author: ROBINSON, J.

text:
    NATION ELECTRICAL CONTRACTING, LLC v. ST. DIMITRIE ROMANIAN ORTHODOX CHURCH ET AL.
    (AC 34599)
    DiPentima, C. J., and Lavine and Robinson, Js.

      Argued April 22
    —officially released August 13, 2013

      Michael S. Lynch, for the appellant (named defendant).

      Anthony R. Minchella, with whom was Robert M. Patillo, legal intern, for the appellee (plaintiff).
   Opinion

ROBINSON, J.

The defendant St. Dimitrie Romanian Orthodox Church appeals from the judgment of the trial court finding it jointly and severally hable with the defendant Primrose Construction Company, Inc. (Primrose), to the plaintiff, Nation Electrical Contracting, LLC, for damages of $34,900 and prejudgment interest of $11,621.70. The defendant claims that the court improperly (1) rendered judgment against it on a theory of unjust enrichment despite evidence that it had paid all sums due and owing under its construction contract with Primrose, which necessarily included payment for the work done by the plaintiff as a subcontractor of Primrose, and (2) awarded prejudgment interest pursuant to General Statutes § 37-3a where there was no basis in law or in fact to award such interest. We affirm the judgment of the trial court.

The following facts, which were found by the court or are undisputed, and procedural history are relevant to our resolution of the claims on appeal. The defendant entered into a written contract with Primrose in 2006, for the construction of a new church in Easton. Primrose agreed to act as the general contractor for the project, and the defendant agreed to pay Primrose $2,954,250 plus extras. Primrose retained a number of subcontractors to help with the project, including accepting abid of $109,795 from the plaintiff to perform electrical work. The plaintiff never entered into any contractual agreement with the defendant.

In October and November, 2007, the plaintiff submitted invoices to Primrose requesting progress payments of $10,000 and $12,000, respectively. Primrose later submitted its own invoice for progress payments to the defendant, which included those sums sought by the plaintiff. The defendant paid Primrose, and Primrose paid the plaintiff the sum due on the October and November invoices.

On January 1, 2008, the plaintiff submitted a third invoice to Primrose for $40,000. On February 18, 2008, prior to the completion of the church, Primrose left the job and stopped working on the project. The plaintiff also stopped its work at that time. Up to that date, the plaintiff had complied with all the terms and conditions of its contract with Primrose, and all the parties agreed that the plaintiff’s work was completed in a workmanlike manner.

On February 23, 2008, Primrose submitted a final progress billing to the defendant. Primrose indicated on the progress billing that the defendant had thus fax paid Primrose $1,500,795.15 on the contract, and Primrose sought an additional $241,424.11 for the work performed up to February 18, 2008, which included the sum sought by the plaintiff in its January 1,2008 invoice. The defendant did not make any payments on the February 23, 2008 invoice to Primrose nor did it make any direct payments to the plaintiff. Primrose and several of its subcontractors, including the plaintiff, filed mechanic’s hens against the defendant’s property to secure the balance they claimed remained due to them.

In November, 2008, the plaintiff commenced the present action. The original complaint contained four counts. Count one sought to foreclose on the plaintiff’s mechanic’s hen, count two alleged unjust enrichment on the part of the defendant, count three sounded in breach of contract against Primrose, and count four alleged liability on the part of John N. Guedes based on his personal guarantee of Primrose’s performance under the contract with the plaintiff. The plaintiff filed a first amended complaint that included an additional count against the defendant sounding in quantum meruit. The plaintiff later filed a second amended, and operative, complaint that dropped the foreclosure count and the count against Guedes.

In March, 2009, Primrose filed an action to foreclose its mechanic’s lien on the defendant’s property. The defendant filed an application in that matter to discharge Primrose’s lien. On December 24, 2009, following briefing and an evidentiary hearing, the court, Levin, J., issued an order granting the application to discharge the lien. See Primrose Construction Co. v. St. Dimitrie Romanian Orthodox Church, Superior Court, judicial district of Fairfield, Docket No. CV-09-5023147-S (December 24, 2009). In the order, Judge Levin included a number of findings “[b]y clear and convincing evidence.” Judge Levin found, inter alia, that the defendant had agreed to pay Primrose $2,954,250 for the construction of the church, that $99,970.10 in change orders had been made, that the defendant thus far had paid Primrose $1,500,795.15, that the work performed by Primrose or its subcontractors was not of a workmanlike manner, that the defendant reasonably had expended in excess of $300,000 to repair the deficient workmanship, that after Primrose abandoned the contract the defendant paid more than $3,000,000 to complete the work that Primrose had agreed to perform, and, finally, that “[t]here is no balance owing or fund which [Primrose] can hen.” On the basis of those findings, Judge Levin concluded that Primrose had failed to meet its burden of establishing probable cause for sustaining the validity of its mechanic’s lien.

The present action was tried thereafter to the court, Hon. Richard P. Gilardi, judge trial referee. At some point prior to trial, the parties agreed that Judge Levin’s December 24, 2009 order, including ah factual findings therein, should be entered into evidence and that the court should consider Judge Levin’s factual findings in reaching its decision in the present case. The order was admitted at trial as the defendant’s exhibit 3.

The court issued a memorandum of decision on January 24, 2012. With regard to the unjust enrichment count, the court first rejected the defendant’s argument that it was entitled to a set off with respect to the value of any benefit allegedly received from the plaintiff because, due to damage, it was able to use only 35 or 40 percent of the electrical work provided by the plaintiff. The court found that the alleged damage occurred after the plaintiff had completed the work, without any complaint as to the quality of the work from the defendant, and that the damage was self-inflicted by the defendant or by a subsequent contractor.

The court next rejected the defendant’s claim that the plaintiff should be prohibited from claiming unjust enrichment because the defendant had paid Primrose everything it was owed under the construction contract prior to its abandonment of the project, which necessarily included payment for the work performed by its subcontractors, and allowing an unpaid subcontractor subsequently to sue for unjust enrichment would result in the defendant paying twice for the same benefit. See Providence Electric Company v. Sutton Place, Inc., 161 Conn. 242, 246, 287 A.2d 379 (1971). In rejecting that argument, the court reasoned that the defendant “never introduced any evidence, testimony or even a claim that [it], as a property owner, had paid Primrose, as the general contractor, the entire balance of their contract as a defense or that [it] paid [the plaintiff].” The court found that the defendant had tried to introduce such evidence in its posttrial brief by representing that Judge Levin had found in his order discharging Primrose’s mechanic’s lien that the defendant had paid Primrose all sums due and owing to Primrose, and that there was no balance owing under the contract between the defendant and Primrose. The court found that the defendant’s inteipretation of and reliance upon Judge Levin’s findings were misguided and that the only relevant evidence presented to the court at trial was that the defendant never paid Primrose, or the plaintiff, any sum pursuant to the final invoice submitted by Primrose.

In concluding that the defendant was hable to the plaintiff for unjust enrichment, the court found that “(1) [the defendant] received the benefit of the goods and services provided by [the plaintiff] worth $34,900, (2) that [the defendant] unjustly did not pay [the plaintiff] for the benefits, [and] (3) [that] the failure of payment by [the defendant] was to the detriment of [the plaintiff].” After a subsequent hearing on the issue of prejudgment interest, the court issued a decision that the plaintiff was entitled to prejudgment interest of $11,621.70, which, when combined with damages, resulted in a total judgment of $45,521.70, plus $1603 in costs in favor of the plaintiff. This appeal followed.

Before turning to the defendant’s claims, we first set forth some general legal principles that will guide our review. “The equitable remedy of unjust enrichment may be invoked when justice requires that a party be compensated for property or services rendered under a contract, and no [legal] remedy is available by an action on the contract. ... As an equitable right, unjust enrichment is based on the principle that in a given situation, it is contrary to equity and good conscience for the defendant to retain a benefit [that] has come to him at the expense of the plaintiff. . . . All the facts of each case must be examined to determine whether the circumstances render it just or unjust, equitable or inequitable, conscionable or unconscionable, to apply the doctrine.” (Citations omitted; internal quotation marks omitted.) Garwood & Sons Construction Co. v. Centos Associates Ltd. Partnership, 8 Conn. App. 185, 187, 511 A.2d 377 (1986). “Plaintiffs seeking recovery for unjust enrichment must prove (1) that the defendants were benefited, (2) that the defendants unjustly did not pay the plaintiffs for the benefits, and (3) that the failure of payment was to the plaintiffs’ detriment.” (Internal quotation marks omitted.) New Hartford v. Connecticut Resources Recovery Authority, 291 Conn. 433, 451-52, 970 A.2d 592 (2009).

“On appeal, it is the function of this court to determine whether the decision of the trial court is clearly erroneous. . . . This involves a two part function: where the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision; where the factual basis of the court’s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous.” (Internal quotation marks omitted.) Construction Ken-nection, Inc. v. Cipriano, 136 Conn. App. 546, 552-53, 45 A.3d 663 (2012). “The court’s determinations of whether a particular failure to pay was unjust and whether the defendant was benefited are essentially factual findings .... Those findings must stand, therefore, unless they are clearly erroneous or involve an abuse of discretion. . . . This limited scope of review is consistent with the general proposition that equitable determinations that depend on the balancing of many factors are committed to the sound discretion of the trial court.” (Internal quotation marks omitted.) New Hartford v. Connecticut Resources Recovery Authority, supra, 291 Conn. 452.

I

The defendant claims that the court improperly awarded the plaintiff damages on the basis of unjust enrichment. According to the defendant, the court should have found on the basis of Judge Levin’s December 24, 2009 order discharging Primrose’s mechanic’s lien that the defendant had paid all sums due and owing under the construction contract with Primrose. Because the payment to Primrose included payment for the work performed by the plaintiff as a subcontractor of Primrose, the defendant contends that any benefit that the defendant received as a result of work performed by the plaintiff was fully paid for and thus not obtained unjustly. The defendant’s claim therefore directly challenges the court’s factual finding that the defendant unjustly did not pay the plaintiff for the benefit of the plaintiffs work. We are not persuaded that the court’s factual finding was clearly erroneous or involved an abuse of discretion, or that the court erred by failing to make the contrary finding from the inference that the defendant sought it to draw from Judge Levin’s order.

We do not take issue with the law the defendant relies on in support of its claim. As the defendant correctly notes, appellate courts in this state have held that where a property owner hires a general contractor to oversee a construction project and thereafter receives the benefit of labor or materials supplied by a subcontractor hired by that general contractor, any enrichment of the property owner from the work of the subcontractor is not unjust absent fraud and provided that the property owner pays the general contractor in full for the subcontractor’s services. See Providence Electric Co. v. Sutton Place, Inc., supra, 161 Conn. 246-47; Garwood & Sons Construction Co. v. Centos Associates Ltd. Partnership, supra, 8 Conn. App. 188.

Where we depart from the defendant is in its interpretation of Judge Levin’s order. The defendant argues that Judge Levin determined that the defendant had paid for the plaintiffs work. The defendant’s argument hinges entirely on Judge Levin’s last finding of fact in his December 24, 2009 order, which states: “There is no balance owing or fund which [Primrose] can lien.” According to the defendant, that finding can only mean that Judge Levin had determined that the defendant had paid Primrose for all work done at the property while Primrose was acting as the general contractor, including the work done by the plaintiff. The defendant focuses its attention wholly on the first part of Judge Levin’s finding, that there was “no balance owing,” while ignoring the remaining language, “which [Primrose] can hen.” Considering Judge Levin’s finding in the context of the order as a whole and, in particular, in conjunction with the findings that immediately precede it, leads us to conclude that the defendant is misinterpreting the import of Judge Levin’s finding, which in essence is no more than a finding of no lienable fund.

Judge Levin was not deciding whether the defendant owed any debt to Primrose, but only whether there was probable cause to sustain the validity of Primrose’s mechanic’s hen. It is well settled that “[n]o mechanic’s hen may exceed the price which the owner has agreed to pay for the building being erected or improved, and the owner is entitled, furthermore, to credit for payments made in good faith to the original contractor before receipt of notice of such a hen or hens. General Statutes §§ 49-33 and 49-36.” Seaman v. Climate Control Corp., 181 Conn. 592, 596, 436 A.2d 271 (1980). A property owner is also entitled to credit for reasonable expenditures made in completing an abandoned project or in correcting defects to work already performed. See General Statutes § 49-33 (f); Rene Dry Wall Co. v. Strawberry Hill Associates, 182 Conn. 568, 575, 438 A.2d 774 (1980). Judge Levin found that after Primrose abandoned the contract with the defendant, the defendant incurred reasonable costs, far exceeding the amount of Primrose’s hen, to repair unworkmanlike performance and also that the defendant paid far in excess of the contract price to complete the project. It was after making those findings that Judge Levin ultimately found that there was no balance owing or fund “which Primrose could lien.” (Emphasis added.) Judge Levin made no specific finding, nor can it be reasonably inferred, that the defendant had paid Primrose any of the $241,424.11 that Primrose sought payment for in the final invoice. Judge Levin simply found that Primrose was not entitled to a mechanic’s lien to secure any such alleged debt. More importantly, Judge Levin’s order contained no findings pertaining to whether the plaintiff had been paid by the defendant or by Primrose.

Robert Mills, the plaintiffs owner and operator, testified at trial about the process by which the plaintiff was paid. Mills testified that Primrose never paid the plaintiff for work covered by the plaintiffs third and final invoice to Primrose, which all the parties agree was included as part of the final invoice submitted by Primrose to the defendant. As noted by the trial court, the defendant never attempted to introduce any other evidence that it had paid Primrose the balance due under the final invoice. There was sufficient evidence to support the court’s factual finding that the defendant unjustly did not pay the plaintiff for the benefits of the plaintiffs work, and we reject the defendant’s claim that the factual findings made by Judge Levin renders that finding clearly erroneous.

II

The defendant also claims that the court improperly awarded prejudgment interest pursuant to § 37-3a because there is no basis in law or in fact to award such interest. The plaintiff argues that the record is inadequate for review of the court’s award of prejudgment interest because the court failed to state the factual and legal basis for its ruling, and the defendant did not seek an articulation of the court’s decision in accordance with Practice Book § 66-5. The plaintiff argues alternatively that the court properly acted within its discretion. On the basis of the record presented, we find no abuse of discretion in the court’s award of prejudgment interest.

The defendant argues that the court lacked discretion to award prejudgment interest under § 37-3a in this action because the plaintiff sought damages on the basis of unjust enrichment. That argument requires us to consider the intended scope of § 37-3a, over which our review is plenary. See Paulus v. LaSala, 56 Conn. App. 139, 148, 742 A.2d 379 (1999), cert. denied, 252 Conn. 928, 746 A.2d 789 (2000).

“[T]here is no right to recover interest in a civil action unless a statute provides for interest. ” Foley v. Huntington Co., 42 Conn. App. 712, 737, 682 A.2d 1026, cert. denied, 239 Conn. 931, 683 A.2d 397 (1996). Section 37-3a provides in relevant part that “interest at the rate of ten per cent a year, and no more, may be recovered and allowed in civil actions ... as damages for the detention of money after it becomes payable.” Our Supreme Court has stated that a “court’s determination [as to whether interest should be awarded under § 37-3a] should be made in view of the demands of justice rather than through the application of any arbitrary rule. . . . Whether interest may be awarded depends on whether the money involved is payable . . . and whether the detention of the money is or is not wrongful under the circumstances.” (Internal quotation marks omitted.) Sosin v. Sosin, 300 Conn. 205, 229, 14 A.3d 307 (2011). Detention of money may be wrongful even if a party had a good faith basis for nonpayment. Id.

Our review of the record in this case leads us to conclude that this matter falls squarely within the scope of § 37-3a. We decline the defendant’s invitation to create a rule disallowing prejudgment interest pursuant to § 37-3a in an action seeking damages for unjust enrichment. The defendant has provided no compelling legal argument for such a holding, and the proper inquiry in determining whether interest may be awarded pursuant to § 37-3a is whether the claim at issue involves a wrongful detention of money after it becomes due and payable. See Foley v. Huntington Co., supra, 42 Conn. App. 740.

The present matter is a civil action seeking damages for the nonpayment of $34,900 in material and labor that were due and owing to the plaintiff. The court found that on February 23, 2008, the defendant received an invoice for payment from Primrose that included the work performed by the plaintiff. The defendant never paid Primrose or the plaintiff pursuant to that invoice, and the court determined that the defendant therefore wrongfully retained the benefit of the $34,900. The court awarded prejudgment interest on the $34,900 in damages beginning on February 23, 2008, the date the defendant received the invoice demanding payment. On the limited record provided by the defendant, we find no error with the court’s legal decision to award interest pursuant to § 37-3a or in its exercise of discretion in so doing.

The judgment is affirmed.

In this opinion the other judges concurred.

       John N. Guedes, Primrose’s president, also was a defendant in this'action. The sole count against Guedes, however, was withdrawn prior to trial by virtue of its exclusion from the operative second amended complaint. Because Primrose, which was defaulted by the trial court, did not appeal from the judgment rendered against it nor participate in the present appeal, and because Guedes is no longer a party to the action, we will refer to St. Dimitrie Romanian Orthodox Church as the defendant throughout this opinion.

       The court states in its memorandum of decision that the third invoice was for $42,000, although the copy submitted as an exhibit at trial indicates $40,000. Nevertheless, the court also found with regard to that third invoice that it “represented a net payment due [the plaintiff] of $34,900.” Thirty-four thousand nine hundred dollars is the amount that the plaintiff alleged it was owed for work and materials in its complaint and that same amount also is reflected in another invoice that the plaintiff submitted directly to the defendant dated February 27, 2008, which was before the court as plaintiffs exhibit 5. When asked at trial about the discrepancy between the $40,000 invoice and the $34,900 invoice, the plaintiff, through its owner/ operator, indicated that it had rounded up the numbers for the $40,000 invoice “because there’s always retainage held back on a project, and the $40,000, knowing that they were going to withhold the retainage would have given me close to this amount so I can cover my expenses.”

       At trial, the parties informed the court that there was a dispute over whether Primrose abandoned the job or was fired, but indicated that the issue was not relevant to the matter before the court and stipulated that Primrose left the job and was no longer working on the project as of February 18, 2008.

       The plaintiffs work later also passed a final inspection conducted by the building inspector of the town of Easton.

       At oral argument before this court, counsel for the defendant indicated that the stipulation between the parties concerning Judge Levin’s order was oral, not written. The transcripts provided to this court on appeal do not contain a record of the parties’ stipulation, although there are references to it during the trial. Counsel for the defendant nevertheless made clear to this court at oral argument that the parties never agreed, nor was he arguing on appeal, that the findings made by Judge Levin had any preclusive effect or that the trial court was bound to accept the facts as found by Judge Levin. Counsel stated that it was his understanding that the trial court was to treat Judge Levin’s factual findings like all other evidence presented to the trier of fact.

       The court’s decision in this matter makes no reference to the quantum meruit count against the defendant. Ordinarily, with limited exceptions not relevant here, “[a] judgment that disposes of only a part of a complaint is not a final judgment.” (Internal quotation marks omitted.) Harnage v. Commissioner of Correction, 141 Conn. App. 9, 13, 60 A.3d 308 (2013). We nevertheless are persuaded that the court properly disposed of all counts in the present case because the plaintiff abandoned its quantum meruit claim as evidenced by its posttrial brief, which addressed only unjust enrichment and made no mention of the quantum meruit count. Even if the plaintiff did not intend to abandon its quantum meruit claim, we nonetheless view the claim as having been resolved because the plaintiff would not have been entitled to recover under both theories of restitution. “Quantum meruit is an equitable remedy to provide restitution for the reasonable value of services despite an unenforceable contract. . . . In contrast, recovery under a theory of unjust enrichment applies in the absence of a quasi-contractual relationship. . . . Because both doctrines are restitutionary, the same equitable considerations apply to cases under either theory.” (Citations omitted.) Walpole Woodworkers, Inc. v. Manning, 307 Conn. 582, 587 n.9, 57 A.3d 730 (2012). Just as breach of contract and unjust enrichment, and breach of contract and quantum meruit, are mutually exclusive theories of recovery; see, e.g., 300 State, LLC v. Hanafin, 140 Conn. App. 327, 330-31, 59 A.3d 287 (2013); Stein v. Horton, 99 Conn. App. 477, 485, 914 A.2d 606 (2007); uiyust enrichment and quantum meruit are alternative theories of restitution. Accordingly, if a trial court determined that restitution was available under one theory, there would be no need for the court to address the alternative theory. Cf. Union Trust Co. v. Jackson, 42 Conn. App. 413, 416 n.2, 679 A.2d 421 (1996) (where court found in favor of plaintiff on breach of contract claim but did not address alternative unjust enrichment cause of action, judgment nevertheless was final because not necessary for court to address alternative cause of action).


source: Caselaw Access Project

author: BEACH, J.

license: Public Domain

text:
    COMMISSIONER OF PUBLIC SAFETY v. FREEDOM OF INFORMATION COMMISSION ET AL.
    (AC 32381)
    Gruendel, Beach and Sullivan, Js.

      Argued May 16
    —officially released August 13, 2013

      Steven R. Strom, assistant attorney general, with whom, on the brief, were Ceorge Jepsen, attorney general, Richard Blumenthal, former attorney general, Nora Dannehy, deputy attorney general, and Steven R. Samoski, assistant attorney general, for the appellant (plaintiff).

      Victor R. Perpetua, principal attorney, for the appel-lee (named defendant).
   Opinion

BEACH, J.

The plaintiff, the Commissioner of Public Safety (commissioner), appeals from the judgments of the trial court dismissing his appeals and concluding that the defendant, the Freedom of Information Commission (commission), properly determined that the Connecticut Freedom of Information Act (act), General Statutes § 1-200 et seq., required the disclosure of printouts or “rap sheets” obtained by the Department of Public Safety (department) from the National Crime Information Center (NCIC) computerized database, which is maintained by the Federal Bureau of Investigation (FBI). The commissioner claims that the NCIC printouts were not subject to public disclosure under the act. We reverse, in part, the judgments of the trial court.

The following facts, as found by the commission, and procedural history are relevant to this appeal. David Collins, a reporter for the New London Day, and Alexander Wood, a reporter for the Manchester Journal Inquirer, independently sought copies of various department records concerning a suicide that occurred at the MGM Grand Hotel at Foxwoods Resort Casino in Ledyard on June 4, 2008. The only requests made by Collins and Wood that are involved in this appeal are their requests for the disclosure of copies of the results of the department’s electronic inquiry about the deceased made to the NCIC, a computerized database of criminal history information that is accessible to the department through the National Crime Prevention and Privacy Compact (compact). The department denied the requests of Collins and Wood for the NCIC printouts. Collins and Wood appealed to the commission, alleging that the department had violated the act by failing to provide them with copies of documents including the NCIC printouts. In both Collins’ and Wood’s appeals, the commission concluded that the department could not lawfully avoid its obligation to disclose the NCIC printouts by “contracting] away” the obligation, and that the state’s entering into the compact constituted such a contract. Therefore, neither General Statutes § 29-164f nor 42 U.S.C. § 14616 effectively prohibited the disclosure of the NCIC printouts.

Pursuant to General Statutes §§ 1-206 and 4-183, the commissioner appealed from the commission’s rulings in both the Wood and Collins cases. The commissioner moved to consolidate the appeals, which motion was granted. The trial court agreed with the commission’s conclusion that the department may not “contract away” its statutory obligations under the act. The court concluded that the department had not demonstrated that the commission acted illegally or abused its discretion in ordering it to disclose the NCIC printouts. This appeal followed.

On appeal, the commissioner argues that the court erred in finding that the commission appropriately required the department to disclose the NCIC printouts, because the NCIC printouts were not subject to public disclosure under the act. The commissioner contends that the disclosure of information from the NCIC database is governed by 28 U.S.C. § 534 and 42 U.S.C. § 14616, which.preempt state laws to the contrary. The commissioner argues, alternatively, that the disclosure of the NCIC printouts are subject to exemption under the act, General Statutes § 1-210 (a).

We first address the commissioner’s claim that 28 U.S.C. § 534 and 42 U.S.C. § 14616 preempt conflicting state law, and conclude that federal law does not preempt state law in this case but, rather, is consistent with state law. “Judicial review of [an administrative agency’s] action is governed by the Uniform Administrative Procedure Act [General Statutes § 4-166 et seq. (UAPA)] . . . and the scope of that review is very restricted.” (Internal quotation marks omitted.) MacDermid, Inc. v. Dept. of Environmental Protection, 257 Conn. 128, 136, 778 A.2d 7 (2001). Generally, the court’s duty is to decide whether, in light of the evidence, the agency has acted unreasonably, arbitrarily, illegally, or in abuse of its discretion. See id., 137. “Cases that present pure questions of law [however] . . . invoke a broader standard of review than is . . . involved in deciding whether, in light of the evidence, the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion. . . . [W]e do not afford deference to an agency’s interpretation of a statute when . . . the construction of a statute previously has not been subjected to judicial scrutiny or to a governmental agency’s time-tested interpretation .... Accordingly ... we exercise plenary review in accordance with our well established rules of statutory construction.” (Citation omitted; internal quotation marks omitted.) Sams v. Dept. of Environmental Protection, 308 Conn. 359, 391, 63 A.3d 953 (2013).

“The question of preemption is one of federal law, arising under the supremacy clause of the United States constitution. . . . [S]tate law is pre-empted to the extent that it actually conflicts with federal law.” (Citations omitted; internal quotation marks omitted.) Rodriguez v. Testa, 296 Conn. 1, 8-9, 993 A.2d 955 (2010). “[W]hen a federal law and a state law conflict and compliance with both laws is impossible, the federal law will preempt the state law.” Pictometry International Corp. v. Freedom of Information Commission, 307 Conn. 648, 672, 59 A.3d 172 (2013), citing Crosby v. National Foreign Trade Council, 530 U.S. 363, 372-73, 120 S. Ct. 2288, 147 L. Ed. 2d 352 (2000).

By way of § 29-164f, our legislature entered into the compact, which established the NCIC. Section 29-164f, as well as 42 U.S.C. § 14616, set forth the terms of the compact. Although the compact does not contain an express prohibition on disclosure, the compact provides that the NCIC database is to be used for limited purposes authorized by law, such as background checks, and that NCIC records may only be used for official purposes.

Section 29-164f (a) of the overview of the compact provides in relevant part: “[t]his Compact organizes an electronic information sharing system among the federal government and the states to exchange criminal history records for non-criminal justice purposes authorized by federal or state law, such as background checks for government licensing and employment.” Section 29-164f, art. II (5) of the compact provides that one of the purposes of the compact is to “[r]equire the FBI and each party state to adhere to . . . standards concerning record dissemination and use . . . .” Section 29-164f, art. IV (c), concerning authorized record disclosures, provides in relevant part: “Any record obtained under the Compact may be used only for the official purposes for which the record was requested. Each Compact officer shall establish procedures . . . which procedures shall protect the . . . privacy of the records, and shall: (1) Ensure that records obtained under this Compact are used only by authorized officials for authorized purposes . . . ."

Furthermore, 28 U.S.C. § 534 makes clear that, under the compact, NCIC information is not to be disseminated outside the receiving department or related agencies: “(a) the Attorney General shall ... (4) exchange such records and information with, and for the official use of, authorized officials of the Federal Government . . . the States, cities, and penal and other institutions, (b) The exchange of records and information authorized by subsection (a) (4) of this section is subject to cancellation if dissemination is made outside the receiving departments or related agencies. . . .” A narrow exception in domestic violence and stalking cases is carved out in 28 U.S.C.§ 534 (f) (1): “Information from national crime information databases consisting of identification records, criminal history records, protection orders, and wanted person records may be disseminated to civil and criminal courts for use in domestic violence or stalking cases. Nothing in this subsection shall be construed to permit access to such records for any other purpose.” Subsection (f) (1) clearly demonstrates that access to NCIC records for any purpose not contained within the compact is not permitted.

In Commissioner of Correction v. Freedom of Information Commission, 307 Conn. 53, 68-74, 52 A.3d 636 (2012), our Supreme Court determined that a copy of an NCIC printout was exempt from disclosure under § 1-210 (a) because disclosure was barred by 8 C.F.R. § 236.6 (2007). Although the court did not decide the issue of whether the disclosure of NCIC documents was barred by 28 U.S.C. § 534, Commissioner of Corrections. Freedom of Information Commission, supra, 53, nonetheless is instructive. Copies of NCIC documents have been held to be exempt from disclosure under § 1-210 (a) because our legislature authorized participation in the compact.

Section 534 of title 28 of the United States Code was discussed, moreover, by the United States Supreme Court in United States Dept. of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 109 S. Ct. 1468, 103 L. Ed. 2d 774 (1989). That case involved requests made by news media for the disclosure of the FBI “rap sheets” of four members of a family whose business reportedly was dominated by organized crime figures. Id., 757. In holding that the disclosure of the contents of the particular requested FBI “rap sheets” was prohibited by the federal Freedom of Information Act, the Supreme Court provided the following analysis regarding the dissemination of FBI “rap sheets”:

“The local, state, and federal law enforcement agencies throughout the Nation that exchange rap-sheet data with the FBI do so on a voluntary basis. The principal use of the information is to assist in the detection and prosecution of offenders; it is also used by courts and corrections officials in connection with sentencing and parole decisions. As a matter of executive policy, the Department [of Justice] has generally treated rap sheets as confidential and, with certain exceptions, has restricted their use to governmental purposes. Consistent with the Department’s basic policy of treating these records as confidential, Congress in 1957 amended the basic statute to provide that the FBI’s exchange of rap-sheet information with any other agency is subject to cancellation ‘if dissemination is made outside the receiving departments or related agencies.’ . . . [S]ee 28 U.S.C. § 534 (b).” (Citation omitted.) United States Dept. of Justice v. Reporters Committee for Freedom of the Press, supra, 489 U.S. 752.

“[O]n three separate occasions Congress has expressly authorized the release of rap sheets for other limited purposes. In 1972 it provided for such release to officials of federally chartered or insured banking institutions and ‘if authorized by State statute and approved by the Attorney General, to officials of State and local governments for purposes of employment and licensing . . . .’ In 1975, in an amendment to the Securities Exchange Act of 1934, Congress permitted the Attorney General to release rap sheets to self-regulatory organizations in the securities industry. See 15 U.S.C. § 78q (f) (2) (1982 ed., Supp V). And finally, in 1986 Congress authorized release of criminal-history information to licensees or applicants before the Nuclear Regulatory Commission. See 42 U.S.C. § 2169 (a). These three targeted enactments—all adopted after the [federal Freedom of Information Act] was passed in 1966— are consistent with the view that Congress understood and did not disapprove the FBI’s general policy of treating rap sheets as nonpublic documents.

“Although much rap-sheet information is a matter of public record, the availability and dissemination of the actual rap sheet to the public is limited. Arrests, indictments, convictions, and sentences are public events that are usually documented in court records. In addition, if a person’s entire criminal history transpired in a single jurisdiction, all of the contents of his or her rap sheet may be available upon request in that jurisdiction.” (Citation omitted.) United States Dept. of Justice v. Reporters Committee for Freedom of the Press, supra, 489 U.S. 753.

The Supreme Court relied in part, on 28 U.S.C. § 534 (b) to demonstrate that the disclosure of FBI “rap sheets” was limited. It noted “federal statutory and regulatory provisions . . . [limit] the disclosure of rap-sheet information.” Id., 764-65. “[T]he FBI’s exchange of rap-sheet information ‘is subject to cancellation if dissemination is made outside the receiving departments or related agencies.’ 28 U.S.C. § 534 (b).” United States Dept. of Justice v. Reporters Committee for Freedom of the Press, supra, 489 U.S. 765. The Supreme Court noted that “these statutes and regulations, taken as a whole, evidence a congressional intent to protect the privacy of rap-sheet subjects . . . .” Id., 765. Although the privacy exemptions under the federal Freedom of Information Act are not at issue in this case, United States Dept. of Justice v. Reporters Committee for Freedom of the Press, supra, 749, demonstrates the limits that 28 U.S.C. § 534 (b) places on disclosure of FBI “rap sheets.”

Courts in other jurisdictions have concluded that “rap sheets” and NCIC printouts were exempt from disclosure under state or federal freedom of information acts. See Vazquez v. United States Dept. of Justice, 887 F. Supp. 2d 114 (D.D.C. 2012) (log of NCIC transactions exempt from disclosure under federal Freedom of Information Act, 5 U.S.C. § 552 [b] [7] [E]); Gerace v. Mandel, 267 App. Div. 2d 386, 700 N.Y.S.2d 739 (1999) (disclosure of “rap sheets” compiled by state Division of Criminal Justice Services exempt from disclosure under state Freedom of Information Law); State ex rel. Multimedia, Inc. v. Snowden, 72 Ohio St. 3d 141 (1995) (NCIC “rap sheets” generated in investigation of police applicants exempt from disclosure under state and federal law); State ex rel. Lippitt v. Kovacic, 70 Ohio App. 3d 525, 591 N.E.2d 422 (1991) (42 U.S.C § 3789g prohibits disclosure of FBI “rap sheets”); see also Ellerbe v. Andrews, 623 So. 2d 41 (La. App. 1993) (“rap sheet” collected by state Bureau of Criminal Identification and Information not public record under state law, thus not discoverable by third parties in civil action).

Rather than preempting state law, the federal law is consistent with state law in this case. As stated previously, the limitations federal law places on disclosure of NCIC “rap sheet” data are mirrored by state law in § 29-164L The act, § 1-210 (a), provides in relevant part: “Except as otherwise provided by any federal law or state statute, all records maintained or kept on file by any public agency . . . shall be public records” and every person shall have the right to inspect, copy or receive a copy of such public records. (Emphasis added.) The NCIC printout in this case falls under the “except as otherwise provided by any federal law or state statute” exemption in § 1-210 (a).

The commission does not dispute that 28 U.S.C. § 534 gives the United States Attorney General the right to control and limit access to federal records, but contends that the NCIC printout became a state public record within the meaning of § 1-210 (a) by virtue of its delivery to and use by the state. The commission argues that the commissioner’s agreement, as part of the compact, not to disseminate NCIC records to noncriminal justice agencies does not reheve the commissioner of his duty under the act to disclose the records requested by Wood and Collins because the state cannot contract away its obligations under the act.

The trial court’s reasoning, and the commission’s argument on appeal, that the state cannot contract away its obligations under the act by virtue of the compact, is misplaced. In so concluding, the court relied on Lieberman v. State Board of Labor Relations, 216 Conn. 253, 271, 579 A.2d 505 (1990). Lieberman concerned an agreement between the town of East Haven and one of its police officers, in which the police officer agreed to resign from his employment position in exchange for East Haven’s agreement to destroy all records pertaining to the officer’s alleged violations of rules and regulations of the East Haven police department. Id., 256. East Haven denied media requests to inspect and/or copy documents relating to the resignation. Id. Our Supreme Court held that “[o]nly certain independent library officials have been vested by the legislature with the authority to approve the destruction of public records. The destruction of public records, therefore, is an illegal subject of bargaining, and any collective bargaining agreement, arbitration award or grievance settlement requiring such destruction is null and void.” Id., 271. Lieberman is inapposite. Lieberman concerned a specific contract rather than a national compact, authorized by Congress and entered into by the General Assembly, which is codified by the state in § 29-164f and by the federal government in 42 U.S.C. § 14616. “[A]n interstate compact is not just a contract; it is a federal statute enacted by Congress.” Alabama v. North Carolina, 560 U.S. 330, 130 S. Ct. 2295, 2312, 176 L. Ed. 2d 1070 (2010). Accordingly, in the present case, the state is not “contracting away” its obligations under the act but, rather, legislatively entered into a compact to participate in a federal program, which places limitations on the disclosure of NCIC printouts.

As the commission argues, the department perhaps can choose not to participate in the NCIC network. The state, however, and not only the department, has chosen to enter into the compact by virtue of § 29-164f and, thus, is bound by the provisions of the compact. The compact provides that information obtained from the NCIC database may be used only for official purposes and 28 U.S.C. § 534 provides for cancellation of the state’s participation in the compact if unauthorized disclosure occurs. When the state accesses the NCIC database, its use of the NCIC records does not change the terms of the compact. The dissemination of NCIC printouts is governed by the compact and the NCIC printouts in this case are exempt from disclosure under § 1-210 (a).

The judgments are reversed only as to the NCIC printouts and the case is remanded with direction to render judgments sustaining the appeals of the Commissioner of Public Safety as to that claim; the judgments are affirmed in all other respects.

In this opinion the other judges concurred.

       David Collins, the New London Day, Alexander Wood and the Manchester Journal Inquirer, were also named as defendants in this action. This appeal involves only the commission.

       The parties reached agreements as to all of the other items in the reporters’ requests.

       The commission ruled separately in David Collins’ and Alexander Wood’s cases but made similar findings.

       “The NCIC database is maintained by the FBI and aggregates criminal justice information from a variety of sources. Some files in the database contain information about individual persons and are known as person files. Other files contain records regarding stolen property. Law enforcement agencies routinely check NCIC records to obtain information concerning persons in custody or under investigation.” Commissioner of Correction v. Freedom of Information Commission, 307 Conn. 53, 58 n.4, 52 A.3d 636 (2012).

       The commissioner also argues that the NCIC printouts are exempt from disclosure under the act pursuant to § 1-210 (b) (10). Because we reverse the decision of the trial court on other grounds, we need not address this claim.

       The supremacy clause of the United States constitution provides in relevant part: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof . . . shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” U.S. Const., art. VI, cl. 2.

       State law is otherwise preempted under the supremacy clause in circumstances not relevant to this appeal. See Rodriguez v. Testa, 296 Conn. 1, 8, 933 A.2d 955 (2010).

       General Statutes § 29-164f provides in relevant part: “The National Crime Prevention and Privacy Compact is hereby entered into and enacted into law with any and all of the states and the federal government legally joining therein . . . ."


author: SHELDON, J.

text:
    DEBRA A. TURRELL v. DEPARTMENT OF MENTAL HEALTH AND ADDICTION SERVICES ET AL.
    (AC 34480)
    DiPentima, C. J., Sheldon and Harper, Js.

      Argued February 6
    —officially August 13, 2013

      Peter J. Zagorsky, for the appellant (plaintiff.

      Yinxia Long, assistant attorney general, with whom, on the brief, were George Jepsen, attorney general, and Philip M. Schulz, assistant attorney general, for the appellee (named defendant).
   Opinion

SHELDON, J.

The plaintiff, Debra A. Turrell, appeals from the decision of the workers’ compensation review board (board) affirming the denial by the workers’ compensation commissioner for the eighth district (commissioner) of her claim for benefits under the Connecticut workers’ compensation act by dismissing her appeal. The plaintiff initially claims that the board improperly affirmed the commissioner’s finding and dismissal on the basis of certain documents of which the commissioner took administrative notice without advising her of his intention to do so or affording her any opportunity to challenge such documents, in violation of her right to due process. The plaintiff also claims that the commissioner erroneously determined that her work related injury was not a substantial factor in her subsequent need for surgery. We disagree and affirm the decision of the board.

The board recited the following relevant facts and procedural history in affirming the commissioner’s decision. “The [plaintiff] was employed by the [defendant, the Department of Mental Health and Addiction Services] on July 22, 2007, when she was assaulted by a patient. While working at Connecticut Valley Hospital the [plaintiff] was punched in the mouth and fell to her buttocks and said she briefly lost consciousness. The [plaintiff] was taken to the Emergency Room at Middle-sex Hospital immediately following the incident. She returned to work the following Tuesday but still suffered from headaches and returned to the Middlesex Hospital that day. Thereafter, the [plaintiff] treated with a number of physicians: Dr. Thomas Danyliw, Dr. G. Gary Lian, Dr. C. Brendan Montano, and Dr. Joseph Sohn.

“The [plaintiff] suffered continuing headaches, numbness in her arms and in her hands which led Dr. Danyliw to refer the [plaintiff] to Dr. Lian, a neurologist, who administered nerve block injections. The [plaintiff] returned to work light duty at the end of 2007 and then she was returned to work full duty a day and one-half later.

“The trial commissioner took administrative notice of a Voluntary Agreement executed by the parties in October of 2008 and approved by [the Workers’ Compensation] Commission [commission] on November 4, 2008, wherein the [defendant] accepts as compensable a July 22, 2007 work related injury to the [plaintiffs] cervical spine resulting in a [9.5 percent] compromise rating for a permanent partial disability sustained by the [plaintiff] with a maximum medical improvement date of July 22, 2008. About this time the [plaintiff] noticed weakness in her right arm and returned to treat with Dr. Danyliw. Dr. Danyliw referred the [plaintiff] to Dr. Sohn, who first saw the [plaintiff] on November 12, 2008. Dr. Sohn diagnosed the [plaintiff] with degenerative cervical spondylosis, cervical radiculopathy and herniated nucleus pulosus at C5-6 and C4-5. Following this examination Dr. Sohn recommended a cervical fusion and discectomy which the [plaintiff] wished to pursue.

“Following a subsequent examination Dr. Sohn opined that the [plaintiffs] cervical spine problems related mainly to her work related injury because the [plaintiff] had no other events preceding the injury to her spine and she continued to work in a physically demanding job which could have further aggravated her issues that precipitated from her initial injury. Dr. Sohn wrote on January 21,2009 to the [plaintiffs] union representative, Ken Jones, and provided an explanation for this opinion; noting that the [plaintiff] had degenerative spondolytic changes but believed the injury initiated her clinical symptoms. The trial commissioner took administrative notice of a Form 43 received by this Commission on January 14, 2009 wherein the [defendant] accepts the underlying claim but contested liability for a proposed anterior cervical discectomy and fusion of C4-C5 based upon the opinion of Dr. Steven Selden, [an arthroscopic surgeon].

“Dr. Selden’s opinions were also the basis of a Form 36 filed by the [defendant] dated January 14, 2009, and received by the [commission] on January 20, 2009, wherein the [defendant] asserts payments made to the [plaintiff] from July 22, 2008, represented permanent partial disability payments and that the full permanency amount had been paid. The trial commissioner took administrative notice of the Form 36, wherein Dr. Sel-den opined that while he agreed with Dr. Sohn surgery was appropriate, he did not find the causation of the injury necessitating the surgery was work related.

“Dr. Jarob Mushaweh, [a neurosurgeon], performed a [c]ommissioner’s [examination of the [plaintiff] on April 1, 2009. Dr. Mushaweh noted severe degenerative changes predating the [plaintiffs] injury. He further opined that while the 2007 iryury aggravated the [plaintiffs] preexisting condition it did not provide the most substantial factor in the [plaintiffs] need for surgery. In a letter dated May 13, 2009, Dr. Mushaweh clarified his opinion and stated the [plaintiffs] July 22, 2007 incident ‘did not play a substantial factor in her overall condition and the requirement for surgical management.’

“The [defendant’s] Form 36 request was granted with a maximum medical improvement date of May 13, 2009. The [plaintiff] elected to proceed with the surgery recommended by Dr. Sohn on July 22, 2009.

“The parties deposed Dr. Mushaweh on September 8, 2010. [He] was asked repeatedly if he believed the [plaintiffs] July 22, 2007 work related injury was a substantial factor in her need for surgical intervention. He testified that the [plaintiffs] work related injury did not accelerate the degenerative process of the [plaintiffs] underlying preexisting condition because her preexisting condition had already reached a relatively critical level. He believed the findings on the [plaintiffs] MRI scan had been present probably for years prior to the accident and while the incident played a factor in the [plaintiffs] need for treatment and additional permanent disability, T cannot say that the incident played a factor in requiring surgery.’ Dr. Mushaweh believed the injury of July 22, 2007 aggravated the [plaintiffs] preexisting condition but that it did not accelerate the degenerative progression. The [plaintiff] denied being symptomatic prior to the July 22, 2007 incident. Dr. Mushaweh, however, was skeptical of the [plaintiffs] claim that she was asymptomatic prior to the injury saying: ‘Quite frankly, I don’t know anyone who would flatly deny any even passing history of cervical pain with this amount of degenerative disease.’ [Dr. Musha-weh] did not believe surgery was unreasonable but would not have offered the [plaintiff] surgery because she had degenerative changes at the other segments that were liable to worsen more rapidly after her one or two-level fusion. . . .

“Based on these facts, the trial commissioner determined [that] the [plaintiff] sustained a compensable injury to her cervical spine on July 22, 2007, evidenced by a Voluntary Agreement executed by the parties and approved by [the] [c]ommission on November 4, 2008, wherein the [plaintiff] was assigned a [9.5 percent] permanent partial disability rating to her cervical spine with a maximum medical improvement date of July 22, 2008. [The commissioner] further determined that Dr. Selden, the [defendant’s] examiner, Dr. Sohn, the [plaintiffs] treating physician, and Dr. Mushaweh, the commissioner’s examiner, all agree [d] that the [plaintiff] had preexisting cervical spondylosis. The trial commissioner found Dr. Mushaweh’s opinion on the [plaintiffs] need for surgery credible and persuasive and concluded the [plaintiffs] work related injury of July 22, 2007 was not a substantial factor in her. need for surgical intervention. The commissioner further found the date of maximum medical improvement was set as July 22, 2008, as memorialized by the Voluntary Agreement executed by the parties and approved by [the] [c]ommission on November 4,2008. The trial commissioner reopened the Form 36 previously approved and set a new maximum medical improvement date consistent with the Voluntary Agreement. The trial commissioner dismissed the claim that the [plaintiffs] July 22, 200[9] surgery was compensable.

“The [plaintiff] filed a [m]otion to [c]orrect seeking to have her surgeiy deemed compensable, based primarily on testimony by Dr. Mushaweh not cited by the trial commissioner in the Finding and Dismissal. The [m]otion also sought to find certain documents should not have been relied on by the trial commissioner by the means of having taken administrative notice of such documents. The trial commissioner denied this [m]otion in its entirety. The [plaintiff] has pursued this appeal.”

On appeal to the board, the plaintiff claimed, as she does before this court, that the commissioner (1) violated her right to due process by taking administrative notice of, and considering, certain documents in the commission’s records in determining the date on which she reached maximum medical improvement in connection with the injury that she sustained on July 22, 2007, without notifying her of his intention to do so and without affording her the opportunity to challenge those documents, and (2) erroneously determined that her work related injury of July 22, 2007, was not a substantial factor in her need for surgical intervention. The board rejected the plaintiffs claims and, accordingly, affirmed the commissioner’s finding and dismissal and dismissed the plaintiffs appeal. This appeal followed.

“As a preliminary matter, we note that when the decision of a commissioner is appealed to the review [board], the review [board] is obligated to hear the appeal on the record of the hearing before the commissioner and not to retry the facts. ... It is the power and the duty of the commissioner, as the trier of fact, to determine the facts. . . . [T]he commissioner is the sole arbiter of the weight of the evidence and the credibility of witnesses .... Neither the review board nor this court has the power to retry facts. . . .

“The review [board] may not disturb the conclusions that the commissioner draws from the facts found unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. ... In other words, [t]hese conclusions must stand unless they could not reasonably or logically be reached on the subordinate facts. . . . Our scope of review of the actions of the review [board] is similarly limited. . . . The decision of the review [board] must be correct in law, and must not include facts found without evidence or fail to include material facts which are admitted or undisputed. . . . Furthermore, [i]t is well established that [although not dispositive, we accord great weight to the construction given to the workers’ compensation statutes by the commissioner and [the] board. . . .

“[W]e are bound by the subordinate facts found by the commissioner unless those findings are clearly erroneous. ... A factual finding is clearly erroneous only in cases in which the record contains no evidence to support it, or in cases where there is evidence, but the reviewing court is left with the definite and firm conviction that a mistake has been made.” (Citations omitted; internal quotation marks omitted.) O’Connor v. Med-Center Home Health Care, Inc., 140 Conn. App. 542, 547-49, 59 A.3d 385, cert. denied, 308 Conn. 942, 66 A.3d 884 (2013). With these principles in mind, we address the plaintiffs claims in turn.

I

The plaintiff first claims that the commissioner improperly took administrative notice of, and considered, certain documents in the commission’s file in determining that she had reached maximum medical improvement on July 22, 2008, in connection with the work related injury that she had sustained on July 22, 2007, and thereby violated her right to due process. Specifically, the plaintiff claims that she was denied due process because the commissioner took administrative notice of a prior voluntary agreement signed by the parties and two Form 36 forms filed by the defendant, and medical reports attached thereto, after the close of the hearings, absent the request of the parties, without notifying the parties that he intended to do so and without affording her the opportunity to object to the admission of those forms and reports. We are not persuaded.

On the first Form 36 of which the commissioner took administrative notice, which was filed by the defendant on January 20, 2009, the defendant sought to discontinue the plaintiffs benefits as of December 17, 2008, claiming that: “The [defendant] contests liability for temporary total disability based on the attached [independent medical examination] which finds that the current condition for which surgery is proposed is not causally connected to the work related occurrence. The [plaintiff] is at [medical maximum improvement] and [permanent partial disability] benefits have been paid.” The attached document referred to in the first Form 36 was a report authored by Dr. Selden on December 17, 2008. In that report, Selden stated that when he evaluated the plaintiff on August 20, 2008, the plaintiff had reached medical maximum improvement and he had assigned a 5 percent permanency rating to her cervical spine. Selden further opined that although the surgery proposed by Dr. Sohn was appropriate, it was not causally related to the plaintiffs July 2007 work injury.

On the second Form 36 of which the commissioner took administrative notice, which was filed on June 4, 2009, the defendant sought to discontinue the plaintiffs compensation payments as of May 13, 2009, claiming that: “The [plaintiff] is at [maximum medical improvement] per the attached report of the commissioner’s examiner, Jarob Mushaweh, M.D., the Form 36 is filed in addition to and not in lieu of the Form 36 received on [January 20, 2009] by the 8th district. [Permanent partial disability] payable has been paid effective [September 30,2008].” In the report referenced in the second Form 36, which was dated May 13, 2009, Mushaweh opined that the plaintiffs work related injury “did not play a substantial factor in her overall condition and the requirement for surgical management.” Mushaweh agreed with Selden’s assessment that the plaintiff should be assigned a permanency rating of 5 percent to her cervical spine as a result of the July 2007 work related injury. That report made no mention of maximum medical improvement.

In addressing the plaintiffs due process claims, the board explained that the plaintiffs claim regarding the commissioner’s allegedly improper determination of the maximum medical improvement date arose in the context of the defendant’s assertion that the plaintiff had received an overpayment of benefits. The board concluded that the plaintiff had not been denied due process because the parties were on notice that the commissioner would be considering the issue of overpayment and thus that they “were on notice that the date of maximum medical improvement was at issue.” The board explained that although there are “potential pitfalls when a trial commissioner chooses to take administrative notice of prior matters in a case,” and that the “wiser approach would have been to provide the parties with advance notice,” the parties “should have anticipated that any and all documentation relevant to the date of maximum medical improvement would be considered by the trial commissioner.” The board thus concluded that “[t]he commissioner’s failure to specifically state that he was taking administrative notice constitutes harmless error.”

We agree with the board’s analysis of the plaintiffs due process claim. Assuming, without deciding, that the commissioner should have advised the parties of his intention to consider the documents at issue, the plaintiff cannot genuinely deny that she was on notice that the commissioner would be examining the date of maximum medical improvement in considering the defendant’s claim of overpayment. And even if those documents were not properly submitted into evidence and thus not available to the commissioner for his consideration of the plaintiffs date of maximum medical improvement, the plaintiffs claim must fail because Dr. Danyliw’s reports of July 22, 2008, which the plaintiff herself submitted into evidence at the formal hearing, set her maximum medical improvement date at July 22, 2008. Because the commissioner’s finding that the plaintiff had reached maximum medical improvement on July 22, 2008, is supported by properly admitted evidence that was submitted by the plaintiff, we agree with the board that any error in this regard was harmless and the plaintiff was not thereby denied due process.

II

The plaintiff also claims that the commissioner improperly determined that the work related injury she sustained on July 22, 2007, was not a substantial factor in her subsequent need for surgery. We disagree.

“[I]n Connecticut traditional concepts of proximate cause constitute the rule for determining . . . causation [in workers’ compensation cases]. . . . [T]he test of proximate cause is whether the [employer’s] conduct is a substantial factor in bringing about the [employee’s] injuries. . . . [Our Supreme Court] has defined proximate cause as [a]n actual cause that is a substantial factor in the resulting harm .... The question of proximate causation . . . belongs to the trier of fact because causation is essentially a factual issue. ... It becomes a conclusion of law only when the mind of a fair and reasonable [person] could reach only one conclusion; if there is room for a reasonable disagreement the question is one to be determined by the trier as a matter of fact.” (Citations omitted; internal quotation marks omitted.) Sapko v. State, 305 Conn. 360, 372-73, 44 A.3d 827 (2012). “[W]hether a sufficient causal connection exists between the employment and a subsequent injury is ... a question of fact for the commissioner. It is axiomatic that, in reaching that determination, the commissioner often is required to draw an inference from what he has found to be the basic facts. [As (our Supreme Court) previously (has) explained] [t]he propriety of that inference ... is vital to the validity of the order subsequently entered. But the scope of judicial review of that inference is sharply limited .... If supported by evidence and not inconsistent with the law, the . . . [c]ommissioner’s inference that an injury did or did not arise out of and in the course of employment is conclusive. No reviewing court can then set aside that inference because the opposite one is thought to be more reasonable; nor can the opposite inference be substituted by the court because of a belief that the one chosen by the . . . [c]ommissioner is factually questionable. . . . Only if no reasonable fact finder could have resolved the proximate cause issue as the commissioner resolved it will the commissioner’s decision be reversed by a reviewing court.” (Citation omitted; internal quotation marks omitted.) Id., 385-86.

In the present case, the board determined that the commissioner relied on several portions of Mushaweh’s deposition testimony, as cited in its decision, and properly considered the totality of his testimony in determining that the plaintiffs July 22, 2007 injury was not a substantial factor in her need for surgery. Although there are portions of the record that may cast doubt on Mushaweh’s conclusions, the commissioner was entitled to credit all or any portion of the evidence submitted by the parties in reaching his conclusion. Because the commissioner’s determination finds support in the record, we cannot conclude that he erred in determining that the plaintiffs July 22, 2007 work related injury was not a substantial factor in her need for surgery. Accordingly, the board did not err in affirming the commissioner’s dismissal of this claim.

The decision of the Workers’ Compensation Review Board is affirmed.

In this opinion the other judges concurred.

       GAB Robins of North America, Inc., the workers’ compensation administrator for the state of Connecticut, also was a defendant in the present case, but did not participate in this appeal. We refer in this opinion to the Department of Mental Health and Addiction Services as the defendant in the interest of simplicity.

       A “Form 36 is a notice to the compensation commissioner and the claimant of the intention of the employer and its insurer to discontinue compensation payments. The filing of this notice and its approval by the commissioner are required by statute in order properly to discontinue payments. General Statutes §§ 31-296, 31-296a, 31-300.” (Internal quotation marks omitted.) Brinson v. Finlay Bros. Printing Co., 77 Conn. App. 319, 321, 823 A.2d 1223 (2003).


author: GRUENDEL, J.

text:
    LESZEK M. SCHOENBORN v. MALGORZATA SCHOENBORN
    (AC 34446)
    DiPentima, C. J., and Gruendel and Dupont, Js.

      Argued May 20
    —officially released August 13, 2013

      Leszek M. Schoenbom, self-represented, the appellant (plaintiff).

      W. Anthony Stevens, Jr., with whom was Ronald T. Scott, for the appellee (defendant).
   Opinion

GRUENDEL, J.

The self-represented plaintiff, Leszek M. Schoenbom, appeals from the judgment of dissolution rendered by the trial court. He claims that the court (1) abused its discretion in allocating parenting time between the parties, (2) improperly determined that the parties’ antenuptial agreement was not unconscionable, (3) failed to consider the earning capacity of the defendant, Maigorzata Schoenbom, in rendering its child support order, and (4) erroneously calculated the plaintiffs earning capacity. We affirm the judgment of the trial court.

The court’s comprehensive memorandum of decision contains the following relevant facts. The parties married in Waterbury on September 19, 2000, and three children were born of the marriage. Following the subsequent breakdown of the marriage, the plaintiff commenced a dissolution action in 2010. In response, the defendant filed an answer and a cross complaint. A three day trial followed in February, 2012. On March 2, 2012, the court rendered judgment dissolving the parties’ marriage, finding that it had broken down irretrievably.

As part of the judgment of dissolution, the court made numerous factual findings and fashioned various orders. The court found, inter alia, that “[o]n September 18, 2000, the parties signed the antenuptial agreement. The plaintiff was represented by counsel and the defendant had the opportunity to review the agreement with independent counsel but knowingly waived that right. The parties were fully aware of the rights which they both chose to waive and there was fair and reasonable financial disclosure between them. The antenuptial agreement is not found to be unconscionable as of the time of the marriage or the time of dissolution. The antenuptial agreement is valid and enforceable, incorporated herein by reference thereto and included within the judgment of this court.” With respect to child support, the court found “ [b] ased on the parties’ net income and the child support and arrearage guidelines regulations, the court finds the presumptive amount of child support payable by the plaintiff husband to the defendant wife is $335 a week.”

After ordering joint legal custody of the minor children with primary physical custody vested in the defendant, the court adopted, as an order of the court, “the parenting plan set forth in the guardian ad litem’s proposed orders dated February 16, 2012.” That plan provides in relevant part: “The [plaintiff] shall have parenting time with his son on Monday from after school through 8:00 p.m. and with his daughters on Wednesday from after school through 8:00 p.m. The [plaintiff] shall have parenting time with all three children every other weekend from Saturday at 9:00 a.m. through Sunday at 6:00 p.m. Ingrid will return to [the defendant] on Saturdays at 6:00 p.m., Isabelle and Albert shall spend the night through Sunday at 6:00 p.m.” From that judgment, the plaintiff appeals.

I

The plaintiff first claims that the court abused its discretion in allocating parenting time between the parties. “Our standard of review of a trial court’s decision regarding custody, visitation and 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).

In fashioning its visitation order, the court adopted the parenting plan proposed by Attorney Otto H. Igle-sias, the guardian ad litem for the minor children. In so doing, the court evaluated not only the testimony of the parties, but also that of family relations officer Jaime Ment, and Stephen Humphrey, a psychologist who individually evaluated the parties and also conducted an interactional evaluation of the parties with the minor children. Iglesias, Ment and Humphrey all recommended limiting the plaintiff to alternating weekend visitation with the children. As the court noted, “[t]he plaintiff believes the singular recommendations of the three professionals to be the result of collusion. He cannot accept that he bears any responsibility for the recommendations being as they are. He should. The court does not find any collusion between the professionals and finds each performed their evaluations independently and thoughtfully.”

The court particularly credited the testimony and proposed visitation order of Iglesias. The court emphasized that “the involvement of the [guardian ad litem] continued after [Ment] and Humphrey completed their evaluations, and he was privy to the changing relationship between the daughters of the couple and the plaintiff . . . .” The court found that “the [plaintiffs] parenting time was changed in the fall of 2011, by agreement of the parties .... The [plaintiff] had been spanking the [daughters], they were upset by being spanked, and they did not want to stay with him overnight. [The plaintiff] was not spanking [his son]. The [plaintiff] said that [his son] never lied or did anything bad to the girls, but the girls were being bullies to [the son]. The defendant ... is concerned that the [plaintiffs] disparate treatment of the children will affect their sibling relationship.” Those findings are supported by the record and, hence, are not clearly erroneous.

“[I]t is well established that the evaluation of a witness’ testimony and credibility are wholly within the province of the trier of fact.” Szczerkowski v. Karmelowicz, 60 Conn. App. 429, 434, 759 A.2d 1050 (2000). “Credibility must be assessed . . . not by reading the cold printed record, but by observing firsthand the witness’ conduct, demeanor and attitude. ... An appellate court must defer to the trier of fact’s assessment of credibility because [i]t is the [fact finder] . . . [who has] an opportunity to observe the demeanor of the witnesses and the parties; thus [the fact finder] is best able to judge the credibility of the witnesses and to draw necessary inferences therefrom.” (Internal quotation marks omitted.) Blum v. Blum, 109 Conn. App. 316, 329, 951 A.2d 587, cert. denied, 289 Conn. 929, 958 A.2d 157 (2008). We conclude that the court was well within its discretion to credit the testimony of the guardian ad litem and to adopt his proposed visitation order.

II

The plaintiff contends that the court improperly concluded that the parties’ antenuptial agreement was not unconscionable. We disagree.

The following additional facts, as found by the court, are relevant to this claim. The parties met in the spring of 1999. The defendant recently had graduated from dental school and was in a residency program at St. Mary’s Hospital in Waterbury. The plaintiff was in the business of acquiring, renovating and supervising rental properties. At that time, the plaintiff had assets exceeding $1.5 million in value, whereas the defendant had $1000 in assets.

At the behest of the plaintiff, the parties entered into an antenuptial agreement prepared by the plaintiffs attorney. The agreement provides in relevant part: “Whereas, each desires to keep all of his or her separate property whether now owned or hereafter acquired free from any claim of the other by virtue of the forthcoming marriage unless otherwise provided .... [The plaintiff] and [the defendant] hereto agree: (1) In any proceeding in which either party seeks a legal separation or a dissolution of the intended marriage under the law of the State of Connecticut or other jurisdiction in which one or both of the parties may be domiciled, [they] agree that in any such action neither will ask for any different or greater rights of relief than specified herein and that they will abide with and be bound by the provisions of this agreement now and hereafter. . . . (3) Neither [the plaintiff] or [the defendant] shall acquire by the intended marriage any right or title to or interest in any property owned by the other before such marriage; nor shall either [the plaintiff] or [the defendant] acquire after such marriage any right or title to or interest in the appreciation in the value of such property or in the proceeds from the sale of such property or in assets purchased by either [the plaintiff] or [the defendant] during said marriage with the proceeds from the sale of property owned by either party before the marriage or acquired after the marriage or with other funds .... (4) In the event that either [the plaintiff] or [the defendant] institutes a proceeding for legal separation or dissolution of the marriage . . . each party . . . agrees not to seek or accept and specifically waives any right to an alimony (maintenance) award, period or lump sum, temporary and/or permanent, or to a property settlement distribution against the other except as it pertains to property held in joint names with rights of survivorship. ... (7) [E]ach party shall keep and retain sole ownership, control and enjoyment of all property, real and personal, the unrealized appreciation and proceeds thereof, accumulations and accretions added thereto, now owned or hereafter acquired and howsoever acquired by him or her, free and clear of any claim of the other during marriage or upon termination of the marriage by death or otherwise.” The parties signed that agreement on September 18, 2000, and married a day later.

The defendant concluded her dental residency in July, 2001, and thereafter held various positions as a dentist. In September, 2003, she bought a dental practice in West Hartford. As the court found, “[t]he dentist from whom she acquired the practice was Russian speaking and his clients were primarily Russian speaking. The defendant speaks Russian and Polish and was therefore uniquely qualified to acquire and build the practice—which she has done. She expanded to two offices, the other being located in Plainville. She is clearly a driven and motivated person.” At the time of dissolution, the defendant had “amassed assets having avalué of approximately $1.5 million since the marriage; many of the assets are related to the operation of her dental practice.” The court further found that the plaintiffs assets had increased from $1.5 million to approximately $2 million, noting that “[h]e owns more properties as of the time of the divorce than he did at the time of the marriage . . . .”

The plaintiff now claims that the antenuptial agreement prepared by his attorney and entered into by the defendant at his behest “should be held unenforceable because it was unconscionable at the time of enforcement. . . . [T]he enormity of the defendant’s success was certainly not within the contemplation of the parties at the time the agreement was entered into . . . and enforcement of the agreement would work an injustice.” The trial court was not persuaded by that argument, and neither are we.

As our Supreme Court has explained, “[a]n antenup-tial agreement is a type of contract and must, therefore, comply with ordinary principles of contract law. . . . [A]ntenuptial agreements are to be construed according to the principles of construction applicable to contracts generally.” (Internal quotation marks omitted.) Crews v. Crews, 295 Conn. 153, 159, 989 A.2d 1060 (2010). “[A]ntenuptial agreements relating to the property of the parties, and more specifically, to the rights of the parties to that properly upon the dissolution of the marriage, are generally enforceable ... [if] the circumstances of the parties at the time the marriage is dissolved are not so beyond the contemplation of the parties at the time the contract was entered into as to cause its enforcement to work injustice.” (Emphasis in original; internal quotation marks omitted.) Id., 167-68.

“[T]he party seeking to challenge the enforceability of the antenuptial contract bears a heavy burden. . . . This heavy burden comports with the well settled general principle that [c]ourts of law must allow parties to make their own contracts. ... It is established well beyond the need for citation that parties are free to contract for whatever terms on which they may agree. . . . Whether provident or improvident, an agreement moved on calculated considerations is entitled to the sanction of the law . . . .” (Citations omitted; internal quotation marks omitted.) Id., 169. Accordingly, to “render unenforceable an otherwise valid antenuptial agreement, a court must determine: (1) the parties’ intent and circumstances when they signed the antenup-tial agreement; (2) the circumstances of the parties at the time of the dissolution of the marriage; (3) whether those circumstances are ‘so far beyond’ the contemplation of the parties at the time of execution; and (4) if the circumstances are beyond the parties’ initial contemplation, whether enforcement would cause an injustice.” Id., 168; see also General Statutes § 46b-36g. That inquiry is conducted pursuant to the plenary standard of review. Id., 167.

The record before us substantiates the court’s conclusion that the parties’ agreement was not unconscionable. As the court specifically found, “the agreement was executed by both parties knowingly and voluntarily and . . . was taken quite seriously by the [defendant]. After the execution of the agreement, the parties abided by its terms. The parties kept all of their assets and their debts separate .... They went so far as to execute promissory notes when money was loaned between them.” Those findings are supported by the evidence in the record.

As previously noted, the court found that, at the time the agreement was executed, the plaintiff had $1.6 million in assets compared to the defendant’s $1000 in assets. At the time of dissolution, the plaintiffs assets had grown to approximately $2 million; the defendant had assets totaling $1.5 million. In its memorandum of decision, the court concluded that “[d]espite the change in net worth of the [defendant], the court does not find the enforcement of the antenuptial agreement to be unconscionable .... The [plaintiff] at the time of the marriage knew his fiancee was completing her dental residency and she was a dentist at the time of the marriage. The increase in her income and a resultant increase in her net worth were certainly foreseeable.”

We concur with that assessment. At the time the parties married, the defendant was beginning her career as a dentist. The subsequent increase in her net worth was contemplated by the plain terms of the agreement, hence the inclusion of language providing that “each party shall keep and retain sole ownership, control and enjoyment of all property, real and personal, the unrealized appreciation and proceeds thereof, accumulations and accretions added thereto, now owned or hereafter acquired and howsoever acquired by him or her, free and clear of any claim of the other during marriage or upon termination of the marriage by death or otherwise.” (Emphasis added.) Furthermore, it is not insignificant that the plaintiff increased his own net worth by one-half million dollars over that time, a point emphasized by the court in rejecting the plaintiffs claim.

As a result, the “circumstances of the parties at the time of the dissolution of the marriage”; Crews v. Crews, supra, 295 Conn. 168; were not so far beyond the contemplation of the parties as to render the agreement unconscionable. Accordingly, the plaintiffs claim fails.

III

The plaintiff also argues that the court failed to consider the defendant’s earning capacity in rendering its child support order. “In fashioning its financial orders, the court has broad discretion, and [j]udicial review of a trial court’s exercise of [this] broad discretion . . . is limited to the questions of whether the . . . court correctly applied the law and could reasonably have concluded as it did. ... In making those determinations, we allow every reasonable presumption ... in favor of the correctness of [the trial court’s] action. . . . That standard of review reflects the sound policy that the trial court has the unique opportunity to view the parties and their testimony, and is therefore in the best position to assess all of the circumstances surrounding a dissolution action, including such factors as the demeanor and the attitude of the parties.” (Internal quotation marks omitted.) Sander v. Sander, 96 Conn. App. 102, 105, 899 A.2d 670 (2006). We likewise note that “[a]ppellate review of a trial court’s findings of fact is governed by the clearly erroneous standard of review. The trial court’s findings are binding on 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 in the record to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Buehler v. Buehler, 117 Conn. App. 304, 317-18, 978 A.2d 1141 (2009).

The plaintiff claims that the court considered the defendant’s stated income exclusively and failed to consider her earning capacity, in contravention of General Statutes § 46b-84 (d). That statute requires the court, in crafting a child support order, to “consider the age, health, station, occupation, earning capacity, amount and sources of income, estate, vocational skills and employability of each of the parents, and the age, health, station, occupation, educational status and expectation, amount and sources of income, vocational skills, employability, estate and needs of the child.” General Statutes § 46b-84 (d). His claim is belied by the memorandum of decision before us, in which the court acknowledged that the earning capacity of the parties was a relevant consideration. The court prefaced its financial orders by noting that it “may under appropriate circumstances . . . base financial awards on the earning capacity of the parties rather than on actual earned income. . . . Earning capacity, in this context, is not an amount which a person can theoretically earn, nor is it confined to actual income, but rather it is an amount which a person can realistically be expected to earn considering such things as his vocational skills, employability, age and health.” (Internal quotation marks omitted.)

In articulating specific orders at the conclusion of its memorandum of decision, the court stated with respect to the issue of child support: “Based on the earning capacity of the plaintiff . . . the court finds his gross weekly income to be $4000, and his net weekly income to be $2624. The [defendant’s] gross weekly income is $4867, and her net is $2753. Based on the parties’ net income and the child support and arrearage guideline regulations, the court finds that the presumptive amount of child support payable by the plaintiff . . . to the defendant ... is $335 a week. After hearing the testimony of the parties and reviewing the financial affidavits, the earnings of the respective parties and the deviation criteria set forth in . . . the child support and arrearage guidelines regulations, the court orders the [plaintiff] to pay the sum of $335 a week for child support.” As this court has recognized, although a court is obligated under Connecticut law to consider earning capacity, “the decision whether to deviate from the guidelines on the basis of that criterion is left to the court’s sound discretion.” Gilbert v. Gilbert, 73 Conn. App. 473, 483, 808 A.2d 688 (2002). We further emphasized that a trial court’s decision not to deviate from the guidelines does not, a fortiori, “demonstrate a failure to consider that criterion.” Id.

In the present case, the court heard detailed testimony from the parties and reviewed their respective financial affidavits. The court expressly considered the deviation criteria set forth in the child support and arrearage guideline regulations. On the record before us, we therefore cannot conclude that the court failed to consider the defendant’s earning capacity in rendering its child support order.

IV

The plaintiff lastly claims that the court erroneously calculated his own earning capacity in rendering its child support order. Distilled to its essence, his claim is that the court improperly declined to credit his testimony and documentary evidence.

As earlier noted, this court cannot pass on issues of credibility and must defer to the trier of fact’s assessment thereof. Blum v. Blum, supra, 109 Conn. App. 329. The court, as trier of fact in the present case, deemed the plaintiffs evidence and testimony lacking in credibility. Specifically, the court found: “The [plaintiffs] compliance with mandatory disclosure required under Practice Book § 25-32 has been abysmal. At the start of trial, he was ordered by the court to produce an updated financial affidavit, and he prepared one that day. The February 2, 2012 affidavit reflects a weekly gross income of $2000 and a weekly withholding tax of $1000. Despite signing an oath as to its accuracy, he subsequently acknowledged that the deductions to his gross income as shown on the affidavit are inaccurate inasmuch as he used his financial affidavit filed in June, 2010, to approximate his deductions and that affidavit reflected such deductions on the basis of an income of over $5000 a week. ... He also owns a piece of property in Vermont . . . [but] did not list the Vermont property on his financial affidavit. . . . [T]he [plaintiff] was court ordered to file his tax returns and to produce the same to the [defendant]. He has not, as of the close of evidence, filed any tax returns since 2002—he testified that he is too busy. The court finds the income, deductions and expenses shown on his February 2,2012 financial affidavit to be totally unreliable.” The court further found that “the [plaintiff] owns, directly or indirectly, forty-three rental units” in Newington, Wethers-field and Hartford. Because “[t]here are no mortgages” on any of those properties, the court found that the plaintiff “has been able to generate large quantities of cash from his business ventures.”

With respect to monthly rental earnings, the court credited the plaintiffs testimony “that most of his tenants pay their rent in cash and that the average rental is $600 per unit.” The court then stated: “He claimed most of the units are empty, but he also testified, inconsistently, that thirty [units] are rented. If thirty units are rented, then the rent generated therefrom would be approximately $18,000 a month. Even if one can assume the . . . rental income approximates his actual rental income, as it is impossible to differentiate his personal from his business expenses, no approximation of his net income can be accurately determined.” On the evidence before it, the court, “[b]ased on lifestyle, the accumulation of properties and the other findings of the court,” found that the plaintiff had “an earning capacity of $4000 a week, gross, and a net of $2624 a week and will base financial orders thereon.” Mindful of the deferential standard of review that governs such claims, we cannot say that the court’s findings with respect to the plaintiffs earning capacity were clearly erroneous.

The judgment is affirmed.

In this opinion the other judges concurred.

       Pursuant to Practice Book § 67-13, the guardian ad litem for the minor children filed a statement adopting the brief of the defendant in this appeal.

       Ment and Humphrey completed written reports in the spring of 2011, which were admitted into evidence as exhibits at trial.

       In addition, the plaintiff claims that the court erroneously calculated the defendant’s gross weekly income. We disagree. The court expressly found the defendant’s financial affidavit credible, which set forth a gross weekly income of $4867. Although the defendant testified that she collected approximately $500 per week in rental income, she testified that she did not include that amount in the rent section of her financial affidavit because she also paid rent that was not included on the affidavit, and that she has various rental expenses that likewise were not included. She explained that her rental receipts were handled by an accountant who calculated both rental income and expenses. When the income exceeded expenses, the accountant placed the surplus in a business checking account. The defendant testified that any such rental income was reflected on her financial affidavit under that bank account. The plaintiff, who appeared pro se throughout the proceedings and cross-examined the defendant, never inquired further as to the specific amount of rental income surplus typically received, if any. On the record before us, we thus cannot conclude that the court’s finding was clearly erroneous.

       Among the criteria for deviation set forth in § 46b-215a-3 of the Regulations of Connecticut State Agencies is the parent’s earning capacity.

       Practice Book § 25-32, titled “Mandatory Disclosure and Production,” provides: “(a) Unless otherwise ordered by the judicial authority for good cause shown, upon request by a party involved in an action for dissolution of marriage or civil union, legal separation, annulment or support, or a postjudgment motion for modification of alimony or support, opposing parties shall exchange the following documents within thirty days of such request:
      “(1) all federal and state income tax returns filed within the last three years, including personal returns and returns filed on behalf of any partnership or closely-held corporation of which a party is a partner or shareholder;
      “(2) IRS forms W-2, 1099 and K-l within the last three years including those for the past year if the income tax returns for that year have not been prepared;
      “(3) copies of all pay stubs or. other evidence of income for the current year and the last pay stub from the past year;
      “(4) statements for all accounts maintained with any financial institution, including banks, brokers and financial managers, for the past 24 months;
      “(5) the most recent statement showing any interest in any Keogh, IRA, profit sharing plan, deferred compensation plan, pension plan, or retirement account;
      “(6) the most recent statement regarding any insurance on the life of any party;

        “(7) a summary furnished by the employer of the party’s medical insurance policy, coverage, cost of coverage, spousal benefits, and COBRA costs following dissolution;
      “(8) any written appraisal concerning any asset owned by either party.
      “(b) Such duty to disclose shall continue during the pendency of the action should a parly appear. This section shall not preclude discovery under any other provisions of these rules.”

       On the issue of large quantities of cash, the court in its memorandum of decision found that the plaintiff “acknowledged having a bag of money in his possession in 2010, but he believes [that] the [defendant] took it from his car at the time he was appearing in court in New Britain on criminal charges.” The court noted that “[w]hile not in evidence, as the information was presented in the form of a question [the plaintiff] posed to the [defendant] during his cross-examination of her, the [plaintiff] asked if she had found ‘$146,000 in cash in old folded hundreds’ in a bag. He also made reference to the bag of money at other times during his questioning and his own testimony, but without specifics as to the amount.” At oral argument before this court, the plaintiff repeated his allegation that the defendant had stolen his bag of cash containing $146,000.

       Consistent with our Supreme Court’s recent pronouncement in Tanzman v. Meurer, 309 Conn. 105,70 A.3d 13 (2013), the court determined the specific dollar amount of the plaintiffs earning capacity.