author: MIHALAKOS, J.

text:
    MACEO TROY STREATER v. COMMISSIONER OF CORRECTION
    (AC 33159)
    Beach, Sheldon and Mihalakos, Js.

      Argued December 3, 2012
    officially released June 4, 2013

      Stephanie L. Evans, assigned counsel, for the appellant (petitioner).

      James M. Ralls, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and David Clifton, assistant state’s attorney, for the appellee (respondent).
   Opinion

MIHALAKOS, J.

The petitioner, Maceo Troy Streater, appeals following the denial of his petition for certification to appeal from the judgment of the habeas court denying his third petition for a writ of habeas corpus. On appeal, the petitioner claims that the court abused its discretion in denying his petition for certification to appeal, and that the court improperly (1) found the petitioner’s claims of juror bias to be procedurally defaulted; (2) denied his claim of ineffective assistance of trial counsel; and (3) denied his claim of ineffective assistance of appellate counsel. We dismiss the appeal.

The petitioner’s underlying conviction was the subject of a direct appeal before this court. See State v. Streater, 36 Conn. App. 345, 650 A.2d 632 (1994), cert. denied, 232 Conn. 908, 653 A.2d 195 (1995). In affirming the conviction, we concluded that the jury reasonably could have found the following relevant facts. On May 8, 1990, the victim was riding a bicycle in New Haven at approximately 9 p.m. Id., 347. The victim and two of his friends encountered an acquaintance, Joseph Preston; the victim and Preston separated from the others and rode their bicycles up Shelton Avenue. Id. Then, “[f]our young African-American males, including the [petitioner], approached [the victim] on foot. An argument ensued between [the victim] and the [petitioner], while Preston stood fifteen to twenty feet away. Preston recognized the [petitioner] and noted that he was wearing a white shirt and black pants. The argument between the victim and the [petitioner] continued and, at a time that Preston was looking the other way, Preston heard gunshots. When Preston turned, he saw the [petitioner] standing in the middle of the street shooting at the [victim]. [The victim] died as a result of his injuries.

“The New Haven police were notified. Detective Joseph Howard observed the body of the victim lying in the street. . . . While Howard was canvassing the neighborhood for possible witnesses, Carol Cheek motioned him to the rear of a building, and provided him with information that led him to check outside the [petitioner’s] home for a faded red compact car.

“Detectives Anthony DiLullo and John Greene were also dispatched to the shooting scene. . . . Howard called DiLullo and Greene over to his car to meet Cheek. Cheek told the officers that earlier in the evening she had heard gunshots and had seen four young African-American men running from the area where she had heard the shots. The men entered a faded red or maroon automobile parked on Dixwell Avenue. Cheek identified the [petitioner] as one of the men she had seen running. He lived across the street from her, and she had known him for about twenty years. Cheek also told the officers she had seen the [petitioner] with the maroon automobile on other occasions, and that it was normally parked outside his house on Dixwell Avenue. . . .

“Preston was contacted by the police several days later regarding the shooting. He reviewed a tray of photographs of African-American males and selected the [petitioner’s] photograph as that of the person who had shot the victim.

“On May 10,1990, DiLullo and Greene tape-recorded a statement from Cheek at her apartment. On May 16, Cheek met with the detectives to read and review her statement. She read and corrected her statement, initialed each correction and signed the last page.

“At trial, Cheek testified that she did not remember being outside her house on May 8. She also stated that she did not approach Howard that night, that she did not recall whether she gave the police a taped statement on May 10, and that looking at the transcript of the statement did not help because she could not read. She acknowledged that the signature on the statement was hers, although she did not remember signing it. Cheek listened to the tape recording of the statement, but denied that the voice was hers.

“On cross-examination, Cheek said that two officers were putting pressure on her to provide information about the shooting. On redirect examination, although Cheek said she had no recollection of the events of May 8, she did recall trying to get herself and her children out of the way of gunshots.” Id., 347-49.

The jury found the petitioner guilty of murder in violation of General Statutes § 53a-54a and carrying a pistol without a permit in violation of General Statutes § 29-35. Id., 346-47. The petitioner was sentenced to a total effective term of thirty-five years incarceration.

After this court affirmed the petitioner’s conviction, the petitioner’s sister met with Attorney John J. Kelly regarding representation of the petitioner in connection with preparing a petition for a new trial based on alleged newly discovered evidence. Kelly, however, did not file the petition for a new trial within the statute of limitations, and the petition was dismissed. Kelly then filed a petition for a writ of habeas corpus on the petitioner’s behalf, in which he asserted the same arguments as he presented in the petition for a new trial. The court, Downey, J., denied this petition in December, 1998. The petitioner filed a second habeas corpus petition in 1999, which the court, Silbert, J., dismissed without trial in July, 2002.

The petitioner then filed the present habeas corpus petition alleging claims of juror bias and ineffective assistance of counsel. Following the habeas trial, the court, Fuger, J., denied the petition and subsequently denied the petitioner’s petition for certification to appeal. This appeal followed. Additional facts and procedural history will be set forth as necessary.

On appeal, the petitioner claims that the court abused its discretion in denying his petition for certification to appeal, and that the court erroneously rejected his claims that he was denied his right to a fair and impartial jury, and received ineffective assistance of trial and appellate counsel. We are not persuaded.

As an initial matter, we set forth the standard of review relevant to our resolution of this appeal. “Faced with the habeas court’s denial of certification to appeal, a petitioner’s first burden is to demonstrate that the habeas court’s ruling constituted an abuse of discretion. ... A petitioner may establish an abuse of discretion by demonstrating that the issues are debatable among jurists of reason . . . [the] court could resolve the issues [in a different manner] . . . or . . . the questions are adequate to deserve encouragement to proceed further. . . . The required determination may be made on the basis of the record before the habeas court and applicable legal principles. . . .

“In determining whether the habeas court abused its discretion in denying the petitioner’s request for certification, we necessarily must consider the merits of the petitioner’s underlying claims to determine whether the habeas court reasonably determined that the petitioner’s appeal was frivolous. In other words, we review the petitioner’s substantive claims for the purpose of ascertaining whether those claims satisfy one or more of the three criteria . . . adopted by this court for determining the propriety of the habeas court’s denial of the petition for certification. Absent such a showing by the petitioner, the judgment of the habeas court must be affirmed.” (Internal quotation marks omitted.) Rosado v. Commissioner of Correction, 129 Conn. App. 368, 371-72, 20 A.3d 85, cert. denied, 302 Conn. 916, 27 A.3d 368 (2011).

I

The petitioner first contends that he was denied his right to a fair and impartial jury, as guaranteed by the sixth amendment to the United States constitution and by the constitution of Connecticut, article first, § 8. He further asserts that the habeas court improperly determined that this claim was procedurally defaulted. We disagree.

The record reveals the following additional facts and procedural history relevant to the resolution of this claim. On January 19,1993, during the petitioner’s criminal trial, the court clerk advised the court that a juror, H, had indicated to the clerk that she “knew someone that was in the courtroom,” a woman named “Joyce,” who had provided day care to her child in 1991. The court informed H that “Joyce” was the victim’s mother and asked whether H believed that any contact she had with the victim’s mother and the victim would in any way affect her ability to be completely fair and impartial in all respects in the case. H responded: “I would have to be fair, yes, I would be fair.” The court then asked: “You don’t believe it would affect you in any way. Is that your answer?” H responded: “Not in my judgment, no.” After H left the courtroom, the petitioner’s trial counsel, Attorney Thomas Ullmann, indicated that he felt H could remain on the jury. The court agreed, stating that it found H to be a “very forthright individual.” Ullmann then asked the court to inquire of H whether she mentioned this issue to any of the other jurors. The court asked H the requested question; she indicated that she “told one person in there that I did know somebody that was sitting in the room. That’s all I said.” The court subsequently informed the jury that H may have known someone involved in the case, but that the issue was resolved and should not be the subject of further discussion or concern.

The following day, while discussing another juror issue, Ullmann indicated to the court that he had seen H smile at the victim’s mother, nod her head, and say hello, just as “anybody would who knew each other.”

On January 20, 1993, the court indicated that two jurors were concerned that they had observed a court spectator in the ninth floor jury room. Ullmann explained to the court that one of the petitioner’s relatives informed him that he had attempted to purchase food from the snack shop in the courthouse lobby, but the shop was closed. The individual asked where to purchase food, and someone in the lobby told him that there were vending machines on the ninth floor. The individual went upstairs to the machines and was fidgeting with the machines for some time. Ullmann indicated that there was no undue influence or improper activity during the course of the event, and he expressed his concern about the jurors’ perceptions, because the petitioner’s family had a right to be in the courtroom to express support, and their presence was not intimidation.

The court then questioned the two jurors, S and R, regarding the incident. S indicated that she saw someone leave the elevator and go to a snack machine on the ninth floor, but that it caused her no concern and would not affect her. R stated that she saw a spectator on the ninth floor who went to the snack machines and then looked at the jurors. She stated that she “wouldn’t want to see it happen again.” The court indicated that it would not happen again and asked R whether anything about the incident would affect her ability to continue as a fair and impartial juror. R affirmed that it would not. The court informed the jury that a spectator had been told mistakenly that he could get food on the ninth floor, it would not happen again, and the jury should give it no further thought.

On January 27, 1993, the court noted that two jurors, R and M, had concerns that the court wanted to address on the record. When the court asked R to share her concerns, she replied that she would “tell [the court] in private.” When advised that she could not, R told the court that she was sitting in her car that morning on Congress Avenue, and she looked up and saw a spectator who was in court every day. R further stated that she was aware of who was nearby when she walked in and out of the courthouse, and that she “found it strange.” When the court asked R whether this would affect her ability to continue on the jury, she replied that it would not and was “just something that I felt you should know.” The court asked R if she discussed the issue with any other jurors, and R said, “No.” After R left the courtroom, Ullmann moved that she be excused because this was the second time she had expressed concerns, her statements regarding the vending machine incident contrasted with those made by S, and she preferred to address her concerns with the court in private. R was called back to the courtroom and questioned further, and she confirmed that she could continue as a juror.

M then entered the courtroom and indicated that on the previous Friday, his car needed an emergency brake job, and his mechanic told him that “it looked like the brakes had been tampered with.” When the court asked M if he “in any way connected [the incident] with this case,” M responded that the timing seemed strange and that he hoped it was only a coincidence. M indicated that he did not even make a connection between the incident and the case until that morning, because of “something [another] juror had said.” He said that he had told other jurors that his car needed a brake job over the weekend and that “the person who fixed the brakes was concerned that there was tampering.” At Ullmann’s request, the court then asked M which juror spoke to him and triggered him to raise the incident. M stated that R had told him separately from other jurors that she saw a spectator standing outside her car on Congress Avenue.

Ullmann indicated that M seemed sincere and agreed that the court could tell the jury that it made inquires and was satisfied that there was no problem with M remaining on the jury. Ullmann asked, however, that R be excused. The court expressed concern that M had contradicted R’s statement that she had not discussed the Congress Avenue matter with anyone, which led the court to question R’s candor. R was excused and an alternate juror was selected. The court explained to the jury that it had replaced one juror but that the jury should not concern itself with that, and that the trial would continue.

In his January 26, 2010 amended habeas corpus petition, the petitioner alleged that the court “failed to adequately inquire into the juror misconduct” regarding R, H, M and S, and “failed to ensure” that the petitioner was afforded a fair trial. The petitioner further alleged that “[t]he jurors were scared of [him] and his family,” and that his conviction was “obtained in violation of [his] state and federal constitutional rights of due process of law and the right to a fair trial before an impartial jury.” In his return, the respondent, the commissioner of correction, raised the defense of procedural default pursuant to Practice Book § 23-30 (b).

At the habeas trial, the court heard testimony from the petitioner and Ullmann regarding, inter alia, the issues involving R, H, M and S. The petitioner testified, among other things, that he wanted H off of the jury and for Ullmann to move for a mistrial on the basis of H’s recognition of the victim’s mother, and that he wanted Ullmann to question the jurors individually to determine what they knew about the issues raised by R and M. Ullmann testified, inter alia, that he asked the trial court to canvass the jury individually regarding the issues raised by R, but not by M. He further testified that, with respect to H, he made the determination that he felt she could stay on the jury, and that he “must have not thought [that her interaction with the victim’s mother] was that important at the time.” He also stated that if he had thought the jury was scared, he would have moved for a mistrial.

Also at the habeas trial, the petitioner and the respondent agreed to a stipulation, which was made an exhibit and entered into evidence. The stipulation read: “(1) One or more jurors observed a group of African-American people, who they recognized from the courtroom as sitting behind the [petitioner], who watched the jurors as they walked to their cars at the end of some days of evidence. (2) A juror told the sheriff about the above referenced incident.”

In its memorandum of decision denying the petitioner’s habeas corpus petition, the court found that this issue was procedurally defaulted because the facts underlying the claim “were well known to [UUmann] at the time of the trial,” and the habeas hearing “did not produce any new revelations that were not known earlier and could have been raised either with the trial court, on appeal or at the first habeas trial.” The petitioner asserts on appeal that the court erred in finding his claim procedurally defaulted. We are not persuaded.

“We conduct a plenary review of the legal conclusions of the habeas court. Although the underlying historical facts found by the habeas court may not be disturbed unless they were clearly erroneous, whether those facts constituted a violation of the petitioner’s rights ... is a mixed determination of law and fact that requires the application of legal principles to the historical facts of [the] case. ... As such, that question requires plenary review by this court unfettered by the clearly erroneous standard. . . .

“Generally, [t]he appropriate standard for reviewability of habeas claims that were not properly raised at trial ... or on direct appeal . . . because of a procedural default is the cause and prejudice standard. Under this standard, the petitioner must demonstrate good cause for his failure to raise a claim at trial or on direct appeal and actual prejudice resulting from the impropriety claimed in the habeas petition. . . . [This] standard is designed to prevent full review of issues in habeas coipus proceedings that counsel did not raise at trial or on appeal for reasons of tactics, inadvertence or ignorance .... [T]he existence of cause for a procedural default must ordinarily turn on whether the [petitioner] can show that some objective factor external to the defense impeded counsel’s efforts to comply with the [s]tate’s procedural rule. . . . [For example] a showing that the factual or legal basis for a claim was not reasonably available to counsel . . . or . . . some interference by officials . . . would constitute cause under this standard. . . . Cause and prejudice must be established conjunctively. ... If the petitioner fails to demonstrate either one, a trial court will not review the merits of his habeas claim.” (Citations omitted; internal quotation marks omitted.) Mish v. Commissioner of Correction, 133 Conn. App. 845, 849-50, 37 A.3d 179, cert. denied, 305 Conn. 918, 47 A.3d 390 (2012).

On the basis of our review of the record, we cannot conclude that the habeas court erred in finding the petitioner’s juror misconduct claims to be procedurally defaulted. With respect to the petitioner’s claims regarding R, H, M and S, we agree with the habeas court that the facts of the incidents involving these jurors were well known to Ullmann, and the petitioner has shown no cause for Ullmann’s failure to move for a mistrial and/or to raise the petitioner’s purported juror misconduct claims before the trial court or on appeal. See, e.g., Mercer v. Commissioner of Correction, 49 Conn. App. 819, 826, 717 A.2d 763 (habeas court appropriately found claim defaulted because “several of the due process violations alleged by the petitioner were known to counsel at the time of trial and should have been addressed in accordance with the applicable rules of procedure”), cert. denied, 247 Conn. 920, 722 A.2d 810 (1998).

Although the petitioner contends that he received ineffective assistance of counsel, and that this constitutes the requisite cause for his procedural default, this argument is unavailing. As we discuss in part II of this opinion, we agree with the habeas court that the petitioner’s trial and appellate counsel provided effective assistance. Accordingly, his ineffective assistance claims cannot provide the basis for cause and prejudice. See, e.g., Saunders v. Commissioner of Correction, 137 Conn. App. 493, 499-500, 48 A.3d 728, cert. denied, 307 Conn. 920, 54 A.3d 182 (2012); Mish v. Commissioner of Correction, supra, 133 Conn. App. 850-51.

With respect to the petitioner’s claim of juror bias predicated on the stipulation entered into evidence at the habeas trial, we note that the habeas court’s finding that the facts set forth in that stipulation were known to Ullmann at the time of trial was clearly erroneous. In fact, both parties have indicated that the petitioner and Ullmann became aware of the stipulated facts after the criminal trial and direct appeal. We conclude, however, that the habeas court’s ultimate finding of procedural default is correct because the petitioner has failed to demonstrate actual prejudice from the claimed impropriety set forth in the stipulated facts. The stipulation indicates only that, if called to testify, one or more jurors would state that they recognized a group of African-American spectators from the courtroom watching them as they walked to their cars after some of the days of the trial. The stipulation is silent as to the impact, if any, of these jurors’ observations on their ability to render a fair and impartial verdict, and the petitioner has presented no other evidence establishing that the jurors’ observations rendered them biased against him such that he was denied his right to a fair trial. Because the petitioner has failed to establish cause and prejudice, the habeas court did not err in finding this claim to be procedurally defaulted.

II

We turn next to the petitioner’s ineffective assistance of counsel claims against his trial counsel, Ullmann, and his appellate counsel, John Williams. The petitioner asserts that the habeas court erroneously rejected these claims. We disagree.

“We examine the petitioner’s underlying claim[s] of ineffective assistance of counsel in order to determine whether the habeas court abused its discretion in denying the petition for certification to appeal. Our standard of review of a habeas court’s judgment on ineffective assistance of counsel claims is well settled. In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but our review of whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is plenary. . . .

“In Strickland v. Washington, [466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)], the United States Supreme Court established that for a petitioner to prevail on a claim of ineffective assistance of counsel, he must show that counsel’s assistance was so defective as to require reversal of [the] conviction. . . . That requires the petitioner to show (1) that counsel’s performance was deficient and (2) that the deficient performance prejudiced the defense. . . . Unless a [petitioner] makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable. . . . Because both prongs . . . must be established for a habeas petitioner to prevail, a court may dismiss a petitioner’s claim if he fails to meet either prong. . . .” (Citation omitted; internal quotation marks omitted.) Vazquez v. Commissioner of Correction, 128 Conn. App. 425, 429-30, 17 A.3d 1089, cert. denied, 301 Conn. 926, 22 A.3d 1277 (2011).

To satisfy the performance prong of the Strickland test, the petitioner must “demonstrate that his attorney’s representation was not reasonably competent or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law.” (Internal quotation marks omitted.) Boyd v. Commissioner of Correction, 130 Conn. App. 291, 294-95, 21 A.3d 969, cert. denied, 302 Conn. 926, 28 A.3d 337 (2011). “[A] court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the [petitioner] must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” (Internal quotation marks omitted.) Orellana v. Commissioner of Correction, 135 Conn. App. 90, 98, 41 A.3d 1088, cert. denied, 305 Conn. 913, 45 A.3d 97 (2012).

“With respect to the prejudice component of the Strickland test, the petitioner must demonstrate that counsel’s errors were so serious as to deprive the [petitioner] of a fair trial, a trial whose result is reliable. ... It is not enough for the [petitioner] to show that the errors had some conceivable effect on the outcome of the proceedings. . . . Rather, [t]he [petitioner] must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Internal quotation marks omitted.) Vazquez v. Commissioner of Correction, supra, 128 Conn. App. 430.

“In regard to the [prejudice] prong, our Supreme Court [has] distinguished the standards of review for claims of ineffective trial counsel and ineffective appellate counsel. . . . For claims of ineffective appellate counsel, the [prejudice] prong considers whether there is a reasonable probability that, but for appellate counsel’s failure to raise the issue on appeal, the petitioner would have prevailed in his direct appeal, i.e., reversal of his conviction or granting of a new trial. . . . This requires the reviewing court to [analyze] the merits of the underlying claimed error in accordance with the appropriate appellate standard for measuring harm.” (Citations omitted; internal quotation marks omitted.) Moore v. Commissioner of Correction, 119 Conn. App. 530, 535, 988 A.2d 881, cert. denied, 296 Conn. 902, 991 A.2d 1103 (2010).

A

The petitioner claims first that Ullmann provided ineffective assistance because he failed to impeach Preston’s allegedly perjured, inconsistent eyewitness testimony. Specifically, he contends that Preston testified at the petitioner’s first criminal trial that he was approximately 250 feet away from the victim and could “not exactly” see the face of the individual who shot the victim, whereas he testified at the second trial that he was approximately fifteen to twenty feet away. According to the petitioner, Ullmann demonstrated a “lack of reasonable diligence” in failing to impeach Preston with his prior testimony, and this failure purportedly prejudiced the petitioner because it is “highly unlikely that the jury would have convicted [the petitioner] without the perjured and coerced testimony of . . . Preston.”

At the habeas trial Ullmann testified, among other things, that he anticipated before the criminal trial that there might be difficulty with Preston’s testimony because Preston did not identify the petitioner to the police until his third conversation -with them. He further indicated that for each witness at trial, he prepared a folder containing “every police report, every statement and any transcript involving their testimony,” and he reviewed that file prior to cross-examining the witness. In rejecting the petitioner’s ineffective assistance of counsel claim against Ullmann, the habeas court specifically credited Ullmann’s testimony as credible and found that “the representation that [the petitioner] received was more than constitutionally sufficient.” The court further stated that Ullmann’s performance was “well within the bounds of [constitutional acceptability,” and that the petitioner presented no evidence that would lead the court to conclude that “there was any likelihood that the outcome of the trial would have been any different.” We agree with the habeas court.

The petitioner bases his ineffective assistance of counsel claim on his assertion that Ullmann failed to impeach Preston’s inconsistent testimony, but the record reveals that Preston’s testimony in the two trials was not at odds. Indeed, although the petitioner contends that Preston testified during the first trial that he was 250 feet away from the victim and testified at the second that he was “approximately 15-20 feet away,” this argument ignores the remainder of Preston’s testimony at the second trial. Preston did testify that he was “between fifteen and twenty feet” from the group of people who were arguing with the victim, including the petitioner, whom he recognized. He then, however, testified that the arguing group continued moving up the street, but he followed the group only “a little bit less than half way up the block.”

Additionally, during his testimony Preston marked the location of the shooting and his location at the time of the shooting on a map. In his closing argument, Ullmann summarized Preston’s testimony and the map by stating that Preston was the only eyewitness to the shooting, but “from where he says he was standing . . . there’s some two hundred and fifty, maybe two hundred and sixty feet, almost a football field length between where he observes what happens and . . . where he’s standing.” Accordingly, there was no inconsistency between Preston’s testimony at the petitioner’s first and second criminal trials, and it cannot be said that Ullmann rendered ineffective assistance by failing to impeach him on this point.

B

The petitioner also contends that Ullmann provided ineffective assistance because he failed to respond adequately to “numerous juror issues that occurred during the trial.” Specifically, he asserts that Ullmann (1) did not move for a mistrial when H smiled and nodded hello to the victim’s mother and (2) did not sufficiently request that the court conduct further inquiry into “other juror issues.”

Ullmann testified at the habeas trial that, with respect to H, he “must have not thought [that her interaction with the victim’s mother] was that important at the time.” On cross-examination, he further indicated that he made a tactical decision that he wanted H on the jury, and was “quite certain” that “if [he] decided to keep her on [the jury], [he] felt that she was favorable.” He also stated that if he had thought the jury was scared, he would have moved for a mistrial. Ullmann further testified that although he requested that the court individually question the jurors the day that R was dismissed, “the judge went into something else and then it just didn’t happen . . . .’’He also stated that he felt the court gave appropriate limiting instructions to the jury after its investigation into the brake incident and the vending machine incident. As noted previously, the habeas court specifically credited Ullmann’s testimony as credible and rejected the petitioner’s ineffective assistance of counsel claims on both performance and prejudice grounds.

We agree with the habeas court that Ullmann provided effective assistance of counsel. Regarding H, Ull-mann testified credibly that he did not feel that H’s acknowledgement of the victim’s mother was important at the time of the trial, and he determined ultimately that she should stay on the jury because he believed that she would be a favorable juror for the petitioner. The petitioner has provided nothing to overcome the presumption that Ullmann’s tactical decision regarding the composition of the jury was anything other than sound trial strategy. See Orellana v. Commissioner of Correction, supra, 135 Conn. App. 98. Furthermore, the petitioner has not established any prejudice from Ull-mann’s purported failure to request a mistrial, i.e., that the court would have granted a mistrial on the basis of H’s relationship with the victim’s mother even if Ull-mann had requested one. Indeed, the court found H to be a “very forthright individual” regarding her knowledge of the victim’s mother, and had concluded that there was no problem with H’s continuing to sit on the jury.

Similarly, there is no merit to the petitioner’s claim that Ullmann failed to ensure that the court conducted sufficient inquiries of the jury with respect to the other juror issues raised at trial. The record reflects that the court conducted an inquiry into the incidents involving R, H, M and S, and that Ullmann engaged with the court during the inquiry process, requesting that the court ask certain additional questions of the jurors and making an ultimately successful motion that R be excused from the jury. The petitioner has not demonstrated that Ull-mann’s performance in this regard was constitutionally deficient. Although the petitioner contends specifically that Ullmann rendered ineffective assistance by failing to “get a ruling from the court on his request” that the court individually canvass the jurors with respect to the concerns raised by R, the petitioner again has provided no support for his claim that this constituted deficient performance, nor has he presented evidence that the result of the proceedings would have been different had Ullmann pressed the court on this request. Accordingly, we cannot say that Ullmann provided ineffective assistance for failing to pursue this issue further with the court. See Moody v. Commissioner of Correction, 108 Conn. App. 96, 105, 946 A.2d 1268, cert. denied, 288 Conn. 906, 953 A.2d 649 (2008) (counsel not ineffective for refraining to press issue of juror canvassing where court had determined that canvass was adequate).

C

Next, the petitioner claims that Williams provided ineffective assistance because he did not raise prosecu-torial impropriety and juror bias claims in the petitioner’s direct appeal of his conviction. We are not persuaded.

The following additional facts are relevant to this claim. During the redirect examination of Cheek at the petitioner’s criminal trial, the prosecutor, Michael Pepper, asked Cheek if she was afraid to testify in the case because she lived very close to the petitioner. Cheek answered in the negative and said she had known the petitioner “[f]or about a pleasant twenty-five, twenty-six years. ” She also indicated that she knew the petitioner’s family. When Pepper asked if she saw any of the petitioner’s family members in the courtroom, she said that she did not. Pepper further asked if Cheek had been speaking to any of the spectators in the courtroom during breaks in her testimony, and she stated that she had, but she did not know if they were related to the petitioner. Pepper then asked if Cheek knew Lloyd Streater, and whether he was sitting in the courtroom. Cheek said that she could “see him now”; when Pepper asked Cheek to point him out, Cheek asked: “Can you stand up?” Ullmann objected, and the court sustained the objection.

Also at the criminal trial, on direct examination of Dwayne Watkins, a friend of the victim, Pepper asked whether Watkins knew an individual named Keith Sprule. Watkins indicated that he did, and that Sprule also was friends with the victim. Pepper then asked: “Okay. Do you know what happened to Keith Sprule?” Ullmann objected and asked that the jury be excused. After the jury exited the courtroom, Ullmann stated: “Your Honor ... a follow-up answer to that question is that Mr. Sprule is, now, dead. And the implication is that it’s associated or the impression is left that, here’s another guy, who was a friend of [the victim] . . . and Mr. Watkins, here, who’s dead. . . . And to leave that impression with these jurors is outrageous. And I’m moving for a mistrial . . . .” The court sustained the objection but denied Ullmann’s motion for a mistrial. When the jury returned, the court reiterated that it had sustained the objection to the last question and that the jury should disregard the question and any answer that may have been given.

The petitioner contends that Pepper’s statements and conduct amounted to prosecutorial impropriety that called into question the fairness of the petitioner’s trial, and he asserts that Williams’ failure to raise the issue constituted ineffective assistance. The petitioner further argues that Williams rendered ineffective assistance because he failed to raise the juror bias claims discussed in parts I and IIB of this opinion. The habeas court found that the petitioner’s counsel provided constitutionally adequate performance, and that the petitioner suffered no prejudice. We agree with the habeas court.

This court has stated repeatedly that “[t]he right to counsel is not the right to perfect representation. . . . [Although] an appellate advocate must provide effective assistance, he is not under an obligation to raise every conceivable issue. . . . [I]f the issues not raised by his appellate counsel lack merit, [the petitioner] cannot sustain even the first part of this dual burden since the failure to pursue unmeritorious claims cannot be considered conduct falling below the level of reasonably competent representation.” (Internal quotation marks omitted.) Gray v. Commissioner of Correction, 138 Conn. App. 171, 178, 50 A.3d 406, cert. denied, 307 Conn. 929, 55 A.3d 570 (2012).

On the basis of our review of the record, we conclude that it was within Williams’ strategic discretion not to include the prosecutorial impropriety or juror bias issues in the petitioner’s direct appeal, and that his failure to do so did not constitute deficient performance. The petitioner’s prosecutorial impropriety claim is based on two incidents: (1) Pepper asking, or causing Cheek to ask, Lloyd Streater to stand up during the trial, and (2) Pepper asking Watkins about Sprule’s whereabouts. Although the petitioner contends that Pepper’s conduct was “designed to divert the jury’s attention, heighten their emotions and change the focus of the trial ... to an inference that the Streater family [members] were bad dangerous people,” we agree with the respondent that Pepper’s questions were directed to the witnesses’ credibility and any potential bias or reluctance in their testimony, and were not improper. In any event, even assuming arguendo that Pepper’s questioning was improper, it does not rise to the level of prosecutorial impropriety that impacted the fairness of the petitioner’s trial. Moreover, as discussed in part II B of this opinion, the petitioner’s purported juror bias claim is also without merit. Williams cannot be faulted for failing to pursue these unmeritorious claims on appeal. See Gray v. Commissioner of Correction, supra, 138 Conn. App. 178; see also Moore v. Commissioner of Correction, supra, 119 Conn. App. 543-44 (within appellate counsel’s discretion to determine whether to raise instances of prosecutorial impropriety on appeal).

Accordingly, because the petitioner has not established that the issues he has raised are debatable among jurists of reason, that a court could have resolved them in a different manner, or that the questions presented are adequate to deserve encouragement to proceed further; see, e.g., Rosado v. Commissioner of Correction, supra, 129 Conn. App. 371; we conclude that the habeas court did not abuse its discretion in denying the petitioner’s petition for certification to appeal.

The appeal is dismissed.

In this opinion the other judges concurred.

       The petitioner’s first trial on the same two counts ended in a mistrial. State v. Streater, supra, 36 Conn. App. 349 n.4. Unless otherwise specified, references herein to the petitioner’s trial refer to his second trial.

       We use initials when referring to jurors to protect their legitimate privacy interests. See, e.g., State v. Myers, 126 Conn. App. 239, 256 n.9, 11 A.3d 1100, cert. denied, 300 Conn. 923, 14 A.3d 1006 (2011).

       Practice Book § 23-30 (b) provides, in relevant part, that the respondent’s return “shall allege any facts in support of any claim of procedural default, abuse of the writ, or any other claim that the petitioner is not entitled to relief.”

         The habeas court also heard testimony from the petitioner’s appellate counsel, attorney John Williams, regarding the purported juror misconduct issue. As the court noted, however, Williams “testified to having next to no recollection of any of the events in this matter and did not offer any substantive testimony . . . .”

       Ullmann testified that the trial court did not canvass the jury individually in response to this request.

       Additionally, we are not persuaded by the petitioner’s argument that the purportedly ineffective assistance of his first habeas counsel, Kelly, establishes the necessary cause and prejudice to overcome a claim of procedural default. The petitioner concedes that the purpose of Kelly’s representation was to file a petition for a new trial based on allegedly new evidence of witness recantations. We agree with the habeas court that, although Kelly’s failure to file that petition for a new trial on time likely constituted deficient performance, the petitioner suffered no prejudice because Kelly raised the same issues in a habeas corpus petition that was duly addressed by the court. To the extent the petitioner contends that Kelly rendered ineffective assistance by failing to research and/or include the juror bias allegations in the habeas corpus petition he filed on the petitioner’s behalf, we agree that Kelly’s failure to research all potential claims before filing a habeas corpus petition may constitute deficient performance. We note, however, that the petitioner’s juror bias allegations also may have been subject to a procedural default defense at that time because they were not raised at trial or on direct appeal. See, e.g., Mish v. Commissioner of Correction, supra, 133 Conn. App. 849-51. Furthermore, even if the juror bias claims had not been deemed procedurally defaulted, they are substantively without merit, as discussed in further detail herein. Accordingly, the petitioner cannot demonstrate the requisite prejudice from Kelly’s failure to raise the claims. See, e.g., Vazquez v. Commissioner of Correction, 128 Conn. App. 425, 429, 17 A.3d 1089, cert. denied, 301 Conn. 926, 22 A.3d 1277 (2011) (petitioner must show both deficient performance and reasonable probability that result of proceeding would have been different to establish ineffective assistance of counsel).

       “[W]e can affirm a correct decision even though the reasoning underlying that decision is flawed.” State v. Salmond, 69 Conn. App. 81, 91, 797 A.2d 1113, cert. denied, 260 Conn. 929, 798 A.2d 973 (2002).

       Moreover, the petitioner provided no evidence in support of his assertion that Preston’s testimony at the second trial was coerced or perjured. Although he appears to cite Preston’s testimony at the first habeas trial as support for this claim, Preston did not testify at the trial on the present habeas corpus petition, and the first habeas court found that “Preston’s habeas testimony was extraordinarily loose, equivocal and contradictory,” and ultimately not credible. Streater v. Commissioner of Correction, Superior Court, judicial district of New Haven, Docket No. CV-96-0389147-S (December 17, 1998). We will not revisit that credibility determination here. See, e.g., Santiago v. Commissioner of Correction, 87 Conn. App. 568, 587, 867 A.2d 70, cert. denied, 273 Conn. 930, 873 A.2d 997 (2005).

       The alleged “juror issues” underlying the petitioner’s ineffective assistance of counsel claims are the same as the purported juror bias claims discussed in part I of this opinion, and the relevant facts and procedural history are as set forth in part I of this opinion.

       To the extent the petitioner relies on State v. Mukhtaar, 253 Conn. 280, 750 A.2d 1059 (2000), for the proposition that the trial court was required to conduct a preliminary inquiry of the jurors here, and that its failure to do so deprived the petitioner of a fair trial, we note that the language cited from Mukhtaar derives from our Supreme Court’s holding in State v. Brown, 235 Conn. 502, 525-26, 668 A.2d 1288 (1995). Brown, in which the court exercised its inherent supervisory powers over the administration of justice to hold that a trial court must—even in the absence of a request from counsel—conduct a preliminary inquiry once it is presented with any allegations of jury misconduct in a criminal case, was not decided until 1995, and the petitioner’s criminal trial concluded in 1993.

       In his appellate brief, the petitioner contends that Pepper asked Lloyd Streater to stand. The record does not support this assertion. The petitioner appears to have amended this argument in his reply brief, contending that Cheek would not have asked Lloyd Streater to stand unless Pepper had asked her to identify him, and that “[o]ther than intimidation tactics, there was absolutely no need to ask [Cheek] to point out [the petitioner’s] brother Lloyd [Streater].”

         Watkins had answered “Yeah” to Pepper’s question before Ullmann objected, but provided no additional detail.

       Our determination of whether claimed prosecutorial impropriety impacted the petitioner’s right to a fair trial is based on the factors set forth in State v. Williams, 204 Conn. 523, 540, 529 A.2d 653 (1987). Those factors include “the extent to which the [impropriety] was invited by defense conduct or argument . . . the severity of the [impropriety] . . . the frequency of the [impropriety] . . . the centrality of the [impropriety] to the critical issues in the case . . . the strength of the curative measures adopted . . . and the strength of the state’s case.” (Internal quotation marks omitted.) State v. Miller, 128 Conn App. 528, 535-36, 16 A.3d 1272, cert. denied, 301 Conn. 924, 22 A.3d 1279 (2011). Here, Ullmann did not invite Pepper’s questioning, and the questions focused on potential influences on witnesses, which Ullmann testified at the habeas trial was “part of the state’s theory . . . part of their case.” Nevertheless, the claimed improper questioning only occurred twice. In both instances, Ullmann objected to the purportedly improper questioning, and the trial court sustained the objections both times. With respect to the questioning of Watkins, Ullmann not only objected immediately to the question regarding Sprule’s whereabouts, but also the court issued curative instructions to the jury that it should disregard the question and any answer given. See, e.g., State v. Martinez, 95 Conn. App. 162, 182, 896 A.2d 109, cert. denied, 279 Conn. 902, 901 A.2d 1224 (2006) (improper question did not deprive defendant of fair trial where immediate objection made and curative instructions given). Furthermore, the state’s case against the petitioner was strong, particularly given the eyewitness testimony from Preston and the testimony of another witness who saw the petitioner and three other men in a maroon car in the area of the crime minutes prior to the shooting. See State v. Streater, supra, 36 Conn. App. 347-50.

       Because we have determined that the petitioner has not met his burden on the “performance prong,” we need not analyze whether he was prejudiced by Williams’ alleged deficiencies. See, e.g., Vazquez v. Commissioner of Correction, supra, 128 Conn. App. 430. Even assuming that Williams’ performance was constitutionally deficient, however, we agree with the habeas court that the petitioner suffered no prejudice as a result of the allegedly defective performance. The petitioner has provided no evidence that the outcome of his appeal would have been different had Williams raised the prosecutorial impropriety or juror bias claims; rather, he asserts simply that “[Prejudice is self-evident” because the “outcome of the appeal would have been different and the [petitioner’s] conviction reversed.” Conjecture, without more, is insufficient to meet the petitioner’s burden on the prejudice prong. See, e.g., Heredia v. Commissioner of Correction, 106 Conn. App. 827, 833, 943 A.2d 1130 (“[i]n a habeas corpus proceeding, the petitioner’s burden of proving that a fundamental unfairness had been done is not met by speculation but by demonstrable realities”), cert. denied, 287 Conn. 918, 951 A.2d 568 (2008).


source: Caselaw Access Project

author: ALVORD, J.

license: Public Domain

text:
    JOHN L. REGAN v. SIOBHAN B. REGAN
    (AC 34536)
    Graendel, Alvord and Flynn, Js.

      Argued March 4
    officially released June 4, 2013

      Steven D. Ecker, with whom, on the brief, were M. Caitlin S. Anderson, Sarah S. Oldham, and Alexander J. Cuda, for the appellant (defendant).

      John Regan, pro se, the appellee (plaintiff).
   Opinion

ALVORD, J.

The defendant, Siobhan B. Regan, appeals from the judgment of the trial court denying her postdissolution motion for permission to relocate the parties’ minor son to Boston, Massachusetts. On appeal, the defendant claims that the court misapplied the governing law under General Statutes § 46b-56d, Connecticut’s relocation statute, by: (1) failing to determine whether it would be in the child’s best interests to relocate to Massachusetts with the defendant or to remain in Connecticut under a different custodial arrangement; (2) basing its determination on two improper considerations; (3) requiring the defendant to prove the “ ‘economic necessity’ ” of the relocation; and (4) misconstruing the statute as it relates to the needs and interests of the nonrelocating plaintiff, John L. Regan. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the defendant’s appeal. The parties were married on January 20, 2001. They have one minor child, who was born on January 31, 2002. On December 15, 2004, the court rendered judgment dissolving the marriage and incorporated into that judgment an agreement executed by both parents. The dissolution agreement provided that the parents would share joint legal custody of their son with a joint parenting plan, but that the child’s primary residence would be with the defendant. The plaintiffs rights of visitation, which have remained the same throughout the ensuing years, provided for “liberal parenting time” not less than every other weekend from 6 p.m. on Friday until 8 a.m. on Monday, and every Wednesday from 12:30 p.m. until 8 a.m. on Thursday. Additionally, the agreement contained the following provision: “The [defendant] shall not relocate the minor child’s residence more than 32.5 driving miles from Fairfield . . . without giving sixty days written notice to the [plaintiff] and receiving his consent or court order.”

On February 9, 2006, the defendant filed a postjudgment motion for modification of the existing parenting plan seeking the court’s permission to relocate with the parties’ son to Boston, Massachusetts. She alleged that she had an employment opportunity in that area that would significantly increase her income. The matter was referred to the family relations office, which did not endorse the proposed relocation of the minor child. After a two day trial, the court, Abery-Wetstone, J., issued a memorandum of decision in which it denied the defendant’s postjudgment modification motion to relocate. The court concluded that the defendant had failed to prove that the relocation was for a legitimate purpose, that the defendant had failed to prove that her life would be enhanced economically by the move, that the proposed relocation would negatively impact the plaintiffs relationship with their son, and that the proposed relocation was not in the child’s best interests.

In November, 2009, the defendant married John Powell. They now have two minor children together, and the defendant is a full-time homemaker. Powell is the sole source of financial support for their family unit, including the parties’ minor son when he is living with the defendant. Powell is a bond salesperson in the securities market and has Boston based workplace obligations. On February 1, 2011, the defendant filed her second postjudgment motion for permission to modify the existing parenting plan to relocate to Boston with the parties’ minor child. In that motion, she stated that Powell has been maintaining separate living quarters in the Boston area because of his employment and that his separation from the family unit, living in Stamford, placed emotional and financial strain on the family unit, including the parties’ minor son. The court appointed an attorney for the minor child on March 17, 2011. Additionally, on March 31, 2011, the court granted the defendant’s motion for the appointment of a private evaluator to conduct a relocation evaluation of the parties and their minor child.

A four day trial was held in February, 2012. Several witnesses, including two experts, testified at trial, and numerous exhibits were admitted for the court’s consideration. Following the trial, the parties and the attorney for the minor child filed briefs setting forth their respective positions. On March 8, 2012, the court issued its memorandum of decision. After commending the parties for their “excellent job of isolating their son from their legal disputes,” the court recited the statutory criteria for a parent wishing to relocate a child’s residence as set forth in § 46b-56d. The court considered each statutory criterion and concluded: (1) the request for relocation was for a legitimate puipose; (2) the Boston area was a reasonable and legitimate location to achieve the defendant’s purpose; and (3) the proposed relocation was not in the best interests of the minor child. Accordingly, the court denied the defendant’s motion to relocate to Boston, Massachusetts with the parties’ son. The defendant and the attorney for the minor child filed motions for reargument and reconsideration pursuant to Practice Book § 11-11, which the court summarily denied on April 3, 2012. This appeal followed.

As a general rule, “[o]ur standard of review of a trial court’s decision regarding . . . relocation orders is one of abuse of discretion. ... It is within the province of the trial court to find facts and draw proper inferences from the evidence presented. . . . Further, [t]he trial court has the opportunity to view the parties first hand and is therefore in the best position to assess the circumstances surrounding a dissolution action, in which such personal factors as the demeanor and attitude of the parties are so significant.” (Internal quotation marks omitted.) Tow v. Tow, 142 Conn. App. 45, 52, A.3d (2013). The defendant in the present case, however, does not challenge the factual findings directly but, rather, claims that she is challenging the court’s conclusions based on its misapplication of the governing law under the relocation statute. Our review of such claims, therefore, is plenary, and we must determine whether the court’s conclusions were legally and logically correct. See Bretherton v. Bretherton, 72 Conn. App. 528, 535-36, 805 A.2d 766 (2002).

I

The defendant’s first claim is that the court failed to determine the critical question in this case in its analysis of whether the proposed relocation was in the best interests of the minor child. According to the defendant, once the court found that her request to relocate was for a legitimate purpose and that the proposed location was reasonable in light of that purpose, the court then was obligated to determine “whether it is in the minor child’s best interests to relocate to Boston with [the defendant] or remain behind in Connecticut despite her relocation.” The defendant argues that the court, after finding that she had satisfied the first two of the three prongs of § 46b-56d (a) by a preponderance of the evidence, had to assume that the defendant would “in fact” move to Boston and leave the parties’ minor son behind under a different custodial arrangement. She claims that had the court made that assumption in its statutory analysis, it would have concluded that it was in the minor child’s best interests to move to Boston with the defendant.

The resolution of the defendant’s claim requires that we interpret the provisions of § 46b-56d. “Issues of statutory construction raise questions of law, over which we exercise plenary review. . . . The process of statutory interpretation involves the determination of the meaning of the statutory language as applied to the facts of the case, including the question of whether the language does so apply.” (Internal quotation marks omitted.) Felician Sisters of St. Francis of Connecticut, Inc. v. Historic District Commission, 284 Conn. 838, 847, 937 A.2d 39 (2008).

“When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In seeking to determine that meaning, General Statutes § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.” (Internal quotation marks omitted.) Alvord Investment, LLC v. Zoning Board of Appeals, 282 Conn. 393, 401-402, 920 A.2d 1000 (2007). “The test to determine ambiguity is whether the statute, when read in context, is susceptible to more than one reasonable interpretation.” (Internal quotation marks omitted.) Alexson v. Foss, 276 Conn. 599, 605, 887 A.2d 872 (2006).

Section 46b-56d (a) expressly provides that a parent proposing the relocation of his or her minor child must prove by a preponderance of the evidence that (1) the relocation is for a legitimate purpose, (2) the proposed location is reasonable in light of that purpose and (3) the relocation is in the best interests of the child. Subsection (b) of the statute then identifies the factors to be considered by the trial court in determining whether a request for relocation should be approved. Although the defendant claims that the statute requires a court to assume that the parent that proposes the relocation will relocate if the court finds that such parent has met his or her burden with respect to the first two of the three prongs of § 46b-56d (a), the statute clearly contains no such requirement.

“We are not free ... to create ambiguity when none exists ... we cannot accomplish a result that is contrary to the intent of the legislature as expressed in [a statute’s] plain language. ... [A] court must construe a statute as written. . . . The intent of the legislature, as [our Supreme Court] has repeatedly observed, is to be found not in what the legislature meant to say, but in the meaning of what it did say.” (Internal quotation marks omitted.) LaPlante v. Vasquez, 136 Conn. App. 805, 814, 47 A.3d 897 (2012). “[T]his court cannot, by judicial construction, read into legislation provisions that clearly are not contained therein.” (Internal quotation marks omitted.) Stone-Krete Construction, Inc. v. Eder, 280 Conn. 672, 682, 911 A.2d 300 (2006); see Walter v. State, 63 Conn. App. 1, 8, 774 A.2d 1052 (“We are also mindful that [t]he court may not, by construction, supply omissions in a statute or add exceptions or qualifications, merely because it opines that good reason exists for so doing. ... In such a situation, the remedy lies not with the court but with the General Assembly.” [Internal quotation marks omitted.]), cert. denied, 256 Conn. 930, 776 A.2d 1148 (2001).

We conclude that the relocation statute does not require the analysis claimed by the defendant, and we decline her invitation to read an additional criterion into the statute. The court would have had to speculate that the defendant would move to Boston even if her motion to modify the parenting provisions of the dissolution agreement was denied. When asked during the trial whether she planned to relocate regardless of the court’s decision, the defendant testified that she did not know what she would do. Ronald Naso, the court-appointed neutral evaluator, testified that he had interviewed the defendant and that she “made it very clear to me from the outset that she would not relocate without [the parties’ son].”

We also note that the defendant never argued, during closing arguments before the trial court or in her post-trial brief, that the court had to assume she would relocate if it found that she had met her burden of proof with respect to the first two of the three prongs of § 46b-56d (a). “Practice Book § 60-5 provides in relevant part: The court shall not be bound to consider a claim unless it was distinctly raised at the trial .... Moreover, [i]t is well settled that a trial court can be expected to rule only on those matters that are put before it. . . . Put another way, [t]o permit a party to raise a different ground on appeal than [that] raised during trial amounts to trial by ambuscade, unfair to both the trial court and to the opposing party.” (Citation omitted; internal quotation marks omitted.) Spears v. Elder, 124 Conn. App. 280, 293-94, 5 A.3d 500, cert. denied, 299 Conn. 913, 10 A.3d 528 (2010). For all of the foregoing reasons, the defendant’s first claim fails.

II

The defendant’s next claim is that the court based its determination that the proposed relocation was not in the best interests of the minor child on two improper considerations. Specifically, she argues that the court “penalized” her for having (1) married an out-of-state husband and having two children with him and (2) made previous requests to relocate to Massachusetts. The defendant maintains that the court’s “punitive approach” arose from its substitution of “its own idiosyncratic public policy views for the public policy as enacted by the legislature.”

Our careful review of the court’s decision reveals an evenhanded, thoughtful and meticulous analysis of the statutory criteria as applied to the facts of this case. We first emphasize that the criteria set forth in § 46b-56d (b), which a court is required to consider in determining whether to approve a proposed relocation of a child, are not all inclusive. Section 46b-56d (b) lists five factors for consideration but expressly states that “consideration shall not be limited to” those five factors. Clearly the intent of the statute was to provide a trial court with flexibility in its assessment of competing interests.

In its sixteen page memorandum of decision, the court, in two sentences, addresses the defendant’s remarriage and previous attempts to relocate the parties’ minor child in the section titled “[t]he degree to which the relocating parent’s and the child’s life may be enhanced economically, emotionally and educationally by the relocation.” See General Statutes § 46b-56d (b) (4). After reciting the defendant’s claims of the hardships the family unit has endured because of Powell’s commute to Boston, the court noted: “[T]he defendant and Powell married and had children with the full knowledge of the court’s orders and that the defendant had twice been denied relocation. While the court generally believes that the primary residential parent should be given some latitude in these cases and that one should not be totally bound by earlier life decisions, there is a distinct difference in this case from one in which no prior efforts to move in the past has been litigated.”

The record fully supports the court’s statements. At the time of the dissolution, the defendant wanted to relocate with the parties’ son to Springfield, Massachusetts, and the plaintiff strongly opposed the relocation. When the report from the family relations office recommended against the relocation, the defendant agreed to remain in Connecticut. The “32.5 driving miles” restriction was agreed to by the parties and incorporated into the dissolution judgment. Less than two years later, the defendant filed a motion to relocate with their son to Boston. After the matter was litigated at trial, the court denied her motion. She subsequently filed this second postdissolution motion to relocate with the parties’ son to Boston. During the trial on the present motion, Powell testified that he was aware of the dissolution agreement’s mileage restriction and of the defendant’s previous unsuccessful attempts to relocate to Massachusetts with the parties’ son prior to marrying the defendant. After the defendant and Powell married, their fives were impacted by the distance between the minor child’s primary residence in Stamford and Powell’s residence in the Boston area. Considerable evidence was presented to the court regarding the problems engendered by maintaining residences in the Boston area and Stamford. The court, while not unsympathetic to the situation, accurately pointed out that the defendant and Powell married with the knowledge that these restrictions were in place.

It was not improper for the court to mention these facts in its decision. Moreover, we find absolutely no support whatsoever for the defendant’s position that the court penalized the defendant for marrying and having children with an out-of-state husband or for making previous requests to relocate with the parties’ son. Accordingly, the defendant’s second claim fails.

Ill

The defendant’s third claim is that the court improperly required that she prove that the proposed relocation was an economic necessity. She argues that the court held her to a higher standard than the criterion set forth in the relocation statute. One of the listed factors for consideration in § 46b-56d (b) is “the degree to which the relocating parent’s and the child’s life may be enhanced economically, emotionally and educationally by the relocation.” General Statutes § 46b-56d (b) (4). It is the defendant’s position that the court ignored the ways in which their lives would be enhanced and, instead, imposed the burden that she prove the economic necessity for the relocation.

As previously discussed, the defendant presented extensive evidence at trial about Powell’s employment obligations in Boston and that he was the sole financial provider for their family unit. Additionally, the defendant presented evidence that allegedly demonstrated that Powell’s annua! income had decreased as the result of his travel time in commuting between households and that his continued employment with his current firm was in jeopardy unless he committed himself to the Boston office five full workdays a week. In the defendant’s posttrial brief, she claimed that “[t]he evidence shows that the current situation is unsustainable and would lead to the termination of Mr. Powell’s employment in Boston.” The defendant clearly was attempting to impress upon the court her perceived seriousness of their financial situation if the court denied her motion to relocate with the minor child.

In the section of the court’s decision titled “[t]he degree to which the relocating parent’s and the child’s life may be enhanced economically, emotionally and educationally by the relocation,” the defendant now challenges the last sentence. The court, after a two page discussion, stated: “The court cannot find that the defendant has established the economic necessity of the requested relocation by a preponderance of the evidence.” That is the only reference to the words “economic necessity” in the entire decision. Significantly, the court referenced the correct statutory criterion from § 46b-56d (b) in the title and made appropriate factual findings in connection with that criterion prior to its sole reference to “economic necessity.”

In considering the fourth factor in subsection (b) of the statute, the court found: (1) “[e]conomica!ly and educationally, there will be little if any change unless Powell continues to ignore his employment responsibilities and is terminated from his job”; (2) the evidence at trial demonstrated that Powell could commute by train to Boston to increase the time at work; (3) the evidence at trial demonstrated that Powell held licenses that would allow him to be employed in a number of different positions within the financial services industry; (4) the evidence at trial demonstrated that the defendant and Powell had given “little if any thought” to alternative plans beyond moving to Boston, such as relocating within the mileage restriction to the New Haven area; and (5) although relocation to Boston would be “easier” on Powell and “nicer” for the defendant, it was “far less clear how it would directly benefit the minor child.” Thus, although the court stated that the defendant failed to establish the economic necessity for the relocation, the decision reflects that the court properly and carefully analyzed the evidence pursuant to the statutory criterion.

If the court improperly used the word “necessity” in a single sentence of the opinion, after correctly stating the appropriate statutory criterion and analyzing the evidence pursuant to that criterion, we conclude that the error was harmless. See Berry v. Berry, 88 Conn. App. 674, 678, 870 A.2d 1161 (2005). When the discussion in the decision is taken as a whole, the mistaken use of the word “necessity” does not undermine our confidence in the court’s conclusions.

IV

The defendant’s final claim is that the court misconstrued the relocation statute as it relates to the needs and interests of the plaintiff. It is the defendant’s position that the court “treated the relationship between [the plaintiff] and [the parties’ minor child] as sacrosanct, such that any change in the current parenting plan was intolerable.” (Emphasis in original.) She argues that the court improperly rejected her suggested alternative visitation arrangements as being an unsuitable substitute for parenting time, instead of focusing on the fact that the father-son relationship would not end. In doing so, the defendant claims that the court’s conclusions were contrary to the provisions of the relocation statute.

This claim of the defendant focuses on the court’s analysis of two of the statutory factors for consideration, namely, “the impact of the relocation on the quantity and the quality of the child’s future contact with the nonrelocating parent”; General Statutes § 46b-56d (b) (3); and “the feasibility of preserving the relationship between the nonrelocating parent and the child through suitable visitation arrangements.” General Statutes § 46b-56d (b) (5). As is often the situation in relocation cases, the trial court was faced with the daunting task of assessing and weighing the competing interests of the parents and determining the best interests of the minor child in light of those competing interests. “We recognize the difficult issues that relocation cases present. The interests of the custodial parent who wishes to begin a new life in a new location are in conflict with those of the noncustodial parent who may have a strong desire to maintain regular contact with the child.” (Internal quotation marks omitted.) Taylor v. Taylor, 119 Conn. App. 817, 824, 990 A.2d 882 (2010). “Trial courts frequently and regrettably must address situations in which no feasible solution is ideal.” Emrich v. Emrich, 127 Conn. App. 691, 704, 16 A.3d 1104 (2011).

It was undisputed that the proposed relocation with the parties’ minor son to Boston would eliminate the midweek overnight visits and the Sunday overnight visits on alternating weekends with the plaintiff. Additionally, the relocation would not allow for the plaintiffs active participation in their son’s sporting activities and events. Because the defendant recognized that it would be difficult for the minor child to travel from Boston to Fairfield and back every alternating weekend, she proposed that the plaintiff travel to Boston one weekend per month and visit with their son in a hotel room.

With that evidence before the court, it made the following findings in its memorandum of decision: (1) it was very clear that the quality, if not the quantity, of the plaintiffs contact with their son would be “significantly diminished”; (2) the father-son relationship would be changed from that of an active and involved parent with a willing and eager child to that of a very involved visitor; (3) the plaintiff would no longer be able to coach his son on a regular basis or spend casual mid-week evenings with him; (4) the plaintiffs relationship with his son is based on their frequent contact and repeated interaction with respect to a panoply of different interests and activities; (5) this relationship “can be preserved only by the father and son continuing to live in the relative close proximity that they now enjoy”; and (6) although alternate visitation arrangements could be made that might provide the plaintiff with the same, or perhaps even more, total time with his son, any extra time would not necessarily preserve the relationship because “[distance and travel combined with parental time in a hotel setting rather than their home can negate added opportunity afforded by more time.” For those reasons, the court concluded that the proposed relocation was not in the best interests of the minor child.

We are persuaded that the court carefully applied the statutory criteria to the evidence presented at trial in reaching its determination. Although the defendant claims that the court misapplied the criteria and would not allow any change in the parenting plan, we believe that the court’s well reasoned decision belies that argument. It is understandable that the defendant disagrees with the ultimate conclusion of the court, but the evidence at trial supports that conclusion. The court did not misapply the law nor did it abuse its discretion in denying the defendant’s postdissolution motion to relocate the parties’ son to Boston.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant is now known as Siobhan B. Jones.

       In 2006, the legislature enacted Public Acts 2006, No. 06-168, codified as § 46b-56d, which sets forth the analysis a court is required to apply when deciding a postjudgment motion to relocate with a parent’s minor child. Taylor v. Taylor, 119 Conn. App. 817, 821, 990 A.2d 882 (2010).

       The agreement further contained a vacation and holiday schedule.

       After the dissolution action was commenced but before judgment was rendered, the defendant had indicated that she wanted to relocate to Springfield, Massachusetts, with their minor son. In May, 2004, the court ordered a relocation, custody and access evaluation by the family relations office. The completed study recommended against the relocation. The defendant ultimately agreed to remain in Connecticut, and the parents executed the dissolution agreement containing the “32.5 driving miles” restriction.

       For reasons that are not relevant to this appeal, the defendant refiled that motion with the court on March 15, 2006.

       General Statutes § 46b-56d provides: “(a) In any proceeding before the Superior Court arising after the entry of a judgment awarding custody of a minor child and involving the relocation of either parent with the child, where such relocation would have a significant impact on an existing parenting plan, the relocating parent shall bear the burden of proving, by a preponderance of the evidence, that (1) the relocation is for a legitimate purpose, (2) the proposed location is reasonable in light of such purpose, and (3) the relocation is in the best interests of the child.
      “(b) In determining whether to approve the relocation of the child under subsection (a) of this section, the court shall consider, but such consideration shall not be limited to: (1) Each parent’s reasons for seeking or opposing the relocation; (2) the quality of the relationships between the child and each parent; (3) the impact of the relocation on the quantity and the quality of the child’s future contact with the nonrelocating parent; (4) the degree to which the relocating parent’s and the child’s life may be enhanced economically, emotionally and educationally by the relocation; and (5) the feasibility of preserving the relationship between the nonrelocating parent and the child through suitable visitation arrangements.”

       The defendant testified that she made no such statement to Naso. The court, of course, as the sole arbiter of credibility, was free to accept Naso’s testimony. See Emrich v. Emrich, 127 Conn. App. 691, 701 n.3, 15 A.3d 1104 (2011).

       In her appellate brief, the defendant states: “The court further expressed ‘no doubt’ that, if relocation were granted, a parenting schedule could be arranged that would provide [the plaintiff] with the same ‘or perhaps even more’ time with his son. None of this was good enough for the trial court. But it is good enough for the legislature, and reversal is required for that reason.” (Citation omitted; emphasis in original.)

       The plaintiff testified that he coached his son’s little league baseball and flag football teams.

       The plaintiff resides in Fairfield. He testified that he kept the marital home because their son had lived there from the time of his birth until the divorce, and the plaintiff felt it that it was important that their son “have the same [bed]room, have the same yard, have the same family room, have the same dog, have the same location and the familiarity with my house.”

       She also indicated that she and Powell might purchase a home in the Boston area in the future and that, if economically feasible, they might keep Powell’s condominium unit and permit the scheduled visitation to take place there.


text:
    DIANNE MCGRATH v. KEITH B. GALLANT ET AL.
    (AC 34552)
    DiPentima, C. J., and Alvord and Pellegrino, Js.

      Argued February 13
    officially released June 4, 2013

      Joseph P. Secóla, for the appellant (plaintiff).

      Eric L. Sussman, with whom, on the brief, was Glenn W. Dowd, for the appellees (defendants).
   Opinion

ALVORD, J.

The plaintiff, Diaime McGrath, appeals from the judgment of the trial court upholding two orders of the Probate Court for the district of West Hartford that, inter alia, awarded fiduciary and attorney’s fees to the defendants, Keith B. Gallant and Day Pitney, LLP. The plaintiff claims that the fiduciary fees that Gallant received as the executor of the will of William P. McGrath (decedent) and the trustee of the decedent’s revocable trust (trust), and the attorney’s fees that Gallant and Day Pitney, LLP, received as counsel for the estate of the decedent (estate), were unreasonable and excessive. Specifically, the plaintiff: (1) claims that the trial court did not properly make an independent determination of the reasonableness of the fiduciary and attorney’s fees using the factors set forth in Hayward v. Plant, 98 Conn. 374, 384-85, 119 A. 341 (1923) (Hayward factors); and (2) urges this court to adopt a rule limiting the fiduciary and attorney’s fees that can be collected from an estate to an amount proportionate to the size of the estate. We disagree with the plaintiffs claim that the court improperly applied the Hayward factors, and we decline the plaintiffs invitation to create new law. Accordingly, we affirm the judgment of the trial court.

The following facts were found by the trial court or are undisputed. The plaintiff and her two brothers are the children and the beneficiaries of the will and the trust of the decedent. At the time of the decedent’s death, his estate consisted of liquid assets of nearly $850,000 and a parcel of real property in the Bahamas valued at approximately $800,000. The liquid assets were distributed within two years of the decedent’s death, but the Bahamian property has not been sold. Since the decedent died, the Bahamian property has suffered erosion, and its price has been reduced significantly from the initial listing price of $800,000.

Animosity between the plaintiff and her brothers existed prior to the decedent’s death; the plaintiffs brothers imposed a conservatorship on the decedent and the plaintiff hired Gallant, an attorney with Day Pitney, LLP, who was successful in having the conserva-torship removed. Thereafter, the decedent hired Gallant to make changes to his will and to create the trust. Prior to the modification of the decedent’s will, the three children were to receive equal shares of the estate, but the will was altered to reflect the decedent’s desire that the plaintiff receive a proportionally greater share of the estate than her brothers.

Given the history of strife among his children, the decedent anticipated that the animosity among the siblings would only escalate after his death. He inserted an in terrorem clause into his will and, believing that an attorney could best navigate the issues that his contentious children would present in the settlement of his estate, he engaged Gallant to serve as the executor of his will and the trustee of the trust. Unfortunately, the decedent was proven prescient and correct; after he died, the siblings fought incessantly.

The trial court recounted in its memorandum of decision that “[a] partial list of the issues dealt with by Gallant includes the plaintiffs request for an advance of funds and/or loan from the trust; the choosing of a listing agent for the Bahamian real estate; the lowering of the sales price of the Bahamian real estate; the presentation of a Bahamian will which would have resulted in a will contest in the Bahamas; access by the beneficiaries to the Bahamian property; a will contest threatened by [the decedent’s] sons in Connecticut; and the alleged removal of personal property from [the decedent’s] residence.” The defendants’ expert witness, who reviewed the materials that detailed the requests the siblings made of Gallant, testified that “the contentiousness [between the beneficiaries is] at a level I have only seen once in some forty-four years of this work.” The plaintiff’s expert witness conceded that the extensive quarrelling among the siblings made settling the estate “a very difficult matter.” One of the strategies Gallant used to try to quell the siblings’ animosity was to directly and unequivocally tell them the truth: their constant quarrelling was resulting in fees that were diminishing the estate.

The court noted that Gallant testified that his approach to dealing with the contentiousness of the siblings was to try to build consensus. Though consensus building was difficult and time-consuming, Gallant’s rationale for taking this approach was that it ultimately would be beneficial to the estate because it would prevent costly litigation among the beneficiaries. For example, the threatened will contests, to which the court referred in its memorandum of decision, arose because the decedent had left wills in both Connecticut and the Bahamas. The plaintiffs brothers retained counsel and notified Gallant that they intended to challenge the validity of the wills. The court credited Gallant’s uncon-tradicted testimony that such litigation could have consumed the entirety of the estate’s assets.

To date, the Probate Court has awarded the defendants approximately $211,000 in fiduciary and attorney’s fees relating to the settlement of the decedent’s estate. The first payment, in the amount of approximately $91,000, compensated the defendants for work for the time period of January 28, 2008 to February 1, 2009. That disbursement was not contested at the time it was made, nor is it contested in this appeal. On March 9,2010, the Probate Court, without conducting a hearing on the record, awarded the defendants fiduciary and attorney’s fees in the amount of approximately $120,000 for the time period of February 1, 2009 to January 31, 2010. The plaintiff appealed that second award to the Superior Court, claiming that it was unreasonable, excessive and in violation of the principles of Hayward v. Plant, supra, 98 Conn. 384-85. The plaintiff argued that, given the size of the estate, the defendant’s legal and fiduciary fees should not exceed $100,000 in total, including the initial uncontested payment of $91,000. The court conducted a trial over the course of two days, and rendered a judgment in favor of the defendants. This appeal followed.

I

“Under [Connecticut] law an executor, administrator, trustee or guardian is entitled to a reasonable compensation for his services, depending upon the circumstances of the case.” Id., 384. In Hayward, our Supreme Court set forth nine factors for the trial court to consider when determining the reasonableness of such compensation: (1) the size of the estate; (2) the responsibilities involved; (3) the character of the work required; (4) the special problems and difficulties met in doing the work; (5) the results achieved; (6) the knowledge, skill and judgment required of and used by the executors; (7) the manner and promptitude with which the estate has been settled; (8) the time and service required; and (9) any other circumstances which may appear in the case and are relevant and material to this determination. Id., 384-85.

When there is no record made before the Probate Court, the Superior Court, on appeal, must conduct a trial de novo. Andrews v. Gorby, 237 Conn. 12, 16, 675 A.2d 449 (1996). When a Superior Court reviews the reasonableness of fiduciary and attorney’s fees awarded by the Probate Court, and no record was made before the Probate Court, the Superior Court must apply the factors set forth in Hayward and make “an independent determination, with regard to the result reached by the [P]robate [C]ourt.” (Internal quotation marks omitted.) Id.

“It is well established that we review the trial court’s decision to award attorney’s fees for abuse of discretion.” (Internal quotation marks omitted.) Gianetti v. Norwalk Hospital, 304 Conn. 754, 815, 43 A.3d 567 (2012). Likewise, when we review a trial court’s decision to award fees to an executor, administrator or trustee, “[t]he test is, has the court exercised a reasonable discretion, or, in other words, is its exercise so unreasonable as to constitute an abuse of discretion.” Hayward v. Plant, supra, 98 Conn. 382. “This standard applies to the amount of fees awarded . . . and also to the trial court’s determination of the factual predicate justifying the award. . . . Under the abuse of discretion standard of review, [w]e will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion. . . . [Thus, our] review of such rulings is limited to the questions of whether the trial court correctly applied the law and reasonably could have reached the conclusion that it did.” (Internal quotation marks omitted.) Gianetti v. Norwalk Hospital, supra, 815. When determining whether the trial court used the appropriate legal standard, our review is plenary. Costantino v. Skolnick, 294 Conn. 719, 730, 988 A.2d 257 (2010).

In this appeal, the plaintiff first claims that the Superior Court did not follow the mandate of Andrews v. Gorby, supra, 237 Conn. 16, and make an independent determination of the reasonableness of the awarded fees in light of the factors set forth in Hayward v. Plant, supra, 98 Conn. 384-85. Our review of whether the court followed Andrews is a question of whether the court used the proper legal standard and, therefore, requires plenary review. The question of whether the court properly applied the factors in Hayward to the facts of this case and determined that the defendants were entitled to receive compensation is reviewed under an abuse of discretion standard.

With regard to the question of whether the court used the proper legal standard, we conclude that the court made an independent determination pursuant to Andrews after a two day trial. It produced a written memorandum of decision, which provided in part: “When applying the standards set forth in Hayward v. Plant, the court finds that the fees charged by the defendants are reasonable under the unusual circumstances presented here.” There is no error in the legal standard applied by the court.

With regard to the determination of whether, under the facts of this case, the defendants were entitled to fiduciary and attorney’s fees in the amount of approximately $120,000—in addition to the prior uncontested award of fiduciary and attorney’s fees in the amount of approximately $91,000—the plaintiff argues that the court did not properly consider two Hayward factors: the results achieved in the settlement of the decedent’s estate (results factor), and the promptitude with which the estate has been settled (promptitude factor). The principal question, therefore, is whether the court abused its discretion by determining that the facts of this case, as applied to results and promptitude factors, support a conclusion that the defendants are entitled to fiduciary and attorney’s fees in the amount submitted to the Probate Court.

At trial, the plaintiff conceded that the billing records submitted by the defendants to the Probate Court accurately reflected the work that the defendants performed, but she advanced an argument that much of that work was unnecessary and could have been avoided had Gallant been more decisive in his actions with regard to the estate. Her primary argument is that Gallant’s inability to sell the Bahamian property in a timely fashion and the erosion that occurred on the property during the time the property was for sale support a reduction of fiduciary and attorney’s fees under Hayward’s results and promptitude factors. The court, however, was presented with evidence of the siblings’ contentiousness and litigious nature, and determined that “an extensive amount of time was spent by Gallant in dealing with issues raised by the beneficiaries.” Among the myriad issues created by the beneficiaries included bickering about the listing price of the Bahamian property, a dispute which impacted the promptitude with which Gallant could dispose of the property. While the plaintiff argues that Gallant should have acted unilaterally and more decisively when the three siblings were unable to reach a consensus, the court noted that Gallant, through an approach whereby he sought to build a consensus among the siblings, “was able to avoid the filing of a will contest in the state of Connecticut and ultimately avoid a will contest in the Bahamas,” which could have consumed the entirety of the estate’s assets. The court, therefore, did not abuse its discretion in considering Gallant’s ability to prevent the siblings from depleting the assets of the estate through needless litigation, or in considering the time spent by Gallant dealing with issues created by the beneficiaries, as this factual predicate was critical to addressing the results and promptitude factors pursuant to Hayward. Likewise, the court did not abuse its discretion in rendering judgment for the defendants and approving the fiduciary and attorney’s fees as submitted to the Probate Court after considering the factual circumstances of this case in light of the nine Hayward factors.

II

The plaintiff next claims that this court should create a new law proclaiming that the fiduciary and attorney’s fees awarded to an executor or a trustee are limited in proportion to the size of the estate. The inspiration for this proposed change in the law is In re Estate of Bernadine Ordner and Estate of William Ordner, Probate Court, district of Stratford (July 11, 2008) (22 Quinnipiac Prob. L.J. 104 [2009]). In that opinion, the Probate Court, Hon. F. Paul Kurmay, retroactively reduced by one-third the hourly fiduciary and attorney’s fees rates that a law firm charged in the settlement of an estate because “[t]he [e]state simply cannot afford them.” Id., 114. In that case, the fees were nearly 50 percent of the estate and Judge Kurmay reduced them to approximately 28 percent. He suggested that “[t]here simply must be a practical limit to the percentage of an estate claimed by attorney’s and fiduciary fees,” and provided a process for achieving this objective: “When it appears that the fees of an attorney will be so high as to substantially erode the distributive share of the beneficiaries, it is the duty of the attorney to bring the dilemma to the [c]ourt’s attention, so that the [c]ourt may bring it to the attention of the estate beneficiaries. . . . After a hearing, the parties and the [c]ourt must decide whether the disproportionately high attorney’s fees are worth it—whether the continued incursion of additional fees will have a beneficial effect upon the bottom line, the distributive share . . . .’’ Id., 113.

We decline to adopt Judge Kurmay’s recommended procedure, which was bom out of a case that “involved more contentiousness, disputes, arguments, correspondence, pleadings, memoranda of law and judicial hearings than any other decedent’s estate [that Judge Kurmay had encountered] in [his] thirty years on the [b]ench.” Id., 108-109. While we do not discourage an attorney from communicating with the court and/or the beneficiaries of an estate if the fees are escalating beyond what is typical in an estate settlement, we decline to require the procedural steps that Judge Kur-may suggests. Further, we do not accept the plaintiffs suggestion to adopt as law Judge Kurmay’s opinion, which allows for the retroactive reduction of fiduciary and attorney’s fees on the basis of the size of the estate alone. Size of the estate is one of the factors our Supreme Court set forth in Hayward, and as such, it should be considered by a court in determining whether fiduciary and attorney’s fees are reasonable. It is, however, one of nine factors. Elevating it to the dispositive level suggested by the plaintiff and Judge Kurmay would run afoul of the sound holistic approach to reasonableness our Supreme Court set forth nearly a century ago.

The judgment is affirmed.

In this opinion the other judges concurred.

       An in terrorem, or no-contest, clause is “[a] provision designed to threaten one into action or inaction; esp., a testamentary provision that threatens to dispossess any beneficiary who challenges the terms of the will.” Black’s Law Dictionary (9th Ed. 2009).

       The plaintiff claims that the court did not follow Andrews because it did not make an independent determination with regard to certain facts, such as whether Gallant followed the correct course of action by not aggressively lowering the price on the Bahamian property in an attempt to facilitate a quicker sale. Specifically, the plaintiff criticizes the court for crediting Gallant’s testimony and determining that “[Gallant] was ultimately in a better position than anyone else to know [the totality of the circumstances]. . . . Gallant acted in a manner which, in his opinion, protected the estate, the trust and its beneficiaries.” Ironically, the plaintiff argues that court violated Andrews by deferring to Gallant’s opinion, and, instead, should have credited the opinion of her expert who testified that he would have reduced the listing price of the property every sixty to ninety days until it sold. The court was confronted with differing opinions and, after listening to both parties’ arguments, made an independent determination that Gallant’s actions were proper, noting: “Gallant’s testimony with respect to the listing and handling of the issues surrounding the Bahamian property is credible and bolstered by the fact of his experience in other estates which have held real estate in the Bahamas.” Crediting certain witnesses in light of the totality of the circumstances does not run afoul of Andrews-, rather it is exactly what Andrews prescribes.