author: BEACH, J.

text:
    COLLEEN GRIFFIN v. YANKEE SILVERSMITH, LTD., ET AL.
    (AC 28733)
    DiPentima, Beach and West, Js.

      Argued March 27
    officially released July 8, 2008

      Peter J. Bartinik, Jr., for the appellant (plaintiff).

      Michael A. Hardesty, for the appellees (defendants).
   Opinion

BEACH, J.

In this workplace retaliation action, the plaintiff, Colleen Griffin, appeals from the judgment of the trial court, rendered after a jury trial, in favor of the defendants, Yankee Silversmith, Ltd., and Howard Trefrey, its sole owner and shareholder. On appeal, she alleges instructional error. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the plaintiffs appeal. In the spring and summer of 2004, the plaintiff worked as a sales associate and assistant manager at Yankee Silversmith, Ltd., a jewelry store in Mystic. Her supervisor, Trefrey, was the sole owner of the store. In her complaint, the plaintiff alleged that Trefrey sexually harassed her at various times between May and September, 2004, by, inter alia, repeatedly engaging her in inappropriate conversation and staring at her in a sexual manner. On September 14, 2004, the plaintiff wrote and delivered to the defendants a letter detailing her sexual harassment allegations and demanding that “all sexual comments, or innuendo . . . stop immediately.” On September 17, 2004, Trefrey responded in writing to the plaintiffs letter. In his letter, titled “corrective interview,” Trefrey enumerated his complaints with the plaintiffs job performance and concluded that “ [i]n order to keep your job in this store, you must do two basic things. First, retract the nasty unwarranted letter that you delivered to me the other day. Remember, I am the only one on the job that cares for your success or failure. Second, you must correct the complaints listed above immediately.” The plaintiff read Trefrey’s letter upon arriving at work on September 19, 2004, and when she refused to retract her complaint, her employment with Yankee Silversmith, Ltd., ended.

A retaliation action against the defendants followed, at the conclusion of which the jury found in favor of the defendants. The plaintiff thereafter moved to set aside the verdict. She claimed, inter alia, that the court improperly failed to provide the jury with a charge defining sexual harassment as including quid pro quo sexual harassment. The court denied that motion and rendered judgment in accordance with the verdict of the jury. From that judgment, the plaintiff appeals.

The plaintiff claims on appeal that the court improperly failed to instruct the jury that, pursuant to General Statutes § 46a-60 (a) (8), sexual harassment includes quid pro quo sexual harassment. We conclude that the court’s instructions were proper.

“Our standard of review concerning claims of instructional error is well settled. [J]ury instructions must be read as a whole and . . . are not to be judged in artificial isolation from the overall charge. . . . The whole charge must be considered from the standpoint of its effect on the jurors in guiding them to a proper verdict .... The trial court must adapt its instructions to the issues raised in order to give the jury reasonable guidance in reaching a verdict and not mislead them. . . . Claims of error addressed to the [jury] charge are tested by the pleadings and by the evidence .... The court has a duty to submit to the jury no issue upon which the evidence would not reasonably support a finding. . . . The court should, however, submit to the jury all issues as outlined by the pleadings and as reasonably supported by the evidence.” (Citation omitted; internal quotation marks omitted.) Iazzetta v. Nevas, 105 Conn. App. 591, 593-94, 939 A.2d 617 (2008).

Sexual harassment actions fall generally into one of two categories, depending on the nature of the harassment alleged. See Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 752, 118 S. Ct. 2257, 141 L. Ed. 2d 633 (1998). Quid pro quo sexual harassment, as its name suggests, conditions employment on the return of sexual favors; hostile environment sexual harassment is conduct that “has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.” (Internal quotation marks omitted.) Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 65, 106 S. Ct. 2399, 91 L. Ed. 2d 49 (1986).

Sexual harassment is delineated similarly in the Connecticut Fair Employment Practices Act (act), General Statutes § 46a-51 et seq., which provides in relevant part that “ ‘[s]exual harassment’ shall, for the purposes of this section, be defined as any unwelcome sexual advances or requests for sexual favors or any conduct of a sexual nature when (A) submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment, (B) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or (C) such conduct has the purpose or effect of substantially interfering with an individual’s work performance or creating an intimidating, hostile or offensive working environment . . . .” General Statutes § 46a-60 (a) (8). The act also proscribes retaliatory employment actions, such as employment termination, on the basis of an employee’s opposition to a discriminatory employment practice, such as sexual harassment. General Statutes § 46a-60 (a) (4).

The plaintiffs complaint contains a single count related to Trefrey’s alleged retaliation. In that count, after enumerating the incidents of alleged harassment, the plaintiff pleaded that she “was fired by [Trefey] in retaliation for the fact that the plaintiff complained about the sexual harassment in violation of General Statutes § 46a-60 (a) (4).” Her complaint does not, however, include an allegation that there was sexual harassment on a “quid pro quo” basis, either as a term or condition of her employment or as a basis for employment decisions in violation of § 46a-60 (a) (8) (A) or (B). In its charge to the jury on the law of sexual harassment, the court included instructions on the act’s proscription of retaliatory employment actions on the basis of an. employee’s opposition to workplace sexual harassment and also defined sexual harassment pursuant to § 46a-60 (a) (8) (C), which defines hostile work environment sexual harassment.

Following the jury’s return of a defendants’ verdict, the plaintiff filed a motion to set aside the verdict. In her motion, the plaintiff argued that the jury instructions were improper because they failed to include the quid pro quo sexual harassment definition provided in § 46a-60 (a) (8) (A) and (B). At the hearing on the plaintiffs motion, the court observed that quid pro quo sexual harassment had not been pleaded and that no evidence of such had been introduced at trial. Specifically, the court noted that it had “heard no evidence whatsoever that [Trefey] indicated to the plaintiff that if you don’t respond to me, it’s going to affect your work or I’m going to fire you at work or advance the work. ... I heard absolutely nothing from [the plaintiff] that she felt it was a condition of her employment that she submit. She didn’t submit anyway, but I suppose she could have thought that, well, if I don’t submit to him, it’ll hurt my employment. She never said that. He never indicated that.” Rather, the court found that the evidence introduced by the plaintiff was consistent with a retaliation claim on the basis of a complaint of hostile work environment sexual harassment. The court subsequently denied the plaintiffs motion.

We have reviewed the court’s charge and conclude that it was adapted to the evidence and correct in the law. The plaintiffs theory of quid pro quo sexual harassment was neither alleged in her complaint nor supported by the evidence. Our review of the record, including the plaintiffs testimony at trial, reveals that the plaintiff did not offer any evidence demonstrating that in order to keep her employment, she had to submit to Trefrey’s sexually inappropriate conduct. There was evidence of behavior within the ambit of § 46a-60 (a) (8) (C), though perhaps not to the degree to be actionable under that statute. Accordingly, we agree with the court that there was no evidence to support a quid pro quo instruction in this case, and it properly denied the motion to set aside the verdict.

The judgment is affirmed.

In this opinion the other judges concurred.

       Although the plaintiff alleged that Trefrey terminated her employment, it is unclear from the record whether she voluntarily quit or her employment was terminated.

       The defendants contend that the judgment should be affirmed under the general verdict rule, which provides that “if a jury renders a general verdict for one party, and no party requests interrogatories, an appellate court will presume that the jury found every issue in favor of the prevailing party.” (Internal quotation marks omitted.) Curry v. Burns, 225 Conn. 782, 786, 626 A.2d 719 (1993). If a case is submitted to the jury on only one theory of recovery, the general verdict rule does not apply because under those circumstances, there can be no confusion about the actual source of the jury verdict. Id., 790. Here, as detailed in the body of this opinion, the plaintiff pleaded in her complaint only one theory of recovery for sexual harassment. Although the defendants raised special defenses in their answer, those defenses did not go to the jury. Under the circumstances, there is no confusion as to the basis of the verdict, and the general verdict rule does not bar review.

       General Statutes § 46a-60 (a) (8) provides in relevant part: “ ‘Sexual harassment’ shall, for the purposes of this section, be defined as any unwelcome sexual advances or requests for sexual favors or any conduct of a sexual nature when (A) submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment, (B) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or (C) such conduct has the purpose or effect of substantially interfering with an individual’s work performance or creating an intimidating, hostile or offensive working environment . . . .”

       General Statutes § 46a-60 (a) provides in relevant part: “It shall be a discriminatory practice in violation of this section ... (4) For any person, employer, labor organization or employment agency to discharge, expel or otherwise discriminate against any person because such person has opposed any discriminatory employment practice or because such person has filed a complaint or testified or assisted in any proceeding under section 46a-82, 46a-83 or 46a-84 . . .

       The court instructed the jury on the law of sexual harassment as follows:
      “Now, ladies and gentlemen, the plaintiff has brought a claim under a Connecticut [statute] called the Connecticut Fair Employment Practices Act, General Statutes § 46a-60. The statute provides in pertinent part: ‘It shall be a discriminatory practice in violation of this section for any person, employer to discharge, expel or otherwise discriminate against any person because such person has opposed any discriminatory employment practice.’ Sexual harassment is a discriminatory employment practice. Sexual harassment is defined by the statute in part as: ‘Any conduct creating an intimidating, hostile or offensive working environment.’ Essentially, this means that it is a discriminative practice under the law if the [defendants punish the plaintiff], either or both, by retaliating against the plaintiff because the plaintiff opposed sexual harassment.”

       The plaintiff, in her written request to charge, included § 46a-60 (a) (8) (A) and (B) in her proposed instruction on the definition of sexual harassment under the act.


source: Caselaw Access Project

author: FOTI, J.

license: Public Domain

text:
    COMMISSIONER OF TRANSPORTATION v. RAUL VEGA ET AL.
    (AC 28312)
    Bishop, Lavine and Foti, Js.
    Argued April 15
    officially released July 8, 2008

      Alexander Aponte, for the appellant (named defendant).

      Brian J. Comerford, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (plaintiff).
   Opinion

FOTI, J.

The defendant Raul Vega appeals from the judgment of the trial court awarding him damages, without interest, costs or appraisal fees, for the taking by eminent domain of his real property by the plaintiff, the commissioner of transportation. On appeal, the defendant claims that the court’s assessment of damages was erroneous as a matter of law. We reverse in part the judgment of the trial court.

The record reveals the following facts and procedural history, which are relevant to our resolution of the defendant’s appeal. On January 25, 2005, the plaintiff filed a notice of condemnation and assessment of damages for taking the defendant’s land located in the city of New Britain. The land was to be used for the “layout, alteration, extension, widening, change of grade, drainage and improvement of the highway commonly known as Hart Street Extension . . . .” At the time of the filing of the assessment, the plaintiff assessed damages at $165,000. The plaintiff obtained an updated appraisal as of January 25,2005, in the amount of $220,000, pursuant to that appraisal report. On April 7, 2005, the defendant appealed from the assessment of damages, asserting that such assessment was inadequate.

A trial to the court was held, at which John Lo Monte, a real estate agent with experience as an appraiser, testified regarding the fair market value of the defendant’s property. He testified that on the basis of the direct sales comparison approach, the estimated value of the property was $325,000, while under the income approach, the estimated value of the property was $455,000. Furthermore, Lo Monte testified that the income approach was the preferred method for determining the fair market value of the property. Linda Schibi testified for the plaintiff, however, and established a fair market value for the property by using a direct sales comparison approach. She testified that at the time of the taking, the fair market value of the property was $220,000.

On November 15, 2006, the court issued a memorandum of decision. The court found that “the damages resulting to the defendant ... by the said taking by the [plaintiff] amounted to Two Hundred Forty Thousand Dollars ($240,000) and those damages are to be assessed accordingly.” The court also found that $165,000 had been deposited by the plaintiff with the court for the defendant but that “the deficiency between the fair value of the property as found by this court and the amount so deposited by the [plaintiff] is Seventy Five Thousand Dollars ($75,000), which amount shall include all claims for interest, costs and appraisal fees as well as claims for relocation and moving expenses.” (Emphasis added.) This appeal followed. Additional facts will be set forth as necessary.

We first set forth the applicable standard of review. “[T]he scope of our appellate review depends upon the proper characterization of the rulings made by the trial court. To the extent that the trial court has made findings of fact, our review is limited to deciding whether such findings were clearly erroneous. When, however, the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record.” (Internal quotation marks omitted.) Bristol v. Tilcon Minerals, Inc., 284 Conn. 55, 87, 931 A.2d 237 (2007). Because the defendant claims that he is entitled to interest, costs and appraisal fees as a matter of law, our review is plenary.

On appeal, the defendant claims that the court improperly failed to award him interest, costs and appraisal fees to which he is statutorily entitled under General Statutes §§ 37-3c, 13a-77 and 13a-76, respectively. We agree with the defendant.

First, § 37-3c provides in relevant part: “The judgment of compensation for a taking of property by eminent domain shall include interest at a rate that is reasonable and just on the amount of the compensation awarded. . . .” (Emphasis added.) General Statutes § 37-3c. The statute then provides the method of calculating the interest to be added to the award if the court fails to provide the rate of interest. In the present case, the court specifically stated that the amount of $75,000, in addition to the previously paid $165,000, included “all claims for interest, costs and appraisal fees . . . .” The court reiterated this point in stating that the $75,000 was “the final amount due to the defendant . . . without further payment of interest, appraisal fees and costs as well as court costs.” Although the court did not have to award the defendant interest specifically, as the statute is automatic in its application, the court’s judgment precluded the proper application of the statute by preventing the defendant from claiming interest on the damages awarded to him. We therefore conclude that the court’s judgment improperly precluded the defendant from claiming interest under § 37-3c.

Next, § 13a-77 provides: “In any appeal to the Superior Court taken under and by virtue of the provisions of this part, when the appellant obtains an award from the court greater than that awarded by the commissioner, costs of court shall be awarded the appellant and taxed against said commissioner in addition to the amount fixed by the judgment.” (Emphasis added.) General Statutes § 13a-77. In the present case, the defendant received an award of $240,000, which was greater than the one awarded by the plaintiff. Therefore, under the statute, the defendant was entitled to be awarded the court costs in addition to the amount fixed for damages. The court stated, however, that there would be no “further payment of interest, appraisal fees and costs as well as court costs.” The court’s judgment, therefore, precluded the proper application of the statute by preventing the defendant from taxing costs in addition to the amount awarded as damages. As a result, we conclude that the court’s judgment improperly precluded the defendant from taxing costs pursuant to § 13a-77.

Finally, § 13a-76 provides in relevant part: “If the amount of the reassessment of such damages awarded to any such property owner exceeds the amount of the assessment of such damages by the commissioner for such land, the court or such judge trial referee shall award to such property owner such appraisal fees as the corut or such judge trial referee determines to be reasonable. . . .” (Emphasis added.) General Statutes § 13a-76. Again, in the present case, the amount of the reassessment of damages to the defendant exceeded the amount of the assessment of damages by the plaintiff. Therefore, the defendant was entitled to be awarded appraisal fees deemed to be reasonable by the court. The court, however, failed to award the defendant any appraisal fees. With regard to appraisal fees, however, the court is entrusted with discretion in assessing a reasonable amount of appraisal fees. In the present case, the defendant’s appraiser testified at trial that he charged $1800 for his appraisal of the defendant’s property and was charging $125 per hour for his trial testimony. Therefore, the court was presented with facts from which it could have determined a reasonable appraisal fee in the exercise of its discretion. Because evidence regarding the appraisal fees incurred by the defendant was presented in this case, the court was obligated to make an award of reasonable appraisal fees to the defendant. Therefore, we conclude that the court’s failure to award any fees pursuant to the statute was improper.

The judgment is reversed only as to the claim for interest, costs and fees and the case is remanded for further proceedings consistent with this opinion.

In this opinion the other judges concurred.

       In the statement of compensation, the plaintiff also identified Jorge A. Garcia, Sr., Jorge A. Garcia, Jr., Lydia Vega and the city of New Britain as having an interest in the subject property. They are not parties to this appeal.

       The property consists of a mixed residential-commercial structure and a two-family residence situated behind it. All of the land is owned by the defendant.

       The defendant is not claiming that he is entitled to relocation and moving expenses.


author: ROBINSON, J.

text:
    JAMES R. RADCLIFFE v. IRIS RADCLIFFE
    (AC 28019)
    DiPentima, Robinson and Stoughton, Js.

      Argued March 26
    officially released July 8, 2008

      Norman A. Roberts II, with whom, on the brief, was Gaetano Ferro, for the appellant (defendant).

      James Ryan Mulvey, for the appellee (plaintiff).
   Opinion

ROBINSON, J.

In this marital dissolution action, the defendant, Iris Radcliffe, appeals from the judgment of the trial court with respect to the court’s financial orders. Specifically, the defendant claims that the court improperly (1) found the value of the premarital property owned by the plaintiff, James R. Radcliffe, and (2) abused its discretion by ordering time limited alimony. We are not persuaded by the defendant’s claims and, accordingly, affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the defendant’s appeal. The parties were married on December 24, 1992. There is one minor child of the marriage. At the time of the marriage, the plaintiff owned a parcel of real estate known as 1 Maplewood Avenue, located in Westport. The court found the equity in the Maplewood property at the time of the dissolution to be $395,000. The court further found that the plaintiff had always maintained this as a rental property and that the defendant had not made any contributions to the Maplewood property.

During the marriage, the defendant went “from sophisticated, high level employment with . . . nationally and internationally renowned corporations ... to being barely able to hold a job selling mortgages for more than a thirty day period.” This decline stemmed, in part, from the rigors of the divorce litigation, as well as the “dysfunctional and deleterious nature of the plaintiffs and defendant’s relationship over the past several years.” The court opined, however, that “once this litigation and all its ramifications are behind the defendant, she will be better able to regain her focus and provide for herself a reasonable income, although not anywhere near the equivalence of the plaintiff.”

The court dissolved the parties’ marriage and entered the following relevant financial orders. The plaintiff was instructed to pay weekly alimony in the amount of $250 for a period of two years. The court ordered that the term of alimony was nonmodifiable. The court divided the real and personal properties and ordered the plaintiff to pay the defendant $275,000. This appeal followed. Additional facts will be set forth where necessary.

I

The defendant first claims that the court improperly found the value of the premarital property owned by the plaintiff. Specifically, the defendant argues, in her principal brief, that the court’s finding that $395,000 of the marital estate was the plaintiffs premarital property was clearly erroneous. She further argues, in her reply brief, that the court failed to include her nonmonetary contributions, as required by General Statutes § 46b-81, that helped the Maplewood property appreciate during the marriage. We conclude that with respect to the former argument, the court’s finding was not clearly erroneous and that, with respect to the latter, the defendant impermissibly raised an argument for the first time in her reply brief. Thus, we decline to review the latter argument.

The following additional facts are necessary for our discussion. The plaintiff presented the testimony of Ginger Chick, a real estate appraiser. Counsel for the defendant stipulated to her qualifications as a competent real estate appraiser. Chick testified that she performed an appraisal of the Maplewood property. Chick concluded that the fair market value of the Maplewood property was $545,000. The plaintiffs financial affidavit indicated a mortgage in the amount of $150,000 on the Maplewood property. Using these two figures, the court found the plaintiffs equity in the Maplewood property to equal $395,000.

A

In her principal brief, the defendant argued that neither party presented evidence as to the value of the plaintiffs assets at the time of the marriage. She further contended that the court’s finding was inconsistent with the plaintiffs bankruptcy filing a few years after the marriage and with the plaintiffs financial affidavit prepared in connection with the parties’ prior dissolution action. Finally, the defendant maintained that even if the court intended to refer to the plaintiffs gross assets, rather than his net assets, his prior affidavits show such assets in the amount of approximately $220,000. The defendant concluded that the court’s finding with respect to the plaintiffs premarital assets was unsupported by the record, and, therefore, clearly erroneous.

In his brief, the plaintiff responded to the defendant’s arguments, claiming that the court, in its memorandum of decision, referred not to the value of the Maplewood property at the time of the marriage but, rather, to its value at the time of the dissolution. In support of this position, the plaintiff cites the following language from the court’s memorandum of decision: “The current approximate net value of the assets of this marital estate is $1,611,000. Of this, approximately $395,000 can be construed as premarital property attributable to the plaintiff . . . .” (Emphasis added.) Furthermore, earlier in its decision, the court specifically found that “the current fair market value of the property is $545,000. There are mortgages on the property which total $150,000. The equity in the property is $395,000.”

“Appellate review of a trial court’s findings of fact is governed by the clearly erroneous standard of review. The trial court’s findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Chyung v. Chyung, 86 Conn. App. 665, 667-68, 862 A.2d 374 (2004), cert. denied, 273 Conn. 904, 868 A.2d 744 (2005); see also Aarestrup v. Harwood-Aarestrup, 102 Conn. App. 74, 77, 924 A.2d 873 (2007).

We agree with the plaintiff that the court found the value of the Maplewood property, which the court found to be a premarital asset, as of the time of dissolution, rather than its value at the time of the parties’ marriage. Furthermore, on the basis of Chick’s testimony and the plaintiffs financial affidavit, there was evidence in the record to support this finding. We conclude, therefore, that the court’s finding that the Maple-wood property had a value of $395,000 was not clearly erroneous.

B

We next turn to the defendant’s claim, raised for the first time in her reply brief, that the court improperly failed to include nonmonetary contributions as required by § 46b-81. Specifically, the defendant relies on O’Neill v. O’Neill, 13 Conn. App. 300, 536 A.2d 978, cert. denied, 207 Conn. 806, 540 A.2d 374 (1988), to support the claim that the court failed to consider her nonmonetary contributions, such as caring for the minor child. She argues that these contributions allowed the plaintiff to retain and to develop the Maple-wood property and, therefore, helped its value to appreciate.

The defendant failed to raise the issue of nonmonetary contributions in her principal brief. She focused solely on the fact that there was no evidence in the record to support the court’s finding regarding the value of the Maplewood property at the time of the marriage. Only in response to the plaintiffs brief did she raise the issue of nonmonetary contributions. “It is a well established principle that arguments cannot be raised for the first time in a reply brief. . . . Our practice requires an appellant to raise claims of error in his original brief, so that the issue as framed by him can be fully responded to by the appellee in its brief, and so that we can have the full benefit of that written argument. Although the function of the appellant’s reply brief is to respond to the arguments and authority presented in the appellee’s brief, that function does not include raising an entirely new claim of error.” (Citation omitted; internal quotation marks omitted.) State v. Garvin, 242 Conn. 296, 312, 699 A.2d 921 (1997); see also Dinan v. Marchand, 279 Conn. 558, 566 n.9, 903 A.2d 201 (2006) (claim raised for first time in reply brief is unpreserved and appellate court will decline review); Calcano v. Calcano, 257 Conn. 230, 244, 777 A.2d 633 (2001); Kelley v. Tomas, 66 Conn. App. 146, 163, 783 A.2d 1226 (2001). Accordingly, we decline to review the defendant’s claim that the court failed to consider her nonmonetary contributions when it found the value of the plaintiffs premarital asset.

II

The defendant next claims that the court abused its discretion by ordering time limited alimony. Specifically, she argues that the record does not reveal a factual basis or rationale for a nonmodifiable award of two years of alimony. We are not persuaded.

The following additional facts are necessary for our discussion. The defendant obtained her bachelor’s degree, graduating summa cum laude. She further earned a master’s degree in optics and a master of business administration degree. Her employment history and earnings history “have shown a clear, declining trend over the last ten years.” The court stated that “at the current time, her ability to maintain any significant employment appears to be seriously compromised..” (Emphasis added.) The court further indicated that although her present prospects for steady, gainful employment appeared bleak, it was “confident, though, that once this litigation and all its ramification are behind the defendant, she will be better able to regain her focus and provide herself a reasonable income

As a preliminary matter, we set forth our standard of review. “An appellate court will not disturb a trial court’s orders in domestic relations cases unless the court has abused its discretion or it is found that it could not reasonably conclude as it did, based on the facts presented. ... In determining whether a trial court has abused its broad discretion in domestic relations matters, we allow every reasonable presumption in favor of the correctness of its action.” (Internal quotation marks omitted.) Rivnak v. Rivnak, 99 Conn. App. 326, 328, 913 A.2d 1096 (2007). This standard “reflects the sound policy that the trial court has the unique opportunity to view the parties and their testimony, and is therefore in the best position to assess all of the circumstances surrounding a dissolution action, including such factors as the demeanor and the attitude of the parties.” (Internal quotation marks omitted.) Id., 329.

We recently have stated: “Time limited alimony is often awarded. [Our Supreme Court] has dealt with challenges to an award of time limited alimony on numerous occasions. . . . The trial court does not have to make a detailed finding justifying its award of time limited alimony. . . . Although a specific finding for an award of time limited alimony is not required, the record must indicate the basis for the trial court’s award. . . . There must be sufficient evidence to support the trial court’s finding that the spouse should receive time limited alimony for the particular duration established. If the time period for the periodic alimony is logically inconsistent with the facts found or the evidence, it cannot stand. ... In addition to being awarded to provide an incentive for the spouse receiving support to use diligence in procuring training or skills necessary to attain self-sufficiency, time limited alimony is also appropriately awarded to provide interim support until a future event occurs that makes such support less necessary or unnecessary.” (Citations omitted; internal quotation marks omitted.) Id., 310; Nashid v. Andrawis, 83 Conn. App. 115, 122-23, 847 A.2d 1098, cert. denied, 270 Conn. 912, 853 A.2d 528 (2004).

In the present case, the court did not make a detailed finding with respect to the time limited alimony award. The question, therefore, is whether the record indicates a basis for this durational order. We conclude that the record does contain such a basis, and, therefore, the court did not abuse its discretion.

The defendant testified that at the time of the trial, she was prescribed two medications for the treatment of depression and one for attention deficit disorder. She stated that she suffered from stress related dysthymia and that her first “depressive crash” was in 1994, when the plaintiff left with their minor child. She previously had been treated by a psychiatrist during dissolution proceedings with her first husband. At the conclusion of those proceedings, however, her symptoms went away. The defendant later testified that stress triggers depression.

The defendant described the divorce proceedings with the plaintiff as being on “another order of magnitude” as compared to her prior divorce. The defendant further testified that she perceived her depression as stemming from the “hate driven hostility” of the plaintiff during the divorce. She indicated that as a result of this divorce related stress, she would not be able to complete a twenty hour work week. She acknowledged that medications benefited her condition and that she hoped to obtain employment in another field at the conclusion of the legal proceedings. She doubted, however, that in the near future, she would have the ability to work in the same capacity as her prior positions. The defendant opined that the she did not think she would be able to be employed in 2006 or 2007, despite receiving psychiatric care. Finally, the defendant stated that her court appearances were so stressful and debilitating that it would take her one week to recover from them.

After a thorough review, we conclude that the record contains a sufficient basis to support the court’s award of time limited alimony. We note that the defendant failed to present expert testimony regarding her medical condition. The only evidence regarding the issue of her depression came from the defendant herself. In other words, the court was not presented with an independent evaluation of the severity of the defendant’s depression. Accordingly, the court, on the basis of its observations, was free to make its own determination as to the validity of the defendant’s claims regarding the severity, duration and frequency of her symptoms and illness.

The court determined that the defendant’s inability to maintain significant employment was a result, in part, of both the “rigors of [the] relentless litigation” as well as the toxic nature of the parties’ relationship. Nevertheless, the court’s determination that the defendant, following the conclusion of the litigation, would be able to regain her focus and to provide herself with a reasonable income finds support in the record. The court issued its memorandum of decision on July 24, 2006, and awarded alimony until July, 2008. This comports with the defendant’s testimony that she would not be able to work in 2006 and 2007. The decision affords the defendant a period of time for rest and recovery from the tumultuous period resulting from the divorce action. Moreover, the defendant’s testimony reveals a pattern of increased stress related depression during the periods of divorce litigation and interactions with the plaintiff. The court reasonably expected both of these stressors or triggers to diminish and to abate following the dissolution of the parties’ marriage. See, e.g., Nashid v. Andrawis, supra, 83 Conn. App. 123-24 (court free to make reasonable inferences from testimony when ordering time limited alimony).

The defendant failed to request an articulation as to why the court ordered time limited alimony. We conclude, however, that such an order was appropriate to provide interim support until she recovered from the stress induced depression caused by the divorce proceedings. Such an order is logically consistent with the evidence and facts found and, therefore, is proper. Henin v. Henin, 26 Conn. App. 386, 392, 601 A.2d 550 (1992); see also Szegda v. Szegda, 97 Conn. App. 426, 433, 904 A.2d 1266 (record disclosed evidence supporting reasonable rationale for award of time limited alimony), cert. denied, 280 Conn. 932, 909 A.2d 959 (2006). In other words, the rationale behind the court’s award of time limited alimony is found in the record; following the completion of the divorce proceedings, the stress on the defendant will diminish and, as a result, the symptoms of her depression will subside. Although she now argues that two years is insufficient to ensure her recovery to the point of obtaining gainful employment, we cannot conclude, on the basis of this record, that the court abused its discretion in concluding to the contrary.

The judgment is affirmed.

In this opinion the other judges concurred.

       On March 8, 2006, the parties resolved all issues of custody and visitation relative to the minor child.

       The court found that at the time of the dissolution, the Maplewood property generated $2000 per month in rental income.

       The court found that the marriage had broken down irretrievably and declined to attribute the cause for the breakdown to either party.

       The parties reconciled and withdrew the first dissolution action.

       We note that whether a party made a contribution to the acquisition and preservation of property presents a question of fact. O’Neill v. O’Neill, 13 Conn. App. 300, 307, 536 A.2d 978, cert. denied, 207 Conn. 806, 540 A.2d 374 (1988); see also Rolla v. Rolla, 48 Conn. App. 732, 738, 712 A.2d 440, cert. denied, 245 Conn. 921, 717 A.2d 237 (1998).

       In O’Neill, we observed that “an equitable distribution of property should take into consideration the plaintiffs contributions to the marriage, including homemaking activities and primary care taking responsibilities”; O’Neill v. O’Neill, supra, 13 Conn. App. 311; and that “a determination of each spouses’ contribution within the meaning of General Statutes § 46b-81 includes non-monetary as well as monetary contributions.” (Internal quotation marks omitted.) O’Neill v. O’Neill, supra, 312.

       We note that the court indicated in its memorandum of decision that it had “considered all the relevant statutory criteria, including the length of the marriage, the age, health, station, occupation, assets, amount and sources of income, skills, employability, debt, nonmonetary contributions, acquisition and preservation of the estate, needs of each of the parties and the opportunity of each for future acquisition of capital assets and income and all other criteria set forth in General Statutes §§ 46b-62, 46b-81, 46b-82, 46b-84, 46b-215b, 46b-56c and the child support guidelines.” (Emphasis added.) We observe that a “judge is presumed to have performed [her] duty unless the contrary appears.” (Internal quotation marks omitted.) Miller v. Miller, 22 Conn. App. 310, 314, 577 A.2d 297 (1990). We must, therefore, operate from the assumption that the court did in fact consider nonmonetary contributions when it crafted its financial orders.

        Finally, we point out that the defendant failed to request an articulation of the court’s decision with respect to the issue of nonmonetary contributions. Even if this claim had been presented properly for our review, we are left with an unclear record with respect to the defendant’s claim that nonmonetary contributions were not considered properly by the trial court. “Our role is not to guess at possibilities, but to review claims based on a complete factual record developed by a trial court. . . . Without the necessary factual and legal conclusions furnished by the trial court, either on its own or in response to a proper motion for articulation, any decision made by us respecting this claim would be entirely speculative.” (Internal quotation marks omitted.) Gallant v. Esposito, 36 Conn. App. 794, 798, 654 A.2d 380 (1995).

       We decline to consider the defendant’s claim, raised for the first time in her reply brief, that the court abused its discretion by awarding only $250 per week, or $12,000 annually, in alimony for the reasons set forth in part IB.

       The defendant testified that “dysthymia” is a medical term meaning sadness.

       It is well established that “[t]he trial court ... is not bound by the uncontradicted testimony of any witness . . . and is in fact free to reject such testimony. . . . [T]he trial court is free to accept or reject, in whole or in part, the evidence presented by any witness, having the opportunity to observe the witnesses and gauge their credibility. . . . This court defers to the trial court’s discretion in matters of determining credibility and the weight to be given to a witness’ testimony. . . . We cannot retry the matter, nor can we pass on the credibility of a witness.” (Citations omitted; internal quotation marks omitted.) Giulietti v. Giulietti, 65 Conn. App. 813, 878-79, 784 A.2d 905, cert. denied, 258 Conn. 946, 947, 788 A.2d 95, 96, 97 (2001).

       We note that in Roach v. Roach, 20 Conn. App. 500, 568 A.2d 1037 (1990), a psychiatrist testified that as a result of her mental illness, the defendant was not employable. Id., 506. In that case, we concluded that the court’s award of three years of alimony constituted an abuse of discretion. Id., 507.

       The defendant failed to produce any testimony, expert or her own, that she would be unable to obtain employment after 2007.


author: DiPENTIMA, J.

text:
    BRIAN T. DOUGHERTY v. DENISE A. DOUGHERTY
    (AC 28603)
    DiPentima, Lavine and West, Js.

      Submitted on briefs February 13
    officially released July 8, 2008

      Brian T. Dougherty, pro se, the appellant (plaintiff), filed a brief.

      Jeffrey B. Sienkiewicz filed a brief for the appellee (defendant).
   Opinion

DiPENTIMA, J.

The plaintiff, Brian T. Dougherty, appeals from the judgment of the trial court granting the motion of the defendant, Denise A. Dougherty, to modify its earlier judgment dissolving the marriage of the parties. On appeal, the plaintiff argues that the court improperly (1) granted the motion to open and to modify a property settlement beyond the four month time limitation specified in General Statutes § 52-212a and Practice Book § 17-4 and (2) limited its focus on certain assets in modifying the judgment. We disagree with the plaintiff and, accordingly, affirm the judgment of the trial court.

The following facts are relevant to the resolution of the plaintiffs appeal. The marriage of the parties was dissolved on September 4, 1998. The dissolution judgment incorporated by reference the terms of a separation agreement between the parties also dated September 4, 1998. Section 8.5 of the separation agreement, entitled “Pensions, Stocks, 401 (k) Plans, Retirement Accounts, Etc.,” provides: “One-half of the [plaintiffs] defined benefit retirement plan accrued to the date of the dissolution of the marriage of the parties shall be transferred to the [defendant] by way of a Qualified Domestic Relations Order (QDRO). The Superior Court shall retain jurisdiction over said QDRO.” On July 21,2006, the defendant filed an amended motion for modification of judgment on the ground that the Indiana public employees’ retirement fund does not honor qualified domestic relations orders. As relief, the defendant requested that the court provide an alternative means of dividing the plaintiffs property interest in his retirement plan.

In its memorandum of decision granting the defendant’s motion, the court noted that on the date of the dissolution, the plaintiff was employed by the state of Indiana and was a member of the Indiana public employees’ retirement fund. At the time of the dissolution, neither party knew that pursuant to Indiana law, the public employees’ retirement fund is not required to honor, and does not honor, qualified domestic relations orders. Therefore, half of the plaintiffs defined benefit retirement plan was not transferred to the defendant. The court found that on the date of the dissolution judgment, the plaintiff, as a member of the Indiana public employees’ retirement fund, had a vested interest in a future retirement benefit consisting of (1) an annuity savings account and (2) a monthly pension for life. The parties agreed that the plaintiffs vested interest in the annuity savings account totaled $38,105.09 as of September 30,1998, and that half of that interest totaled $19,052.55. The parties also agreed that the sum of $814 per month represented the pension benefit to be received by the plaintiff, exclusive of the annuity savings account, calculated as of September 4, 1998. Half of that estimated monthly pension benefit totaled $407 per month.

At the hearing on the motion for modification, the plaintiff testified that the parties intended to divide the defined benefit pension only and that he was to retain the annuity savings account. The defendant testified regarding her understanding that she would be getting half of the plaintiffs pension plan. She testified, however, that she was unaware of the existence of the annuity savings account at the time the separation agreement was executed because the plaintiff did not disclose it to her. According to the defendant, she learned about the annuity savings account when she was informed that the state of Indiana would not honor the qualified domestic relations order. At that time, the defendant also learned of the plaintiffs position that she was not entitled to half of the annuity savings account. The defendant testified that she was seeking an order that provided for the distribution of half of the plaintiffs entire retirement benefit, which included both the annuity savings account and the monthly pension.

The court found that there was a mutual mistake by the parties concerning whether the retirement plan could be divided by the qualified domestic relations order and that this provided a sufficient ground to open the judgment. The court, therefore, issued an order providing an alternative method of dividing the plaintiffs interest in his deferred compensation, including the annuity savings plan. The plaintiff then filed this appeal.

I

The plaintiff first argues that the court improperly opened and modified the judgment beyond the four month time limitation specified in General Statutes § 52-212a and Practice Book § 17-4. We disagree.

“[0]ur courts have inherent power to open, correct and modify judgments, but that authority is restricted by statute and the rules of practice. ... A motion to open a judgment is governed by General Statutes § 52-212a and Practice Book § 17-4. Section 52-212a provides in relevant part: ‘Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, a civil judgment or decree rendered in the Superior Court may not be opened or set aside unless a motion to open or set aside is filed within four months following the date on which it was rendered or passed. . . .’ Practice Book § 17-4 states essentially the same rule.” (Citation omitted.) Richards v. Richards, 78 Conn. App. 734, 739-40, 829 A.2d 60, cert. denied, 266 Conn. 922, 835 A.2d 473 (2003). “Courts have interpreted the phrase, ‘[u]nless otherwise provided by law,’ as preserving the common-law authority of a court to open a judgment after the four month period.” Terry v. Terry, 102 Conn. App. 215, 222 n.5, 925 A.2d 375, cert. denied, 284 Conn. 911, 931 A.2d 934 (2007).

“A judgment rendered may be opened after the four month limitation if it is shown that the judgment was obtained by fraud, in the absence of actual consent, or because of mutual mistake.” (Internal quotation marks omitted.) Richards v. Richards, supra, 78 Conn. App. 739. “Whether proceeding under the common law or a statute, the action of a trial court in granting or refusing an application to open a judgment is, generally, within the judicial discretion of such court, and its action will not be disturbed on appeal unless it clearly appears that the trial court has abused its discretion.” (Internal quotation marks omitted.) Nelson v. Charlesworth, 82 Conn. App. 710, 713, 846 A.2d 923 (2004).

As stated previously, the court in the present case found that there was a mutual mistake of the parties concerning whether the retirement plan could be divided by the qualified domestic relations order and that this provided a sufficient ground to open the judgment. On the basis of our review of the record, we conclude that the court acted within its authority and discretion in opening the judgment beyond the four month time period specified in General Statutes § 52-212a and Practice Book § 17-4. To the extent that the plaintiff is arguing that the motion for modification was not filed within a reasonable time after the defendant had learned of the mutual mistake and that this constituted laches or undue delay, we note that this claim was not raised before the trial court and, therefore, is not properly before this court. See Intercity Development, LLC v. Andrade, 286 Conn. 177, 187, 942 A.2d 1028 (2008) (“[i]t is well established that claims that have not been properly raised at trial are not reviewable by this court”). Because the plaintiff did not raise this claim in the trial court, we decline to review it on appeal.

II

The plaintiff next argues that the court improperly limited its focus on certain assets in entering its orders modifying the dissolution judgment. Specifically, the plaintiff contends that the court, in correcting the parties’ mutual mistake, exceeded its authority by transferring a portion of the annuity savings account to the defendant. According to the plaintiff, the annuity savings account is exempt from division pursuant to the mutual release provisions of § 13.1 of the parties’ separation agreement. We disagree.

Our interpretation of a separation agreement that is incorporated into a dissolution decree is guided by the general principles governing the construction of contracts. “A contract must be construed to effectuate the intent of the parties, which is determined from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction. . . . [T]he intent of the parties is to be ascertained by a fair and reasonable construction of the written words and . . . the language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract. . . . Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms. A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity .... Similarly, any ambiguity in a contract must emanate from the language used in the contract rather than from one party’s subjective perception of the terms. . . . Moreover, the mere fact that the parties advance different interpretations of the language in question does not necessitate a conclusion that the language is ambiguous. ... If the language of a contract is clear and unambiguous, the intent of the parties is a question of law, subject to plenary review.” (Citations omitted; internal quotation marks omitted.) Eckert v. Eckert, 285 Conn. 687, 692, 941 A.2d 301 (2008).

As stated previously, § 8.5 of the separation agreement provides in part that “[o]ne-half of the [plaintiffs] defined benefit retirement plan accrued to the date of the dissolution of the marriage of the parties shall be transferred to the [defendant] . . . .” The language of this section clearly and unambiguously indicates that half of the plaintiffs defined benefit retirement plan was to be transferred to the defendant. The court, in interpreting this provision, held that the plaintiff had a vested interest in a future retirement benefit consisting of an annuity savings account and a monthly pension paid for life. The court, therefore, rendered a modified judgment that provided for the division of the plaintiffs interest in both the annuity savings account and the pension.

The plaintiff argues that the court improperly found that the annuity savings account was part of his defined benefit retirement plan subject to division pursuant to § 8.5. He contends that as part of his employment with the state of Indiana, he was entitled to two separate and distinct pensions: the defined benefit pension plan and the annuity savings account. In this regard, the plaintiff testified at the hearing that the parties intended to divide the defined benefit pension only and that he was to retain the annuity savings account. We conclude, however, that the court properly found that the annuity savings account was subject to division pursuant to this section.

As argued by the defendant at the hearing in this matter, § 5-10.2-4-2 (a) of the Indiana Code provides that “[u]nless a member elects otherwise under this section, the retirement benefit for each member consists of the sum of a pension provided by employer contributions plus an annuity provided by the amount credited to the member in the annuity savings account.” Ind. Code Ann. § 5-10.2-4-2 (a) (LexisNexis 2006). In addition to the applicable Indiana code provisions, the court also considered the testimony of the parties regarding their intent at the time they had signed the separation agreement as well as the documentary evidence pertaining to the Indiana public employees’ retirement fund. The court further reviewed the plaintiffs financial affidavits and concluded that they were misleading as to the nature and value of the plaintiffs deferred compensation benefits. The court continued by noting that “[t]he plaintiff might reasonably have expected the defendant to rely upon the misleading nature of these affidavits and assume that she had agreed to receive one half of the full value of all of the retirement benefits owned by the plaintiff.” (Emphasis added.) On the basis of our review of the record, we conclude that the court properly found that the plaintiff, as a member of the Indiana public employees’ retirement fund, had a vested interest in one future retirement benefit consisting of two components: an annuity savings account and a monthly pension paid for life, and that both components of this benefit were subject to division pursuant to § 8.5 of the separation agreement. The plain language of § 13.1 of that agreement contains no exemption for either component.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff also argues that (1) the court improperly allowed the defendant to reclaim her original motion for modification beyond three months from the date of filing in violation of Practice Book § 25-34 (c), (2) the defendant had unclean hands and (3) the court did not give him adequate notice of the hearing on the motion, recessed the hearing and never reconvened the hearing before issuing a ruling. Our review of the record reveals that these claims were not raised before the trial court and, therefore, are not properly before this court. We therefore decline to review these claims. See Practice Book § 60-5; Intercity Development, LLC v. Andrade, 286 Conn. 177, 187-88, 942 A.2d 1028 (2008).
      With regard to the plaintiffs claim that he did not have adequate notice of the hearing on the defendant’s motion, we note, however, that on November 14, 2006, the plaintiff agreed that the court could consider the motion for modification at the conclusion of the evidence on a related civil matter and motion for contempt, and that this is what in fact occurred.

       The court further found that there was no mutual mistake with regard to the annuity savings account, as the plaintiff had known about the account and had intended to keep it, and the defendant had not known that it existed. Although the court found that the defendant had not proven fraudulent nondisclosure by the plaintiff, it found that she had proven that the plaintiffs financial affidavits contained negligent misrepresentations by nondisclosure.

       The order provides: “The judgment shall be modified by substituting the following order in lieu of the provisions of paragraph 8.5 of the separation agreement:
      “Benefits to which the [plaintiff] is entitled as a member of the public employees’ retirement fund of the state of Indiana, consisting of an annuity savings account and a monthly pension, are hereby assigned and transferred pursuant to § 46b-81 of the General Statutes, and are to be distributed to the defendant ... as follows:
      “[A] Annuity savings account:
      “[1] The [plaintiff] shall designate the [defendant] as the beneficiary of the [plaintiffs] state of Indiana public employees’ retirement fund annuity savings account, the ‘fund,’ to the extent of $19,052.55, which amount represents one half of the [plaintiffs] interest in the fund annuity savings account as of September 30, 1998, plus interest on said amount at the interest rate paid by the Indiana public employment retirement fund for the ‘guaranteed fund’ for the period from October 1, 1998, to the date of payment, compounded quarterly. * * *
      “[2] The [plaintiff] shall pay to the [defendant] the sum of $19,052.55, which amount represents one half of the [plaintiffs] interest in the public employees’ retirement fund annuity savings account as of September 30, 1998, plus interest on said amount at the interest rate paid by the Indiana public employment retirement fund for the ‘guaranteed fund’ for the period from October 1, 1998, to the date of payment, compounded quarterly.
      “[B] Pension
      “[1] The [plaintiff] shall pay to the [defendant] the sum of $407 per month commencing on the earliest of the following dates: [a] the first month that the [plaintiff] is eligible to receive or receives monthly pension benefits from the state of Indiana public employees’ retirement fund; [b] October 1, 2019, the first day of the month immediately after the date (September 8, 2019) that the [plaintiff] reaches sixty-five years of age. Said amount represents one half of the estimated monthly pension benefit which the [plaintiff] is eligible to receive from the fund calculated as of the date of dissolution, September 4,1998. The [plaintiff] shall make such payment to the [defendant] so that it is received by the [defendant] not later than the fifteenth (15th) day of each month commencing with the first month that the [plaintiff] is obligated to make payments as described above.”

       The plaintiff makes no claim that the court’s finding of mutual mistake was improper.

       Section 13.1 of the parties’ separation agreement, entitled “Mutual Releases,” provides: “Subject to the provisions of this Agreement, each party has remised, released and forever discharged and by this Agreement does for himself or herself and his or her heirs, legal representatives, executors, administrators and assigns remise, release and forever discharge the other of and from all cause or causes of action, claims, rights or demands whatsoever, in law or in equity, including any interest in any pension, profit-sharing, deferred compensation or other qualified benefit plan whether said interest arises by contract or pursuant to the Retirement Equity Act of 1984 or otherwise which either of the parties hereto ever had or now has against the other, except any or all cause or causes of action for dissolution of marriage or legal separation.”

       In his testimony, the plaintiff acknowledged that § 8.5 of the parties’ separation agreement did not mention the annuity savings account. He also acknowledged that the agreement did not specify that he was to keep the annuity savings account. He contended, however, that the annuity savings account was exempt from distribution pursuant to § 13.1 of the agreement, which contained the mutual releases by the parties.

       The defendant introduced without objection three documents printed from the state of Indiana’s Internet site describing the public employees’ retirement fund. The first of these documents stated: “Your [public employees’ retirement fund] retirement benefits are made up of two separate and distinct pieces—the Defined Benefit Pension and your Annuity Savings Account. Both pieces are funded by separate contributions.”
      The defendant also introduced a letter dated August 26, 2002, to attorney William J. Wellman, the plaintiffs prior counsel, from the public employees’ retirement fund, specifying, in part, that “[t]he member has ten or more years of creditable service under the Fund and is vested for a future retirement benefit. This benefit has two parts—a monthly pension paid for life and an annuity savings account that the member can elect to receive either on a monthly basis or as a lump sum payment.” The letter further set forth the balances in the plaintiffs annuity savings account as of June 30 and September 30, 1998.

       The court stated: “The affidavit dated September 9, 1997 contains the following item listed under ‘deferred compensation’: ‘public employees’ retirement fund—(available only through employment termination)— $30,000.’ The affidavit dated September 4, 1998, has two items listed under ‘deferred compensation’ but still shows $30,000 as the single value. The first item is: ‘public employees’ retirement fund—(available only through employment termination).’ The second item is ‘deferred benefit plan—(1.1 x # of years and highest three years).’

        “I find that the overall effect of these affidavits is materially misleading as to the nature and value of the plaintiffs deferred compensation benefits. It is not at all clear that the first item is a savings plan with any value. It is not accurate that the value of the two items was $30,000. The amount in the annuity savings plan was $38,105.09; the vested right to receive $814 per month at retirement must have added substantial value as well. The plaintiff might reasonably have expected the defendant to rely upon the misleading nature of these affidavits and assume that she had agreed to receive one half of the full value of all of the retirement benefits owned by the plaintiff.”


author: STOUGHTON, J.

text:
    STATE OF CONNECTICUT v. ANTONIO W.

    (AC 27211)
    DiPentima, Gruendel and Stoughton, Js.

      Argued March 14
    officially released July 8, 2008

      Stephanie L. Evans, special public defender, for the appellant (defendant).

      Ronald G. Weller, senior assistant state’s attorney, with whom, on the brief, were James E. Thomas, former state’s attorney, and Robin D. Cutuli, former senior assistant state’s attorney, for the appellee (state).

       In accordance with our policy of protecting the privacy interests of the victims of sexual abuse and the crime of risk of injury to a child, we decline to use the defendant’s full name or to identify the victim or others through whom the victim’s identity may be ascertained. See General Statutes § 54-86e.

   Opinion

STOUGHTON, J.

The defendant, Antonio W., has appealed from the judgment of conviction, rendered after a jury trial, of three counts of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2) and one count of risk of injury to a child in violation of General Statutes § 53-21 (a) (2). He claims that the trial court (1) failed to comply with Practice Book § 42-19, (2) improperly admitted testimony under the medical exception to the hearsay rule and (3) failed to charge the jury on constancy of accusation. He claims finally that the evidence was insufficient to support the guilty verdict. We affirm the judgment of the trial court.

The jury might reasonably have found the following facts. In December, 2003, the fifteen year old defendant and his six year old female cousin were living with others in the house of their grandparents in East Hartford. There were two bedrooms upstairs, one of which was occupied by the grandfather and the other by the girl. The defendant slept in the basement with his parents and his siblings. During a two week period in which the girl stayed with her grandparents, the defendant went to her bedroom on several occasions, took off her pajamas and inserted his finger and his penis into her vagina. The victim of the assaults protested to the defendant, but she did not tell anybody in the house about the incidents because the defendant told her not to tell. On December 18, 2003, she went to school and complained to Monica Maneri, the school nurse, of blood on her panties. She told Maneri that “[t]he thing hurts down there.” She told the nurse, when asked what happened, that the defendant put his finger there and that it hurt. Maneri summoned the school social worker because she is required to have another adult present when she examines a child. When the social worker arrived, the victim repeated her complaint. Maneri looked at the victim’s panties and saw a stain that looked like blood. The matter was then referred to the department of children and families (department). The victim was examined by Frederick Berrien, a pediatrician, who observed two notches on the hymen consistent with penetration trauma. He also observed small areas of bleeding that indicated recent trauma.

I

The defendant first claims that the integrity of the trial was compromised when the court failed to hold a charging conference on the record pursuant to Practice Book § 42-19. We reject this claim.

The defendant’s claim is raised for the first time on appeal. Although the record is clear that the court did confer with counsel on the charge and that each counsel was provided with a copy of the charge, neither counsel requested a conference. Thus, the requirement that the conference be on the record or that the substance of the conference be summarized on the record was never triggered. The defendant’s assertion that because he filed a request to charge he sufficiently requested a charge conference is without merit. The defendant never requested a charge conference and did not claim in the court that it should have conducted a charge conference on the record in accordance with Practice Book § 42-19. Furthermore, the court specifically invited the parties to make a record of discussions regarding the charge. Neither party did. The defendant makes no claim that the Practice Book § 42-19 requirement for a charge conference is of constitutional dimension. Because this claim is unpreserved, we decline to afford it review. See, e.g., State v. Klinger, 103 Conn. App. 163, 169, 927 A.2d 373 (2007).

The defendant alternatively seeks review of his claim under the plain error doctrine. See Practice Book § 60-5. Plain error review is reserved for extraordinary situations in which the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. State v. D’Antonio, 274 Conn. 658, 669, 877 A.2d 696 (2005). The defendant was provided with a written copy of the proposed charge, there were discussions concerning certain aspects of the charge and the defendant took no exceptions to the charge as given. He has failed to show manifest injustice resulting from the absence of a charging conference, or the summary thereof, on the record.

II

The defendant next claims that the court improperly admitted testimony under the medical exception to the hearsay rule. Specifically, he challenges testimony elicited from the school nurse, who examined the victim, regarding statements the victim directed to the school social worker during the nurse’s examination of the victim.

The medical exception to the hearsay rule is now codified at § 8-3 (5) of the Connecticut Code of Evidence. Maneri testified that the victim had complained of blood in her panties and stated that “[t]he thing hurts down there.” When the nurse asked what happened, the victim replied that the defendant put his finger there and that it hurt. Maneri then summoned the school social worker because she could not examine the victim without the presence of another adult, as explained previously. Maneri testified that when the social worker asked what happened, the victim repeated what she had stated to the nurse and added that the defendant was her cousin and that he lived with her grandparents. The nurse proceeded to examine the victim. The school social worker then called the department. A department social worker, accompanied by a police officer, arrived shortly thereafter.

At trial, the defendant objected on hearsay grounds when the prosecutor asked the nurse whether the victim had a general complaint when she entered the nurse’s office. Outside the presence of the jury, defense counsel argued that the nurse’s testimony regarding what the victim told her was inadmissible because the medical exception to the hearsay rule did not apply because the school nurse was an authority figure, like a teacher or a principal, and the victim might have made her disclosure out of fear rather than for medical reasons. The court overruled the objection, finding that State v. Cruz, 260 Conn. 1, 792 A.2d 823 (2002), was controlling. The court told the prosecution that it could “put your question again, and I’ll understand that it’s subject to the same objection” so that the defendant would not have to object again. The prosecution informed the court that there would be further questions as to specifically what the victim had stated. The court stated, and defense counsel agreed, that that was anticipated. The nurse then testified as summarized previously, and there were no further objections.

On appeal, the defendant does not claim, as he did at trial, that the hearsay statements to the nurse were not within the medical exception because the nurse was an authority figure. Instead, he claims that the statement to the social worker, related by the nurse in her testimony, was not within the medical exception. This claim was not made in the trial court and, as another unpreserved claim, is unreviewable in this court.

Although the defendant makes another meritless claim that this issue was preserved, he seeks in the alternative both Golding review and plain error review. The well known requirements for Golding review include the requirement that the claim be of constitutional magnitude. Although the defendant asserts that the testimony affected the core issue of the case, making the trial unfair and escalating the harm to a constitutional level, he concedes in his brief that admission of the testimony was an evidentiary issue and that admission of a statement that is impermissible hearsay is not a constitutional error. Therefore, he is not entitled to Golding review of this claim.

The defendant also seeks plain error review. We conclude that the defendant has, again, failed to demonstrate manifest injustice. The social worker was within the chain of medical care, and the statement was made to her during the nurse’s examination and was, therefore, admissible. See State v. Cruz, supra, 260 Conn. 14-15. The defendant suggests that because a police officer was present with the social worker, her question to the victim was to further an investigation. Not only was this not raised in the trial court but it is factually inaccurate. The transcript shows that the police officer arrived later with a social worker from the department, who was called by the school social worker. Further, the only evidence in the challenged portion of the testimony that was not already admitted during the now unchallenged portion of the nurse’s testimony is that the defendant was the victim’s cousin and that he lived with her grandparents at the time, facts that do not appear to be otherwise in dispute. Therefore, this claim fails.

III

Next, the defendant complains that the court failed to charge the jury on constancy of accusation in accordance with his request. The defendant filed a request to charge on constancy of accusation before the state began to offer evidence. He asserts: “A request to charge which is relevant to the issues and which is an accurate statement of the law must be given.” The defendant argues that the following witnesses provided testimony that required the court to deliver a constancy of accusation charge: Maneri, Berrien, police Officer William Gillanders and Emily Goodwin, a child and family therapist. We agree with the state that these witnesses did not provide constancy of accusation testimony, and, therefore, the court properly declined the defendant’s request to deliver a constancy of accusation charge.

As the defendant acknowledges in his appellate brief: “A constancy of accusation witness is someone to whom the complaining witness in a sexual assault case has confided in about her assault.” See State v. Troupe, 237 Conn. 284, 290 n.7, 677 A.2d 917 (1996). For evidence of a prior accusation to be admissible pursuant to the constancy of accusation doctrine, the accusation must have been made before the victim reported the incident to the police. Once the victim has reported the crime to the police, statements to witnesses by the victim no longer serve the purpose for which constancy of accusation testimony is permitted. State v. Samuels, 273 Conn. 541, 551-52, 871 A.2d 1005 (2005). Further, the constancy of accusation doctrine is limited to testimony only as to the fact and timing of the victim’s complaint and as to details of the assault necessary to associate the complaint with the pending charge. State v. Troupe, supra, 304.

None of the witnesses was offered as a constancy witness, and none of them provided constancy of accusation testimony. Maneri’s testimony, as discussed previously, was admitted for substantive purposes under the medical exception to the hearsay rule, and she was not a constancy witness. The other three witnesses became involved after the complaint to the police. Berrien testified concerning his physical examination, Gillanders was offered as a witness to explain his investigation, which included interviews with the defendant and a description of the house in which the parties lived, and Goodwin, a therapist who treated the victim after the assaults, was called to explain certain behaviors exhibited by sexually abused children. None of these witnesses’ testimony was offered solely to show that the victim confided in them an accusation of sexual assault. Further, the defendant has not shown that any of the testimony was admitted pursuant to the constancy of accusation doctrine.

Because none of the witnesses was called to present constancy of accusation testimony, and none of them provided such testimony, the court properly omitted a charge on constancy of accusation.

The defendant also claims that the court failed to instruct the jury that the victim’s credibility could be impeached by prior inconsistent statements. This claim is unpreserved, and he seeks Golding review.

In fact, the court did instruct on credibility and informed the jury that one of the factors to consider was whether the testimony of a witness was contradicted by what he or she stated at another time or by the testimony of other witnesses or by other evidence. The court also instructed the jury on the use of prior inconsistent statements in assessing credibility. Therefore, this claim fails.

IV

Finally, the defendant claims that the evidence was insufficient to support the guilty verdict. We reject this claim.

In reviewing a sufficiency of the evidence claim, this court first construes the evidence in the light most favorable to sustaining the verdict and then determines whether, on the facts so construed and the inferences reasonably drawn therefrom, the fact finder reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. State v. Anderson, 74 Conn. App. 633, 636-37, 813 A.2d 1039, cert. denied, 263 Conn. 901, 819 A.2d 837 (2003). The evidence recounted previously is clearly sufficient to establish guilt.

The sole claim made by the defendant is that the victim’s testimony was incredible and uncorroborated. Even if uncorroborated, the victim’s testimony, if believed, may be sufficient to support a guilty verdict. See State v. Jackson, 75 Conn. App. 578, 584-85, 816 A.2d 742 (2003). The credibility of witnesses is a matter solely to be determined by the juiy; State v. White, 229 Conn. 125, 143, 640 A.2d 572 (1994); and arguments raised on appeal with regard to the victim’s credibility are generally not the proper subject of an appeal. State v. Osoria, 86 Conn. App. 507, 515, 861 A.2d 1207 (2004), cert. denied, 273 Conn. 910, 870 A.2d 1082 (2005). Therefore, this claim fails.

The judgment is affirmed.

In this opinion the other judges concurred.

       Practice Book § 42-19 provides: “After the close of evidence but before arguments to the jury, the judicial authority shall, if requested, inform counsel out of the presence of the jury of the substance of its proposed instructions. The charge conference shall be on the record or summarized on the record.”

       The following colloquy occurred:
      “The Court: Are there any instructions that come to mind that you know you’re going to be asking for in light of anything that’s happened today . . . ?
      “I’m not going to try to take a whole lot of your time on preparing the charge. I would like to have five minutes this afternoon of your time, however, just to talk about one matter. We don’t need to do that on the record. Feel free to make a record of any of it later, if you want.”

       Connecticut Code of Evidence § 8-3 provides in relevant part: “The following [is] not excluded by the hearsay rule, even though the declarant is available as a witness ... (5) ... [a] statement made for purposes of obtaining medical treatment or advice pertaining thereto and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof, insofar as reasonably pertinent to the medical treatment or advice.”

       The defendant argues, however, that the claim is preserved because he objected to the nurse’s testimony. The record reveals, however, that the objection, and the court’s notice of a continuing objection, related only to the statements made to the nurse, on the ground that the nurse was an authority figure. Neither of the parties, nor the court, mentioned any statements the victim may have given to the social worker.

       “[A] defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).


author: PER CURIAM.

text:
    IN RE MARIAH P. ET AL.

    (AC 29240)
    Gruendel, Beach and Pellegrino, Js.
    Argued May 19
    officially released July 8, 2008

      Daniel H. Erskine, for the appellant (respondent father).

      Colleen Broderick, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Susan T. Pearlman, assistant attorney general, for the appellee (petitioner).

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79-3, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Opinion

PER CURIAM.

The respondent father appeals from the judgments of the trial court terminating his parental rights regarding three of his minor children. He challenges as clearly erroneous the court’s findings that (1) he failed to achieve the requisite degree of personal rehabilitation required by General Statutes § 17a-112 and (2) termination of his parental rights was in the best interests of the children. We affirm the judgments of the trial court.

To prevail on a nonconsensual termination of parental rights, the petitioner, the commissioner of children and families, must prove, by clear and convincing evidence, that one of seven statutory grounds for termination exists. See General Statutes § 17a-112 (j) (3). The ground alleged in the present case was the respondent’s failure to achieve a sufficient degree of personal rehabilitation pursuant to § 17a-112 (j) (3) (B) (ii). Review of a trial court’s determination that a parent has failed to rehabilitate is governed by the clearly erroneous standard of review. In re Jeisean M., 270 Conn. 382, 397, 852 A.2d 643 (2004). If, at the adjudicatory phase of the termination proceeding, the court determines that the petitioner has proven a failure to achieve rehabilitation, it must then determine if termination of parental rights is in the best interest of the child as part of the dispositional phase. General Statutes § 17a-112 (j) (2); see also In re Romance M., 229 Conn. 345, 356-57, 641 A.2d 378 (1994). The court’s findings as to both issues will be reversed on appeal only if they are clearly erroneous. See In re Tricia A., 55 Conn. App. 111, 116, 737 A.2d 974 (1999).

Our examination of the record and briefs and our consideration of the arguments of the parties persuade us that the judgments should be affirmed. On the facts of this case, the issues properly were resolved in the court’s complete and well reasoned memorandum of decision, which addresses the arguments raised in this appeal. See In re Mariah P., 50 Conn. Sup. 594, 954 A.2d 286 (2007). We therefore adopt it as the proper statement of the relevant facts, issues and applicable law, as it would serve no useful purpose for us to repeat the discussion contained therein. See In re Alexander C., 262 Conn. 308, 311, 813 A.2d 87 (2003); In re Karrlo K., 40 Conn. App. 73, 75, 668 A.2d 1353 (1996).

The judgments are affirmed.

       The parental rights of the respondent mother also were terminated. Because she has not appealed, we refer to the respondent father as the respondent.
      We also note that pursuant to Practice Book § 67-13, the attorney for the minor children filed a statement adopting the brief of the petitioner in this appeal.

       General Statutes § 17a-112 (j) provides in relevant part: “The Superior Court . . . may grant a petition [to terminate parental rights] if it finds by clear and convincing evidence that . . . the child . . . has been found by the Superior Court ... to have been neglected ... in a prior proceeding . . . and the parent of such child has been provided specific steps to take to facilitate the return of the child to the parent . . . and has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child