’t think.”


author: FREEDMAN, J.

text:
    TERRANCE O’BRIEN ET AL. v. DEREK J. COBURN
    (13512)
    O’Connell, Schaller and Freedman, Js.
    Argued May 1
    decision released September 5, 1995

      Michael F. Dowley, with whom, on the brief, was Margaret A. Waldron, for the appellant (defendant).

      Thomas F. Noonan, for the appellees (plaintiffs).
   FREEDMAN, J.

The defendant appeals from the judgment of the trial court granting the plaintiffs an easement by implication across a certain driveway owned by the defendant. The defendant argues that the trial court improperly granted the easement by implication because no such action was pleaded in the plaintiffs’ complaint. We agree and accordingly reverse the judgment of the trial court.

The trial court found the following facts. The plaintiffs own property located at 116 Meetinghouse Hill Road in Durham. The property includes a residential dwelling and attached garage, as well as a one-stoiy concrete shop-garage located at the rear of the property. The defendant owns a seventeen acre parcel of property that abuts the plaintiffs’ land on the eastern boundary. The defendant and his family live in a dwelling at the rear of the property, known as 110 R Meetinghouse Hill Road.

The parties acquired title to their respective realty from a common grantor, John W. Chapman, who died in 1977. At the time of the closing of title to the plaintiffs’ property on August 30, 1968, both Chapman and the plaintiffs were represented by attorney Theodore D. Rac-zka. The defendant acquired title to his property on September 19,1972. At the time of the closing, the defendant was represented by independent counsel.

The parties have been neighbors for more than twenty years. The present dispute involves their respective interests in a fifty foot strip of land that runs south from Meetinghouse Hill Road along the eastern boundary of the plaintiffs’ land to the residential property at the rear occupied by the defendant and his family. A driveway, located within the fifty foot strip, serves as an access route to the defendant’s home. It is also the only existing route to the shop-garage that is situated at the rear of the plaintiffs’ land, about 275 feet from Meetinghouse Hill Road, and a few feet west of the parties’ common boundary.

The plaintiffs’ deed conveyed the property “with the appurtenances hereof.” Although the deed was otherwise silent as to any easement grant, the plaintiffs were assured by their grantor, their attorney and a real estate agent who was present at the closing, that they would have free and uninterrupted use of the driveway that traversed land retained by Chapman and later conveyed to the defendant. Use of the driveway right-of-way was necessary in order for the plaintiffs to make full use of the shop-garage that, along with the driveway, had been used by Chapman. The plaintiffs contended that they would not have purchased the property without the right-of-way access to the shop-garage. It was also important to the plaintiffs that they continue to have the benefit of utility service to the building as provided by a claimed pole line easement that followed generally the path of the driveway.

The deed the defendant received from Chapman made no mention of any easement that encumbered the land conveyed. The defendant had, however, inspected the land on three occasions before its purchase and had walked the driveway. He did not meet either the plaintiffs or his grantor until sometime after the closing.

The parties made extensive use of the driveway, traveling to and from their rear buildings and Meetinghouse Hill Road. Over the years, the defendant has invested funds, with little contribution from the plaintiffs, to maintain and improve the access way. The use of the driveway was, for the most part, free of incident. More recently, however, problems have arisen, in part over what the defendant deems to be expanded use by vehicles that have come onto the property to serve the plaintiffs’ needs. This has caused the defendant to incur expense to repair the driveway surface, and his family has suffered some inconvenience. The defendant also has professed concern for the safety of his children.

By complaint dated June 18,1993, the plaintiffs sought, inter alia, an injunction restraining the defendant from obstructing, interfering with, or otherwise preventing the plaintiffs from the use and enjoyment of the right-of-way over the driveway. The defendant filed a counterclaim and an application for a temporary injunction in which he alleged that the plaintiffs’ use of the driveway to access a car repair shop on their adjacent property was illegal and created an unnecessary dangerous condition on the- defendant’s property. The trial court found that the facts were sufficient to create an easement by implication and held that the plaintiffs were vested with an easement by implication across the subject driveway. The trial court enjoined the defendant from interfering with the plaintiffs’ easement rights, and denied the defendant’s claims for relief in his counterclaim. The defendant appeals this decision.

The defendant argues that the trial court improperly granted the plaintiffs an easement by implication when no such cause of action was pleaded in the plaintiffs’ complaint and could not be properly adjudicated in the trial court action. The plaintiffs argue in response that, pursuant to Practice Book § 131, they pleaded sufficiently a concise statement of facts necessary for a cause of action based on an easement by implication. We agree with the defendant.

“It is fundamental in our law that the right of a plaintiff to recover is limited to the allegations of [its] complaint. . . . Lundberg v. Kovacs, 172 Conn. 229, 232, 374 A.2d 201 (1977). However, [t]he modem trend, which is followed in Connecticut, is to constme pleadings broadly and realistically, rather than narrowly and technically. . . . Beaudoin v. Town Oil Co., 207 Conn. 575, 587-88, 542 A.2d 1124 (1988); Fuessenich v. DiNardo, 195 Conn. 144, 150-51,487 A.2d 514 (1985). As long as the pleadings provide sufficient notice of the facts claimed and the issues to be tried and do not surprise or prejudice the opposing party, we will not conclude that the complaint is insufficient to allow recovery.” (Internal quotation marks omitted.) Normand Josef Enterprises, Inc. v. Connecticut National Bank, 230 Conn. 486, 496, 646 A.2d 1289 (1994). The pleadings in the present case do not provide sufficient notice of the plaintiffs’ claim of an easement by implication; rather, the pleadings indicate only that a prescriptive easement was claimed.

The elements necessary to prove a prescriptive easement differ from those pertaining to an easement by implication. With regard to a prescriptive easement, “General Statutes §47-37 provides: ‘No person may acquire a right-of-way or any other easement from, in, upon or over the land of another, by the adverse use or enjoyment thereof, unless the use has been continued uninterrupted for fifteen years.’ In Connecticut, therefore, a prescriptive easement is established by proving an open, visible, continuous and uninterrupted use for fifteen years made under a claim of right.” Gioielli v. Mallard Cove Condominium Assn., Inc., 37 Conn. App. 822, 829, 658 A.2d 134 (1995); see also Swenson v. Ditter, 183 Conn. 289, 294, 439 A.2d 334 (1981).

“An implied easement is typically found when land in one ownership is divided into separately owned parts by a conveyance, and at the time of the conveyance a permanent servitude exists as to one part of the property in favor of another which servitude is reasonably necessary for the fair enjoyment of the latter property. . . . In the absence of common ownership ... an easement by implication may arise based on the actions of adjoining property owners. . . . There are two principal factors to be examined in determining whether an easement by implication has arisen: (1) the intention of the parties; and (2) whether the easement is reasonably necessary for the use and normal enjoyment of the dominant estate.” (Citations omitted.) Kenny v. Dwyer, 16 Conn. App. 58, 64, 546 A.2d 937, cert. denied, 209 Conn. 815, 550 A.2d 1084 (1988); see also D’Amato v. Weiss, 141 Conn. 713, 717, 109 A.2d 586 (1954).

A review of the plaintiffs’ complaint reveals that the plaintiffs pleaded a prescriptive easement. Paragraph seven of count one alleges: “Since the date that John W. Chapman conveyed a portion of his property to the Plaintiffs, the Plaintiffs have used the . . . driveway in an open and visible manner continuously and uninterrupted, for a period greater than fifteen years, and engaged in such use under a claim of right.” A review of the complaint also reveals that the plaintiffs did not plead the elements necessary to establish an easement by implication. Accordingly, the defendant was subject to unfair surprise and prejudice at the time of trial when the plaintiffs claimed an easement by implication. See Normand Josef Enterprises, Inc. v. Connecticut National Bank, supra, 230 Conn. 496. “A plaintiff may not allege one cause of action and recover upon another. Facts found but not averred cannot be made the basis for a recovery.” (Internal quotation marks omitted.) Pergament v. Green, 32 Conn. App. 644, 650, 630 A.2d 615, cert. denied, 228 Conn. 903, 634 A.2d 296 (1993). In this case, the trial court rendered judgment for the plaintiffs on the basis of a theory that was not pleaded in complaint.

The judgment is reversed and the case is remanded for a new trial.

In this opinion the other judges concurred.

       In light of this conclusion, we need not address the defendant’s remaining claims that an easement by implication was not proven by the evidence presented and that the court mischaracterized the evidence as presented through testimony.

       The plaintiffs’ complaint also sought an injunction restraining the defendant from ordering the Connecticut light and Power Company and/or the Southern New England Telephone Company from discontinuing the utility service, or removing the utility lines that service the shop and garage located on the plaintiffs’ property. The trial court concluded, with respect to this claim, that the evidence was inconclusive, and it therefore denied the plaintiffs’ request for injunctive relief.
      The plaintiffs also sought money damages and a determination of the rights of the parties in and to the land and settling title thereto.

       Practice Book § 131 provides in relevant part: “[The complaint] shall contain a concise statement of the facts constituting the cause of action and, on a separate page of the complaint, a demand for relief which shall be a statement of the remedy or remedies sought.”


author: SCHALLER, J.

text:
    THE WINTONBURY GROUP v. MAE ROANTREE
    (13429)
    Dupont, C. J., and Schaller and Spear, Js.

      Argued March 13
    decision released September 5, 1995

      Edward M. Rosenthal, with whom, on the brief, was Samuel B. Feldman, for the appellant (defendant).

      Kent D. Mawhinney, with whom, on the brief, was John S. Pinney, for the appellee (plaintiff).
   SCHALLER, J.

The defendant appeals from the order of the trial court granting the plaintiff a supplemental prejudgment remedy pursuant to General Statutes § 52-278a et seq. On appeal, the defendant claims that the trial court improperly found that No. 93-431 of the^1993 Public Acts (P.A. 93-431) did not apply retroactively to this case. We dismiss the appeal for lack of a final judgment.

As a preliminary matter, we must discuss the defendant’s apparent noncompliance with Practice Book § 4059. The appellant bears the responsibility of providing this court with an adequate record for review. Practice Book § 4061; see also Dime Savings Bank of Wallingford v. Cornaglia, 33 Conn. App. 549, 554-55, 636 A.2d 1370, cert. granted, 229 Conn. 907, 640 A.2d 120 (1994); State v. Rios, 30 Conn. App. 712, 715, 622 A.2d 618 (1993). The appellant has the responsibility of ensuring that the trial court has signed a copy of the transcript when the decision has been rendered orally. Practice Book § 4059. The trial court neither issued a written memorandum nor transcribed and signed its oral decision. “While we do not condone this deviation from the rules of practice, we may disregard certain procedural irregularities and treat the case as the parties have treated and presented it. We do so here.” Askinazi v. Askinazi, 34 Conn. App. 328, 333 n.4, 641 A.2d 413 (1994); see also Lambrakos v. Carson, 174 Conn. 482, 485, 391 A.2d 142 (1978); State v. Beauton, 170 Conn. 234, 237, 365 A.2d 1105 (1976). “Review is appropriate in this case because we have been presented with the necessary factual findings on which to base a decision. Cf. State v. Salerno, 36 Conn. App. 161, 165-66, 649 A.2d 801 (1994), cert. granted, 232 Conn. 906, 653 A.2d 193 (1995).” State v. Smith, 38 Conn. App. 29, 38, 658 A.2d 156 (1995).

The facts necessary for the resolution of this appeal may be summarized as follows. On August 27, 1987, the defendant tenant, Mae Roantree, entered into a lease with the plaintiff landlord, The Wintonbury Group, for professional office space at 45 Wintonbury Avenue in Bloomfield. On August 13, 1993, the plaintiff commenced an action for unpaid rent for the months of June, July and August, 1993. The plaintiff applied for a prejudgment remedy in the amount of $75,000. On November 16, 1993, the trial court, Holzberg, J., awarded the plaintiff a prejudgment attachment in the amount of $30,000. No appeal was taken from the granting of that prejudgment remedy.

Thereafter, in an application dated December 17, 1993, the plaintiff sought a supplemental prejudgment remedy for unpaid rent for the months of September and October, 1993. The plaintiffs application complied with the provisions of General Statutes § 52-278c as they existed at that time. Subsequently, § 52-278c was amended by P.A. 93-431, entitled “An Act Concerning Prejudgment Remedies,” which was enacted on June 30, 1993, but was not effective until January 1, 1994. Public Act 93-431 requires that an application for a prejudgment remedy be accompanied by a notice and a claim form. The plaintiffs application for the supplemental prejudgment remedy did not contain the notice required by P.A. 93-431.

At the supplemental prejudgment remedy hearing on March 17, 1994, the defendant claimed that P.A. 93-431 was procedural in nature and should be applied retroactively. The defendant claimed that, because the plaintiff did not comply with the new notice provisions of P.A. 93-431, the claim for the supplemental prejudgment remedy should be denied. The trial court overruled the defendant’s objection and awarded the plaintiff a supplemental prejudgment attachment in the amount of $20,000. No appeal was taken on the issue of probable cause with respect to the granting of the supplemental prejudgment remedy. Rather, the defendant appealed only the trial court’s determination that P. A. 93-431 did not apply retroactively to the supplemental prejudgment application.

Although the trial court awarded the plaintiff an additional attachment of $20,000 based on an application that was entitled, “Supplemental Application for Prejudgment Remedy,” we construe the application to be a motion to modify a prejudgment remedy pursuant to General Statutes § 52-278k. In Babiarz v. Hartford Special, Inc., 2 Conn. App. 388, 389 n.2, 480 A.2d 561 (1984), we held that § 52-278k is “the only section of the statutes providing for a motion to increase an attachment already in place.” In this case, the trial court previously had awarded the plaintiff a prejudgment attachment in the amount of $30,000. The subsequent application filed by the plaintiff sought only to increase the amount of that attachment by an amount equal to two additional months of unpaid rent. The application was based on the same theory of law as the original application, and plainly did not constitute a new application for a prejudgment remedy. For those reasons, we consider the application to be a motion to modify the original prejudgment remedy under § 52-278k.

We now determine whether the trial court’s action on the application was an appealable final judgment. City National Bank v. Davis, 181 Conn. 42, 44, 434 A.2d 310 (1980); Gibbs v. Mase, 11 Conn. App. 289, 292, 526 A.2d 7 (1987). “An order modifying a prejudgment remedy pursuant to a motion brought under § 52-278k is a nonappealable interlocutory order because it is not within those orders listed as final judgment[s] for purposes of appeal under General Statutes § 52-2781 (a). Babiarz v. Hartford Special, Inc., supra, [2 Conn. App.] 390, citing City National Bank v. Davis, supra, 45-46. ” (Internal quotation marks omitted.) Gibbs v. Mase, supra, 293. The defendant’s appeal from the order granting the plaintiffs motion to increase the attachment, therefore, must be dismissed.

The appeal is dismissed.

In this opinion the other judges concurred.

       Practice Book § 4059 (a) provides in pertinent part: “The court shall include in its decision its conclusion as to each claim of law raised by the parties and the factual basis therefor. If oral, the decision shall be recorded by a court reporter and, if there is an appeal, the trial judge shall order the decision transcribed and the transcript of the decision shall be signed by the trial judge and filed in the trial court clerk’s office.”

       Public Act 93-431, § 1, provides in pertinent part: “(e) An application for a prejudgment remedy shall be accompanied by a notice and claim form, in such form as may be prescribed by the office of the chief court administrator, containing the following language: ‘You have rights specified in the Connecticut General Statutes, including chapter 903a, that you may wish to exercise concerning this application for a prejudgment remedy. These rights include the right to a hearing: (1) To object to the proposed prejudgment remedy because you have a defense to or set-off against the action or a counterclaim against the plaintiff or because the amount sought in the application for the prejudgment remedy is unreasonably high or because payment of any judgment that may be rendered against you is covered by any insurance that may be available to you; (2) to request that the plaintiff post a bond in accordance with section 52-278d of the General Statutes to secure you against any damages that may result from the prejudgment remedy; (3) to request that you be allowed to substitute a bond for the prejudgment remedy sought; and (4) to show that the property sought to be subjected to the prejudgment remedy is exempt from such a prejudgment remedy.’ ’’

       General Statutes § 52-278k provides in pertinent part: “The court may, upon motion and after hearing, at any time modify or vacate any prejudgment remedy granted . . . upon the presentation of evidence . . .

       Since the plaintiff' sought only to modify a prejudgment remedy pursuant to § 52-278k, P.A. 93-431 was inapplicable. Public Act 93-431 requires that notice accompany an application for a prejudgment remedy, but it does not have any effect on an application seeking to modify an existing prejudgment remedy.

       General Statutes § 52-278Í (a) makes appealable “[a]n order (1) granting or denying a prejudgment remedy following a hearing under section 52-278d or (2) granting or denying a motion to dissolve or modify a prejudgment remedy under section 52-278e or (3) granting or denying a motion to preserve an existing prejudgment remedy under section 52-278g . . . .”


author: DUPONT, C. J.

text:
    PAUL ALMEIDA v. FREEDOM OF INFORMATION COMMISSION ET AL.
    (13794)
    Dupont, C. J., and Landau and Hennessy, Js.

      Argued May 31
    decision released September 5, 1995

      Ronald Cordilico, for the appellant (plaintiff).

      Catherine Wassel-Nasto, commission counsel, with whom, on the brief, was Mitchell W. Pearlman, general counsel, for the appellee (named defendant).
   DUPONT, C. J.

The plaintiff appeals from the judgment of the trial court dismissing his administrative appeal from an order of the freedom of information commission (commission). The commission had ordered the superintendent of the Killingly public schools to release a redacted version of an investigative file regarding an altercation between the plaintiff, a guidance counselor at Killingly Intermediate School, and a student. The plaintiff claims that the trial court improperly upheld the finding of the commission that the file was not exempt from disclosure under General Statutes § 1-19 (b) (2). We reverse the trial court’s judgment in part and remand the case to that court for further proceedings.

The superintendent and the principal at the intermediate school ordered an investigation of the incident, which resulted in an exoneration of the plaintiff. Barbara Anne Marley, the mother of the student involved in the incident, asked that the school provide her with a copy of its records of the investigation, but the school refused. Marley is a party to this appeal and adopted the brief of the commission.

Marley filed a complaint with the commission, alleging that the school’s refusal to disclose the requested materials violated the Freedom of Information Act (act), General Statutes § 1-7 et seq. A hearing was held before a hearing officer for the commission, who examined the records in camera, and prepared proposed findings and a decision, which later was adopted by the commission as a final decision. At the hearing, the plaintiff requested and was granted party status.

The commission concluded that the records were public records and that the nature of the records indicated that they were internal investigation records and not personnel, medical or similar files that are exempt from disclosure under the act. The commission further found that even if the records at issue could be considered personnel or similar files, the disclosure of such records would not constitute an invasion of personal privacy because there was nothing potentially embarrassing in the records and because the incident occurred in apublic forum. The commission ordered the superintendent to give Marley a copy of the requested records with the names of all minor students redacted.

The plaintiff appealed the commission’s order to the trial court, which reviewed the transcript of the administrative hearing and inspected the records in camera. The court found that there was ample and substantial evidence in the record to support the factual findings made by the commission relating to the nature of the records and that the commission reasonably concluded that the records were not exempt under the act. The trial court never reached the issue of whether the release of the records would constitute an invasion of privacy because it affirmed the commission’s decision on the ground that the files were not personnel or similar files.

We review the issues raised by the plaintiff in accordance with the limited scope of judicial review afforded by the Uniform Administrative Procedure Act, General Statutes § 4-166 et seq. Perkins v. Freedom of Information Commission, 228 Conn. 158, 164, 635 A.2d 783 (1993). “[W]e must decide, in view of all of the evidence, whether the agency, in issuing its order, acted unreasonably, arbitrarily or illegally, or abused its discretion. . . . Even as to questions of law, [t]he court’s ultimate duty is only to decide whether, in light of the evidence, the [agency] has acted unreasonably, arbitrarily, illegally, or in abuse of its discretion. . . . Conclusions of law reached by the administrative agency must stand if the court determines that they resulted from a correct application of the law to the facts found and could reasonably and logically follow from such facts. . . . Although the interpretation of statutes is ultimately a question of law ... it is the well established practice of [the Supreme Court and] this court to accord great deference to the construction given [a] statute by the agency charged with its enforcement.” (Citations omitted; internal quotation marks omitted.) Id., 164-65.

The act states that all records kept on file by a public agency are public records, available for public inspection. General Statutes § 1-19 (a). There are, however, certain exceptions to this requirement that are narrowly construed in order to effectuate the act’s policy of disclosure. Kureczka v. Freedom of Information Commission, 228 Conn. 271, 277, 636 A.2d 777 (1994). One such exception is for personnel or similar files, the disclosure of which would constitute an invasion of personal privacy. General Statutes § 1-19 (b) (2).

“When the claim for exemption involves § 1-19 (b) (2), [t]he plaintiffs must meet a twofold burden of proof .... First, they must establish that the files in question are within the categories of files protected by the exemption, that is, personnel ... or ‘similar’ files. Second, they must show that disclosure of the records would constitute an invasion of personal privacy.” (Internal quotation marks omitted.) Perkins v. Freedom of Information Commission, supra, 228 Conn. 168. “Determination as to whether either prong has been satisfied is, in the first instance, a question of fact for the [commission], to be determined pursuant to the appropriate legal standards.” Connecticut Alcohol & Drug Abuse Commission v. Freedom of Information Commission, 233 Conn. 28, 38, 657 A.2d 630 (1995).

The plaintiff, in this matter, challenges the commission’s conclusions concerning both prongs of the § 1-19 (b) (2) burden of proof. First, the plaintiff claims that the commission should have characterized the investigatory file as a “personnel or similar” file. We agree.

“We interpret the term ‘similar files’ to encompass only files similar in nature to personnel or medical files.” (Internal quotation marks omitted.) Superintendent of Police v. Freedom of Information Commission, 222 Conn. 621, 627-28, 609 A.2d 998 (1992). A determination of whether a file is similar in nature to a personnel file “requires a functional review of the documents at issue. Just as a ‘medical’ file of an individual has as one of its principal purposes the furnishing of information for making medical decisions regarding that individual, a ‘personnel’ file has as one of its principal purposes the furnishing of information for making personnel decisions regarding the individual involved. If a document or file contains material, therefore, that under ordinary circumstances would be pertinent to traditional personnel decisions, it is ‘similar’ to a personnel file. Thus, a file containing information that would, under ordinary circumstances, be used in deciding whether an individual should, for example, be promoted, demoted, given a raise, transferred, reassigned, dismissed or subject to other such traditional personnel actions, should be considered ‘similar’ to a personnel file for the purposes of § 1-19 (b) (2).” Connecticut Alcohol & Drug Abuse Commission v. Freedom of Information Commission, supra, 233 Conn. 41.

“While reports of incidents occurring in the workplace are not ‘personnel files’ per se, they may be similar to personnel files in that they may contain information that would ordinarily be considered in making personnel decisions regarding the individuals involved. Such reports would be functionally similar to information contained in the individual’s personnel files. Section 1-19 (b) (2) requires a case-by-case analysis to determine whether a particular file is a ‘similar file.’ ” Id., 42.

The commission found that the records at issue, which were kept in a locked location separate from any personnel file, contained the following: “[D]escriptions of the incident which took place in an open classroom; a list of exhibits, including a classroom description, pertinent public acts, school policy and faculty handbooks; the names of individuals providing statements; names, ages and grades of student witnesses interviewed; the name of the teacher’s union representative, a description of the fact-finding efforts and a statement of the case status; statements of Mr. Almeida, the complainant’s son, and two other teachers; and an overhead chart of the classroom and desk arrangement.” The commission also found that the investigatory file was not a “similar file,” and the trial court, after an in camera review of the records, gave deference to the reasoning of the commission that the records were not personnel or similar files because of the nature of the content of the records and the manner in which the school maintained them.

When the commission and the trial court rendered their decisions, however, they did not have the benefit of the Supreme Court’s full explanation, in Connecticut Alcohol & Drug Abuse Commission v. Freedom of Information Commission, supra, 233 Conn. 28, of the scope of what constitutes a “similar” file within the meaning of § 1-19 (b) (2). We conclude, after our review of the record and in light of the explanation provided in Connecticut Alcohol & Drug Abuse Commission, that the investigatory file at issue here fits squarely within the definition of a “similar” file and, thus, could only reasonably be found to be a “similar” file within the meaning of § 1-19 (b) (2).

The documents in the file contain information relevant to ascertaining whether the plaintiff assaulted a student and were reviewed to determine whether the plaintiff was to be exonerated or whether he was to be subject to disciplinary action, or perhaps even discharged, as a result of the incident. The cumulative effect of these documents, therefore, had a direct bearing on the employment status of the plaintiff. In this way, the file is “similar” to a personnel file.

There is no foundation for a finding that the investigatory file is not a “similar” file. The fact that the file was stored in a different cabinet from the plaintiffs actual personnel file is not evidence that the file does not fall within the § 1-19 (b) (2) exemption. The definition of a “similar” file requires that the file be distinguishable from a “personnel” file per se. See Connecticut Alcohol & Drug Abuse Commission v. Freedom of Information Commission, supra, 233 Conn. 41-42. Therefore, the only reasonable conclusion that the commission could reach concerning the investigatory file at issue here is that it is “similar” in nature to a personnel file.

Having found that the investigatory file satisfies the first prong of § 1-19 (b) (2), we must next address the plaintiffs second claim, that the commission made its findings before our Supreme Court’s decisions in Perkins v. Freedom of Information Commission, supra, 228 Conn. 158, and Kureczka v. Freedom of Information Commission, supra, 228 Conn. 271, and therefore, used the standard that had previously been articulated in Chairman v. Freedom of Information Commission, 217 Conn. 193, 585 A.2d 96 (1991), to find that the release of the documents would not constitute an invasion of privacy. The plaintiff argues that the trial court, which heard this matter after the Perkins case was decided, should have remanded it to the commission for a determination of whether the release of the file would constitute an invasion of privacy under the Perkins standard.

The commission determined that release of the file would not be an invasion of privacy because there was nothing potentially embarrassing in the records and because the incident occurred in a public classroom. The trial court, however, did not reach the question of whether the release of the file would constitute an invasion of privacy because it found that the file was not a personnel or similar file. We do not decide what the trial court would have done if it had addressed the issue, but rather, remand the matter for the trial court to make that determination itself. See Kelly v. Freedom of Information Commission, 221 Conn. 300, 315, 603 A.2d 1131 (1992); Eagle Hill Corp. v. Commission on Hospitals & Health Care, 2 Conn. App. 68, 79, 477 A.2d 660 (1984).

The judgment is reversed in part and the case is remanded to the trial court for a determination of whether the commission’s conclusion that there was not an invasion of privacy should be upheld.

In this opinion the other judges concurred.

       General Statutes § 1-19 (a) provides in pertinent part,: “Except as otherwise provided by any federal law or state statute, all records maintained or kept on file by any public agency, whether or not such records are required by any law or by any rule or regulation, shall be public records and every person shall have the right to inspect such records promptly during regular office or business hours or to receive a copy of such records in accordance with the provisions of section 1-15. . . .”

       General Statutes § 1-19 (b) provides in pertinent part: “Nothing in sections 1-15, l-18a, 1-19 to l-19b, inclusive, and 1-21 to l-21k, inclusive, shall be construed to require disclosure of . . . (2) personnel or medical files and similar files the disclosure of which would constitute an invasion of personal privacy . . . .”

       In Chairman v. Freedom of Information Commission, supra, 217 Conn. 198, the Supreme Court stated that “a person’s reasonable expectation of privacy and the potential for embarrassment [are] significant factors in determining if disclosure would constitute an invasion of privacy [pursuant to § 1-19 (b) (2) of the act].”

       Although the trial court has the option to remand the question to the commission, for another determination of whether, given the standard set forth in Perkins v. Freedom, of Information Commission, supra, 228 Conn. 158, the release would be an invasion of privacy, the trial court may decide that such a remand would be unnecessary. See Kureczka v. Freedom of Information Commission, supra, 228 Conn. 278-79 n.12.


author: HENNESSY, J.

text:
    ERIC R. WOLF v. LINDA D. WOLF
    (13231)
    Dupont, C. J., and Lavery and Hennessy, Js.

      Argued March 14
    decision released September 5, 1995

      Sheila S. Horvitz, for the appellant (defendant).

      Lorraine D. Eckert, for the appellee (plaintiff).

      Susan M. Connolly, for the minor children.
   HENNESSY, J.

The defendant appeals from various orders of the trial court distributing marital property in connection with a judgment of dissolution. The defendant claims that the trial court improperly: (1) distributed marital property between the parties by (a) failing to award her any share of the plaintiffs medical practice, pension or profit sharing plan, (b) giving the plaintiff unbridled discretion in selling the marital residence, and (c) ordering the plaintiff to be compensated for payments on the mortgage of the marital residence during the pendente lite period; (2) failed to award her alimony for a sufficient period of time; (3) ordered the parties to use marital property to establish a trust fund for the education of the minor children; (4) ordered her to obtain and maintain life insurance policies in the amount of $600,000; (5) delegated postjudgment authority to the attorney for the minor children; and (6) failed to award her attorney’s fees.

I

The defendant’s first set of claims involves the distribution of marital property. The defendant first contends that the trial court abused its discretion in failing to award her any share of the plaintiffs medical practice, pension or profit sharing plan. She argues that the trial court abused its discretion by failing to take into consideration her contributions as a homemaker and as the primary caretaker of the minor children. The defendant also contends that the trial court abused its discretion in giving the plaintiff sole authority to determine the price at which the marital residence would be sold, and in crediting the plaintiff for pendente lite mortgage payments on the marital residence. She argues that these orders are inequitable and could influence her overall financial award.

A trial court is accorded wide discretion in determining the proper allocation of the assets of the parties in a dissolution proceeding. Rummel v. Rummel, 33 Conn. App. 214, 220, 635 A.2d 295 (1993); Siracusa v. Siracusa, 30 Conn. App. 560, 567-68, 621 A.2d 309 (1993). This discretion, however, must be exercised in conformity with General Statutes § 46b-81 (c), which requires the trial court to consider several enumerated factors, including nonmonetary contributions of the parties, in making assignments of marital property. Siracusa v. Siracusa, supra, 567; O’Neill v. O’Neill, 13 Conn. App. 300, 311, 536 A.2d 978, cert. denied, 207 Conn. 806, 540 A.2d 374 (1988). While the trial court is required to consider all the enumerated statutory factors, it “need not give each factor equal weight ... or recite the statutory criteria that it considered in making its decision or make express findings as to each statutory factor.” (Citation omitted; internal quotation marks omitted.) Siracusa v. Siracusa, supra, 567. As long as our review of the record reveals that the trial court considered all the statutory factors, we will not reverse the orders of the trial court unless there has been an abuse of discretion, or unless the findings of the trial court have no reasonable basis in the facts. Id., 566. In addition, it is the appellant’s duty to demonstrate that the trial court failed to exercise its discretion in accordance with the law. Id.

We conclude that the trial court considered all of the required factors in making orders concerning the distribution of marital property in this case. In its memorandum of decision, the trial court expressly found that the plaintiffs medical practice “was created, developed and operated solely by the plaintiff,” and that “[a]ll assets of the parties with the exception of certain pension and retirement plans in the defendant’s name, were obtained through the practice of his profession.” The trial court also considered the defendant’s work history, the presence of domestic help in the home, and other evidence of how the defendant elected to spend her time. We conclude that the trial court did consider the nonmonetary contributions of the defendant, as well as the other factors enumerated in § 46b-81 (c).

The order to allow the plaintiff to retain his practice, pension and profit sharing plan should be viewed in the context of its place among all the orders distributing the assets of the marriage. In the context of the entire property distribution scheme, we find no abuse of discretion in the trial court’s decision not to award the defendant any part of the plaintiffs medical practice, pension and profit sharing plans.

Likewise, we conclude that the statutory factors were considered and the trial court did not abuse its discretion in its orders relating to the division of the parties’ real property. In distributing the real property and the assets therefrom, the trial court awarded the defendant the residential property where she resided with the parties’ children. The defendant was also awarded one half of the proceeds of the sale of both the marital residence and a condominium in Clinton. The plaintiff was awarded the other half of the proceeds from the marital residence and the condominium, in addition to the office condominium in which his practice was located.

The defendant does not challenge any of these orders, but claims that the trial court improperly gave the plaintiff sole authority to determine the sale price of the marital residence. An order giving one party the authority to sell marital property can be fair and reasonable. Such an order avoids possible conflict between the parties, which could result in one of the parties thwarting the orders of the court. Thus, it is not error per se that the trial court ordered that the plaintiff would have sole authority in the sale of the house. The defendant has not convinced us that the trial court abused its discretion in entering this order. See Siracusa v. Sira-cusa, supra, 30 Conn. App. 560.

The defendant also challenges the trial court’s order that, before the proceeds from the sale of the marital residence were divided, the plaintiff would be credited for the reduction in the balance of the mortgage during the pendente lite period. In November, 1992, in response to the defendant’s motion for custody, support and alimony pendente lite, the trial court ordered the plaintiff to make the mortgage payments on the marital residence where the defendant continued to reside. In the dissolution decree, the trial court ordered that after the marital property was sold, the plaintiff should be credited with the amount he paid on the mortgage balance pursuant to the pendente lite order. Because the order constitutes a retroactive modification of a pendente lite support order, it is impermissible. Trella v. Trella, 24 Conn. App. 219, 221-23, 587 A.2d 162, cert. denied, 219 Conn. 902, 593 A.2d 132 (1991); Weinstein v. Weinstein, 18 Conn. App. 622, 640-41, 561 A.2d 443 (1989). Accordingly, this order must be reversed.

II

The defendant next claims that the trial court abused its discretion when it failed to award her alimony for a period of time sufficient to allow her to become fully self-supporting. We do not agree.

At the time of the dissolution decree, the trial court found that the plaintiff, a dermatologist in private practice, had the ability to earn $344,318 per year. The trial court found that the defendant at that time was netting $454 per week as a resident in psychiatry and that the residency was scheduled to end in 1994. The trial court projected that upon completing her residency, the defendant would be able to earn approximately $140,000 per year as a full-time psychiatrist. The trial court also found that if she instead chose to utilize her training in radiology the defendant could earn approximately $422,005 per year. The trial court ordered the plaintiff to pay alimony in the amount of $1200 per week for the first year, $1100 per week for the second year, and $750 per week for the third year, after which time the alimony payments would cease.

As in the distribution of marital assets, the trial court is afforded broad discretion in making awards of alimony. Askinazi v. Askinazi, 34 Conn. App. 328, 330-31, 641 A.2d 413 (1994). Although this discretion must be exercised after consideration of the factors enumerated in General Statutes § 46b-82, we will “indulge every reasonable presumption in favor of the correctness of the trial court’s action . . . .” Id., 331.

It is clear from the memorandum of decision that the trial court considered all the appropriate statutory factors in making the award of alimony. The defendant contends, nonetheless, that it will take her longer than the three years during which alimony was awarded to complete her residency and to establish a psychiatric practice capable of supporting herself and the children, and that she should not be expected to secure full-time employment or develop a full-time practice until her youngest child becomes a teenager.

The trial court noted in its decision that it was basing the alimony award on the defendant’s earning capacity, and not necessarily on her stated desires regarding employment. This is a permissible rationale for an alimony award. Vandal v. Vandal, 31 Conn. App. 561, 566, 626 A.2d 784 (1993). Although the defendant testified that she wanted to work only part-time in order to devote time to her children, the trial court did not find her testimony credible, noting that the defendant’s schedule at the time of the judgment involved leaving her house at 8 a.m. and returning at 6 p.m. The children were cared for by a housekeeper or a babysitter while the defendant was working. Thus, the alimony award fashioned by the court provided an opportunity for the defendant, by allowing her to complete her residency and to develop a practice, to realize a standard of living similar to that achieved during the parties’ marriage. The trial court did not abuse its discretion in making this award. See Wolfburg v. Wolfburg, 27 Conn. App. 396, 400, 606 A.2d 48 (1992).

Ill

We next turn to the defendant’s claim that the trial court lacked authority to order the parties to utilize marital property to establish a trust fund for the education of the minor children. This claim concerns the following order of the trial court at the time of the judgment of dissolution: “Stock currently in the marital estate designated as the Raymond James Account in the aggregate amount of $123,000 shall be designated as the children’s property in trust for educational expenses. . . . The stock shall be transferred at the time of the divorce as a gift to the trust to be administered by a trustee mutually acceptable to the parties. Each child’s trust shall terminate one month prior to the child’s eighteenth (18th) birthday and the monies distributed to the child. This trust is hereby set up by judicial decree.” The defendant argues that through this order the trial court impermissibly assigned marital property to individuals other than the parties to the marriage. We agree.

Section 46b-81 (a) empowers the trial court in a dissolution action to assign any part of the marital estate to either of the parties and explicitly authorizes the trial court to pass title to real property to either party or to a third person. There is no such authorization concerning the disposition of other forms of marital property.

We construe statutes in accordance with their plain, unambiguous language. Rhodes v. Hartford, 201 Conn. 89, 93, 513 A.2d 124 (1986). We find no ambiguity in the language of § 46b-81 (a). Accordingly, we interpret the statute to mean that marital property other than real property can be assigned only to the parties to the marriage. Therefore, an award of marital property to the children of the marriage is beyond the authority of the trial court.

The plaintiff and the counsel for the minor children urge us to find that in this case, the trust fund is not an award of property to the minor children but a form of child support, pursuant to General Statutes § 46b-84, to ensure that the education of the children will be paid for by the parties. The plaintiff and counsel for the minor children suggest that this case is controlled by Louney v. Louney, 13 Conn. App. 270, 535 A.2d 1318 (1988), in which this court upheld the order of the trial court establishing a trust fund for the benefit of the minor children of the marriage. We are not persuaded.

In Louney, the trial court ordered that the wife act as trustee and utilize funds from revocable joint accounts held by the parties’ children with their mother for the education of the children. The court concluded that “this portion of the court’s order can reasonably be understood as providing for the support and maintenance of the children . . . .’’Id., 274-75. The present case cannot be analogized to Louney. The trial court here did not order the parties to use the Raymond James account for the support of the children. The trial court expressly ordered that the funds in the trust account “shall be designated as the children’s property.”

The trial court was without authority to transfer marital property to the children of the marriage. Therefore, we conclude that the court acted outside the scope of its authority in ordering that the Raymond James account be designated as the property of the children.

IV

We next consider the defendant’s claims that the trial court improperly ordered that she maintain life insurance policies in the combined amount of $600,000 with the parties’ three children named as equal beneficiaries. At the time of the dissolution, the defendant had a life insurance policy in the amount of $100,000. The defendant argues that because the trial court did not hear any evidence on her ability to obtain and pay for policies in the amount of $600,000, there was no basis on which the trial court could reasonably make such an order. We agree.

This claim is controlled by our decision in Michel v. Michel, 31 Conn. App. 338, 624 A.2d 914 (1993). In Michel, we explained that when the trial court orders a party to maintain life insurance as part of a dissolution action “without any evidence whatsoever of the cost or the availability of such life insurance,” such action constitutes an abuse of discretion. Id., 341. The most obvious problem with ordering a party to obtain and maintain life insurance without such evidence is that the “the trial court [may have] entered an order with which the [defendant] may not be able to comply.” Id.

The plaintiff argues that the decision in Michel should not control because in that case, the party ordered to obtain and maintain a life insurance policy had no policy at the time of the dissolution, and in the present case, the defendant had a policy, albeit in a lesser amount. We find this argument unavailing. Because the trial court ordered the defendant to obtain and maintain three $200,000 policies on her life, naming each of the minor children as equal beneficiaries thereon, when she had only one $100,000 policy, the logic of Michel directly applies to this case. Not only may it be impossible for the defendant to afford the increased coverage, but it is also possible that “[w]ithout knowing the cost of such insurance, the trial court [may have] entered other financial orders that may be inappropriate, that is, too high or too low depending on the funds required to obtain such insurance.” Id.

Without evidence as to the availability and cost to the defendant of acquiring $600,000 worth of life insurance, the trial court did not have a reasonable basis for ordering that the defendant obtain such policies.

V

The defendant next claims that the trial court acted outside the scope of its authority by designating post-judgment authority concerning the education of the parties’ daughter to the attorney for the children. We disagree.

While the defendant is correct in noting that the trial court cannot vest the attorney for the children with any postjudgment decision-making authority; Weinstein v. Weinstein, 18 Conn. App. 622, 628-29, 561 A.2d 443 (1989); the defendant is incorrect in arguing that that is what occurred in this case. The trial court ordered that in the event of a disagreement between the parties concerning whether their daughter would attend boarding school, the attorney for the children would talk to their daughter and prepare a report for the trial court regarding the daughter’s preference. This order is within the scope of General Statutes § 46b-54 (c), which provides that counsel for a minor child “shall be heard on all matters pertaining to the interests of any child, including the . . . education ... of the child, so long as the court deems such representation to be in the best interests of the child.”

This case can be distinguished from Weinstein because in that case, the trial court ordered the attorney for the child to mediate disputes between the parties, to approve certain expenses to be shared between the parties, and to select the evening of the week that the plaintiff would be allowed to see the children. Thus, the orders in Weinstein “amounted to an improper delegation of [the trial court’s] judicial function.” Id., 629. In the present case, the trial court merely ordered the attorney for the children to perform duties in accordance with § 46b-54 (c), and did not attempt to delegate the judicial role. The defendant cannot succeed on this claim.

VI

The defendant’s final claim is that the trial court improperly failed to order the plaintiff to pay her attorney’s fees. We disagree.

The award of counsel fees in a dissolution action, pursuant to General Statutes § 46b-62, is normally left to the broad discretion of the trial court. Vandal v. Vandal, supra, 31 Conn. App. 568. In the absence of a clear abuse of that discretion we will allow the order of the trial court to stand. Cook v. Bieluch, 32 Conn. App. 537, 544, 629 A.2d 1175, cert. denied, 228 Conn. 910, 635 A.2d 1229 (1993). We do not find any evidence that the trial court abused its discretion in declining to order the plaintiff to pay the defendant’s counsel and expert witness fees in this case.

VII

Because we find that three of the trial court’s marital property distribution orders were improper, it is necessary to remand the case for reconsideration of all the financial matters. Michel v. Michel, supra, 31 Conn. App. 341. This is so “[b]ecause the financial orders in an action for dissolution of marriage are of necessity interwoven” and constitute “ ‘a carefully crafted mosaic.’ ” Id., quoting Ehrenkranz v. Ehrenkranz, 2 Conn. App. 416, 424, 479 A.2d 826 (1984); see also Sunbury v. Sunbury, 210 Conn. 170, 175, 553 A.2d 612 (1989). When we disrupt a single tile in this mosaic, we place in doubt the propriety of other financial orders that the trial court may have deemed equitable in relation to the entire distribution scheme. Sunbury v. Sunbury, supra, 173-75. Although the trial court may not find it necessary to disturb other financial orders to eliminate the improper modification of the pendente lite mortgage payments, to distribute appropriately the funds from the Raymond James account, or to enter new orders concerning the defendant’s life insurance, it must, nevertheless, have the opportunity to exercise its discretion as to all the financial matters in light of our reversal on these three claims.

The judgment of the trial court dissolving the marriage and the child custody and visitation orders are affirmed; the case is remanded for reconsideration of all the financial matters, including property distribution, alimony, child support and attorney’s fees.

In this opinion the other judges concurred.

       General Statutes § 46b-81 (c) provides: “In fixing the nature and value of the property, if any, to be assigned, the court, after hearing the witnesses, if any, of each party, except as provided in subsection (a) of section 46b-51, shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income. The court shall also consider the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates.”

       This amount reflects an ability to earn $314,318 per year plus $30,000 toward his pension.

       General Statutes § 46b-82 provides: “At the time of entering the decree, the superior court may order either of the parties to pay alimony to the other, in addition to or in lieu of an award pursuant to section 46b-81. The order may direct that security be given therefor on such terms as the court may deem desirable, including an order to either party to contract with a third party for periodic payments or payments contingent on a life to the other party. In determining whether alimony shall be awarded, and the duration and amount of the award, the cotut shall hear the witnesses, if any, of each party, except as provided in subsection (a) of section 46b-51, shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties and the award, if any, which the court may make pursuant to section 46b-81, and in the case of a parent to whom the custody of minor children has been awarded, the desirability of such parent’s securing employment.”

       General Statutes § 46b-81 (a) provides: “At the time of entering a decree annulling or dissolving a marriage or for legal separation pursuant to a complaint under section 46b-45, the superior court may assign to either the husband or wife all or any part of the estate of the other. The court may pass title to real property to either party or to a third person or may order the sale of such real property, without any act by either the husband or the wife, when in the judgment of the court it is the proper mode to carry the decree into effect.”

       General Statutes § 46b-84 provides in relevant part: “(a) Upon or subsequent to the annulment or dissolution of any marriage or the entry of a decree of legal separation or divorce, the parents of a minor child of the marriage, shall maintain the child according to their respective abilities, if the child is in need of maintenance. . . .
      “(c) In determining whether a child is in need of maintenance and, if in need, the respective abilities of the parents to provide such maintenance and the amount thereof, the court shall consider the age, health, station, occupation, earning capacity, amount and sources of income, estate, vocational skills and employability of each of the parents, and the age, health, station, occupation, educational status and expectation, amount and sources of income, vocational skills, employability, estate and needs of the child. . . .”

       The trial court ordered that the plaintiff would bear the full cost of any boarding school for the parties’ daughter “if she chooses to attend the same. ... If the parties cannot agree whether or not [their daughter] chooses to go to boarding school, counsel for the children shall discuss the matter with [their daughter] and make a written report to the court. It is the court’s order that if she wants to go to boarding school she should be permitted to do so.”

       We have fully analyzed each of the defendant’s claims because they will not necessarily be altered on remand.