text:
    STATE OF CONNECTICUT v. SHAWN PRESSEY
    (AC 34174)
    Beach, Sheldon and Bishop, Js.
    Argued March 12
    officially released April 9, 2013
   Per Curiam.

The judgment is affirmed.


source: Caselaw Access Project

author: LAVINE, J.

license: Public Domain

text:
    AFSCME, COUNCIL 4, LOCAL 2663 v. DEPARTMENT OF CHILDREN AND FAMILIES ET AL.
    (AC 33571)
    Lavine, Espinosa and West, Js.

      Argued December 11, 2012
    officially released April 16, 2013

      Thomas P. Clifford III, assistant attorney general, with whom, on the brief, were George Jepsen, attorney general, and Philip M. Schulz, assistant attorney general, for the appellants (named defendant et al.).

      J. William Gagne, Jr., with whom, on the brief, was Kimberly A. Cuneo, for the appellee (plaintiff).

       The listing of judges reflects their seniority status on this court as of the date of oral argument.

   Opinion

LAVINE, J.

The defendant state of Connecticut office of labor relations, on behalf of the defendant department of children and families (collectively department), appeals from the judgment of the trial court, rendered pursuant to General Statutes § 52-418, vacating the arbitrator’s award, in which the arbitrator found just cause for the department to dismiss the grievant, Suzanne Listro, from employment. On appeal, the department claims that the court improperly vacated the arbitrator’s award. We agree and, therefore, reverse the judgment of the trial court.

The following procedural history and facts were found by the arbitrator, Susan R. Brown. The plaintiff, AFSCME, Council 4, Local 2663 (union), is the collective bargaining unit for department social workers, and Lis-tro is a member of the bargaining unit. The parties entered into a written collective bargaining agreement (agreement) that was in effect at all times relevant.

In May, 2008, Listro had been employed by the department as a social worker for approximately twelve years. At the time, Listro was contemplating adopting a second child and had obtained a foster home license issued by the department. On May 12,2008, the department placed a seven month old baby boy (baby) in Listro’s care. Listro took a one week leave of absence from employment to get the baby adjusted to her home in Mansfield. According to Listro, at first, the baby was fussy, cried a lot, arched his back and did not sleep well. The baby, however, calmed down and settled into a routine on the third day after Listro had changed his formula and the nipples on his bottle.

Listro returned to work on May 19, 2008, and left the baby and her three year old, adopted son together at a day care center. At the end of her workday, Listro got the children and went grocery shopping before returning home. After dinner, she took the children to her bedroom, where she turned on a video for her son to watch while she fed the baby. At approximately 7 p.m., Listro sent her son to his room to get his pajamas and placed the baby on the lower comer of the bed while she changed his diaper. Listro’s son returned to the bedroom and sat on the bed, and Listro stepped away from the bed to turn off the television and VCR located on the wall opposite the bed. While she was doing so, she heard a thud. When she turned around, Listro saw the baby lying on the linoleum-tiled floor crying and her son in the middle of the bed. When Listro picked up the baby, he became limp and unresponsive. Listro called 911 for assistance. While she waited for an ambulance, Listro administered rescue breaths to the baby.

The police and ambulance service responded to Listro’s home and transported the baby to Windham Hospital. From there, the baby was taken by Life Star helicopter to Connecticut Children’s Medical Center in Hartford. The baby was pronounced dead at 10:15 p.m. At 2 a.m., Listro was taken to the state police barracks where she gave a statement concerning the incident. Several weeks later, Wayne Carver, the state medical examiner, issued an autopsy report that concluded that the baby had died as the result of shaken baby syndrome. Listro was arrested on July 16, 2008, and charged with manslaughter in the first degree and risk of injury to a child. Listro was found not guilty of those charges.

The arbitrator also found that immediately after the baby’s death, the department assigned the matter to its special investigation unit to determine whether Listro had “committed abuse and/or neglect of a child” and whether she posed a risk to the welfare of children, pursuant to General Statutes § 17a-101g. (Emphasis added.) On or about July 3, 2008, the special investigation report substantiated the charge of abuse and neglect, and Listro was placed on the central registry of people deemed to pose a risk to the safety and well-being of children.

On July 17, 2008, the commissioner of children and families issued a statement stating in part: “Given [Listro’s] arrest and the seriousness of the charges, I am seeking her termination.” The department opened an investigation to determine whether discipline was warranted in light of the baby’s death. The department held a mandatory investigatory interview with Listro on July 23, 2008. On the advice of counsel, Listro declined to answer questions regarding the baby’s death. Immediately following the investigatory interview, the department conducted a hearing pursuant to Cleveland Board of Education v. Loudermill, 470 U.S. 532, 105 S. Ct. 1487, 84 L. Ed. 2d 494 (1985) (Loudermill). At the Loudermill hearing, the department gave Listro notice of potential disciplinary charges and provided her with an opportunity to respond. Again, on the advice of counsel, Listro did not respond.

On July 25, 2008, the department sent Listro a letter discharging her from employment. The letter stated in pertinent part: “Your actions represent a violation of State Administrative Regulations § 5-240-lc (4): Offensive or abusive conduct toward the public, co-workers, or inmates, patients or clients of state institutions or facilities; and § 5-240-lc (13): Engaging in any activity which is detrimental to the best interest of the agency or the state.”

The union filed a grievance with respect to Listro’s discharge. The grievance was denied at step three of the grievance procedure, and the union claimed the matter for binding arbitration pursuant to the agreement. The parties stipulated to the following submission: “Did the [department] have just cause to dismiss . . . Listro? If not, what shall be the remedy consistent with the terms of the collective bargaining agreement?” The arbitration hearing was held on July 26, November 4, and November 19„2010, and the arbitrator issued her award on December 22,2010. The arbitrator’s award stated in part: “In the totality of circumstances, there is just cause for . . . Listro’s separation from her employment at the [department . . . . The grievance is denied.”

The union then filed an application in the Superior Court seeking to vacate the arbitrator’s award pursuant to General Statutes § 52-418. In its application, the plaintiff alleged that the award should be vacated because (1) the arbitrator exceeded her powers, or so imperfectly executed them, that a mutual, final and definite award was not made, (2) the arbitrator was guilty of misconduct, and (3) the award is against public policy. The department filed a cross application to confirm the award pursuant to General Statutes § 52-417. Following the parties’ submission of briefs and oral argument, the court rendered judgment, which in its entirety stated: “The arbitrator exceeded her authority in using negligence as a standard and basis for the award. The charge of negligence was never made by the department at the Loudermill hearing or in the termination letter sent to [Listro]. The arbitration award is vacated and the matter referred to the arbitrators for a hearing.” The department appealed to this court.

On appeal, the department claims that the court improperly granted the union’s application to vacate the arbitration award denying the union’s grievance. More specifically, the department claims that the court exceeded its authority in vacating the award. We agree with the department.

The standard of review of arbitration awards is well established. See Industrial Risk Insurers v. Hartford Steam Boiler Inspection & Ins. Co., 273 Conn. 86, 92, 868 A.2d 47 (2005). “Judicial review of arbitral decisions is narrowly confined. . . . When the parties agree to arbitration and establish the authority of the arbitrator through the terms of their submission, the extent of our judicial review of the award is delineated by the scope of the parties’ agreement. . . . When the scope of the submission is unrestricted, the resulting award is not subject to de novo review even for errors of law so long as the award conforms to the submission.” (Internal quotation marks omitted.) Id., 92-93.

“Where the submission does not otherwise state, the arbitrators are empowered to decide factual and legal questions and an award cannot be vacated on the grounds that . . . the interpretation of the agreement by the arbitrators was erroneous. Courts will not review the evidence nor, where the submission is unrestricted, will they review the arbitrators’ decision of the legal questions involved.” (Internal quotation marks omitted.) Id., 93.

The parties’ submission to the arbitrator contained two questions. In this appeal, we are concerned only with the first, i.e., did the departihent have just cause to dismiss Listro. The department argues that the submission is unrestricted. We agree, as the first question contains no limitations; in particular, the submission does not exclude negligence as just cause for termination of employment.

When considering an appeal from the trial court’s ruling on an arbitration matter, “[o]ur inquiry generally is limited to a determination as to whether the parties have vested the arbitrators with the authority to decide the issue presented or to award the relief conferred.” (Internal quotation marks omitted.) State v. Connecticut State Employees Assn., SEIU Local 2001, 117 Conn. App. 54, 59, 978 A.2d 131 (2009). “In determining whether an arbitrator has exceeded the authority granted under the contract, a court cannot base the decision on whether the court would have ordered the same relief, or whether or not the arbitrator correctly interpreted the contract. The court must instead focus on whether the [arbitrator] had authority to reach a certain issue, not whether the issue was correctly decided. Consequently, as long as the arbitrator is even arguably construing or applying the contract and acting within the scope of authority, the award must be enforced.” (Internal quotation marks omitted.) Teamsters Local Union No. 677 v. Board of Education, 122 Conn. App. 617, 623, 998 A.2d 1239 (2010). “In other words, [u]nder an unrestricted submission, the arbitrators’ decision is considered final and binding; thus the courts will not review the evidence considered by the arbitrators nor will they review the award for errors of law or fact.” (Internal quotation marks omitted.) Harty v. Cantor Fitzgerald & Co., 275 Conn. 72, 80, 881 A.2d 139 (2005).

In this instance, the parties agree that article 16, §§ 1 and 2, of the agreement apply to the submission. Section 1 states in relevant part: “No permanent employee . . . shall be . . . dismissed except for just cause. Just cause may include but is not necessarily restricted to incompetency, inefficiency, neglect of duty, misconduct . . . .” (Emphasis added.) “Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms. A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity . . . .” (Internal quotation marks omitted.) Assn. Resources, Inc. v. Wall, 298 Conn. 145, 183, 2 A.3d 873 (2010). Neither party contends that the subject language in § 1 is ambiguous. Although § 1 of article 16 states with particularity four kinds of conduct that may constitute just cause, the language “but is not necessarily restricted to” does not exclude negligent conduct as just cause for dismissal. We therefore conclude that negligence arguably came within the purview of the agreement and was an appropriate term for the arbitrator to use to describe Listro’s conduct, which was the basis of her dismissal for just cause.

In her findings, the arbitrator identified the positions of the parties at the time of the arbitration. The department claimed, among other things, that it had the right to discipline its employees for off duty misconduct when there is a nexus to the employee’s job, which in this instance is the connection between the misconduct and the department’s mission to protect children. The union took the position that the department had failed to show a motive for Listro to cause the baby’s death and contended that the inconsistencies between Listro’s testimony and the autopsy findings do not necessarily suggest that a crime had been committed, or if a crime had been committed, that Listro was the perpetrator. The union requested that the arbitrator reinstate Listro and make her whole.

The arbitrator stated that, although the circumstances of the case were sad and difficult, it was important to keep in mind that the “horrific” outcome of Listro’s venture into foster care, i.e., the baby’s death, did not change the basic analysis of just cause. The arbitrator found that the department had failed to prove that Listro had shaken the baby or that no one else could have harmed him. Nonetheless, the arbitrator found a “strong” nexus between the conduct at issue and Listro’s employment. The arbitrator found that “[w]hile it is true that the conduct for which . . . Listro was terminated occurred off duty and was not in connection with her then-current assignment, it would be naive in the extreme to say that they are unrelated. [The department] in general, and social workers in particular, are charged with the safety of children in their care; an employee’s actions off the job in this regard cannot be divorced from that responsibility and the public trust necessary to accomplish the [department's task. Thus, [the department] had every right to investigate this matter and determine whether . . . Listro’s employment should be continued in light of the events leading” to the baby’s death. The arbitrator stated that the fact that Listro was found not guilty of the criminal charges had no impact on the department’s independent decision to terminate her employment as a social worker or on the arbitration.

The arbitrator found that Listro “was negligent in her care of’ the baby, as it was “her inattention” that permitted him to fall off her bed, and her lapse in judgment had “unusually serious consequences.” The arbitrator found that “[g]iven the totality of the circumstances,” although Listro was off duty, her actions “made her unemployable by the government agency responsible for the care and welfare of children.” The arbitrator therefore denied the grievance.

In its brief to the trial court, the union claimed that the arbitrator exceeded her authority and the award did not draw its essence from the agreement. The gravamen of the union’s argument was that, because the department failed to prove that Listro committed the fatal abuse that killed the baby, it had no just cause to terminate Listro’s employment. Moreover, the union argued that the arbitrator went outside the agreement when she found that Listro was dismissed for negligence, a charge that was never made in the Loudermill hearing or in the termination letter. The union claimed that the department relied on § 5-240-lc (4) and (13) of the Regulations of Connecticut State Agencies to dismiss Listro and that the arbitrator’s finding of negligence invoked a completely different standard from that articulated in the termination letter. The union makes similar arguments on appeal.

We disagree that the Loudermill hearing and the termination letter sent to Listro required the department to identify negligence as the reason for her dismissal. Section 2 of article 16 of the agreement required the department to explain “what evidence supports the imposition of the action that is being considered . . . .” See footnote 9 of this opinion. The termination letter identifies the conduct on which the department rested its decision to dismiss Listro. Negligence is a legal theory; Finkle v. Carroll, 134 Conn. App. 278, 284-85, 37 A.3d 851, cert. granted on other grounds, 305 Conn. 907, 44 A.3d 184 (2012); it is not evidence of conduct.

Throughout the proceedings, beginning with the notice of the Loudermill hearing, the department informed Listro that the issue was her serious off duty misconduct that led to her arrest. A hearing letter, dated July 18, 2008, stated that the “maximum level of discipline for serious off duty misconduct being considered is dismissal.” The termination letter did not put a label on Listro’s serious off duty misconduct but clearly identified her behavior and the events that constituted the serious off duty misconduct at issue. See footnote 5 of this opinion.

Moreover, the termination letter referenced and quoted § 5-240-lc (4) and (13) of the Regulations of Connecticut State Agencies. The department letter states: “Your actions represent a violation of State Administrative Regulations § 5-240-lc (4): Offensive or abusive conduct toward the public . . . clients of state institutions or facilities . . . and . . . (13): Engaging in any activity which is detrimental to the best interest of the agency . . . .” The arbitrator found a nexus or direct link between Listro’s off duty misconduct and her employment with the department, which is charged with the welfare of the state’s children. See General Statutes § 17a-90 (commissioner shall have general supervision over welfare of children who require care and protection of state).

Whether Listro’s behavior in placing the baby on the comer of her bed, turning away from him, and permitting him to fall to the floor, is labeled misconduct or negligence is of no consequence. Section 2 of article 16 of the agreement required the department to identify the evidence on which it relied.

We conclude that the parties’ submission to the arbitrator was unrestricted and do not find that the arbitrator was precluded from finding that Listro was negligent, which “arguably is” within the terms of the parties’ agreement. See Teamsters Local Union No. 677 v. Board of Education, supra, 122 Conn. App. 623. The court exceeded the standards of review applicable to arbitration awards by finding to the contrary and granting the union’s application to vacate.

The judgment is reversed and the case is remanded to the trial court with direction to render judgment confirming the arbitration award.

In this opinion the other judges concurred.

       The Connecticut State Board of Mediation and Arbitration was a defendant at trial, but is not a party to this appeal.

       Carver testified at the arbitration hearing. The arbitrator found that, according to Carver, the physical signs on the baby’s body were not consistent with death from a fall, but were consistent with death from shaken baby syndrome. This particularly was true because the retinas of the baby’s eyes had hemorrhaged, which is the most indicative symptom of shaken baby syndrome.

       On July 18, 2008, Jeanette Perez, assistant director of human resources, sent Listro a letter that stated in part: “Please be advised that an investigatory meeting has been scheduled for Wednesday, July 23, 2008 .... This meeting is to discuss your serious off duty misconduct that has lead to your arrest. . . .
      “If appropriate, a pre-disciplinary conference will be held immediately following the investigatory meeting. The purpose of the pre-disciplinary meeting will be to give you an opportunity to respond to any charges the Department may deem appropriate. . . .
      “The maximum level of discipline for serious off duty misconduct being considered is dismissal. Should you decline this opportunity to provide additional information or fail to attend the Investigatory meeting or the [Loudermill] hearing if held, disciplinary action will be determined and imposed based on the evidence available to us.” (Emphasis added.)

       Pursuant to Cleveland Board of Education v. Loudermill, supra, 470 U.S. 546, “due process entitles [a] tenured public employee to oral or written notice of the charges against him, an explanation of the employer’s evidence and an opportunity to present his side of the story before being terminated . . . .” (Emphasis in original; internal quotation marks omitted.) Burton v. Mottolese, 267 Conn. 1, 21, 835 A.2d 998 (2003), cert. denied, 541 U.S. 1073, 124 S. Ct. 2422, 158 L. Ed. 2d 983 (2004).

       On July 25, 2008, Heidi h¡cIntosh, deputy commissioner of children and families, sent Listro a letter that stated in part: “This letter is your official notification that you are dismissed from your position as a Children Services Consultant for the Bureau of Adolescent Services of the Department of Children and Families effective immediately upon close of the pre-disciplin-ary meeting held on July 23, 2008. This action is taken for just cause and is in compliance with your collective bargaining agreement and Administrative Regulations §§ 5-240-5a and 5-240-8a (b). Accordingly, this action is taken immediately due to your serious misconduct which affects the public, the safety and welfare of our clients.

      “On May 12, [2008], a seven month old baby was placed in your home for Foster Care. On May 19, 2008, the baby died while in your care. On July 16, 2008, you were arrested and charged with Manslaughter—First Degree and Risk of injury to a minor. You were afforded an opportunity to provide your version of events. You declined to proved a statement and/or answer any questions on the matter. During this meeting you were advised that your actions were deemed detrimental to the best interest of the agency and the state. You were also advised that the department would make a decision based on the information gathered without the benefit of your input.
      “The arrest warrant indicates that you provided a statement reporting that the child had fallen from the bed when you left him unattended while you ejected a tape from the VCR. However, the medical examiner has deemed that the injury to the child is not consistent with such a fall. Additionally, the Child Protective Services investigation on this matter has been substantiated. Your name has been placed on the Central Registry, meaning [the department] has deemed that you pose an ongoing risk to children.

        “Your actions represent a violation of State Administrative Regulations § 5-240-lc (4): Offensive or abusive conduct toward the public, co-workers, or inmates, patients or clients of state institutions or facilities; and § 5-240-lc (13): Engaging in any activity which is detrimental to the best interest of the agency or the state.

      “A [LoudermiU] meeting was conducted immediately following the investigatory meeting. You were afforded an opportunity to provide additional and/or mitigating information and to make statement as to why the agency should not take the action^being contemplated. The information provided by your union representatives did not serve to mitigate our decision. As such, we have determined that your continued employment with [the department] represents an unacceptable employment risk. Accordingly, due to the seriousness of these charges you were notified on July 23, 2008, that you were dismissed effective immediately. . . .” (Emphasis added.)

       The arbitrator found that at the time of the arbitration hearing, the baby’s biological parents had filed a civil action against the department, Listro and several others.

       In its application to vacate the award, the plaintiff did not allege that the award did not conform to the submission, as it does in its brief on appeal. We decline to decide issues that were not raised in the trial court. See Billboards Divinity, LLC v. Commissioner of Transportation, 133 Conn. App. 405, 409-11, 35 A.3d 395 (declining to consider argument on appeal that was not raised before trial court), cert. denied, 304 Conn. 916, 40 A.3d 783 (2012).

       The department filed a motion for articulation that was denied by the trial court. The department then filed a motion for review in this court; the motion for review was granted, but the relief requested was denied.

       Section 2 of article 16 of the agreement concerns the procedures to be followed if “management” decides to impose a dismissal and provides in relevant part: “Prior to a decision to . . . dismiss an employee, the appointing authority shall provide the employee with oral or written notice. . . . The notice shall include what form of action is being considered, shall contain a concise statemen' explaining what evidence supports the imposition of the action that is being considered and shall state a specific time and place for a meeting where the employee will be given an opportunity to present his side of the story and reasons why the employee feels that the action being considered should not be taken. . . .”

       The arbitrator found that, in 2008, Listro was assigned to the “Mentor Program, a position that consisted of recruiting community volunteers to work as mentors with adolescent girls living in [s]tate facilities, running programs for the mentor and mentees, and consulting with staff and mentors regarding issues raised in the program, among other duties.”

       The arbitrator found those consequences to be the death of a child, Listro’s arrest and subsequent criminal trial, loss of custody of her son, a pending civil suit and loss of her employment.


author: ALVORD, J.

text:
    JAMES LITTLE v. MACKEYBOY AUTO, LLC
    (AC 34489)
    DiPentima, C. J., and Gruendel and Alvord, Js.

      Submitted on briefs January 11
    officially released April 16, 2013

      Josephine Smalls Miller filed a brief for the appellant (defendant).

      Joanne S. Faulkner filed a brief for the appellee (plaintiff).
   Opinion

ALVORD, J.

The defendant, Mackeyboy Auto, LLC, appeals to this court following the denial of its motion to open and set aside the default judgment rendered by the trial court in favor of the plaintiff, James Little. On appeal, the defendant claims that the court abused its discretion in denying the motion because the defendant had not been served properly with process, and it had a valid defense to the plaintiffs claims. We affirm the judgment of the trial court.

The record reveals the following relevant factual and procedural history. The plaintiff commenced the present action on October 27, 2010, by service of process upon the defendant; the marshal’s return attested that such service was accepted by “Bill Mackeyboy, General Manager.” In his complaint, the plaintiff alleged that the defendant sold him a 1999 Volvo in July, 2009, and repossessed the vehicle in August, 2010. The plaintiff sought damages, claiming that the defendant failed to comply with various notice requirements of the Retail Installment Sales Financing Act and the Uniform Commercial Code and that it violated the Connecticut Unfair Trade Practices Act and the Creditors’ Collection Practices Act. The defendant did not file an appearance, and, accordingly, on December 15, 2010, the plaintiff filed a motion to default the defendant for failure to appear. The plaintiffs counsel certified that a copy of the motion had been mailed to the defendant at its business address in New Haven. After the motion was granted on December 23, 2010, the plaintiff filed a motion for judgment on the default, again certifying that a copy of the motion had been mailed to the defendant. The court scheduled a hearing in damages for April 13, 2011. At the hearing, the plaintiff presented his claim for damages and the court rendered judgment against the defendant, which was not present, in the total amount of $7217.80.

On April 15, 2011, the defendant filed an appearance. On May 12, 2011, the defendant filed a motion to open the default pursuant to Practice Book § 17-4. The defendant claimed that it had not been served properly because there was no one by the name of Bill Mackey-boy associated with the defendant. The plaintiff filed a memorandum in opposition to that motion on May 17, 2011. On May 19, 2011, the plaintiff filed an amended officer’s return, in which the marshal corrected his initial return and attested that Billy McNeilly, also known as William McNeilly, had accepted service on behalf of the defendant as general manager. The court denied the motion to open the default on May 26, 2011, for the stated reason that the case already had gone to judgment and the defendant had failed to pay the filing fee required for a motion to open a judgment.

On June 13, 2011, the defendant paid the requisite fee and filed a motion to open and set aside the default judgment rendered on April 13,2011. The motion stated that the judgment against the defendant “appears to have been rendered ... as a result of confusion or mistake . . . .” Together with the motion, the defendant filed a memorandum of law, in which it claimed that it was not served properly, that it failed to appear “as a result of a mistake, accident or other reasonable cause” and that it had a valid defense to the plaintiffs cause of action. The defendant also submitted an affidavit by McNeilly, in which he averred that there was no individual by the name of Bill Mackeyboy associated with the defendant and that he never was “properly served” with the plaintiffs action “either in [his] individual capacity or as registered agent for [the defendant].” The plaintiff filed his opposition to the motion on June 20,2011, and he filed supplemental documents opposing the motion on February 16, 2012, and March 1, 2012.

On March 19, 2012, the court denied the defendant’s motion to open and set aside the default judgment. In the order denying the motion, the court stated: (1) service of process on the defendant by serving McNeilly as the general manager was proper service under General Statutes § 62-57 (c); (2) although McNeilly was the registered agent for the defendant, serving him in his “capacity” as registered agent was not the exclusive means to serve process on the defendant; (3) the defendant had legal notice of the plaintiffs action; (4) the defendant did not deny that it had received the plaintiffs motion for default for failure to appear or the plaintiffs motion for judgment; and (5) the defendant failed to provide sufficient cause to open the judgment rendered upon the default. This appeal followed.

We begin with our standard of review. “The principles that govern motions to open or set aside a civil judgment are well established. A motion to open and vacate a judgment ... is addressed to the [trial] court’s discretion, and the action of the trial court will not be disturbed on appeal unless it acted unreasonably and in clear abuse of its discretion. ... In determining whether the trial court abused its discretion, this court must make every reasonable presumption in favor of its action. . . . The manner in which [this] discretion is exercised will not be disturbed so long as the court could reasonably conclude as it did. . . .

“To open a judgment pursuant to Practice Book § 17-43 (a) and General Statutes § 62-212 (a), the movant must make a two part showing that (1) a good defense existed at the time an adverse judgment was rendered; and (2) the defense was not at that time raised by reason of mistake, accident or other reasonable cause. . . . The party moving to open a default judgment must not only allege, but also make a showing sufficient to satisfy the two-pronged test [governing the opening of default judgments]. . . . The negligence of a party or his counsel is insufficient for purposes of § 52-212 to set aside a default judgment. . . . Finally, because the movant must satisfy both prongs of this analysis, failure to meet either prong is fatal to its motion.” (Citations omitted; internal quotation marks omitted.) Nelson v. The Contracting Group, LLC, 127 Conn. App. 45,48-49, 14 A.3d 1009 (2011).

In the present case, the defendant claims that the court abused its discretion in denying its motion to open and set aside the default judgment because McNeilly was not served with the action as the registered agent for the defendant limited liability company. The defendant’s entire argument is as follows: “Lack of proper service negates subject matter jurisdiction by the court, which therefore lacked legal means to enter a default or judgment against [the defendant]. . . . [The defendant] claimed a good and valid defense to one or more of the statutory or common-law counts pled against [the defendant].” The trial court, however, noted that McNeilly did not have to be served in his capacity as the registered agent of the defendant in order to effect proper service on the defendant. The court concluded that service on McNeilly as the general manager constituted proper service under § 52-57 (c).

As correctly noted by the trial court, there is no exclusive means for service on a limited liability company. Although General Statutes § 34-105 (a) provides that process “may be served upon the limited liability company’s statutory agent for service,” subsection (e) of § 34-105 expressly states that “[njothing contained in this section shall limit or affect the right to serve any process, notice or demand required or permitted by law to be served upon a limited liability company in any other manner permitted by law.” Accordingly, the trial court reasonably concluded that the defendant “was properly served with process” and had “legal notice of [the plaintiffs] suit.”

Although the trial court did not address the defendant’s claim that it had a proper defense to the plaintiffs action, it was not necessary for the court to make that determination because it found that the defendant failed to satisfy the second prong of the aforementioned test. See Nelson v. The Contracting Group, LLC, supra, 127 Conn. App. 49. The court found that the defendant did not show that its purported defense had not been raised by reason of mistake, accident or other reasonable cause. Significantly, the defendant never claimed that it had not received notice of the plaintiffs action. As reflected in the record, the plaintiffs counsel certified that copies of the motion for default for failure to appear and the motion for judgment on the default were mailed to the defendant at its business address in New Haven. The court noted in its denial of the defendant’s motion to open and set aside the default judgment that the defendant never claimed that it had not received those copies. The court, then, reasonably could have determined that the defendant had legal and actual notice of the plaintiffs action. On the basis of the record and the circumstances of this default, we conclude that the trial court did not abuse its discretion in denying the defendant’s motion to open and set aside the default judgment.

The judgment is affirmed.

In this opinion the other judges concurred.

       Under these circumstances, Practice Book § 17-43 is the appropriate section because it addresses the opening of judgments rendered upon a default or nonsuit.

       General Statutes § 52-57 (c) provides: “In actions against a private corporation, service of process shall be made either upon the president, the vice president, an assistant vice president, the secretary, the assistant secretary, the treasurer, the assistant treasurer, the cashier, the assistant cashier, the teller or the assistant teller or its general or managing agent or manager or upon any director resident in this state, or the person in charge of the business of the corporation or upon any person who is at the time of service in charge of the office of the corporation in the town in which its principal office or place of business is located. In actions against a private corporation established under the laws of any other state, any foreign country or the United States, service of process may be made upon any of the aforesaid officers or agents, or upon the agent of the corporation appointed pursuant to section 33-922.”

       General Statutes § 34-225 addresses the service of process on a foreign limited liability company, and also provides that process may be served on the foreign limited liability company’s statutory agent for service. Similar to § 34-105, it has a subsection that provides that “[njothing contained in this section shall limit or affect the right to serve any process, notice or demand required or permitted by law to be served upon a limited liability company in any other manner permitted by law.” General Statutes § 34-225 (d).
      The record in this case does not reflect whether the defendant is a Connecticut limited liability company or a foreign limited liability company.

       “A court should not open a default judgment in cases where the defendants admit they received actual notice and simply chose to ignore the court’s authority.” (Internal quotation marks omitted.) Woodruff v. Riley, 78 Conn. App. 466, 471, 827 A.2d 743, cert. denied, 266 Conn. 922, 835 A.2d 474 (2003).


author: LAVERY, J.

text:
    STATE OF CONNECTICUT v. ZACHERY MARTIN BOSWELL
    (AC 33896)
    DiPentima, C. X, and Alvord and Lavery, Js.

      Argued October 10, 2012
    officially released April 16, 2013

      Michael Zariphes, assigned counsel, for the appellant (defendant).

      Timothy J. Sugrue, assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, and Mirella J. Giambalvo, assistant state’s attorney, for the appellee (state).
   Opinion

LAVERY, J.

The defendant, Zachery Martin Boswell, appeals from the judgment of the trial court denying his petition for destruction of records, pursuant to General Statutes § 54-142d, of his conviction of sexual assault in the second degree in violation of General Statutes (Rev. to 2001) § 53a-71 (a) (1). On appeal, the defendant claims that the court erred in failing to follow the mandatory command of § 54-142d to order destruction of records of an offense when that offense has been decriminalized. We agree and reverse in part the judgment of the trial court.

The following facts and procedural history are not in dispute. On October 29, 2004, the defendant pleaded guilty under the Alford doctrine to sexual assault in the second degree (statutory rape) under § 53a-71 (a) (1). That 2001 revision of § 53a-71 (a) provided in relevant part: “A person is guilty of sexual assault in the second degree when such person engages in sexual intercourse with another person and ... (1) Such other person is thirteen years of age or older but under sixteen years of age and the actor is more than two years older than such other person . . . .” General Statutes (Rev. to 2001) § 53a-71 (a). The defendant was two years and five months older than the victim. The defendant was sentenced to ten years imprisonment, execution suspended after twenty months, and ten years probation. The plea resulted from negotiations in which the state agreed to replace the original information, which charged the defendant with sexual assault in the first degree under General Statutes § 53a-70 and risk of injury to a child in violation of General Statutes § 53-21.

In 2007, the legislature amended § 53a-71 (a) (1), changing the difference in age from two years to three years, thereby legalizing consensual sex between a person older than sixteen and a person between the ages of thirteen and sixteen if the age difference between them was less than three years. Public Acts 2007, No. 07-143, § 1 (P.A. 07-143).

On March 24, 2011, while charges were pending in Superior Court against the defendant for violation of probation in connection with an arrest in July, 2010, the defendant filed a petition for destruction of the record of his October, 2004 statutory rape charge, pursuant to § 54-142d. While that petition was pending, the defendant, on June 8, 2011, filed a motion to terminate his probation. The court, Westbrook, J., heard the petition for destruction of the record and the motion to terminate probation on June 21, 2011.

After hearing from the victim, the prosecution and the defendant, the court granted the motion to terminate probation, but denied the petition for destruction of the record. The court stated: “On the [petition] to decriminalize the offense, the court is going to deny that [petition]. The court is going to . . . grant the motion to terminate the probation. . . . The court’s not willing at this time, though, to decriminalize what happened, but I am going to terminate the probation.”

The defendant then made an oral motion for articulation regarding the denial of the petition for destruction of the record. The court articulated its decision in a written memorandum of decision dated July 19, 2011. In discussing the procedural history of the case, the court stated: “While the age difference between the defendant and [the] victim was two years and five months, thus providing a basis for the substituted sexual assault charge, the underlying facts of the case do not support the defendant’s claim that the sexual act was consensual. According to the statement provided by the victim in the arrest warrant, the defendant is alleged to have brandished a knife and made serious threats against the victim during the offense.”

The court went on to discuss the legal grounds supporting its decision to deny the petition for destruction, citing two statutes referred to as savings statutes: General Statutes §§ 1-1 (t) (general savings statute) and 54-194 (Penal Code savings statute). Citing State v. Graham, 56 Conn. App. 507, 511, 743 A.2d 1158 (2000), the court concluded that the holding in that case, that “savings statutes were enacted to prevent defendants from escaping punishment by allowing the state to pursue them under prior versions of the statute, regardless of whether the newer revision imposed a greater or lesser penalty,” applied to the defendant. The court stated that it was “not inclined to allow the defendant to escape the reach of the savings clause.” This appeal followed.

On appeal, the defendant claims that the court improperly applied the savings statutes to this case because they apply only to pending prosecutions, punishment proceedings or existing punishments where a statute has changed the punishment, and not to cases like the present one, in which the offense has been decriminalized and therefore, is not subject to punishment. The defendant also argues that the savings statutes do not apply because § 54-142d, which by its plain language makes erasure and destruction of records mandatory when the statute’s requirements have been met, was enacted long after and is more specific than both savings statutes.

The defendant also claims that the court improperly based its decision partly on the factual allegations in the arrest warrant for sexual assault in the first degree and risk of injury, notwithstanding that, as a result of the 2004 plea agreement, which the court accepted, those allegations were not proven or even, in the eyes of the law, charged.

The state concedes on appeal that neither State v. Graham, supra, 56 Conn. App. 507, nor either of the two savings statutes applies to the facts of this case. The state also concedes that the court was not permitted to rely on the underlying conduct alleged but instead was confined to considering the offense for which the defendant was convicted in evaluating the petition for destruction of the record. Finally, the state acknowledges that “§ 54-142d serves to benefit a person whose [P]enal [C]ode offense of conviction has been decriminalized . . . .”

The state argues instead that § 54-142d, by its plain and unambiguous language, does not apply to the defendant because the subdivision of subsection (a) for which he was convicted does not constitute an “offense” within the meaning of the statute. Rather, the state suggests, an offense under § 54-142d constitutes an entire criminal statute or, alternatively, an entire subdivision listing a set of elements that defines a crime. In this case, therefore, to decriminalize the defendant’s offense of conviction, the legislature would have had to repeal all of § 53a-71, thereby eliminating all variations of statutory rape from the Penal Code, or at least repeal all of subsection (a) (1) of that statute, thereby eliminating “age differentiated sexual intercourse with a minor” as a criminal offense. The state maintains that the legislature distinguished between decriminalizing an offense and amending the elements of a specific crime, as it did when it amended § 53a-71 (a) (1), making consensual sex between a person who is between thirteen and sixteen years old and a person who is between two and three years older no longer a crime. Citing Connelly v. Doe, 213 Conn. 66, 72, 666 A.2d 426 (1989), the state argues: “Had the legislature intended § 54-142d to include persons whose conduct no longer constituted a crime, in addition to persons whose offense of conviction has been decriminalized, then it would have done so expressly.” (Emphasis added.) The state also cites Plourde v. Liburdi, 207 Conn. 412, 416, 540 A.2d 1054 (1988), for the proposition that the legislature’s use of different language in different .statutes signifies a different meaning and different intent. Specifically, the state contrasts the language in § 54-142d (“such offense has been decriminalized”) with that in General Statutes § 54-124a (j) (2) (a) (“such conduct no longer constitutes a crime”).

The defendant argues that the state’s reading of § 54-142d ignores the plain and unambiguous meaning of the statute, based on the definition of “offense” in the Penal Code, which includes any crime or violation, including those where the legislature has amended the elements of a crime to legalize some previously illegal conduct, not just those where the legislature has repealed and eliminated an entire statute or subdivision of a statute. Alternatively, the defendant argues that reading § 54-142d as the state suggests would render the statute ambiguous, thereby opening the door to an examination of the legislative history and intent behind the statute. Such an inquiry, the defendant argues, would lead to the clear conclusion that the legislature intended for § 54-142d to apply not only to categories of offenses decriminalized in their entirety, but also to any crime for which the legislature had subsequently decriminalized the acts for which a defendant was convicted. Finally, the defendant points to two cases in which the state agreed with, and the Superior Court granted, petitions for erasure and destruction under § 54-142d based on the same circumstances and the same statute as in this case. See State v. Sean H., Superior Court, judicial district of New Britain, geographical area number fifteen, Docket No. CR-00-0191347 (June 9, 2009); State v. Alberto C., Superior Court, judicial district of Waterbury, Docket No. CR-97-255469 (August 13, 2008).

None of the facts in this case are in dispute. The sole issue is whether, under § 54-142d, offenses include only entire statutes or subdivisions, or instead, also include specific acts once deemed illegal, but then legalized by changes in the text of specific statutes. Statutory interpretation presents a question of law over which we exercise plenary review. State v. Lutters, 270 Conn. 198, 205, 853 A.2d 434 (2004). “When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. ... In seeking to determine that meaning, General Statutes § l-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. . . . The test to determine ambiguity is whether the statute, when read in context, is susceptible to more than one reasonable interpretation.” (Citation omitted; 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). “[W]e will not impute to the legislature an intent that is not apparent from unambiguous statutory language in the absence of a compelling reason to do so.” (Internal quotation marks omitted.) State v. Lutters, supra, 215.

Section 54-142d provides in relevant part: “Whenever any person has been convicted of an offense in any court in this state and such offense has been decriminalized subsequent to the date of such conviction, such person may file a petition with the superior court . . . for an order of erasure, and the Superior Court or records center of the Judicial Department shall direct all police and court records and records of the state’s or prosecuting attorney pertaining to such case to be physically destroyed.”

Public Act 07-143, § 1, provides in relevant part: “Section 53a-71 of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2007): (a) A person is guilty of sexual assault in the second degree when such person engages in sexual intercourse with another person and: (1) Such other person is thirteen years of age or older but under sixteen years of age and the actor is more than [two] three years older than such other person . . . .”

Section 54-142d uses the term “offense” to trigger its mandatory erasure and destruction provisions, but does not include a definition of “offense.” The Penal Code, however, does include a definition of “offense. ” General Statutes § 53a-24 (a) provides: “The term ‘offense’ means any crime or violation which constitutes a breach of any law of this state or any other state, federal law or local law or ordinance of a political subdivision of this state, for which a sentence to a term of imprisonment or to a fine, or both, may be imposed, except one that defines a motor vehicle violation or is deemed to be an infraction. The term ‘crime’ comprises felonies and misdemeanors. Every offense which is not a ‘crime’ is a ‘violation’. Conviction of a violation shall not give rise to any disability or legal disadvantage based on conviction of a criminal offense.”

Therefore, if an act constitutes a crime under the Penal Code, it is defined as an offense. Section 53a-71 (a) contains eleven subdivisions, all listing a distinct set of elements that defines the offense of sexual assault in the second degree, and all separated by the word “or. ” Each subdivision describes a crime without reference to the other subdivisions. A person need not satisfy the elements of all eleven subdivisions to be guilty of sexual assault in the second degree. Instead, if a person satisfies all of the elements in any one subdivision, that person has committed a crime, which constitutes an offense under § 53a-24. Nothing in § 53a-24 defines an offense as a statute or group of statutes, a category of crimes, or a group of crimes that share the same name. Accordingly, if the legislature decriminalizes the set of elements that constitute the offense, then with respect to that particular set of elements, the offense has been decriminalized. The plain language of § 54-142d, read in context with the definition of offense in § 53a-24, requires the court, upon a defendant’s petition, to order erasure and destruction of records related to a crime that has been decriminalized, regardless of whether other crimes have the same name or are listed in the same statute. Such a result would be neither absurd nor unworkable.

The state cites two cases for the proposition that because the legislature used the words “offense has been decriminalized”; (emphasis added); in drafting § 54-142d and did not, instead, use words such as “such conduct no longer constitutes a crime,” as, for example, in § 54-124a (j) (2) (A), it meant to include only those crimes grouped together under one name.

First, the state cites Plourde v. Liburdi, supra, 207 Conn. 416, for the proposition that the legislature’s use of different language in different statutes signifies a different meaning and different intent in each statute. The state relies on the following language from our Supreme Court’s opinion in that case: “[T]he use of different words [or the absence of repeatedly used words in the context of] the same [subject matter] must indicate a difference in legislative intention.” (Internal quotation marks omitted.) Id. The Supreme Court’s use of the words “in the context of the same subject matter,” however, makes clear that the stated rule of construction does not apply to the facts of this case. Section 54-124a (j) (2) (A) governs the establishment of regulations for granting parole without a hearing, including when a person has been “convicted of a crime” that is a misdemeanor and “such conduct no longer constitutes a crime . . . .’’It does not concern the erasure or destruction of records, which is the subject matter of § 54-142d. Nor does it consider the meaning of “offense” or what it means to decriminalize an offense. The state has offered no example in the General Statutes or case law to support a conclusion that the legislature made such a distinction related to erasure or destruction of records.

Second, the state cites to language in Connelly v. Doe, supra, 213 Conn. 72, about the legislature’s conveying its intent expressly. In Connelly, the issue was whether the legislature had given grand juries the power to investigate ongoing conduct or conduct that took place after the formation of the grand jury, based on whether the legislature used the past or present tense in the text of the governing statute. Id. That analysis does not apply to the question here.

To apply § 54-142d as the state suggests would allow a defendant whose crime is defined by only one set of elements to have the records of that crime erased and destroyed, but deny the same relief to a defendant whose crime shares the same name as others, but still meets the Penal Code definition of offense. Such a result would be absurd and unworkable. Nothing in the text of § 54-142d, nor in any authority cited by the state, supports the proposition that the legislature intended this result or that it distinguished in § 54-142d between categories of offenses and individual crimes for the purposes of the erasure statute. The state’s interpretation of the term “offense,” which is at odds with the definition in the Penal Code, is therefore not reasonable.

We conclude that had the legislature sought to exempt individual crimes from the statutory meaning of “offense” for the purpose of applying § 54-142d, it would have done so expressly. The court, therefore, improperly denied the defendant’s petition for destruction of the record.

The judgment is reversed only as to the denial of the defendant’s petition for destruction of the record of his decriminalized offense and the case is remanded with direction to grant the petition. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       See North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970) (allowing criminal defendant to plead guilty to offense without admitting factual allegations underlying charged offense).

       General Statutes § 54-142d provides: “Whenever any person has been convicted of an offense in any court in this state and such offense has been decriminalized subsequent to the date of such conviction, such person may file a petition with the superior court at the location in which such conviction was effected, or with the superior court at the location having custody of the records of such conviction or with the records center of the Judicial Department if such conviction was in the Court of Common Pleas, Circuit Court, municipal court or by a trial justice, for an order of erasure, and the Superior Court or records center of the Judicial Department shall direct all police and court records and records of the state’s or prosecuting attorney pertaining to such case to be physically destroyed.”

       General Statutes § 1-1 (t) provides: “The repeal of an. act shall not affect any punishment, penalty or forfeiture incurred before the repeal takes effect, or any suit, or prosecution, or proceeding pending at the time of the repeal, for an offense committed, or for the recovery of a penalty or forfeiture incurred under the act repealed.”

       General Statutes § 54-194 provides: “The repeal of any statute defining or prescribing the punishment for any crime shall not affect any pending prosecution or any existing liability to prosecution and punishment therefor, unless expressly provided in the repealing statute that such repeal shall have that effect.”

       See, e.g., 26 H.R. Proa, Pt. 2,1983 Sess., p. 687 (“[Representative Richard D.] Tulisano: [w]hat the bill does is erase criminal records for those individuals, allows them to have the records erased, if they were convicted of a crime which this General Assembly subsequently decided it had not been a crime”); id., p. 591 (“[Representative] Tulisano: Decriminalized, I think, is self-explanatory, and any dictionary definition would be used, and I don’t even think we need a legal dictionary .... It is criminal and we have decriminalized it. It’s self-explanatory, no longer a crime. The elements which made up the offense are no longer a crime in Connecticut. It is no longer an offense.”). Because we conclude that § 54-142d is unambiguous, we do not consider the legislative history.

       Words in brackets represent material deleted or replaced by the new statute.

       Despite its concession regarding underlying conduct, the state, during oral argument before this court argued that the defendant may not take advantage of distinctions between conduct in the old and new versions of the statute and still argue that the court improperly relied on the underlying conduct alleged in the arrest warrant. The defendant, however, pleaded guilty to and was convicted of only the conduct specified in § 53a-71 (a) (1), not the conduct alleged in the original information, which the state agreed to abandon as part of the plea deal.

       Alternatively, the state argues that even if § 53a-71 need not be repealed in its entirety to fall within the definition of an offense that has been decriminalized, at least subsection (a) (1) of that statute would have to be repealed in order for the defendant’s offense to be decriminalized. The state argues that because sexual assault in the second degree in violation of § 53a-71 (a) (1) is still an offense, even though its elements have been changed, the offense for which the defendant was convicted has not been decriminalized. This argument ignores the fact that the conduct for which the defendant was convicted was defined as an offense by § 53a-24, but as a result of the legislature’s action in 2007, is no longer a crime and is therefore no longer an offense. Using the state’s preferred term, the legislature in P.A. 07-143, by its plain language, repealed, the subdivision under which the defendant was convicted and replaced it with a new subdivision that no longer governs the defendant’s conduct. It is an offense that has been decriminalized.


author: GRUENDEL, J.

text:
    ALYSSA PETERSON v. CONNECTICUT ATTORNEYS TITLE INSURANCE COMPANY ET AL.
    (AC 34207)
    Gruendel, Alvord and Bear, Js.

      Argued January 17
    officially released April 16, 2013

      Alyssa Peterson, pro se, the appellant (plaintiff).

      Michael D. O’Connell, with whom, on the brief, was ErinArcesiMutty, for the appellee (named defendant).
   Opinion

GRUENDEL, J.

The self-represented plaintiff, Alyssa Peterson, appeals from the summary judgment rendered by the trial court in favor of the defendant Connecticut Attorneys Title Insurance Company. She claims that the court improperly (1) relied upon a prior judgment discharging a lis pendens placed on real property by the plaintiff and (2) determined that no genuine issue of material fact existed as to whether the defendant committed negligence, aided and abetted fraud, and violated the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., in issuing certain title insurance policies. We affirm the judgment of the trial court.

The record, viewed in the light most favorable to the plaintiff; see Martinelli v. Fusi, 290 Conn. 347, 350, 963 A.2d 640 (2009); reveals the following facts. In February, 2004, the plaintiff and Hannah Woldeyohannes entered into an oral agreement to form a partnership for the purpose of purchasing six condominium units in Hartford. They engaged the services of an attorney to negotiate the purchase and to draw up a purchase agreement for the units. Before the partnership had the opportunity to enter into an agreement with the sellers, the units were conveyed to A to Zee, LLC, of which Woldeyohan-nes was the sole owner. See Peterson v. Woldeyohannes, 111 Conn. App. 784, 786, 961 A.2d 476 (2008).

The plaintiff thereafter commenced an action in the Superior Court and filed a ten count complaint that named both Woldeyohannes and A to Zee, LLC, as defendants (first action). On July 12, 2005, the plaintiff filed a notice of lis pendens on the Hartford land records. The lis pendens stated that the first action was “brought seeking the imposition of a constructive trust and other remedies in connection with certain real property known as the Laurelhart Condominiums, 230-232 Farmington Avenue, [unit numbers] B-2, E-3, G-4, C-9, D-6 and E-7, Hartford, Connecticut.” The lis pendens further stated that “the defendant A to Zee, LLC is the record owner of [those units]” and that each of the units was affected by the first action. On September 21, 2005, the plaintiff withdrew her claim against A to Zee, LLC, leaving Woldeyohannes as the sole defendant in the first action. Woldeyohannes subsequently filed an affidavit of facts on the Hartford land records that averred in relevant part that “A to Zee, LLC was a party to [the first] action” and that “[t]he action has been withdrawn as to A to Zee, LLC and it has been removed from the action, as evidenced by a Withdrawal signed by Alena C. Gfeller, Attorney for the Plaintiff, dated September 21, 2005, and filed with the Clerk’s Office on September 21, 2005, at 1:58 p.m.”

In separate transactions that transpired on December 28, 2006, and January 18, 2007, Julian M. Allen and Nydia Allen (Allens) purchased unit G-4 from A to Zee, LLC, and Lorraine Caldwell purchased unit C-9 from A to Zee, LLC. Although the defendant was aware of the notice of lis pendens filed by the plaintiff in July, 2005, it nevertheless issued title insurance policies for those units to Caldwell and the Allens in January of 2007.

In December, 2009, Caldwell and the Allens filed applications in the Superior Court to discharge the lis pendens (lis pendens action). Following a hearing, the court concluded that the lis pendens was invalid because (1) the plaintiffs claims in the first action did not affect real property within the meaning of General Statutes § 52-325, and (2) her withdrawal of the first action against A to Zee, LLC, on September 21, 2005, “effectively released and eliminated the lis pendens.” Allen v. Peterson, Superior Court, judicial district of Hartford, Docket No. CV-09-6006561-S (August 6, 2010) (50 Conn. L. Rptr. 383, 386). Accordingly, the court ordered the plaintiff’s notice of lis pendens to be discharged of record pursuant to General Statutes § 52-325b (b) (2) (A). Id.

The plaintiff obtained a default judgment against Wol-deyohannes in the first action and, following a hearing in damages, was awarded $195,482.96 in damages by the court, which the court described as “the share of the profits that she would have been entitled to receive under the partnership agreement.” Id., 386 n.l. The plaintiff thereafter commenced the present action. The operative complaint—the plaintiffs fourth amended complaint dated November 29, 2010—contains sixteen counts, three of which pertain to the defendant. In those counts, the plaintiff alleged that the defendant committed negligence, aided and abetted fraud, and violated CUTPA in issuing the aforementioned title insurance policies.

On December 20, 2010, the defendant filed a motion for summary judgment. Appended to that pleading was the affidavit of Guy R. DeFrances, Jr., the defendant’s associate general counsel. In that affidavit, DeFrances averred, inter alia, that “[p]rior to the issuance of the . . . title insurance policies [to Caldwell and the Allens, the defendant’s] agents . . . caused to be conducted an examination of the title of each unit, which examinations revealed the existence of a Notice of Lis Pendens filed against each unit. . . . Both title searches revealed that on or about July 12, 2005, the [p]laintiff . . . filed a Notice of Lis Pendens against each unit in connection with [the first action], in which she named . . . Woldeyohannes and A to Zee, LLC as defendants. ... An examination of the court file [in the first action] revealed that on September 21, 2005, the [p]laintiff . . . filed a withdrawal of action as to ... A to Zee, LLC, the record owner of each unit. A copy of the withdrawal is attached [to the affidavit as an exhibit]. . . . Based on the status of record title and the withdrawal contained in the court file, [the defendant] determined that there were no defects in the title to either unit and that there were no issues of title that would have rendered the title unmarketable, and authorized its agents to issue the title insurance policies without taking an exception for the Notice of Lis Pendens. ... At no point in time has [the defendant] ever had a contract of title insurance with the [p]laintiff . . . regarding either unit.”

The court heard argument on the defendant’s motion on September 19, 2011. By memorandum of decision dated November 7, 2011, the court granted the motion for summary judgment in favor of the defendant. The plaintiff then filed a motion for reconsideration and reargument, which the court denied, and this appeal followed.

Before considering the precise claims presented on appeal, we note the well established standard of review. “Practice Book § [17-49] requires that judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. A material fact is a fact that will make a difference in the result of the case. . . . The facts at issue are those alleged in the pleadings. . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue as to all material facts, which, under applicable principles of substantive law, entitle him to ajudgmentasamatteroflaw. . . . The party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. See Practice Book §§ [17-44 and 17-45]. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The test is whether a party would be entitled to a directed verdict on the same facts. . . . A motion for summary judgment is properly granted if it raises at least one legally sufficient defense that would bar the plaintiffs claim and involves no triable issue of fact. . . . Our review of the trial court’s decision to grant a motion for summary judgment is plenary.” (Citation omitted; internal quotation marks omitted.) Weiner v. Clinton, 106 Conn. App. 379, 382-83, 942 A.2d 469 (2008).

I

We first address the plaintiffs contention that the court, in considering the motion for summary judgment, improperly relied upon its prior judgment discharging the lis pendens. In deciding the lis pendens action, the court concluded that the plaintiffs notice of lis pendens was invalid and, thus, ordered its discharge. When the plaintiff did not timely appeal from that judgment, this court dismissed her belated appeal therefrom. As a result, the court’s judgment discharging the lis pendens is a valid and final judgment by which the plaintiff and the trial court alike were bound. Accordingly, we cannot say that it was improper for the trial court to rely on that final judgment in considering the defendant’s motion for summary judgment, which centered on the defendant’s conduct with respect to that notice of lis pendens.

On appeal, the plaintiff assails the judgment of the trial court in the lis pendens action, describing it as “flawed” and plagued by “incorrect factual statements and legal interpretations.” She thus asks this court to revisit its merits and apply de novo review thereto. We decline to do so. Well established principles of res judicata preclude this court in the present appeal from passing on the merits of that prior judgment. See, e.g., TDS Painting & Restoration, Inc. v. Copper Beech Farm, Inc., 73 Conn. App. 492, 501 n.9, 808 A.2d 726, cert. denied, 262 Conn. 925, 814 A.2d 379 (2002); Daw v. Zoning Board of Appeals, 63 Conn. App. 176, 183, 772 A.2d 755, cert. denied, 256 Conn. 931, 776 A.2d 1145 (2001). In addition, we refuse to permit the plaintiff a second bite at the apple when she failed to avail herself of the avenue of appeal from that judgment years ago.

II

The plaintiff also claims that the court improperly determined that no genuine issue of material fact existed as to whether the defendant committed negligence, aided and abetted fraud, and violated CUTPA in issuing the title insurance policies to Caldwell and the Allens. We disagree.

Those three claims all concern the defendant’s conduct with respect to the lis pendens the plaintiff filed on July 12, 2005, and all allege malfeasance as a result thereof. In deciding the lis pendens action, the court concluded that the withdrawal of the first action against A to Zee, LLC, on September 21, 2005, “effectively released and eliminated the lis pendens.” Allen v. Peterson, supra, 50 Conn. L. Rptr. 386. The court, in both the lis pendens action and the present case, specifically relied on H. G. Bass Associates, Inc. v. Ethan Allen, Inc., 26 Conn. App. 426, 431, 601 A.2d 1040 (1992), in which this court held that the withdrawal of an action “effectively erased the court slate clean as though the action had never been commenced, thereby eliminating the corresponding lis pendens.”

We agree with the court that the plaintiffs withdrawal of the first action against A to Zee, LLC, on September 21, 2005, is dispositive of her claims in the present case. It is undisputed that A to Zee, LLC, was the sole owner of the property subject to lis pendens, as the notice itself states. As a result, when the plaintiff withdrew her action against that entity in 2005, she similarly “eliminate[ed] the corresponding lis pendens.” Id.

On that basis, the court here concluded that the plaintiffs withdrawal of her action against the sole owner of the property in question terminated her interest in the lis pendens on that property, noting that “to hold otherwise would undermine the public policy attached to preserving the sanctity of the land records.” We concur. As our Supreme Court has observed, it is “the policy of this State that purchasers of interests in real estate are entitled to rely upon the land records as disclosing the true title . . . .” Second National Bank of New Haven v. Dyer, 121 Conn. 263, 268, 184 A. 386 (1936); accord Safford v. McNeil, 102 Conn. 684, 687, 129 A. 721 (1925) (“[i]t has always been the policy of our law that the land records should be the authentic oracle of title on which a bona fide purchaser or attaching creditor might safely rely”). When the plaintiff withdrew her action against A to Zee, LLC, in 2005, no claim remained against the owner of the properties subject to the lis pendens. The court thus concluded that the defendant, when conducting title searches several years after that withdrawal entered, was entitled to rely both on the land records and the withdrawal of the action against the owner of the properties in question.

The plaintiff appears to misunderstand the nature of a notice of lis pendens. “A lis pendens is a creature of statute and a person invoking its provisions must comply with the statutory requirements.” First Constitution Bank v. Harbor Village Ltd. Partnership, 37 Conn. App. 698, 703, 657 A.2d 1110, cert. denied, 235 Conn. 902, 665 A.2d 901 (1995); see also Dunham v. Dunham, 217 Conn. 24, 35, 584 A.2d 445 (1991) (validity of lis pendens “depends entirely on statutory fiat”). Section 52-325 “allows a party to place a notice of lis pendens on the land records when ‘the action is intended to affect real property.’ ” Wheeler v. Polasek, 21 Conn. App. 32, 33, 571 A.2d 129 (1990); accord Williams v. Bartlett, 189 Conn. 471, 481, 457 A.2d 290 (“[utilization of the lis pendens procedure is . . . restricted to those actions intended to affect real property”), appeal dismissed, 464 U.S. 801, 104 S. Ct. 46, 78 L. Ed. 2d 67 (1983).

In deciding the Us pendens action, the court specifically found that the plaintiff’s claims in the first action “did not affect real property within the meaning of § 52-325.” Allen v. Peterson, supra, 50 Conn. L. Rptr. 385. Because the land records and the pleadings in the first action reveal that the plaintiff lacked a property interest in the properties on which she filed the lis pendens following her withdrawal of the action against A to Zee, LLC, she cannot demonstrate that the defendant owed her any duty with respect to the issuance of title insurance pohcies on those properties. She Ukewise cannot estabhsh that the defendant aided and abetted fraud or violated CUPTA by issuing the aforementioned pohcies.

In sum, the plaintiff cannot prevail on her claims that the defendant improperly issued the title insurance pohcies to Caldwell and the Allens in January of 2007, in contravention of her notice of hs pendens. The court, in the hs pendens actions, fully and finally determined that the pleadings in the first action demonstrate that the plaintiff’s hs pendens was invalid as of September 21, 2005, due to her lack of a property interest in the subject properties. Id. On that basis, the trial court properly concluded that no genuine issue of material fact exists as to whether the defendant committed the malfeasance alleged in the plaintiffs complaint by issuing the title insurance policies. We therefore conclude that the court properly rendered summary judgment in favor of the defendant.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiffs operative complaint also named Paul Lichtenberger, Richard Witt, William R. Broneill, Julian M. Allen, Nydia Allen and Lorraine Caldwell as defendants. Because this appeal concerns the summary judgment rendered in favor of the Connecticut Attorneys Title Insurance Company on those counts pertaining exclusively to it, we refer to that entity as the defendant in this appeal.

       Caldwell’s application was filed in the Superior Court, judicial district of Hartford, under docket number CV-09-6006562-S and the Allens’ application was filed under docket number CV-09-6006561-S. The cases were not formally consolidated, but the trial court heard the matters at the same time and noted that each application involved essentially the same facts and same claims of law. It rendered judgment and issued identical memoranda of decision under each docket number. See Allen v. Peterson, Superior Court, judicial district of Hartford, Docket No. CV-09-6006561-S (August 6, 2010) (50 Conn. L. Rptr. 383). For convenience, this court will refer to the cases as the lis pendens action.

       The court reasoned: “At bottom, the [first] case involved a dispute between two parties, [the plaintiff] and . . . Woldeyohannes, as to whether a partnership existed and the legal consequences of their conduct. The real estate that the alleged partnership was to purchase was ultimately acquired by A to Zee, LLC. In fact, it must be emphasized that neither [the plaintiff] nor . . . Woldeyohannes were ever record owners of the real estate in question. Thus, [the plaintiff’s] interest was never in the real property, but in the alleged partnership itself.
      “The issues presented in the [first] case are similar to those found in Wheeler v. Polasek, 21 Conn. App. 32, 571 A.2d 129 (1990). In Wheeler, a general partner in a limited partnership filed a notice of lis pendens against the partnership’s real property in connection with an action for, in part, breach of fiduciary duty. The trial court discharged the lis pendens. The discharge was upheld by the Appellate Court on the grounds that partnership realty is considered personalty, with respect to any individual partners rights therein. Id., 33. ‘Section 52-325 (b) specifies that in order for an action to affect real property, its purpose or outcome must determine the rights of the parties in or to the particular real property, or it must establish or enforce previously acquired interests in it. The claims set forth in the plaintiffs complaint are claims against the partnership itself .... Although the plaintiff claims that he has a realty interest in the partnership’s property and a consequent right to secure that interest with a notice of lis pendens, his claim must fail. . . . [Partnership interest is personal property .... It is axiomatic, therefore, that none of the plaintiffs claims affects the real property of the partnership within the meaning of § 52-325.’ [Citations omitted.] Id., 33-34.
      “As further support, the court notes that ownership interest in a limited liability company, such as ... A to Zee, LLC, is similarly treated. For instance, General Statutes § 34-167 (a) provides that ‘[p]roperty transferred to ... a limited liability company is property of the limited liability company and not of the members individually. A member has no interest in specified limited liability company property.’ Moreover, General Statutes § 34-169 provides: ‘A limited liability company membership interest is personal property.’ Thus, because the claims in the underlying case were based on the defendant’s personalty interest, they did not affect real property. As the [Appellate Court in] Wheeler . . . noted: ‘The plaintiffs interest as a partner in this limited partnership is a personalty interest; the suit does not affect real property within the meaning of § 52-325.’ Wheeler v. Polasek, supra, 21 Conn. App. 34; see also Gattoni v. Zacearo, Superior Court, judicial district of New Haven, Docket No. CV-97-0396081 (March 13, 1997) {Hodg-son, J.~) (allegations that defendant was holding plaintiffs interest in limited liability company in constructive trust as partner in that entity not deemed to be interest in real property).” Allen v. Peterson, Superior Court, judicial district of Hartford, Docket No. CV-09-6006561-S (August 6, 2010) (50 Conn. L. Rptr. 383, 384-85).

       In her appellate brief, the plaintiff alleges that DeFrances’ affidavit consisted of hearsay and, hence, was improper. We decline to review her claim. Apart from the inadequacy of that bald assertion; see, e.g., Russell v. Russell, 91 Conn. App. 619, 634r-35, 882 A.2d 98, cert, denied, 276 Conn. 924, 925, 888 A.2d 92 (2005); the record reveals that the plaintiff did not raise this objection before the trial court, as required by Practice Book §§ 5-2 and 60-5, rendering that evidentiary claim unpreserved.

       The plaintiff was represented by counsel in the proceedings below.

       Indeed, DeFrances’ affidavit establishes that the defendant, as part of the title searches it conducted on the properties in question, examined the court file in the first action and learned that the plaintiff had withdrawn the action against the record owner of the properties, A to Zee, LLC. The affidavit further establishes that, “[bjased on the status of record title and the withdrawal contained in the court file, [the defendant] determined that there were no defects in the title to either unit and that there were no issues of title that would have rendered the title unmarketable, and authorized its agents to issue the title insurance policies without taking an exception for the notice of lis pendens.”

       The court also found, and the plaintiff does not dispute, that she never was a party to a title insurance contract with the defendant.


author: BEACH, J.

text:
    JENNIFER TOW v. DAVID TOW
    (AC 33820)
    Lavine, Beach and Schaller, Js.

      Argued February 6
    officially released April 16, 2013

      Nicholas J. Adamucci, for the appellant (plaintiff).

      Jon T. Kukucka, for the appellee (defendant).
   Opinion

BEACH, J.

The plaintiff, Jennifer Tow, appeals from the trial court’s judgment with regard to the court’s rulings on certain postdissolution motions. She claims that the court erred in (1) denying her motion for contempt, (2) granting the motion of the defendant, David Tow, to modify child support and alimony and (3) denying her motion for permission to relocate with the parties’ minor child. We affirm the judgment of the trial court.

The following facts are relevant to the plaintiffs appeal. The parties were married in 1981. Three children were bom of the marriage. Two had attained majority and graduated from high school at the time of the court’s decision on the postdissolution motions. In May, 2007, the plaintiff filed for dissolution of marriage. A judgment of dissolution of marriage, which incorporated the parties’ separation agreement, was rendered in August, 2007. That agreement provided that the defendant was to pay the plaintiff child support in the amount of $560 per week, which exceeded the amount provided by the child support guidelines, for the two then minor children; and alimony in the amount of $1041 per week for thirteen years. The defendant was to assume the children’s college expenses. In a July 14,2011 memorandum of decision, the court denied the plaintiffs motion for contempt, granted the defendant’s motion to modify child support and alimony and denied the plaintiffs motion for relocation. This appeal followed.

I

The plaintiff claims that the court erred in denying her motion for contempt. We disagree.

In her motion for contempt, the plaintiff argued that the defendant had failed to pay the required child support and alimony during a nine month period following the judgment of dissolution during which the parties continued to reside in the same house. In denying the plaintiffs motion for contempt, the court determined that during the nine month period in question, the plaintiff had free access to the family’s joint checking account for personal expenses, household expenses and payment of bills, and that the defendant deposited approximately $92,000 into that account. The court found that the amount deposited in the joint account by the defendant was well in excess of the agreed upon child support and alimony of $560 per week and $1041 per week, respectively. The court accordingly determined that the defendant had not violated the alimony and child support orders.

“A finding of contempt is a question of fact, and our standard of review is to determine whether the court abused its discretion in [finding] that the actions or inactions of the [alleged contemnor] were in contempt of a court order. . . . [T]he credibility of witnesses, the findings of fact and the drawing of inferences are all within the province of the trier of fact. . . . We review the findings to determine whether they could legally and reasonably be found, thereby establishing that the trial court could reasonably have concluded as it did.” (Internal quotation marks omitted.) O’Connell v. O’Connell, 101 Conn. App. 516, 521, 922 A.2d 293 (2007).

The plaintiff argues that the court’s conclusions were flawed because they ignored the defendant’s prior agreement that he owed $15,000 in unpaid child support and alimony, and several other of her positions. We have carefully reviewed these claims and conclude that the court’s factual findings were not clearly erroneous and that the court did not abuse its discretion when it determined that the defendant did not violate any court orders regarding child support and alimony. It found that the plaintiff had access to an amount deposited in a joint checking account that was in excess of the amount the defendant owed in child support and alimony.

II

The plaintiff next claims that the court erred in granting the defendant’s motion to modify child support and alimony. We disagree.

The court determined that the financial orders were modifiable pursuant to General Statutes § 46b-86 in the event of a substantial change in circumstances because the divorce decree did not preclude modification. The court found a substantial change in circumstances based upon the following: despite the defendant’s timely support payments, the family home went into foreclosure and was sold; the defendant’s net income of $2891 per week at the time of the dissolution decreased to $1899 per week by January, 2011, and further to $1649 per week by March, 2011; the defendant’s financial liabilities and expenditures had increased since the dissolution; and one of the parties’ children had attained the age of majority and satisfied all high school graduation requirements since the date of dissolution. The court determined that there no longer was a basis to deviate upward from the child support guidelines, and modified the defendant’s child support to $328 per week from June 10, 2010, to June 10, 2011; and further modified child support to $250 per week because another child had reached the age of majority and had satisfied high school graduation requirements as of June 10, 2011. The court, applying the factors set forth in General Statutes § 46b-82 (a), modified the weekly alimony to $550 retroactive to June 10, 2010.

Section 46b-86 (a) provides in relevant part: “Unless and to the extent that the decree precludes modification, any final order for the periodic payment of permanent alimony or support . . . may, at any time thereafter, be . . . modified by the court upon a showing of a substantial change in the circumstances of either party or upon a showing that the final order for child support substantially deviates from the child support guidelines established pursuant to section 46b-215a . . . .”

“[W]e will not disturb the trial court’s ruling on a motion for modification of alimony or child support unless the court has abused its discretion or reasonably could not conclude as it did, on the basis of the facts presented. . . . Furthermore, [t]he trial court’s findings [of fact] are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Citation omitted; internal quotation marks omitted.) Blum v. Blum, 109 Conn. App. 316, 328-29, 951 A.2d 587, cert. denied, 289 Conn. 929, 958 A.2d 157 (2008).

The plaintiff argues that several of the court’s factual findings supporting its finding of a substantial change of circumstances are erroneous. The plaintiff primarily argues that the defendant’s voluntary decrease in income should not be a lawful basis on which to find a substantial change in circumstances. The court made no finding that the defendant’s decrease in income was voluntary, but rather used the decrease as a reason to support its finding of a substantial change in circumstances. The court’s findings regarding a substantial change in circumstances are supported by the record, and, thus, we conclude that the court did not abuse its discretion in granting the defendant’s motion to modify child support and alimony.

Ill

The plaintiff last claims that the court erred in denying her motion for permission to relocate with the parties’ minor child. We disagree.

The plaintiff filed a motion to allow her to relocate to France with the parties’ one minor child, who was twelve years old at the time of the court’s decision on the postjudgment motions. The court determined, on the basis of General Statutes § 46b-56d (a) (l), that the plaintiff had not met her burden of demonstrating that relocation was for a legitimate purpose. The court found that the plaintiff initially discussed relocation to France in 2009, after she became involved with a former classmate from high school who lived in France. The plaintiffs plan became more extensive when she announced that she was planning to marry the former classmate. The court determined, partly on the basis of the plaintiffs testimony that she could not legally work in France, that furthering her career opportunities was not a legitimate purpose for relocation in these circumstances. The court also rejected the plaintiffs assertion that relocation would be an “incredible cultural opportunity” for the minor child because he was a speed skater who had a coach in France and because he needed time to “heal” from the stress of the divorce. The court determined that any cultural opportunities were overshadowed by the irreparable harm the child would likely suffer as his relationship with the defendant continued to deteriorate. The court determined, as well, that the minor child had been involved in speed skating in Connecticut prior to the discussion of relocation and that those opportunities were still available to him.

“Our 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.) McKechnie v. McKechnie, 130 Conn. App. 411, 421, 23 A.3d 779, cert. denied, 302 Conn. 931, 28 A.3d 345 (2011).

The plaintiff argues that the court erred in finding that relocation would not further a legitimate purpose and in not crediting testimony that relocation was in the child’s best interests. See General Statutes § 46b-56d (a) (3). The record supports the court’s finding that relocation was not for a legitimate purpose. The court was not obligated to credit the plaintiffs view of testimony. Contrary to the plaintiffs argument, the court is not required to accept her view of the evidence. See LPP Mortgage, Ltd. v. Lynch, 122 Conn. App. 686, 700-701, 1 A.3d 157 (2010) (exclusive province of trier of fact to weigh evidence and determine credibility of witnesses). The court did not err in denying the plaintiffs motion for permission to relocate with the parties’ minor child.

The judgment is affirmed.

In this opinion the other judges concurred.

       For nine months following the dissolution of marriage, the defendant remained in the family home and the parties maintained a financial status quo of prior years without formal payment of alimony or child support.

       The court found that “the ‘agreement’ was based on a mistaken belief by the defendant and that, in any event, was never entered as a court order.”

       Our Supreme Court has recognized some restrictions on provisions providing for nonmodification of child support. See Tomlinson v. Tomlinson, 305 Conn. 539, 547-48, 46 A.3d 112 (2012); Fawow v. Vargas, 231 Conn. 1, 22, 647 A.2d 731 (1994); Guille v. Guille, 196 Conn. 260, 266, 492 A.2d 175 (1985). Such restrictions are not at issue in this case.

       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 relationship ended, but the plaintiff continued to plan to relocate with the minor child to France.

       The defendant had permitted the plaintiff to take the minor child temporarily to France.

       The court determined that the child’s relationship with the defendant deteriorated when the defendant objected to the relocation and deteriorated further since the child’s temporary move to France with the plaintiff.