author: FLYNN, C. J.

text:
    RAVENSWOOD CONSTRUCTION, LLC v. F. L. MERRITT, INC.
    (AC 26918)
    Flynn, C. J., and Bishop and Borden, Js.

      Argued September 6
    officially released December 18, 2007

      Paul M. Geraghty, with whom were Michael S. Bon-nano and James M. Miele, for the appellant (named plaintiff).

      Elizabeth L. Leamon, with whom were Gerald A. Cory and, on the brief, Ben A. Solnit, for the appellee (intervening defendant Groton Open Space Association, Inc.).
   Opinion

FLYNN, C. J.

The named plaintiff, Ravenswood Construction, LLC (Ravenswood), appeals from the judgment of the trial court in favor of the defendants, F. L. Merritt, Inc. (Merritt), and the Groton Open Space Association, Inc. (association). On appeal, Ravenswood claims that the court improperly (1) failed to instruct the jury on the law of secret intent (2) allowed into evidence an unsigned rider to the real estate contract at issue, (3) restricted its cross-examination of a witness and (4) denied its motion to set aside the verdict where (a) the verdict was against the weight of the evidence and (b) the jury failed to follow the court’s instructions. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. In 2002, Ravenswood and Merritt were negotiating a contract for the purchase and sale of seventy-five acres of undeveloped land in Groton; the land was owned by Merritt, and Ravenswood sought to purchase it for development. Negotiations between Merritt and Ravenswood began in the spring of 2002. Merritt was eager to sell the property because many of its shareholders were quite elderly, being in their eighties and nineties. Nelson Merritt, president of Merritt, who was age eighty-two, made it clear to Ravenswood that the property would be sold to the first buyer that was willing and able to purchase it. On January 13, 2003, Dean Fiske, a member of Ravenswood, signed a written offer to purchase and authorized his attorney, James Miele, to send this offer to Merritt’s attorney, Robert Lane. There were exhibits affixed to this offer as well as a rider, which Fiske did not sign, but to which he had no objection. After acquiring the required nonrefundable deposit of $50,000 from Fiske, Miele sent the documents and the check to Lane on February 18, 2003.

After Lane received the documents, Nelson Merritt signed the agreement on February 28, 2003, but he instructed Lane to hold the documents in escrow pending receipt of certain releases from Miele. Nelson Merritt did not sign the rider, but, like Fiske, he also had no objection to it. As of March 14, 2003, Lane still had not received properly executed releases from Ravenswood, and he continued to hold the documents in escrow. Three days later, Lane informed Miele that Merritt was considering an offer from another potential purchaser. On March 31, 2003, Miele received a letter from Lane, which contained the documents, with Nelson Merritt’s signature cut from the agreement and a check for the return of the $50,000 deposit. On April 14, 2003, Merritt executed a contract with the association for purchase of the seventy-five acres. On May 5, 2003, Ravenswood filed this action against Merritt for breach of contract, seeking specific performance of the agreement. The association’s motion to intervene in this suit as a party defendant was granted on September 29, 2003, and the case was tiled to the jury only on the question of whether there existed a contract between Ravenswood and Merritt. The jury returned a verdict in favor of the defendants, finding that no contract existed. The court accepted the jury’s verdict, rendered judgment for the defendants and ordered that the property be conveyed to the association. Ravenswood filed a motion to set aside the jury verdict, which the court denied on August 18, 2005. This appeal followed. Additional facts will be set forth as necessary.

I

Ravenswood first claims that the court improperly failed to give a requested instruction to the jury on the law of secret intent. The defendants argue that “[b]ecause the charge to the jury adequately and accurately reflected the controlling law, the judge’s refusal to instruct the jury on the so-called ‘law of secret intent’ was not improper.” We agree with the defendants.

“We first set forth the well established standard of review for a challenge to the propriety of a jury instruction. . . . The test to determine if a jury charge is proper is whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law.” (Internal quotation marks omitted.) Shea v. Doherty, 91 Conn. App. 367, 371, 880 A.2d 1017 (2005). “[W]e must determine whether the jury instructions gave the juiy a reasonably clear comprehension of the issues presented for their determination under the pleadings and upon the evidence and were suited to guide the jury in the determination of those issues. . . . [I]n our task of reviewing jury instructions, we view the instructions as part of the whole trial. ... As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury ... we will not view the instructions as improper. . . . Moreover, [a] refusal to charge in the exact words of a request will not constitute error if the requested charge is given in substance. . . .” (Citation omitted; internal quotation marks omitted.) Rossi v. Stanback, 36 Conn. App. 328, 332, 650 A.2d 920 (1994).

Ravenswood submitted the following requested instruction, which it claims the court improperly failed to give to the jury: “The making of a contract does not depend upon the secret intention of a party but upon the intention manifested by his, her or its words or acts, and on these words or acts the other party has a right to proceed.” Although Ravenswood claims that the court acted improperly in not giving this exact instruction, our law requires that the court give instructions that are correct in law, adapted to the issues and sufficient to guide the jury in its deliberations. See id.

The law regarding secret intent is set forth by Professor Williston in his learned treatise: “It is customarily said that mutual assent is essential to the formation of informal contracts, but it must be noted that the mutual assent must be manifested by one party to the other, and except as so manifested, is unimportant. In some branches of the law, most notably in the criminal law, a person’s subjective or secret intent is important. In the formation of contracts, however, it was long ago settled that secret, subjective intent is immaterial, so that mutual assent is to be judged only by overt acts and words rather than by the hidden, subjective or secret intention of the parties.” 1 S. Williston, Contracts (4th Ed. Lord 2007) § 4.1, pp. 322-25.

In this case, the court instructed in relevant part: “The acceptance of the offer need not be expressed, but may be shown by any words or acts which indicate the offeree’s assent to the proposed bargain.” The court further instructed: “In determining the intent of the parties, a contract is construed as a whole, and all relevant provisions are considered .... In construing the agreement, the decisive question is to be determined from the language used, the circumstances, the motives of the parties and the purposes which they sought to accomplish. ... It is for you, the jury, to determine what was the intention of the parties in this case. . . . p]t’s for you to determine whether [Merritt] accepted the offer made by [Ravenswood], and your determination must be based on all the testimony you heard and the exhibits which were introduced into evidence as to what was the intent of the parties as to acceptance of the offer by [Merritt].”

Ravenswood argues that this instruction was not sufficient because “the evidence clearly supported the notion that . . . [Merritt] act[ed] and conducted] itself in a manner that would allow [Ravenswood] to proceed under the contract” but that Merritt also “held the secret intent of not wanting to be bound by the contract even though it had been fully executed.” Ravenswood contends that the court needed “to direct the jury that Connecticut law will not allow a party to a contract to rely on his or her secret intent but will instead rely on words or acts.”

Although the court did not use the words “secret intent,” it did instruct the jury that “[t]he acceptance of the offer need not be expressed but may be shown by any words or acts . . . .” This adequately conveyed the premise of the instruction that Ravenswood sought—that the existence of a contract is dependent on the intention manifested through the parties’ words or acts. Any further instruction regarding some alleged “secret intent,” which is not relevant in assessing the existence of a contract, may have confused the jury and would not have aided it in understanding the law. This is especially true in a case such as this, in which, as the court stated, there was no evidence of a hidden or secret intent to warrant such a review. Accordingly, we conclude that the court properly declined to give the requested instruction.

II

Next, Ravenswood claims that the court improperly denied its motion in limine to preclude an unsigned rider from being entered into evidence. It argues that the court “should have ruled that the parol evidence rule kept the rider out of evidence and rendered it without effect.” We do not agree.

Initially, we set forth our standard of review. “Ordinarily, the trial court may exercise its discretion with regard to evidentiary rulings, and [those] rulings will not be disturbed on appellate review absent abuse of that discretion. . . . Because the parol evidence rule is not an exclusionary rule of evidence, however, but a rule of substantive contract law . . . the [defendants’] claim involves a question of law to which we afford plenary review.” (Internal quotation marks omitted.) Landry v. Spitz, 102 Conn. App. 34, 57, 925 A.2d 334 (2007).

The parol evidence rule “is premised upon the idea that when the parties have deliberately put their engagements into writing, in such terms as import a legal obligation, without any uncertainty as to the object or extent of such engagement, it is conclusively presumed, that the whole engagement of the parties, and the extent and manner of their understanding, was reduced to writing. After this, to permit oral testimony, or prior or contemporaneous conversation, or circumstances, or usages [etc.], in order to learn what was intended, or to contradict what is written, would be dangerous and unjust in the extreme. . . . The parol evidence rule does not of itself, therefore, forbid the presentation of parol evidence, that is, evidence outside the four corners of the contract concerning matters governed by an integrated contract, but forbids only the use of such evidence to vary or contradict the terms of such a contract.” (Internal quotation marks omitted.) Palozie v. Palozie, 283 Conn. 538, 548 n.8, 927 A.2d 903 (2007).

Ravenswood filed a motion in limine, specifically requesting that the court preclude the rider that was appended to the contract proposal because “[t]he resulting prejudice against [Ravenswood] if the [r]ider is allowed into evidence calls for the preclusion of the [r]ider under the parol evidence rule.” Ravenswood argued that the contract was fully integrated and that the rider was an unsigned document that improperly altered the terms of the fully integrated contract. In response, Merritt argued that both parties had agreed to the rider and that Miele, Ravenswood’s attorney, had sent a facsimile to Lane, Merritt’s attorney, on December 16, 2002, stating that “the rider is acceptable to my client.” Additionally, Merritt argued that neither party had ever objected to the rider and that, as explained by Lane during his sworn testimony, it is common practice for parties not to sign riders that are appended to contract proposals. Further, Merritt argued, Ravenswood proceeded as though the rider was part of the contract proposal by recording the contract proposal with the rider attached, with a notice of lis pen-dens, on the Groton land records in April, 2003. Merritt also pointed out that Ravenswood had alleged in its original complaint that a written contract existed between Merritt and Ravenswood, a copy of which it attached as exhibit A to its complaint; exhibit A contained the contract proposal, the rider and other attachments. The association also opposed Ravenswood’s motion, arguing that the rider was relevant to the case and, therefore, admissible.

The association further argued: “[Ravenswood’s] attempt to preclude evidence of the rider assumes there was in fact a contract between the parties. This is the very issue that is yet to be decided by the jury in this case, and which can only be decided after all of the evidence concerning the negotiations of the parties is presented and heard. The rider in the instant matter was an integral part of the negotiations of the parties, was agreed to by both parties, and was attached to [Ravenswood’s] original complaint in this matter. It is clearly admissible as part of the parties’ negotiations and to establish that no final agreement was reached by the parties. ” The court, without filing a memorandum of decision, denied Ravenswood’s motion in limine to preclude the rider from evidence.

On appeal, Ravenswood claims that the court improperly denied its motion to preclude the rider from evidence in violation of the parol evidence rule. It argues that the contract in this case was integrated fully and contained a clear provision in paragraph sixteen, which stated: “No modification of this [agreement nor waiver of any term or condition hereof, shall be of any force or effect, unless the same is in writing, signed by the parties.” Accordingly, Ravenswood argues, the rider was a modification to this agreement, which was unsigned by the parties and, therefore, should have been precluded from evidence.

In response, the defendants argue that the rider was not used to modify or to alter any terms of the proposed agreement but was part of the proposed contract that set forth the mechanism for acceptance and delivery, which terms were absent from the main proposal. They argue that the parol evidence rule was inapplicable to assessing the merits of Ravenswood’s motion in limine because the rider was relevant evidence of the parties’ negotiations and what had transpired between them; the rider was not admitted into evidence to vary the terms of a contract but was admitted on the very issue of whether a contract, in fact, had been formed. We agree with the defendants.

As set forth in 1 B. Holden & J. Daly, Connecticut Evidence (2d Ed. 1988) § 83a, p. 681, “in determining the issue of whether the parties have made a contract, there is no parol evidence rule to be applied. On this issue, no relevant evidence, whether parol or otherwise, is excluded.” See also Damora v. Christ-Janer, 184 Conn. 109, 114-15, 441 A.2d 61 (1981). Professor Corbin has instructed that there is no parol evidence rule to be applied when determining any one or more of the following issues: (1) whether the parties have made a contract; (2) whether the contract is void or voidable because of illegality, mistake, fraud or some other reason, or (3) whether the parties assented to a particular writing as the complete and accurate integration of a contract. 6 A. Corbin, Contracts (2002) § 573, pp. 73-75. No relevant evidence, whether parol or otherwise, is excluded on these issues. Id., p. 75.

In this case, Ravenswood filed a motion in limine to preclude the rider from being offered into evidence, claiming that the evidence would violate the parol evidence rule. Because the sole purpose of the jury trial in this case was to determine whether a contract existed between Merritt and Ravenswood for the sale of land, we conclude that the parol evidence rule was not applicable to this issue. Accordingly, the court did not abuse its discretion in denying Ravenswood’s motion.

Ill

Ravenswood also claims that the court abused it discretion by improperly restricting its cross-examination of a witness, ruling that such questioning was “beyond the scope.” Ravenswood argues that “the court’s limiting of [its] questions . . . prevented [it] from showing the jury that performance had begun under the contract and that the items that Lane [had] requested from [Ravenswood] had in fact been received.” Ravenswood further argues that “deprivation of this right of cross-examination was prejudicial, and denial of this right requires reversal by this court.” (Internal quotation marks omitted.) We find no merit to this claim and take this opportunity to note that Ravenswood erroneously claimed in its brief and during oral argument before this court that this “restriction” occurred during its cross-examination of Lane. We have reviewed the trial transcript closely, however, and have discovered that Ravenswood conducted a direct examination of Lane and that the court’s sustaining of Merritt’s objection, of which Ravenswood now complains, occurred during Ravenswood’s redirect examination, not during cross-examination.

“The basic purpose of redirect examination is to enable a witness to explain and clarify relevant matters in his testimony which have been weakened or obscured by his cross-examination. . . . The scope of redirect examination, however, is limited by the subject matter of cross-examination.” (Internal quotation marks omitted.) State v. Williams, 102 Conn. App. 168, 184, 926 A.2d 7, cert. denied, 284 Conn. 906, 931 A.2d 267 (2007). “Furthermore, [t]he extent and scope of redirect examination . . . may be limited within the discretion of the trial judge.” (Internal quotation marks omitted.) Gurliacci v. Mayer, 218 Conn. 531, 560, 590 A.2d 914 (1991). What’s more, the court has broad discretion in considering whether to allow redirect examination of a witness, and its decision will not be reversed unless it has abused that discretion. See State v. Jones, 205 Conn. 638, 666-67, 534 A.2d 1199 (1987).

On appeal, Ravenswood argues that Merritt’s questions regarding what Lane meant by certain parts of the March 14, 2003 letter opened the door to questions regarding his intent on sending the letter. Ravenswood further argues that its inquiry during redirect examination of Lane was proper because it pertained “to whether the releases had been actually received and what the intent was in the letter if in fact that had occurred . . . .’’It continues by arguing that “[t]he court’s denial of [Ravenswood’s] inquiry regarding the intent of Lane when he sent the letter to Miele was not merely harmless as it went to the sine qua non of what the case is about. [This limitation] prevented [Ravenswood] from showing the jury that performance had begun under the contract and that the items that Lane requested from [Ravenswood] had in fact been received.” A review of the relevant colloquy from Lane’s cross-examination, as quoted in footnote 3, however, does not reveal any question related to Lane’s intent on sending the letter. Additionally, we also are mindful of the fact that Ravenswood did not attempt to explain to the court what information it was seeking from Lane; it merely stated that Lane had been questioned about his intent on sending the letter during redirect examination.

Furthermore, the transcript also reveals that the court did not tell Ravenswood that it could ask no further questions, nor did the court tell Ravenswood that it could not ask whether the releases, in fact, had been received before the letter was sent. The transcript does reveal that there was one objection on the ground that the questioning was outside the scope, to which Ravenswood proffered only “[h]e asked him what the intent was on his letter of March 14, 2003.” The court responded that intent had not been brought up during cross-examination and that the question, therefore, was beyond the scope. Ravenswood asked a few more questions unrelated to the releases, and it rested.

For Ravenswood to argue on appeal that the court foreclosed it from bringing out relevant information to the jury during what it termed “cross-examination” simply is without merit. Ravenswood already had had a full opportunity during its direct examination of this witness to ask any questions that were relevant and crucial to its case. During redirect, however, the court had discretion in limiting Ravenswood’s questions to issues brought out during Merritt’s cross-examination. See State v. Williams, supra, 102 Conn. App. 184. The portions of the transcript cited by Ravenswood do not reveal any questions from Merritt concerning Lane’s intent on sending Ravenswood the March 14,2003 letter. Accordingly, on the basis of the record before us, we conclude that the court did not abuse its discretion in sustaining Merritt’s objection.

IV

Ravenswood’s final claim on appeal is that the court improperly denied its motion to set aside the verdict where the verdict was against the weight of the evidence and where the jury failed to follow the court’s instructions. We disagree.

“[T]he proper appellate standard of review when considering the action of a trial court granting or denying a motion to set aside a verdict . . . [is] the abuse of discretion standard. ... In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court’s ruling. . . . Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done. . . . We do not . . . determine whether a conclusion different from the one reached could have been reached. ... A verdict must stand if it is one that a jury reasonably could have returned and the trial court has accepted.” (Internal quotation marks omitted.) Bosco v. Regan, 102 Conn. App. 686, 694, 927 A.2d 325, cert. denied, 284 Conn. 914, 931 A.2d 931 (2007).

A

Ravenswood claims that the court abused its discretion in denying its motion to set aside the verdict on the ground that the jury failed to follow the court’s instruction regarding construing ambiguities in a contract against the drafter. The defendants argue that there is no evidence that the jury failed to follow the court’s instruction regarding contract ambiguities. We agree with the defendants.

Our law is very clear that “[i]n the absence of a showing that the jury failed or declined to follow the court’s instructions, we presume that it heeded them.” (Internal quotation marks omitted.) State v. Santiago, 269 Conn. 726, 762, 850 A.2d 199 (2004). In its charge to the jury, the court instructed the panel that “ambiguities and contract documents are to be resolved against the party responsible for [their] drafting. The party responsible for drafting the rider in this matter is [Merritt]. Therefore, any ambiguities in the rider should be construed against it.” Ravenswood takes no issue with the court’s instruction in this regard, but, rather, it claims that the juiy could not have followed this instruction or it would have found in Ravenswood’s favor because of ambiguities in the rider. We find nothing in the record, however, that would suggest that the jury did not follow the court’s instructions to construe any ambiguities in the rider against Merritt. Despite Ravenswood’s argument to the contrary, our review of the rider leads us to the conclusion that it is quite possible that the jury found no ambiguity in it. Accordingly, Ravenswood has provided no showing that the court abused its discretion in denying the motion to set aside the verdict on this ground.

B

Ravenswood’s final claim is that the court abused its discretion in refusing to set aside the verdict on the ground that the verdict was against the weight of the evidence because it proved all of the necessary elements to demonstrate that it had an enforceable contract with Merritt. We do not agree.

A question about the existence of a contract is a question that must be decided by the finder of fact. Pagano v. Ippoliti, 245 Conn. 640, 654, 716 A.2d 848 (1998). In this case, the jury was required to sort out those facts that would form the basis for its verdict and, after considering all of the evidence in this case, decided that a binding contractual relationship had not been formed between Ravenswood and Merritt. In considering Ravenswood’s motion to set aside the verdict on the ground that the verdict was against the weight of the evidence, the court, being in a much better position than we are on appeal, having heard the testimony and observed the witnesses, determined that the weight of evidence was sufficient to support this jury’s verdict. Having reviewed the record ourselves on appeal, we can discern no abuse of discretion in the court’s denial of the motion to set aside the verdict, and Ravenswood has referred us to nothing in the record that would lead us to a contrary conclusion.

The judgment is affirmed.

In this opinion the other judges concurred.

       The original complaint was brought only against Merritt. The association filed a motion to be made a party defendant, which was granted by the trial court.

       There is nothing in the record before us that indicates whether this transfer has occurred.

       Ravenswood refers us to the following colloquies, which occurred during Merritt’s cross-examination of Lane and Ravenswood’s redirect examination. It is the court’s limitation on redirect examination that Ravenswood on appeal claims was improper. The relevant colloquy from cross-examination was as follows:
      “Q. Okay. Would you read that letter out loud, please?
      “A. It says, dear Jim. A letter to James Miele. Dear Jim. Enclosed are the releases to the three entities which have been executed by Mr. Merritt individually and as an officer of F. L. Merritt, Inc. I’m prepared to forward to you the executed releases with the executed contract to be held by you in escrow pending my receipt of the properly executed releases you sent to me on February 18 [2003] and the signed original release from Dicesare Bentley. Mr. Merritt has signed the contract on February 28, 2003, and I have been holding it since that date.
      “Q. Okay. Would you explain what you meant by pending the receipt of the releases you sent to me on February 18?
      “A. I was supposed to receive those, I understood, before I release the mortgage—the contract.
      “Q. So, on March 14 [2003], you’re indicating to Mr. Miele that you had not received certain releases, isn’t that correct?
      “A. That’s correct.
      “Q. Okay. Now—and do you recall which releases you’re talking about in that March 14 letter?
      “A. I referred to the Dicesare Bentley, with the engineers. I wanted the signed original release from Dicesare Bentley.
      “Q. Okay. What about the releases that were sent on February 18 that you said you still hadn’t received? You wanted properly executed releases according to that?

        “A. That’s correct.
      “Q. And you hadn’t received those yet?
      “A. No."
      Ravenswood argues that this questioning and testimony, which occurred during Merritt’s cross-examination of Lane, opened the door to the following line of questioning during its redirect examination of Lane, which the court improperly limited:
      “Q. And you testified earlier . . . that you were waiting to get the . . . original Dicesare Bentley release—
      “A. My—
      “Q.—let me finish my question, sir—before you were going to send the contract out, right?
      “A. That’s what my letter says.
      “Q. Oltay. But in your notes, which are exhibit twenty-three, you say that [you] would have sent [it] that day, the thirteenth of March, and you didn’t have the original Dicesare Bentley release on the thirteenth or the fourteenth. You had a copy that was acceptable to you, right?
      “A. I assum[ed] that I was going to get the Dicesare Bentley [release].
      “Q. Okay.
      “A. If he had gotten to me on the thirteenth, I think we would have had a deal.
      “Q. But you got on the fourteenth a signed copy of the release which—
      “A. That’s right.
      “Q-—you’ve testified was acceptable, correct?
      “A. Uh-huh.
      “Q. And then you sent a letter saying I’m going to send it, correctly— correct?
      “A. I’m going to send?
      “Q. You’re going to send the contract, right? I’m prepared to send it.
      “[Defendant Merritt’s Counsel]: Your Honor, this is outside the scope.
      “[The Plaintiffs Attorney]: He asked him what the intent was on his letter of March 14, 2003.
      “[The Court:] The intent wasn’t allowed. I believe it’s beyond the scope. Again, I’ll sustain the objection.”
      Ravenswood asked a few more questions and then rested.


source: Caselaw Access Project

license: Public Domain

text:
    STATE OF CONNECTICUT v. HOWARD WILCOX
    (AC 28426)
    Flynn, C. J., and Lavine and Foti, Js.
    Argued October 10
    officially released December 18, 2007

      James F. Spallone, for the plaintiff in error.

      Harry Weller, senior assistant state’s attorney, with whom, on the brief, was Timothy J. Liston, state’s attorney, for the defendant in error.
   Opinion

FLYNN, C. J.

The plaintiff in error, Howard Wilcox, brings a writ of error challenging the decision of the defendant in error, the sentence review division of the Superior Court (panel), affirming his sentence. On appeal, the plaintiff in error claims that the panel improperly denied his motion for a continuance in contravention of Practice Book § 43-27. We dismiss the writ of error.

The following facts and procedural history are relevant to our resolution of this issue. Following a jury trial in 1997, the plaintiff in error was convicted of kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (A), sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (1), attempt to commit sexual assault in the first degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-70 (a) (1), assault in the third degree in violation of General Statutes § 53a-61 (a) (1) and falsely reporting a motor vehicle theft in violation of General Statutes § 14-198. In February, 1998, the trial court rendered judgment in accordance with the juiy verdict and sentenced the plaintiff in error to a total effective sentence of forty years, execution suspended after thirty-four years. The plaintiff in error’s conviction was affirmed on appeal. See State v. Wilcox, 254 Conn. 441, 758 A.2d 824 (2000).

In March, 1998, while the appeal was pending, the plaintiff in error filed an application for sentence review pursuant to General Statutes § 51-195 and Practice Book § 43-23 et seq. In 2001, the plaintiff in error filed a pro se federal habeas corpus petition. Due to multiple continuances, the sentence review hearing was not held until September 28, 2004. At the start of the hearing, the plaintiff in error filed a motion for a continuance due to the pendency of the federal habeas petition. He indicated he was “ready to proceed” if the motion was denied. The panel denied the motion, the hearing went forward, and, on March 24, 2005, the panel issued its decision, affirming the plaintiff in error’s sentence. The plaintiff in error then filed a direct appeal to this court on April 12, 2005, claiming that the panel improperly refused to grant his motion for a continuance on September 28, 2004. This court dismissed the appeal. The plaintiff in error subsequently brought this writ of error to the Supreme Court, which transferred the writ to this court pursuant to Practice Book § 65-1.

I

The plaintiff in error claims that the panel improperly denied his motion for a continuance of the sentence review hearing. Specifically, he argues that the panel lacked discretion to deny his motion because Practice Book § 43-27 mandates that the sentence review hearing shall proceed during the pendency of an appeal or collateral review only if the applicant affirmatively requests that such hearing proceed, and he did not so request. We disagree.

We begin by setting forth the standard of review. It is “well settled law that [t]he determination of whether to grant a request for a continuance is within the discretion of the trial court, and will not be disturbed on appeal absent an abuse of discretion.” (Internal quotation marks omitted.) State v. Rivera, 268 Conn. 351, 378, 844 A.2d 191 (2004). Because, however, the plaintiff in error’s claim requires an examination into the meaning of § 43-27, we are guided by our well settled rules of statutory construction with respect to our analysis of that section and conduct plenary review over this question of law. See State v. Bell, 283 Conn. 748, 786, 931 A.2d 198 (2007). The rules of statutory construction apply with equal force to the rules of practice. State v. Tutson, 278 Conn. 715, 731, 899 A.2d 598 (2006).

“A basic tenet of statutory construction is that when a statute [or rule of practice] is clear- and unambiguous, there is no room for construction.” (Internal quotation marks omitted.) State v. Genotti, 220 Conn. 796, 807, 601 A.2d 1013 (1992). When there is ambiguity, however, “we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.” (Internal quotation marks omitted.) State v. Pare, 253 Conn. 611, 621, 755 A.2d 180 (2000). “It is ... a fundamental principle of statutory construction that courts must interpret statutes using common sense and assuming that the legislature intended a reasonable and rational result. . . . Courts also must not interpret statutes in such a manner so as to thwart their purpose.” (Citation omitted.) State v. Prazeres, 97 Conn. App. 591, 597, 905 A.2d 719 (2006). With these standards as a guide, we commence our review.

The following sentence from § 43-27 is at issue: “Upon request of the defendant the review division shall hear his or her application while an appeal or collateral review is pending.” Practice Book § 43-27. The plaintiff in error focuses on this sentence and claims that it clearly and unambiguously gives him control over the timing of sentence review while an appeal or collateral review is pending. The panel argues that the rule of practice is susceptible to alternative, conflicting interpretations, and guidance from extrinsic aids, such as legislative history, reveals that the plaintiff in error misconstrues the meaning of the rule. We agree with the panel that the rule of practice is ambiguous and turn to an examination of the legislative history and circumstances surrounding its adoption.

The interpretation urged by the plaintiff in error, that the applicant controls the time of the hearing if an appeal or collateral review is pending, is not compatible with the language of § 43-27 itself or its commentary, both of which indicate that sentence review is to be conducted expeditiously. Section 43-27 requires that “[a] hearing upon an application filed under Section 43-24 shall be conducted expeditiously upon receipt by the review division of the materials submitted by the clerk under Sections 43-23 through 43-28.” (Emphasis added.) Additionally, “[s]entence review is available while appeal on the merits or collateral attack is pending.” L. Orland & D. Borden, 4 Connecticut Practice Series: Criminal Procedure (3d Ed. 1999) § 43-27, comments, p. 581.

Additionally, § 43-27 does not contain language granting a defendant the right to delay or postpone the sentence review hearing. The rules of practice contain numerous provisions granting relief from time constraints. See, e.g., Practice Book § 11-16 (argument on motion continued); Practice Book § 41-4 (failure of party to comply with rules regarding time is waiver unless good cause shown); Practice Book § 42-52 (motion for judgment of acquittal within five days unless extended by judicial authority). Therefore, the silence in § 43-27 indicates an intent not to confer such a right on a defendant. See State v. Culver, 97 Conn. App. 332, 341-2, 904 A.2d 283 (when legislature uses language to show it knows how to accomplish something, absence of similar language shows legislature intended different result), cert. denied, 280 Conn. 935, 909 A.2d 961 (2006).

The sentence review provisions of Practice Book § 43-23 et seq. parallel the sentence review statutes, General Statutes § 51-194 et seq. Accordingly, the circumstances surrounding the enactment of the sentence review statutes can provide insight into the meaning of the rule of practice at issue. “[T]he legislature passed the Sentence Review Act in 1957; Public Acts 1957, No. 436; to reduce the disparity in sentences meted out by different judges and, thereby, to quell prisoner discontent. The purpose and effect of the Sentence Review Act is to afford a convicted person a limited appeal for reconsideration of his [or her] sentence. ... It thus gives him [or her] an optional de novo hearing as to the punishment to be imposed.” (Internal quotation marks omitted.) James L. v. Commissioner of Correction, 245 Conn. 132, 144, 712 A.2d 947 (1998). Section 51-195 sets forth a thirty day filing period for applications for sentence review. The legislative history of § 51-195 “suggests that the legislature imposed the thirty day time limit in order to promote finality in sentencing. When asked to comment on the thirty day time limit, Justice Patrick B. O’Sullivan stated: ‘We had to put a finality to [the period for sentence review].’ Conn. Joint Standing Committee Hearings, Judiciary and Governmental Functions, Pt. 2, 1957 Sess., p. 405.” James L. v. Commissioner of Correction, supra, 146. This legislative intent to promote finality in sentencing runs contrary to the plaintiff in error’s contention that a defendant seeking review controls the timing of the hearing.

Given the entire sentence review scheme, which promotes expeditious review and finality, the plaintiff in error cannot be correct when he takes one sentence from § 43-27 out of context and claims that it confers on him an absolute right to postpone the sentence review hearing while an appeal or collateral review is pending. “It is a basic tenet of statutory construction that the intent of the legislature is to be found not in an isolated phrase or sentence but, rather, from the statutory scheme as a whole.” State v. Breton, 235 Conn. 206, 226, 663 A.2d 1026 (1995); see also Thames Talent, Ltd. v. Commission on Human Rights & Opportunities, 265 Conn. 127, 136, 827 A.2d 659 (2003) (in ascertaining statutory meaning, we look to, inter alia, relationship of statute to other legislation); Waterbury v. Washington, 260 Conn. 506, 557, 800 A.2d 1102 (2002) (statutes relating to same subject matter are construed so as to create rational, coherent and consistent body of law).

Therefore, in accordance with the sentence review scheme, we interpret the portion of § 43-27 providing that “[u]pon request of the defendant the review division shall hear his or her application while an appeal or collateral review is pending,” to mean that a defendant who chooses to challenge his conviction by way of an appeal or collateral review is in the same position with respect to sentence review as a defendant who chooses not to do so. In other words, sentence review “is available while appeal on the merits or collateral attack is pending.” L. Orland & D. Borden, supra, § 43-27, comments, p. 581; see also A. Spinella, Connecticut Criminal Procedure (1985) p. 774 (“[t]he filing of a sentence review application will not stay execution of the sentence, although the division will provide prompt review by agreeing to entertain the petition even though an appeal or collateral proceeding is pending”). This interpretation, in keeping with the sentence review scheme, promotes finality and expeditious resolution in sentencing. “If a [provision] is capable of two constructions, one that is rational and effective in accomplishing the evident legislative object, and the other leading to bizarre results destructive of that purpose, the former should prevail.” (Internal quotation marks omitted.) State v. Burns, 236 Conn. 18, 23, 670 A.2d 851 (1996).

On the basis of the foregoing, we conclude that the plaintiff in error does not have an absolute substantive right to postpone his sentence review hearing during the pendency of his federal habeas petition, and the panel had discretion in ruling on his motion for a continuance.

II

We next turn our analysis to whether the discretion held by the panel in ruling on the plaintiff in error’s motion for a continuance was abused. We conclude that the panel acted within its discretion in denying the motion.

We first set forth our well settled standard of review. “[T]he determination of whether to grant a request for a continuance is within the discretion of the trial court, and will not be disturbed on appeal absent an abuse of discretion. ... A reviewing court is bound by the principle that [e]very reasonable presumption in favor of the proper exercise of the trial court’s discretion will be made. ... To prove an abuse of discretion, an appellant must show that the trial court’s denial of a request for a continuance was arbitrary. . . . There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied.” (Internal quotation marks omitted.) State v. Rivera, supra, 268 Conn. 378. “We have identified several factors that a trial court may consider when exercising its discretion in granting or denying a motion for continuance. . . . These factors include the likely length of the delay . . . the impact of delay on the litigants, witnesses, opposing counsel and the court . . . the perceived legitimacy of the reasons proffered in support of the request . . . [and] the likelihood that the denial would substantially impair the defendant’s ability to defend himself . . . .” (Internal quotation marks omitted.) State v. Lopez, 280 Conn. 779, 787, 911 A.2d 1099 (2007).

Under the circumstances, and with due regard for broad leeway possessed by trial courts to grant or to deny continuances, it cannot be said that the panel abused its discretion in denying the plaintiff in error’s request for a continuance. Counsel for the plaintiff in error argued at the September 28, 2004 sentence review hearing that, although the matter had been continued on a couple of occasions due to the pendency of a habeas corpus petition in federal court, he again sought delay during the pendency of that petition. Counsel for the plaintiff in error represented in his written motion and before the panel on September 28, 2004, that he had been informed by the clerk for the United States District Court for the District of Connecticut that the habeas petition likely would be ruled on in the near future, but he did not know exactly when that would be. A continuance likely was to be of indefinite duration because the plaintiff in error sought a continuance until his federal habeas petition was decided at some unspecified date in the future and furthermore did not indicate whether he would abide by the District Court’s ruling. “This court and our Supreme Court have upheld denials of requests for continuances when they are sought for indefinite durations. See, e.g., State v. Gordon, 197 Conn. 413, 424A-C, 504 A.2d 1020 (1985); State v. Mendez, [45 Conn. App. 282, 285-86, 696 A.2d 352 (1997)].” State v. Wright, 70 Conn. App. 807, 821, 800 A.2d 1218, cert. denied, 261 Conn. 930, 806 A.2d 1070 (2002).

For all the foregoing reasons, the writ is dismissed.

In this opinion the other judges concurred.

       Practice Book § 43-27 provides: “A hearing' upon an application filed under Section 43-24 shall be conducted expeditiously upon receipt by the review division of the materials submitted by the clerk under Sections 43-23 through 43-28. The parties may file such briefs or memoranda as are appropriate to assist the division in the discharge of its duties. Counsel for the defendant and the defendant shall address the panel of judges in support of the application. Upon request of the defendant the review division shall hear his or her application while an appeal or collateral review is pending.”

       Specifically, the editor's note to the final draft in January, 1976, of the proposed rules of criminal procedure explained that the then rule 43, which is now Practice Book § 43-27, was based on General Statutes § 51-196 and “conform[ed] with the Review' Division’s present practice.”
      General Statutes § 51-196 provides in relevant part: “(a) The review division shall, in each case in which an application for review is filed in accordance with section 51-195, review the judgment so far as it relates to the sentence or commitment imposed, either increasing or decreasing the penalty, and any other sentence imposed on the person at the same time, and may order such different sentence or sentences to be imposed as could have been imposed at the time of the imposition of the sentence under review, or may decide that the sentence or commitment under review should stand.
      “(b) In reviewing any judgment, the review division may, for good cause, waive its authority to increase the penalty and may, thereafter, conduct a hearing on such application without the applicant being present. Nothing in this section shall be construed to prohibit an applicant from having counsel present or from appearing pro se at the hearing. In reviewing any judgment, said division may require the production of presentence or pre-commitment reports and any other records, documents or exhibits connected with such review proceedings.”

       “The [sentence review] act establishes a sentence review division consisting of three Superior Court judges appointed by the chief justice. General Statutes § 51-194. Any person receiving a nonmandatory sentence of confinement for one year or more may apply for review of sentence. General Statutes § 51-195. On review of the original sentence the division is authorized to let the original sentence stand, to increase or decrease it or may order such different sentence to be imposed as could have been imposed at the time of the original sentence. General Statutes § 51-196 .... It meets the complaints that gave birth to the Sentence Review Act by providing a judicial body with discretionary authority to review prison sentences.” (Citations omitted.) State v. Nardini, 187 Conn. 109, 119-22, 445 A.2d 304 (1982).

       General Statutes § 51-195 provides in relevant part: “Any person sentenced on one or more counts of an information to a term of imprisonment for which the total sentence of all such counts amounts to confinement for three years or more, may, within thirty days from the date such sentence was imposed or if the offender received a suspended sentence with a maximum confinement of three years or more, within thirty days of revocation of such suspended sentence, except in any case in which a different sentence could not have been imposed or in any case in which the sentence or commitment imposed resulted from the court’s acceptance of a plea agreement or in any case in which the sentence imposed was for a lesser term than was proposed in a plea agreement, file with the clerk of the court for the judicial district in which the judgment was rendered an application for review of the sentence by the review division. ...”

       The plaintiff in error argues that he was denied due process of law under the state and federal constitutions because he was denied the procedural protection of § 43-27, which, as he contends, grants him the right to postpone his sentence review hearing indefinitely while an appeal or collateral review is pending. The plaintiff in error has not demonstrated that § 43-27 grants him an absolute right to continue sentence review proceedings as long as an appeal or collateral proceeding is pending, and, consequently, the panel did not violate his right to due process by denying his motion for a continuance.
      The plaintiff in error also argues that the panel’s denial of his right under § 43-27 implicates his right to allocution. Specifically, he argues that forcing him to proceed with the sentence review hearing through the denial of his motion for a continuance compelled him to choose between his right to allocution and his right to remain silent and therefore deprived him of his right to allocution. Nothing in § 43-27 speaks to the plaintiff in error’s right to allocution, and § 43-27 does not grant an applicant such an absolute right to a continuance during the pendency of an appeal or collateral review. Accordingly, requiring the plaintiff in error to choose whether to allocute at his sentence review hearing in light of the denial of his motion for a continuance does not deprive him of his right to allocution. “The criminal process, like the rest of the legal system, is replete with situations requiring the making of difficult judgments as to which course to follow.” (Internal quotation marks omitted.) State v. Perkins, 271 Conn. 218, 233, 856 A.2d 917 (2004). “[T]he policies of the privilege against compelled self-incrimination are not offended when a defendant in a capital case yields to the pressure to testify on the issue of punishment at the risk of damaging his case on guilt.” McGautha v. California, 402 U.S. 183, 217, 91 S. Ct. 1454, 28 L. Ed. 2d 711 (1971). What is forbidden is coercing a defendant to speak or penalizing his silence. Mitchell v. United States, 526 U.S. 314, 328, 119 S. Ct. 1307, 143 L. Ed. 2d 424 (1999).

       When asked at the sentence review hearing, the plaintiff in error’s counsel explained to the panel that the federal habeas petition concerned an alleged violation of Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), and did not include a claim concerning his representation at trial.

       In fact, the federal District Court denied the plaintiff in error’s habeas petition on September 29, 2004, and ordered the petition dismissed. The timing of the court’s action does not affect our analysis.


author: CRETELLA, J.

text:
    STATE OF CONNECTICUT v. MICHAEL W. ERVIN
    (AC 28451)
    Bishop, Gruendel and Cretella, Js.

      Argued September 11
    officially released December 18, 2007

      Norman A. Pattis, special public defender, for the appellant (defendant).

      PaulJ. Narducci and Peter A. McShane, senior assistant state’s attorneys, with whom, on the brief, was Michael L. Regan, state’s attorney, for the appellee (state).
   Opinion

CRETELLA, J.

The defendant, Michael W. Ervin, appeals from the judgment of conviction, rendered after a jury trial, of the crime of murder in violation of General Statutes § 53a-54a. On appeal, the defendant raises two issues. The defendant claims that the trial court (1) improperly permitted evidence of a videotaped demonstration of a choke hold without proper foundation for such admission and (2) committed plain error by admitting excessive evidence of an extramarital affair. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On March 14, 2002, at approximately 10 p.m., Norwich police and emergency personnel, who had been dispatched to 33 Trading Cove Road, discovered the unresponsive body of the victim, Renea Ervin, wife of the defendant, on the kitchen floor. Measures to revive the victim were unsuccessful. The victim had no visible signs of injury, no cuts or abrasions and no pulse. The defendant was kneeling on the floor next to the victim, and he had no external injuries on him. Police fouhd no signs of a forced entry or struggle. A paramedic had difficulty opening the victim’s airway because there was a substantial amount of vomit as well as particles of food in her mouth. Eventually, the victim was transported to a hospital where she was pronounced dead at approximately 11 p.m.

The medical examiner determined the cause of death to be traumatic asphyxia due to neck compression. During the trial, the medical examiner viewed a demonstration videotape showing a certain type of wrestling hold once used by the defendant and testified that the cause of death was consistent with such a hold. The defendant stated to the police that the victim had been fine when he left her earlier in the evening. He returned to the home with his occasional fishing companion, Michael Hancin, and found the victim on the floor where he attempted to revive her. After a trial by jury, the defendant was convicted of murder. This appeal followed.

I

The defendant first claims that the court abused its discretion by allowing the jury to view the videotaped demonstration of a choke hold. The defendant had moved in limine to preclude admission of the videotape, which motion the court denied. The defendant argues that the disputed evidence amounted to an identification of him on the ground that it was prior uncharged misconduct and that, even if it was relevant, its prejudicial impact outweighed its probative value. The state argued that the evidence was relevant and was offered for the sole purpose of showing that the defendant had the knowledge and the capacity to perform such a hold.

We review the defendant’s claim employing an abuse of discretion standard. “Under the abuse of discretion standard of review, [w]e will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion. . . . [Thus, our] review of such rulings is limited to the questions of whether the trial court correctly applied the law and reasonably could have reached the conclusion that it did.” (Internal quotation marks omitted.) Landry v. Spitz, 102 Conn. App. 34, 59, 925 A.2d 334 (2007).

“ [EJvidence is relevant if it has a tendency to establish the existence of a material fact. . . . Relevant evidence is evidence that has a logical tendency to aid the trier [of fact] in the determination of an issue. . . . One fact is relevant to another if in the common course of events the existence of one, alone or with other facts, renders the existence of the other either more certain or more probable. . . . Evidence is not rendered inadmissible because it is not conclusive. All that is required is that the evidence tend to support a relevant fact even to a slight degree, so long as it is not prejudicial or merely cumulative. ... No precise and universal test of relevancy is furnished by the law, and the question must be determined in each case according to the teachings of reason . . . .” (Internal quotation marks omitted.) State v. Cummings, 91 Conn. App. 735, 743-44, 883 A.2d 803, cert. denied, 276 Conn. 923, 888 A.2d 90 (2005). “Although relevant, evidence may be excluded by the trial court if the court determines that the prejudicial effect of the evidence outweighs its probative value. ... Of course, [a] 11 adverse evidence is damaging to one’s case, but it is inadmissible only if it creates undue prejudice so that it threatens an injustice were it to be admitted. . . . The test for determining whether evidence is unduly prejudicial is not whether it is damaging to the defendant but whether it will improperly arouse the emotions of the jury. . . . The trial court . . . must determine whether the adverse impact of the challenged evidence outweighs its probative value.” (Internal quotation marks omitted.) State v. Smith, 275 Conn. 205, 218, 881 A.2d 160 (2005).

“[T]he trial court’s discretionary determination that the probative value of evidence is not outweighed by its prejudicial effect will not be disturbed on appeal unless a clear abuse of discretion is shown.” (Internal quotation marks omitted.) States. Cummings, supra, 91 Conn. App. 744. “[B]ecause of the difficulties inherent in this balancing process [however] . . . every reasonable presumption should be given in favor of the trial court’s ruling. . . . Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done.” (Internal quotation marks omitted.) State v. Smith, supra, 275 Conn. 218-19.

As applied to the admissibility of a videotape, our Supreme Court “consistently has held that the trial court’s determination on the admissibility of photographic evidence, including videotapes, will not be disturbed unless the trial court has abused its discretion. . . . [P]hotographic evidence is admissible where the photograph has a reasonable tendency to prove or disprove a material fact in issue or shed some light upon some material inquiry. . . . Therefore, it is not necessary to show that the photographic evidence is essential to the case in order for it to be admissible. ... In determining whether photographic evidence is admissible, the appropriate test is relevance, not necessity.

“In addition . . . even potentially inflammatory photographic evidence may be admitted if, in its discretion, the trial court determines that the probative value of the evidence outweighs its prejudicial effect.” (Citations omitted; internal quotation marks omitted.) State v. Kelly, 256 Conn. 23, 64-65, 770 A.2d 908 (2001).

The following additional facts are relevant to this issue. Following the discovery of the victim’s body, Hancin telephoned the police and provided details that tied in with the conclusion of the medical examiner that the victim had died “as a result of the restriction of blood to her head resulting from some other person squeezing on her neck.” Hancin advised the police that at a rowdy party he had observed the defendant using a choke hold. The police thereafter prepared a video in which Hancin is seen demonstrating the choke hold.

The defendant objected to the admission of this videotape on the grounds that it constituted evidence of prior misconduct and that, even if relevant, its prejudicial impact outweighed its evidentiary value. We are unpersuaded by the defendant’s claim that the videotape depiction constituted evidence of uncharged misconduct. Although there was evidence that Hancin had witnessed the defendant performing the hold, there was no evidence that the defendant had ever used it for a criminal or wrongful purpose. Accordingly, it was not evidence of prior uncharged misconduct.

That the evidence was relevant can hardly be disputed. The medical examiner determined, in essence, that the victim had died of asphyxiation. The challenged videotape, in concert with Hancin’s testimony, demonstrated that the defendant knew a choke hold that the medical examiner testified was consistent with the manner of the victim’s death. Although the videotape evidence was likely damaging to the defense, the defendant failed to show that it improperly aroused the emotions of the jury or was unduly prejudicial so as to deprive him of a fair trial. We conclude that the court did not abuse its discretion in the admission of the videotape demonstration.

II

The defendant next claims that the court improperly admitted excessive evidence of his ongoing extramarital affair. The defendant concedes that he did not preserve this issue for appeal. The defendant further acknowledges that evidence of the extramarital affair might have been probative to the question of motive, which, in turn, related to the issue of intent. Nevertheless, the defendant claims that the volume of evidence regarding the extramarital affair unreasonably tainted the trial and, therefore, seeks review on the basis of plain error. See Practice Book § 60-5.

“It is . . . well established that plain error review is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. ... A defendant cannot prevail under [the plain error doctrine] . . . unless he demonstrates that the claimed error is both so clear and so harmful that a failure to reverse the judgment would result in manifest injustice.” (Internal quotation marks omitted.) State v. Madore, 96 Conn. App. 271, 280-81, 900 A.2d 64, cert. denied, 280 Conn. 907, 907 A.2d 93 (2006). Because the defendant has not shown that this is one of the “truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings”; (internal quotation marks omitted) State v. Fagan, 280 Conn. 69, 87, 905 A.2d 1101 (2006), cert. denied, 549 U.S. 1269, 127 S. Ct. 1491, 167 L. Ed. 2d 236 (2007); nor has he demonstrated that he suffered manifest injustice as a result of the admission of the voluminous evidence related to the extramarital affair, the doctrine of plain error is not warranted in this case.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant additionally had alleged as error the trial court’s failure to recuse itself because the judge presiding over the probable cause hearing also had signed the arrest warrant. At oral argument, defense counsel advised this court that he was abandoning that claim in light of the decision in State v. Canales, 281 Conn. 572, 592-600, 916 A.2d 767 (2007).


author: DiPENTIMA, J.

text:
    IN RE ILYSSA G.

    (AC 28237)
    DiPentima, Lavine and Dupont, Js.

      Argued September 21
    officially released December 18, 2007

      Robert C. Koetsch II, for the appellant (respondent father).

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

      Amy L. Klein, for the minor child.

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

   Opinion

DiPENTIMA, J.

The respondent father appeals from the trial court’s denial of his motion to open the default judgment terminating his parental rights to his minor child. On appeal, the respondent claims that the court abused its discretion when it denied the motion to open the judgment and improperly determined that opening the judgment was not in the best interest of the child. We affirm the judgment of the trial court.

The following facts are necessary for the resolution of the respondent’s appeal. The child was bom in 1997 and has three siblings. In October, 2003, the petitioner, the commissioner of children and families, invoked a ninety-six hour hold on the child and her siblings and removed them from their mother’s care pursuant to General Statutes §17a-101g. On October 6, 2004, the court adjudicated the child neglected and committed her to the care and custody of the petitioner. From the time the petitioner removed her from the mother’s care in October, 2003, the child lived in foster homes and a residential facility until May, 2006, when she was placed in a preadoptive home with a family who had previously adopted her two older siblings.

On February 25, 2005, the petitioner filed a petition for termination of the respondent’s parental rights. On November 2, 2005, the petitioner withdrew the petition. After an unsuccessful effort to reunify the child with her mother, on March 1, 2006, the petitioner again filed a petition for termination of the respondent’s parental rights, alleging abandonment and no ongoing parent-child relationship.

On March 1, 2006, the court ordered a hearing on the petition for termination of the respondent’s parental rights, with a hearing date of March 29, 2006. The petitioner served the respondent at his last known address in Georgia by certified mail, return receipt requested. The petitioner also served notice by publication through newspapers with circulations covering the areas where the respondent had lived and where he was thought to be living. At a plea hearing for both parents on April 27, 2006, the court found proper service on the respondent in Georgia by publication, and the petitioner noted that she had previously confirmed service on the respondent in Florida. The respondent did not appear before the court on that date, and the court defaulted the respondent.

On May 30, 2006, the court held a trial on the petition to terminate the parental rights of the respondent. The respondent was not present. At the trial, a social worker from the department of children and families (department) testified about the respondent’s lack of an ongoing parent-child relationship and his abandonment of the child. On that same day, the court found that the petitioner had sustained her burden of proof, and the court terminated the respondent’s parental rights.

On or about August 21, 2006, the respondent sent a letter to the court in which he stated that he previously had lost his parental rights with respect to his daughter and that he wanted to regain his rights. At the court’s direction, the respondent’s counsel filed a motion to open the judgment. The petitioner filed an objection to the motion.

On October 17, 2006, the court held a hearing on the respondent’s motion. The respondent appeared and testified during the hearing. At the conclusion of the hearing, the court denied the motion. This appeal followed. Additional facts will be set forth as necessary.

“Our review of a court’s denial of a motion to open ... is well settled. We do not undertake a plenary review of the merits of a decision of the trial court to grant or to deny a motion to open a judgment. ... In an appeal from a denial of a motion to open a judgment, our review is limited to the issue of whether the trial court has acted unreasonably and in clear abuse of its discretion. ... In determining whether the trial court abused its discretion, this court must make every reasonable presumption in favor of its action. . . . The manner in which [this] discretion is exercised will not be disturbed so long as the court could reasonably conclude as it did.” (Internal quotation marks omitted.) In re Travis R., 80 Conn. App. 777, 781-82, 838 A.2d 1000, cert. denied, 268 Conn. 904, 845 A.2d 409 (2004).

To open a default judgment, a moving party must show “reasonable cause, or that a good cause of action or defense in whole or in part existed at the time of the rendition of the judgment or the passage of the decree, and that the plaintiff or defendant was prevented by mistake, accident or other reasonable cause from prosecuting the action or making the defense.” General Statutes § 52-212 (a). Furthermore, § 52-212 (b) requires that “[t]he complaint or written motion shall be verified by the oath of the complainant or his attorney, shall state in general terms the nature of the claim or defense and shall particularly set forth the reason why the plaintiff or defendant failed to appear.” “It is thus clear that to obtain relief from a judgment rendered after a default, two things must concur. There must be a showing that (1) a good defense, the nature of which must be set forth, existed at the time judgment was rendered, and (2) the party seeking to set aside the judgment was prevented from making that defense because of mistake, accident or other reasonable cause.” (Internal quotation marks omitted.) Pantlin & Chananie Development Corp. v. Hartford Cement & Building Supply Co., 196 Conn. 233, 235, 492 A.2d 159 (1985). “ ‘Since the conjunctive “and” meaning “in addition to” is employed between the parts of the two prong test, both tests must be met.’ ” Id., 240. As to a termination of parental rights judgment, before granting a motion to open, the court must also consider the best interest of the child. General Statutes § 45a-719.

The respondent met neither prong necessary for the court to open the judgment. First, the respondent did not demonstrate a good defense to the allegations in the petition. The two grounds on which the court terminated the respondent’s parental rights were abandonment and the lack of an ongoing parent-child relationship. Neither the respondent’s letter to the court, nor the motion filed by his attorney set forth any defense to either of these grounds. Furthermore, when the court asked the respondent during the hearing to address the deficiencies in the motion and specifically to discuss his defense to the underlying petition and the reason for his failure to appear, the respondent did not present a defense to either ground.

A parent abandons a child if “the parent has failed to maintain a reasonable degree of interest, concern or responsibility as to the welfare of the child . . . .” General Statutes § 17a-112 (j) (3) (A). “Abandonment focuses on the parent’s conduct. . . . Abandonment occurs where a parent fails to visit a child, does not display love or affection for the child, does not personally interact with the child, and demonstrates no concern for the child’s welfare. . . . Section 17a-112 [(j) (3) (A)] does not contemplate a sporadic showing of the indicia of interest, concern or responsibility for the welfare of a child. A parent must maintain a reasonable degree of interest in the welfare of his or her child. Maintain implies a continuing, reasonable degree of concern.” (Internal quotation marks omitted.) In re Jermaine S., 86 Conn. App. 819, 839-40, 863 A.2d 720, cert. denied, 273 Conn. 938, 875 A.2d 43 (2005).

Parental rights also can be terminated if the court finds that there is “no ongoing parent-child relationship, which means the relationship that ordinarily develops as a result of a parent having met on a day-to-day basis the physical, emotional, moral and educational needs of the child and to allow further time for the establishment or reestablishment of such parent-child relationship would be detrimental to the best interest of the child . . . .” General Statutes § 17a-112 (j) (3) (D). “[Termination of a noncustodial parent’s rights requires a finding that the child has no present memories or feelings for the natural parent.” (Internal quotation marks omitted.) In re Christian P., 98 Conn. App. 264, 269, 907 A.2d 1261 (2006).

The respondent’s testimony during the hearing supported rather than countered the grounds for termination. The respondent testified that he had not seen the child, who was nine at the time of the hearing, since she was one year old and that it was his fault for being absent from her fife for eight years. He further testified that his efforts to be involved in her life consisted of visiting the department once in 2004, more than one year after she had been removed from her mother’s care, and calling the residential care facility where the child was to inquire about her care. The respondent also admitted that he had not informed the department or anyone else involved with the case of his whereabouts after he had moved from his last address on file. The testimony did not present a defense to either allegation for termination, and it was in accord with the evidence that had been presented at the termination trial. The court reasonably could have concluded that the respondent did not demonstrate that a defense to the underlying petition existed at the time of the judgment.

Furthermore, as to the second requirement for opening a judgment, the respondent did not show that his failure to appear prior to judgment was the result of mistake, accident or other reasonable cause. The respondent testified that his apartment in Georgia had flooded in 2005 and that he had not been able to attend court in February, 2005, for financial reasons. The reason he gave, however, for not attending the termination of parental rights trial on March 29, 2006, was that he did not know about the hearing. Because the respondent had not notified the court, the department or his attorney that he had moved, notice was sent to the last address on file. The petitioner argues that this is evidence of either the respondent’s intention to sever ties with the court, the department and his attorney or extreme negligence. As the petitioner correctly argues: “Negligence is no ground for vacating a judgment, and it has been consistently held that the denial of a motion to open a default judgment should not be held an abuse of discretion where the failure to assert a defense was the result of negligence. . . . Negligence of a party or his counsel is insufficient for purposes of § 52-212 to set aside a default judgment.” (Internal quotation marks omitted.) Wilson v. Troxler, 91 Conn. App. 864, 872, 883 A.2d 18, cert. denied, 276 Conn. 928, 929, 889 A.2d 819, 820 (2005). Regardless of whether it was intentional or the result of negligence, the respondent’s failure to keep the court, the department and his attorney informed of his whereabouts does not qualify for purposes of opening a default judgment as a mistake, accident or other reasonable cause that prevented the respondent from presenting a defense. Thus, because the respondent failed to meet either part of his burden, we conclude that it was not an abuse of discretion for the court to deny his motion to open the judgment.

The judgment is affirmed.

In this opinion the other judges concurred.

       The petitioner, the commissioner of children and families, also sought to terminate the parental rights of the child’s mother. The mother consented to the termination of her parental rights and is not a party to this appeal. We therefore refer to the respondent father as the respondent in this opinion.

       The court had appointed attorney Scott Chamberlain to represent the respondent at a previous proceeding. At the plea hearing in this matter on April 27, 2006, Chamberlain was present, but he stated that although he previously had been in contact with the respondent, he had not heard from the respondent for four months or more. The file contains an appearance filed by Chamberlain that is dated March 2, 2006, but is not date stamped by the court. Chamberlain was not present before the court on May 30, 2006, when the court terminated the respondent’s parental rights. At the October 17, 2006 hearing on the respondent’s motion to open the judgment, the court acknowledged that there was some confusion about whether Chamberlain had been released from his obligation to represent the respondent or whether he merely was excused from a particular proceeding.

       Pursuant to Practice Book § 67-13, the attorney for the minor child filed a statement adopting the brief of the petitioner in this appeal.

       “The court may grant a motion to open or set aside a judgment terminating parental rights pursuant to section 52-212 or 52-212a or pursuant to common law or may grant a petition for a new trial on the issue of the termination of parental rights, provided the court shall consider the best interest of the child, except that no such motion or petition may be granted if a final decree of adoption has been issued prior to the filing of any such motion or petition. . . General Statutes § 45a-719.

       The letter and motion focused on the changes that the respondent had made in his life and how his employment and housing circumstances had improved. These facts perhaps would be appropriate to address allegations of a failure to achieve a sufficient degree of personal rehabilitation, which was not a basis for the termination of his rights, but not the grounds of abandonment and lack of an ongoing parent-child relationship.

       At the termination trial, a social worker from the department had testified that the department had not heard from the respondent in more than one year. The social worker also testified that the child had no memory of the respondent and would not recognize him if she saw him.

       In light of our conclusion, we need not reach the issue of whether the court improperly found that it was in the best interest of the child to deny the motion to open the judgment. General Statutes § 45a-719 requires the court to consider the best interest of the child when ruling on a motion to open a judgment terminating parental rights. “That statutory provision . . . contemplates that once the court is satisfied that there exist valid grounds to grant the motion to open, it can grant such motion only after it conducts an additional inquiry into whether opening the termination judgments would be in the best interests of the children.” In re Travis R., supra, 80 Conn. App. 786. If a respondent does not meet the initial threshold to open a judgment, then the court is not required to undertake a best interest of the child analysis. Id.


author: GRUENDEL, J.

text:
    GEORGE SABROWSKI v. BEVERLY R. SABROWSKI
    (AC 26021)
    DiPentima, Gruendel and Stoughton, Js.

      Argued October 23
    officially released December 18, 2007

      James H. Lee, with whom were Martin M. Rutchik and, on the brief, Sharon Lee Gibbs, for the appellant (defendant).

      Eric W. Callahan, for the appellee (plaintiff).
   Opinion

GRUENDEL, J.

This appeal returns to this court upon remand from our Supreme Court; Sabrowski v. Sabrowski, 282 Conn. 556, 923 A.2d 686 (2007); for resolution of the claims of the defendant, Beverly R. Sabrowski, that the trial court improperly (1) assessed the circumstances of both parties pursuant to General Statutes §§ 46b-82 and 46b-86, (2) found that the plaintiff, George Sabrowski, met his burden of establishing a substantial change in circumstances, (3) modified the award of alimony and (4) modified the plaintiffs obligation to pay the defendant’s unreimbursed medical bills and to maintain medical insurance on behalf of the defendant. We affirm the judgment of the trial court modifying the award of alimony and medical expenses.

The record reveals the following relevant facts. “The marriage of the parties was dissolved by the court pursuant to a stipulated judgment on May 13, 1999. The plaintiff was ordered to pay the defendant alimony in the amount of $550 per week, terminating when the defendant either reached age sixty-two, became eligible for medicare benefits, remarried or died. In addition, the plaintiff was ordered, as additional alimony, to maintain medical and dental coverage for the defendant and to pay 50 percent of her unreimbursed medical and dental expenses as long as he had a continuing obligation to pay alimony.” (Internal quotation marks omitted.) Id., 558.

On July 23, 2004, the plaintiff moved to modify that judgment. That motion stated in relevant part that “[a]t the time of these orders, the plaintiff expected two sources of income: income from his principal place of employment as well as rental income that the business he owned would be paying to him. At that time of judgment, the parties understood that the plaintiff would have two sources of income. . . . The plaintiffs business has suffered a downturn due to increased competition and other financial issues. This has caused the rental income to be mostly eliminated. This constitutes a substantial change in circumstances which, along with other conditions, changes the plaintiffs financial condition or the condition of the parties, which would require a substantial modification downward in the alimony order.” Thereafter, both parties submitted financial affidavits, and a hearing was held on October 21, 2004, at which the plaintiff testified. By order issued that day, the court concluded: “The court finds that there has been a substantial change in circumstances. The plaintiff shall pay to the defendant $250 per week as alimony, orders are retroactive to August 23, 2004. The plaintiff shall pay $7500 per year toward the defendant’s medical insurance. The plaintiff shall pay $1500 per year toward the defendant’s uninsured and unreimbursed medical expenses.”

Before addressing the defendant’s specific claims on appeal, we first note the applicable standard of review. “An appellate court will not disturb a trial court’s orders in domestic relations cases unless the court has abused its discretion or it is found that it could not reasonably conclude as it did, based on the facts presented. . . . In determining whether a trial court has abused its broad discretion in domestic relations matters, we allow every reasonable presumption in favor of the correctness of its action. . . . Thus, unless the trial court applied the wrong standard of law, its decision is accorded great deference because the trial court is in an advantageous position to assess the personal factors so significant in domestic relations cases .... With respect to the factual predicates for modification of an alimony award, our standard of review is clear. This court may reject a factual finding if it is clearly erroneous, in that as a matter of law it is unsupported by the record, incorrect, or otherwise mistaken. . . . This court, of course, may not retry a case. . . . The factfinding function is vested in the trial court with its unique opportunity to view the evidence presented in a totality of circumstances, i.e., including its observations of the demeanor and conduct of the witnesses and parties, which is not fully reflected in the cold, printed record which is available to us. Appellate review of a factual finding, therefore, is limited both as a practical matter and as a matter of the fundamental difference between the role of the trial court and an appellate court. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it . . . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Citations omitted; internal quotation marks omitted.) Doody v. Doody, 99 Conn. App. 512, 516-17, 914 A.2d 1058 (2007).

I

The defendant claims that the court improperly assessed the circumstances of the parties pursuant to §§ 46b-82 and 46b-86. Specifically, she maintains that the court considered only the change in the plaintiffs income. We lack an adequate record to review that assertion.

Following the October 21, 2004 hearing, the court issued an order that stated in relevant part that “the court finds that there has been a substantial change in circumstances.” It did not file a memorandum of decision or a signed transcript of an oral decision. The defendant, however, did not attempt to obtain a statement of the court’s reasoning pursuant to Practice Book § 64-1 (b) Moreover, the defendant did not request an articulation of the court’s judgment, as permitted by Practice Book § 66-5. “[A]n articulation is appropriate where the trial court’s decision contains some ambiguity or deficiency reasonably susceptible of clarification. ... An articulation may be necessary where the trial court fails completely to state any basis for its decision . . . or where the basis, although stated, is unclear. . . . The purpose of an articulation is to dispel any . . . ambiguity by clarifying the factual and legal basis upon which the trial court rendered its decision, thereby sharpening the issues on appeal.” (Citations omitted; internal quotation marks omitted.) Fantasia v. Milford Fastening Systems, 86 Conn. App. 270, 283, 860 A.2d 779 (2004), cert. denied, 272 Conn. 919, 866 A.2d 1286 (2005).

It is axiomatic that the appellant must provide this court with an adequate record for review. See Practice Book § 61-10. The defendant provided us with neither a memorandum of decision nor an articulation from the trial court providing the legal and factual bases of its decision. Without a sufficient record, we cannot engage in meaningful review of the court’s decision with regard to the defendant’s claim that the court considered only the change in the plaintiffs income. See Bebry v. Zanauskas, 81 Conn. App. 586, 594, 841 A.2d 282 (2004).

II

The defendant next claims that the court improperly found that the plaintiff met his burden of establishing a substantial change in circumstances. We disagree.

The party seeking a modification of alimony pursuant to § 46b-86 (a) has the burden of demonstrating that a substantial change in the circumstances of either party has occurred. Borkowski v. Borkowski, 228 Conn. 729, 734, 638 A.2d 1060 (1994). At the October 21, 2004 hearing, the plaintiff testified as to the decline experienced by his funeral home business. He described his business at the time of the marital dissolution as “very profitable.” The plaintiff then detailed a subsequent loss in revenue, which he attributed to new competition in the funeral home business in Colchester. His 1998 and 2003 corporate tax returns, filed as exhibits, substantiate the plaintiffs testimony and evince a business in decline. They indicate that the gross proceeds of the business totaled $341,483 in 1998, and $280,296 in 2003, that its gross profit totaled $253,214 in 1998, and $206,123 in 2003, and that the plaintiffs compensation dropped from $47,000 in 1998 to $32,400 in 2003. Moreover, the plaintiff in 2003 did not receive $24,000 in rental income from the business, as he had at the time of the marital dissolution.

In light of the foregoing, the court concluded that the plaintiff met his burden of demonstrating a substantial change in circumstances. The record contains ample evidence to support the finding that the plaintiffs income decreased from $71,000 in 1999 to just more than $32,000 in 2003, a decline of approximately 55 percent. Allowing every reasonable presumption in favor of the correctness of its action, we cannot say that the court’s determination was improper.

Ill

The defendant contends that the court improperly modified the award of alimony by a reduction of $300 per week. Prior to the modification, the plaintiff was obligated to pay the defendant weekly alimony in the amount of $550. As noted in part II, the record contains ample evidence to support the finding that the plaintiffs income decreased from $71,000 in 1999 to just more than $32,000 in 2003, a decline of approximately 55 percent. By reducing the plaintiffs weekly alimony obligation from $550 to $250, the court applied that 55 percent decline to the plaintiffs weekly alimony obligation.

In its order, the court stated: “The court finds that there has been a substantial change in circumstances. The plaintiff shall pay to the defendant $250 per week as alimony, orders are retroactive to August 23, 2004.” We repeat that the defendant failed either to secure a written memorandum of decision from the court pursuant to Practice Book § 64-1 (b) or request an articulation pursuant to Practice Book § 66-5. In assessing the court’s modification of the plaintiffs alimony obligation, we must “allow every reasonable presumption in favor of the correctness of its action.” (Internal quotation marks omitted.) Williams v. Williams, 276 Conn. 491, 497, 886 A.2d 817 (2005). On the record before us, we conclude that the court’s determination was not improper.

IV

The defendant’s final claim is that the court improperly modified the plaintiffs obligation to pay her unre-imbursed medical bills and to maintain medical insurance on her behalf. She claims that insurance obligations cannot be modified.

In support of her argument, the defendant relies on the decision of this court in Crowley v. Crowley, 46 Conn. App. 87, 699 A.2d 1029 (1997). In Crowley, we held that “[a] life insurance policy order ... is non-modifiable. General Statutes § 46b-86 (a) allows the court to modify final orders or judgments for the payment of periodic alimony and support, but specifically excludes modification of property assignment.” Crowley v. Crowley, supra, 98. Applying that precedent to the present case, the defendant insists that the court could not modify the plaintiffs obligation to maintain medical insurance and pay unreimbursed medical bills on her behalf. She is mistaken.

A similar argument was presented to, and rejected by, this court in Carasso v. Carasso, 80 Conn. App. 299, 834 A.2d 793 (2003), cert. denied, 267 Conn. 913, 840 A.2d 1174 (2004). In that case, the trial court held that “the [dissolution judgment] clearly stated that the defendant’s payments of medical insurance premiums shall be considered as additional alimony. The court finds that the order requiring the defendant to maintain medical insurance for the plaintiff was in the nature of alimony .... Similarly, the defendant’s obligation to maintain life insurance coverage would continue during the term of his obligation to pay alimony. . . . [T]he court finds that the life insurance order was intended to secure an alimony obligation.” (Internal quotation marks omitted.) Id., 310. Because “the insurance obligations were considered alimony substitutes,” we concluded that the court did not abuse its discretion in modifying that aspect of the defendant’s alimony. Id., 310-11; see also Damon v. Damon, 23 Conn. App. 111, 115, 579 A.2d 124 (1990) (“[a]n order to provide medical coverage for the duration of the time that periodic alimony is due is no more a future order than the order of the periodic alimony itself . . . and is as modifiable as the award of the periodic alimony” [citation omitted]).

The judgment of dissolution in the present case specifically provided that “the plaintiff is going to maintain medical and dental coverage for the defendant and be responsible for fifty percent of her unreimbursed medical and dental costs. Any costs incurred by the plaintiff along these lines, either for premiums that he pays or his share of the unreimbursed, will be deemed to be additional alimony .... The obligation with respect to maintaining medical and dental coverage and the obligation for fifty percent of the unreimbursed will continue so long as the plaintiffs obligation to pay alimony continues.” (Emphasis added.) Thus, as in Car-asso, the obligations to pay the defendant’s unreim-bursed medical bills and to maintain medical insurance on her behalf were alimony substitutes. As such, the court was within its discretion in modifying them.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 46b-82 (a) provides in relevant part: “In determining whether alimony shall be awarded, and the duration and amount of the award, the court shall hear the witnesses, if any, of each party, except as provided in subsection (a) of section 46b-51, shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties and the award, if any, which the court may make pursuant to section 46b-81, and, in the case of a parent to whom the custody of minor children has been awarded, the desirability of such parent’s securing employment."
      General Statutes § 46b-86 (a) provides in relevant part: “Unless and to the extent that the decree precludes modification . . . any final order for the periodic payment of permanent alimony or support or an order for alimony or support pendente lite may at any time thereafter be continued, set aside, altered or modified by said court upon a showing of a substantial change in the circumstances of either party .... By written agreement, stipulation or by decision of the court, those items or circumstances that were contemplated and are not to be changed may be specified in the written agreement, stipulation or decision of the court. ... No order for periodic payment of permanent alimony or support may be subject to retroactive modification, except that the court may order modification with respect to any period during which there is a pending motion for modification of an alimony or support order from the date of service of notice of such pending motion upon the opposing party pursuant to section 52-50.”

       Practice Book § 64-1 (b) provides in relevant part that “[i]f the trial judge fails to file a memorandum of decision or sign a transcript of the oral decision . . . the appellant may file with the appellate clerk a notice that the decision has not been filed in compliance with subsection (a). . . .” Section 64-1 establishes the procedure to be followed by an appellant in the event that the trial court fails to comply with Practice Book § 64-1 (a). Chase Manhattan Bank/City Trust v. AECO Elevator Co., 48 Conn. App. 605, 608, 710 A.2d 190 (1998). An appellant who fails to utilize this procedure fails to ensure an adequate record for review. Id.

       The judgment of dissolution in Crowley did not provide that the obligation to maintain the life insurance policy was additional alimony.