author: GRUENDEL, J. FLYNN, J.,

text:
    CITIMORTGAGE, INC. v. WILLIAM GAUDIANO ET AL.
    (AC 34632)
    Gruendel, Alvord and Flynn, Js.
    Argued February 4
    officially released May 7, 2013

      Ridgely Whitmore Brown, for the appellant (named defendant).

      Donald E. Frechette, with whom, on the brief, was Tara L. Trifon, for the appellee (plaintiff).
   Opinion

GRUENDEL, J.

The defendant William Gaudiano appeals from the judgment of strict foreclosure rendered by the trial court following the denial of his motion to dismiss, for lack of subject matter jurisdiction, this foreclosure action brought by the plaintiff, CitiMortgage, Inc. The defendant claims that the court improperly concluded that the plaintiff had standing to bring the action. We affirm the judgment of the trial court.

The procedural posture of this case governs our recitation of the facts underlying the appeal. “When a . . . court decides a . . . question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light. ... In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader.” (Internal quotation marks omitted.) Bellman v. West Hartford, 96 Conn. App. 387, 393, 900 A.2d 82 (2006). Further, in addition to admitting all facts well pleaded, the motion to dismiss “invokes any record that accompanies the motion, including supporting affidavits that contain undisputed facts.” (Internal quotation marks omitted.) Henriquez v. Allegre, 68 Conn. App. 238, 242, 789 A.2d 1142 (2002).

This appeal concerns real property owned by the defendant and known as 18 Woodrow Street in Stamford (property). On March 9, 2004, the defendant executed a promissory note (note) in favor of Nation’s Standard Mortgage Corp. in the principal amount of $443,900. That note was secured by a mortgage deed on the property that the defendant also executed on March 9, 2004, and delivered to Nation’s Standard Mortgage Corp.

As the trial court expressly found, the plaintiff became the owner and holder of the note on July 29, 2005. When the defendant subsequently failed to make his mortgage payments, the plaintiff provided him with written notice that he was in default of his obligations under the note and mortgage. The defendant failed to cure that default, and the plaintiff commenced the present foreclosure action in the spring of 2010.

On August 18, 2010, the court entered a default against the defendant for failure to disclose a defense and rendered a judgment of foreclosure by sale, setting a sale date of January 8, 2011. On December 28, 2010, the defendant filed a motion to open the judgment, claiming that “the plaintiff does not have standing to foreclose this mortgage.” By order dated January 3, 2011, the court denied that motion and sua sponte extended the sale date to April 30, 2011. The court also ordered that “[a]ny motions to reopen the judgment must be filed on or before March 29, 2011.”

Later that same day, the defendant filed a motion to dismiss, in which he averred, inter alia, that the plaintiff “was not the owner of the mortgage and note when this action was initiated and, therefore, does not have standing as a plaintiff.” As a result, the defendant requested that his “motion be granted and the case dismissed for lack of subject matter jurisdiction.” The plaintiff filed an objection to that motion on February 10, 2011, which repeated the allegation, originally set forth in its complaint, that it was the holder of the note prior to the commencement of the foreclosure action. The plaintiff specifically relied on General Statutes § 49-17 in arguing that it possessed the requisite standing. The plaintiff also submitted the affidavit of Amy L. Meyer, its document control officer, which stated in relevant part that the plaintiff “became [the] holder of [the] note on July 29, 2005 prior to the commencement of this action.” The court conducted an evidentiary hearing on the motion on February 16, 2011, which centered on purported discrepancies in the chain of title with respect to the note and mortgage deed. At the conclusion of the hearing, the court denied the defendant’s motion to dismiss without prejudice. The court also vacated the judgment of foreclosure by sale for the express purpose of affording the parties the opportunity to further brief the jurisdictional issue.

The defendant filed a second motion to dismiss for lack of standing on March 4, 2011, which the plaintiff opposed. The court conducted an evidentiary hearing on August 4 and 5, 2011, at the conclusion of which it denied the motion. In so doing, the court specifically found, on the evidence before it, that the plaintiff was the owner and holder of the note on July 29, 2005. As a result, the court concluded that the plaintiff had standing to commence the present foreclosure action. The plaintiff thereafter filed a motion for a judgment of strict foreclosure, which the court granted on April 30, 2012, and this appeal followed.

As the defendant states in his appellate brief, “[t]he issue is standing and [whether] the plaintiff [had] an assignment of the note at the commencement of this foreclosure action.” It is well established that “[a] party must have standing to assert a claim in order for the court to have subject matter jurisdiction over the claim. . . . Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he [or she] has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy. . . . Where a party is found to lack standing, the court is consequently without subject matter jurisdiction to determine the cause. . . . Our review of the question of [a] plaintiff’s standing is plenary.” (Citations omitted; internal quotation marks omitted.) Megin v. New Milford, 125 Conn. App. 35, 37, 6 A.3d 1176 (2010).

Furthermore, “[t]he scope of review of a trial court’s factual decisions related to the issue of standing on appeal is limited to a determination of whether they are clearly erroneous in view of the evidence and pleadings.” Marlin Broadcasting, LLC v. Law Office of Kent Avery, LLC, 101 Conn. App. 638, 642, 922 A.2d 1131 (2007). “[W]hen reviewing findings of fact, we defer to the trial court’s determination unless it is clearly erroneous. ... 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. . . . Under the clearly erroneous standard of review, a finding of fact must stand if, on the basis of the evidence before the court and the reasonable inferences to be drawn from that evidence, a trier of fact reasonably could have found as it did.” (Internal quotation marks omitted.) Suresky v. Sweedler, 140 Conn. App. 800, 806-807, 60 A.3d 358 (2013).

On appeal, the defendant claims that the court’s finding that the plaintiff was the owner and holder of the note prior to the commencement of this action is clearly erroneous. Specifically, he contends that “the plaintiff does not have a valid assignment of the note in the land records,” which he suggests is a prerequisite to the commencement of a foreclosure proceeding. The defendant has provided no authority—from our statutes, decisional law or otherwise—imposing such a requirement.

Rather, § 49-17 “permits the holder of a negotiable instrument that is secured by a mortgage to foreclose on the mortgage even when the mortgage has not yet been assigned to him. . . . The statute codifies the common-law principle of long standing that the mortgage follows the note, pursuant to which only the rightful owner of the note has the right to enforce the mortgage. . . . Our legislature, by adopting § 49-17, has provide [d] an avenue for the holder of the note to foreclose on the property when the mortgage has not been assigned to him.” (Citations omitted; internal quotation marks omitted.) Chase Home Finance, LLC v. Fequiere, 119 Conn. App. 570, 576-77, 989 A.2d 606, cert. denied, 295 Conn. 922, 991 A.2d 564 (2010).

The plaintiff availed itself of that avenue of redress in the present case, as the court specifically found that it was the holder of the note since July 29, 2005, years prior to its commencement of this action. That finding is supported by the record before us. At the evidentiary hearing, the plaintiff produced a copy of the note in question. That evidence plainly indicates that the note first was assigned by Nation’s Standard Mortgage Corp. to Lehman Brothers Bank, FSB, and then later was assigned by Lehman Brothers Bank, FSB, to Lehman Brothers Holdings, Inc. That documentary evidence further demonstrates that Lehman Brothers Holdings, Inc., endorsed the note in blank and that the plaintiff subsequently stamped its name thereon, converting the endorsement to a special endorsement pursuant to General Statutes § 42a-3-205 (c). The court credited that evidence during the evidentiary hearing.

The court also credited the videotaped deposition testimony of Jonathan Kukic, an employee of Aurora Bank, FSB. Kukic testified that he was personally familiar with the “MCD Viewer,” which is a computer storage system that “dates all the records that are scanned into our system . . . .” Kukic further testified that a review of the records related to the defendant’s property in the MCD Viewer revealed that the assignment of the note from Lehman Brothers Bank, FSB, to Lehman Brothers Holdings, Inc., was scanned into the system and “imaged on April 14, 2004.” Kukic explained that such records are scanned into the records soon after they are received. The court credited Kukic’s testimony, on which it found that “as of April 14, 2004, the note was endorsed . . . from Lehman Brothers Bank, FSB, to Lehman Brothers Holdings, Inc.” In addition, the court credited Meyer’s affidavit. In that affidavit, Meyer states, on the basis of her personal knowledge as a document control officer and her review of the books and records of the plaintiff with respect to the defendant’s property, that the plaintiff “became [the] holder of [the] note on July 29, 2005 prior to the commencement of this action.” That evidence substantiates the court’s finding that the plaintiff was the owner and holder of the note prior to the commencement of this foreclosure proceeding. We thus cannot say that this finding is clearly erroneous.

The defendant nevertheless argues that the finding is clearly erroneous in light of his contention that “the plaintiff does not have a valid assignment of the note in the land records.” At the evidentiary hearing, the defendant submitted a certified copy of a “Corporate Assignment of Mortgage” that was filed on the Stamford land records on July 9,2004. That document purportedly assigned the note and mortgage from Lehman Brothers Bank, FSB, to Mortgage Electronic Registration Systems, Inc. (MERS), on June 9, 2004. In light of that evidence, the defendant maintains that “[t]he land records control the issue . . . .”

The trial court considered, and rejected, that argument at the evidentiary hearing on the motion to dismiss. Specifically, the court found that because Lehman Brothers Bank, FSB, had assigned the note to Lehman Brothers Holdings, Inc., as of April 14, 2004, it could not have assigned the note to MERS months later on June 9, 2004. As the court stated during the evidentiary hearing: “The court finds that [the defendant] raises an interesting issue [as to] when was the endorsement on these notes from Lehman Brothers Bank [FSB] to Lehman Brothers Holdings, Inc. If in fact the endorsements were done after the June 9, 2004 assignment . . . from Lehman Brothers Bank, FSB, to MERS, [the defendant] would be absolutely correct that the note was assigned to MERS. However, the court finds the testimony and the exhibits [submitted by the plaintiff] persuasive, the court believes . . . that . . . the note was endorsed first by Nation’s Standard Mortgage Corp. to Lehman Brothers Bank, FSB, and then from Lehman Brothers Bank, FSB, to Lehman Brothers Holdings, Inc. . . .

“The only thing that Lehman Brothers Bank, FSB, could assign at that point was the mortgage. They were not owners and holders of the note at that point. So, I agree with [the defendant] that this [filing on the land records] is sloppy, that it shouldn’t have been done. That is part of the problem with our whole mortgage foreclosure area of the law, but the court has to find that Lehman Brothers Bank, FSB, was not the owner and holder of the note on June 9, 2004. So, when they assigned the note at that point, they didn’t own it, they didn’t possess it, so they didn’t assign anything to MERS except the mortgage .... [W]hen they assigned the note on June 9, 2004, they assigned nothing because they didn’t own the note at that point, they were not holders of the note.” The court thus concluded that the June 9, 2004 assignment of the note to MERS had no bearing on the question of whether the plaintiff had standing to commence the foreclosure action, as it was, in essence, a nullity.

We disagree with the defendant’s assertion that “[t]he land records control the issue, not some computer date stamp from . . . business records of a prior servicer of the loan.” What truly controls the issue is that evidence which the trier of fact deems credible. Under the applicable standard of review, this court cannot retry the facts or pass on issues of credibility. See Bowen v. Serksnas, 121 Conn. App. 503, 507, 997 A.2d 573 (2010). In the present case, the court specifically credited the evidence submitted by the plaintiff, which included copies of the loan documents in question, the affidavit of its loan control officer and the videotaped deposition testimony of Kukic. On that evidence, the court reasonably could have found that the plaintiff was the holder and owner of note in question as of July 29, 2005, years prior to its commencement of this foreclosure action.

We therefore conclude that the court correctly determined that the plaintiff had standing pursuant to § 49-17 to pursue a foreclosure action against the defendant. Accordingly, the court properly denied the defendant’s motion to dismiss.

The judgment is affirmed and the case is remanded for the purpose of setting new law days.

In this opinion ALVORD, J., concurred.

FLYNN, J.,

concurring. The plaintiff, CitiMortgage, Inc., first invoked the jurisdiction of the Superior Court to foreclose the defendant, William Gaudiano’s mortgage, when a prior owner of both note and mortgage had assigned both the mortgage note and mortgage deed to another entity, called Mortgage Electronic Registration Systems, Inc., by assignment dated June 9, 2004, and recorded July 9, 2004, in book 7635, page 167, of the Stamford land records. I will leave it to others to decide whether some banks are too big to fail. It is becoming increasingly evident, however, that some have become unable to efficiently manage their book of loans.

I concur that affirmance is required by General Statutes § 49-17, which permits foreclosure of a mortgage by the noteholder entitled to receive the money evidenced by the mortgage note but to whom the legal title to the mortgaged premises has never been conveyed, and further permits such a noteholder to file a certificate of foreclosure on the land records after expiration of the time limited for redemption. The mischief that is possible to land titles under such scenarios is evident when one considers the land records system we have had since colonial times. Persons who convey an interest in real estate are listed by their name in a grantor index by the town clerk in each of the municipalities of our state. The party receiving that interest from the grantor is so listed in the grantee index of land records in the town or city where the land is located. Where a mortgage has never been assigned on the land records to the foreclosing party and that party merely holds the note, there is the potential for a gap in title on the land records when the noteholder files a lis pendens and/or certificate of foreclosure of the mortgage hen. Connecticut is a title state and the concept of the chain of title is well explained and expressed in the Connecticut Standards of Title: “The ‘chain of title’ concept is a principle of case law, developed to protect subsequent parties from being charged with constructive notice of the existence and contents of those recorded instruments which a title searcher would not be expected to discover by the customary search of land records. . . .” Connecticut Bar Association, Connecticut Standards of Title (1999), standard 2.2; see also Ginsberg & Ginsberg, LLC v. Alexandria Estates, LLC, 136 Conn. App. 511, 516, 48 A.3d 101 (2012).

While as judges we do not set legislative policy, I see some obligation to point out that no title search could find that CitiMortgage, Inc., ever received any assignment of mortgage from the mortgage holder of record at the time CitiMortgage, Inc., commenced this foreclosure action. This raises the obvious questions of what interest remains in the mortgage holder of record and why did not the record mortgage holder, rather than CitiMortgage, Inc., commence the foreclosure. The more basic question is what continued reliance can be placed on public land records to determine title to real property due to the effect of the application of § 49-17.

       The plaintiff also named Wells Fargo Bank, N.A., and “Stock Building Supply, Inc. f/k/a East Haven Builders Supply, Inc.,” as defendants. For convenience, we refer to Guadiano as the defendant in this appeal.

       General Statutes § 49-17 provides: “When any mortgage is foreclosed by the person entitled to receive the money secured thereby but to whom the legal title to the mortgaged premises has never been conveyed, the title to such premises shall, upon the expiration of the time limited for redemption and on failure of redemption, vest in him in the same manner and to the same extent as such title would have vested in the mortgagee if he had foreclosed, provided the person so foreclosing shall forthwith cause the decree of foreclosure to be recorded in the land records in the town in which the land lies.”

       General Statutes § 42a-3-205 provides in relevant part: “(a) If an endorsement is made by the holder of an instrument, whether payable to an identified person or payable to bearer, and the endorsement identifies a person to whom it makes the instrument payable, it is a ‘special endorsement’. When specially endorsed, an instrument becomes payable to the identified person and may be negotiated only by the endorsement of that person. ...
      “(b) If an endorsement is made by the holder of an instrument and is not a special endorsement, it is a ‘blank endorsement’. When endorsed in blank, an instrument becomes payable to bearer and may be negotiated by transfer of possession alone until specially endorsed.
      “(c) The holder may convert a blank endorsement that consists only of a signature into a special endorsement by writing, above the signature of the endorser, words identifying the person to whom the instrument is made payable . . . .”

       At the evidentiary hearing, counsel for the plaintiff represented to the court that Aurora Bank, FSB, “was formerly known as Lehman Brothers Bank, FSB.”

       The plaintiff included a transcript of Kukic’s deposition testimony in the appendix to its appellate brief.

       It is undisputed that MERS assigned the mortgage deed to the plaintiff on May 20,2010. At the evidentiary hearing, the plaintiff submitted a certified copy of that assignment as filed on the Stamford land records on May 27, 2010.


source: Caselaw Access Project

author: FLYNN, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. LAWRENCE A. FRANKO
    (AC 32936)
    Gruendel, Bear and Flynn, Js.

      Argued November 13, 2012
    officially released May 7, 2013

      Jennifer Bourn, assistant public defender, for the appellant (defendant).

      Nancy L. Chupak, senior assistant state’s attorney, with whom, on the brief, were David I. Cohen, state’s attorney, and Maureen Omousky, senior assistant state’s attorney, for the appellee (state).
   Opinion

FLYNN, J.

The defendant, Lawrence A. Franko, appeals from the judgment of conviction, rendered after a jury trial, of one count of kidnapping in the second degree in violation of General Statutes § 53a-94 (a). On appeal the defendant claims that the trial court abused its discretion in denying his motion in limine to exclude certain evidence of prior uncharged misconduct. He contends that the evidence was not relevant or material, and, even if deemed to have probative value, its prejudicial effect outweighed any such probative value and was harmful. We disagree and affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On November 10, 2008, the victim was packing groceries into her vehicle, which was parked in the parking lot of a Stamford grocery store. After the victim entered her vehicle, shut the door and started the vehicle, the defendant, who had a prior relationship with the victim, opened the vehicle’s door and pushed the victim between the passenger’s and driver’s seats. The victim’s keys to the vehicle were knocked out of the ignition during the victim’s initial struggle with the defendant, but the defendant then started the vehicle with another key. The victim pushed the horn of her car in an attempt to draw attention to the situation. The defendant grabbed the victim’s hair and hit her face against the dashboard, which caused the victim to bleed.

He then held the victim’s head down as he drove her vehicle on the Merritt Parkway, in the direction of the defendant’s residence. The victim, in an attempt to escape the vehicle, persuaded the defendant to pull into a rest stop for gas. The defendant pulled into the New Canaan rest area, which included a gas station, and parked the vehicle, but, after the defendant decided the rest area was “not the right place to talk,” he began to drive the vehicle in reverse in order to exit the rest area. Trying to prevent the victim from exiting the vehicle, the defendant grabbed the victim’s belt and pants, until her pants ripped at the crotch area. The victim successfully escaped the vehicle and ran to the gas station. The victim called 911 on her cell phone and also requested that the gas station attendant call 911, as well. The defendant ran into the woods, behind the rest area, before state police arrived in response to the 911 calls.

Officer Glen Coppola of the Stamford police department (department) was dispatched to the rest area to meet with the victim. The victim subsequently followed Coppola to the special victims unit of the department. When the victim arrived at the department, she met with Sergeant Christian DiCarlo, who noted facial bruising, scratches around the victim’s eyes and the fact that her jeans were tom. DiCarlo took the victim’s statement and photographed the extent of her injuries. Later that night, the defendant surrendered to the department and was arrested on the charge of kidnapping in the second degree, of which he ultimately was convicted. This appeal followed. Additional facts will be set forth as necessary.

The defendant claims that the court abused its discretion in admitting prior uncharged misconduct evidence. Specifically, the defendant claims that (1) the admission of the uncharged misconduct evidence was not relevant or material to any exception under the Connecticut Code of Evidence; (2) the prejudicial effect of the admitted uncharged misconduct evidence outweighed the probative value; and (3) the admission of the uncharged misconduct evidence was harmful.

I

The defendant first argues that the admission of the uncharged misconduct evidence was not relevant or material to any exception under the Connecticut Code of Evidence. Additional facts are relevant to the defendant’s claim. On June 15, 2010, the state filed a notice of evidence of uncharged misconduct. Both the state and the defendant submitted memoranda regarding the misconduct evidence, which the trial court decided to treat as a motion in limine.

After the state’s first witness was heard, the victim took the stand for a proffer of the evidence of uncharged misconduct to the court, in the absence of the jury. The state sought to admit evidence of uncharged misconduct under § 4-5 of the Connecticut Code of Evidence, that the defendant had subjected the victim to verbal and physical abuse starting three months into their relationship. Specifically, the state sought to admit evidence that the defendant made “verbal threats to blow [the victim] up while she was in her van. And to have someone fix her.” Furthermore, the state wanted to offer three specific instances of the defendant allegedly damaging property connected to the victim. Namely that “the [defendant, in [the victim’s] presence, smashed her cell phone, broke her sunglasses [and] slashed her tires,” as well as a separate vandalism incident where the defendant scratched or “keyed” the paint surface of the car of the victim’s son. The state also represented that it would offer evidence as to two specific incidents of sexual assault of the victim, in addition to an incident where “the [defendant improperly and illegally obtained some registration information regarding a car that [the victim] was driving.” The state argued that the evidence of uncharged misconduct was admissible under § 4-5 (b) of the Connecticut Code of Evidence to prove intent, motive, malice, to corroborate crucial prosecution testimony and to complete the story.

The defendant objected to the admission of the prior uncharged misconduct evidence by contending that the evidence was irrelevant to show intent, motive, malice and corroboration. The defendant further argued that many of the incidents were too remote in time, and he also questioned the credibility of the victim’s testimony. He contended that none of the prior misconduct evidence ever was reported to the police or any third party; no domestic violence report was filed with any proper venue; the victim continued to see the defendant after any such alleged incidents. The defendant further maintained that there was no pattern or common scheme of the crime of kidnapping, or other signature of that crime, and the prejudice of any such introduction outweighed any probative value. He contended that the evidence was not probative of the kidnapping charge, but rather would inflame the jury and create a bias against the defendant. The defendant maintained that the evidence was highly prejudicial when weighed against its probative value.

The court admitted all evidence of uncharged misconduct offered by the state except the evidence regarding the keying of the car of the victim’s son. At trial, the victim testified about substantially the same evidence as she did in the state’s proffer. In light of its ruling, the court provided the following limiting instruction to the jury after the victim’s testimony containing the uncharged misconduct: “[M]embers of the jury, before the [s]tate calls its next witness, I’m going to give you a limiting instruction. And I’m going to substantially repeat this instruction at the end of the case when I give you the final instructions.

“But, for now, I want you to listen carefully to what I’m about to say. The [s]tate has offered evidence of other acts of misconduct of the [defendant which it claims occurred prior to the alleged kidnapping on November 10, 2008.

“The evidence that I am referring to, is the testimony from [the victim], that the [djefendant damaged her personal property. Her testimony that the [defendant threatened her. And her testimony that the [djefendant sexually assaulted her. None of that evidence is being admitted to prove the bad character of the defendant. Or, that the [defendant [had] a tendency to commit criminal acts.

“Such evidence is being admitted solely to show or establish the following. One, that the [defendant intended to restrict the [victim’s] movement at the time of the alleged crime.

“Two, that the [defendant abducted the [victim] at the time of the alleged crime, [i.e.] that he restrained the [victim] with the intent to prevent her liberation by using or threatening to use physical force or intimidation.

“Three, the [defendant's motive in committing the alleged kidnapping. And four, corroboration of crucial prosecution testimony regarding the claimed abduction at the time of the alleged kidnapping. And five, the complete story as presented by the prosecution.

“You may not consider such evidence as establishing a predisposition on the part of the [defendant to commit the crime charged, i.e., kidnapping, or, to demonstrate a criminal propensity.

“You may consider such evidence, if you believe it. And further find that it logically, rationally, and conclusively supports the issues for which it is being offered by the [s]tate; but, only as it may bear on the following issues.

“The [defendant's intent to restrict the [victim’s] movement on the date of the alleged kidnapping. The element of kidnapping that requires proof of abduction. The [defendant's motive in committing the alleged kidnapping. Corroboration of the [sjtate’s evidence regarding abduction. And to complete the story as presented by the prosecution.

“On the other hand, if you do not believe such evidence, or even if you do, if you find that it does not logically, rationally, and conclusively support the issues for which it is being offered by the [s]tate, then you may not consider that testimony for any purpose.

“You may not consider evidence of other misconduct of the [defendant for any purpose other than the ones I’ve just told you. Because it may predispose your mind uncritically to believe that the [d] efendant may be guilty of the offense here charged merely because of the alleged other misconduct.

“For this reason, you may consider this evidence only on the issues for which it is being offered and for no other purpose.” The court gave substantially the same instruction in its final charge to the jury.

We review the admission of the disputed evidence based on an abuse of discretion standard guided by the following principles. “The standard of review is clear. The admission of evidence of prior uncharged misconduct is a decision properly within the discretion of the trial court. . . . [Ejvery reasonable presumption should be given in favor of the trial court’s ruling. . . . [T]he trial court’s decision will be reversed only where abuse of discretion is manifest or where an injustice appears to have been done.” (Internal quotation marks omitted.) State v. Johnson, 65 Conn. App. 470, 475-76, 783 A.2d 1057, cert. denied, 258 Conn. 930, 783 A.2d 1031 (2001).

“As a general rule, evidence of prior misconduct is inadmissible to prove that a criminal defendant is guilty of the crime of which the defendant is accused. . . On the other hand, evidence of crimes so connected with the principal crime by circumstance, motive, design, or innate peculiarity, that the commission of the collateral crime tends directly to prove the commission of the principal crime, is admissible. The rules of policy have no application whatever to evidence of any crime which directly tends to prove that the accused is guilty of the specific offense for which he is on trial. . . . [Our Supreme Court has] developed a two part test to determine the admissibility of such evidence. First, the evidence must be relevant and material to at least one of the circumstances encompassed by the exceptions [set forth in § 4-5 (b) of the Connecticut Code of Evidence], . . . Second, the probative value of the evidence must outweigh its prejudicial effect. . . . Because of the difficulties inherent in this balancing process, the trial court’s decision will be reversed only whe[n] abuse of discretion is manifest or whe[n] an injustice appears to have been done. ... On review by this court, therefore, every reasonable presumption should be given in favor of the trial court’s ruling.” (Citations omitted; internal quotation marks omitted.) State v. Randolph, 284 Conn. 328, 340, 933 A.2d 1158 (2007). “In determining whether there has been an abuse of discretion, the ultimate issue is whether the court could reasonably conclude as it did.” (Internal quotation marks omitted.) State v. Orr, 291 Conn. 642, 667, 969 A.2d 750 (2009).

“When an improper evidentiary ruling is not constitutional in nature, the defendant bears the burden of demonstrating that the error was harmful.” (Internal quotation marks omitted.) State v. Outlaw, 108 Conn. App. 772, 785, 949 A.2d 544, cert. denied, 289 Conn. 915, 957 A.2d 880 (2008). In State v. Sawyer, 279 Conn. 331, 357, 904 A.2d 101 (2006), our Supreme Court addressed harmless error review and determined that the proper standard is “whether the jury’s verdict was substantially swayed by the error.” Our Supreme Court further held that “a nonconstitutional error is harmless when an appellate court has a fair assurance that the error did not substantially affect the verdict.” (Internal quotation marks omitted.) Id.

We begin our analysis by noting first that kidnapping in the second degree under § 53a-94 (a) is a specific intent crime. To prove that the defendant was guilty of the crime of kidnapping in the second degree, the state was required to establish, beyond a reasonable doubt, that the defendant “abduct[ed] another person.” General Statutes § 53a-94 (a). In the present case, therefore, the state had the burden to prove, beyond a reasonable doubt, the defendant’s intent to “abduct” the victim. “Abduct,” as used in § 53a-94 (a), is defined as “to restrain a person with intent to prevent his liberation by . . . using or threatening to use physical force or intimidation.” General Statutes § 53a-91 (2) (B). The state, therefore, needed to show, beyond a reasonable doubt, that the defendant restrained the victim with the intent to prevent the victim’s liberation by use or threat of physical force or intimidation.

The testimony of the victim was relevant to the defendant’s intent to abduct the victim, and thereby restrain the victim’s movement on the date of the kidnapping. “Although there is no element in the kidnapping statutes that explicitly requires proof of the victim’s state of mind, [our Supreme Court] has stated that evidence that is ‘probative of the victim’s state of mind may be admissible . . . when that state of mind is independently relevant to other material issues in the case.’ . . . Thus, when a defendant ... is charged with [second] degree kidnapping and the jury is instructed on the meaning of ‘abduct,’ which requires a finding that the defendant restrained the victim ‘with intent to prevent his liberation by . . . using or threatening to use physical force or intimidation’ . . . the trial court may allow the jury to consider evidence that the victim reasonably believed that force would be used if he or she tried to escape as proof that the defendant intended to prevent the victim’s liberation by threats or intimidation.” (Citations omitted.) State v. Pascual, 305 Conn. 82, 96 n.7, 43 A.3d 648 (2012). “Because intent is almost always proved, if at all, by circumstantial evidence, prior misconduct evidence, where available, is often relied upon.” (Internal quotation marks omitted.) State v. Irizarry, 95 Conn. App. 224, 234, 896 A.2d 828, cert. denied, 279 Conn. 902, 901 A.2d 1224 (2006).

The defendant’s violent and threatening behavior toward the victim in the past was relevant to show the defendant’s intent to prevent the victim’s liberation by use or threat to use physical force or intimidation on November 10, 2008, when the defendant forced the victim out of the driver’s seat of her vehicle and proceeded to drive her in her vehicle on the Merritt Parkway toward the defendant’s residence, while holding the victim’s head down and then ripped the victim’s pants when she attempted to exit the vehicle. The victim testified that the defendant previously threatened her, damaged her property both in and out of her presence and sexually assaulted her on two occasions. The defendant’s prior use of physical force and intimidation toward the victim, her cell phone, her sunglasses and tires was relevant to prove that the defendant intended to prevent the victim’s liberation by threats or intimidation by showing that the victim reasonably believed that the defendant would use force against her on the date of the kidnapping based on the defendant’s prior use of force against her and her property. See State v. Pascual, supra, 305 Conn. 96 n.7.

“When instances of a criminal defendant’s prior misconduct involve the same victim as the crimes for which the defendant presently is being tried, those acts are especially illuminative of the defendant’s motivation and attitude toward that victim, and, thus, of his intent as to the incident in question.” State v. Irizarry, supra, 95 Conn. App. 235. The defendant previously had used physical force and intimidation toward the victim and her property, including her cell phone, sunglasses and tires. This evidence of the defendant’s past behavior is illuminative of the defendant’s intent on the date of the kidnapping, namely, that he did not intend merely to talk to her, but, rather, intended to prevent her liberation by use or threat to use physical force and intimidation. See id., 230, 237 (holding that defendant’s prior misconduct consisting of previous attack on victim with machete, his previous encounter at victim’s apartment, where defendant was preparing to hit victim but stopped because victim’s grandson was present, and two incidents where defendant, possessing knives, banged on victim’s door were “relevant to show [defendant’s] intent to cause [victim] intense fear or apprehension on [date of charged conduct]” in satisfaction of first prong under § 4-5 [b] of Connecticut Code of Evidence).

We conclude that the trial court reasonably could have determined that the victim’s testimony was relevant to the issue of the defendant’s intent in satisfaction of the first part of the admissibility test under § 4-5 (b) of the Connecticut Code of Evidence. We note that the court also admitted this evidence to corroborate crucial prosecution testimony, to complete the story, to prove malice, to prove motive, as well as to prove intent. Even if we assume, without deciding, that the court was in error in admitting the prior misconduct evidence for these remaining four grounds, it is still the defendant’s obligation to show that he was harmed by the admission. As we explain more fully in part III of this opinion, the defendant has failed to show this.

II

The defendant further argues that the court abused its discretion in admitting the prior misconduct evidence because the prejudicial impact of the evidence outweighed its minimal probative value.

“The 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. . . . We note that [b]ecause of the difficulties inherent in this balancing process . . . every reasonable presumption should be given in favor of the trial court’s ruling. . . . Of course, [a]ll 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.” (Citation omitted; internal quotation marks omitted.) State v. Lynch, 123 Conn. App. 479, 492, 1 A.3d 1254 (2010). “Evidence is prejudicial when it tends to have some adverse effect upon a defendant beyond tending to prove the fact or issue that justified its admission into evidence.” (Internal quotation marks omitted.) State v. Orr, supra, 291 Conn. 667-68.

“[W]hen the trial court has heard a lengthy offer of proof and arguments of counsel before performing the required balancing test, has specifically found that the evidence was highly probative and material, and that its probative value significantly outweighed the prejudicial effect, and has instructed the jury on the limited use of the evidence in order to safeguard against misuse and to minimize the prejudicial impact ... we have found no abuse of discretion.” (Internal quotation marks omitted.) State v. Lynch, supra, 123 Conn. App. 492-93. “Proper limiting instructions often mitigate the prejudicial impact of evidence of prior misconduct. . . . Furthermore, a jury is presumed to have followed a court’s limiting instructions, which serves to lessen any prejudice resulting from the admission of such evidence.” (Internal quotation marks omitted.) State v. Pereira, 113 Conn. App. 705, 715, 967 A.2d 121, cert. denied, 292 Conn. 909, 973 A.2d 106 (2009).

In the present case, the court heard significant proffered testimony from the victim and heard from counsel for both parties with respect to the relevance/prejudice balance. The court thoroughly analyzed the probative value of the defendant’s prior uncharged misconduct, namely, its relevance to the issues of the defendant’s intent, motive, malice, corroboration of crucial prosecution testimony and to complete the story. The court found the evidence relevant. Having analyzed the probative value of the evidence, the court then examined its prejudicial effect. The court specifically found: “[Prejudice means it was all so emotionally overwhelming that the jury just can’t think straight and they’re going to just be so inflamed by this. And I heard the [victim] testify about the two sexual assaults and I didn’t hear anything all that graphic there. . . . But I didn’t hear anything all that terrible, to be honest with you.

* * *

“In each instance of which she testified about sexual assault, she described the incident in general terms. It wasn’t particularly graphic as far as I’m concerned, or inflammatory. . . . [T]here is direct evidence that the [defendant was involved .... And she said that that act—those actions were motivated by the [d]efendant’s jealousy.” See State v. Irizarry, supra, 95 Conn. App. 238 (court did not abuse discretion in concluding probative value outweighs prejudicial effect when misconduct evidence no more shocking than evidence of crimes with which defendant charged).

Then, finding a potential for undue prejudice, the court limited any reference to the “keying” of the car of the victim’s son in the interest of “protecting the [defendant's rights and interests” because the incident was circumstantial and the defendant was not charged with criminal mischief. Finally, during the jury charge, the court issued a clear limiting instruction to further minimize any unfair prejudice. “Absent evidence to the contrary, we presume that the jury followed the court’s limiting instruction.” State v. Messam, 108 Conn. App. 744, 758, 949 A.2d 1246 (2008). “We previously have held that evidence of dissimilar acts is less likely to be prejudicial than evidence of similar or identical acts.” (Internal quotation marks omitted.) State v. Vega, 259 Conn. 374, 398, 788 A.2d 1221, cert. denied, 537 U.S. 836, 123 S. Ct. 152, 154 L. Ed. 2d 56 (2002). None of the admitted prior misconduct evidence is similar or identical to the charged misconduct of second degree kidnapping.

There is case law in this state that speaks to the highly prejudicial nature of prior sexual misconduct evidence. See State v. Ellis, 270 Conn. 337, 367-68, 852 A.2d. 676 (2004) (holding court’s instructions to jury could not cure prejudice from testimony regarding prior uncharged sexual misconduct by defendant). “We have recognized that the crime of sexual assault [is] violent in nature, irrespective of whether it is accompanied by physical violence. Short of homicide, [sexual assault] is the ultimate violation of self. It is also a violent crime because it normally involves force, or the threat of force or intimidation, to overcome the will and the capacity of the victim to resist. [Although sexual assault] is very often accompanied by physical injury to the [victim] . . . [it] can also inflict mental and psychological damage. . . . Not all crimes of sexual assault, however, are equally brutal and shocking. . . . For example, although [s]exual assaults in the first degree can be characterized as brutal . . . [s]ome . . . evince a greater degree of brutality or shocking behavior than others. The question then becomes whether one of the sexual assault crimes ... is so brutal and shocking when compared with the other, that a jury, even with proper instructions, could not treat them separately.” (Citations omitted; internal quotation marks omitted.) Id., 377. The presence, however, of the factors, as previously discussed, can and, in the present case, do overcome such prejudicial nature. See State v. Romero, 269 Conn. 481, 502-503, 849 A.2d 760 (2004) (holding prejudicial value of witness testimony regarding prior sexual misconduct by defendant in order to establish defendant’s sexual abuse of young family members outweighed by probative value in light of its relevance and materiality). Therefore, we conclude that under these circumstances the court did not abuse its discretion in finding that the probative value of the evidence outweighed its prejudicial impact.

Ill

The defendant finally argues that the alleged error by the corut in admitting the prior misconduct evidence was harmful. Even if we were to conclude that the court abused its discretion and improperly admitted the evidence, we would conclude, nevertheless, that it was harmless error. “[W]hether [the improper admission of a witness’ testimony] is harmless in a particular case depends upon a number of factors, such as the importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case. . . . Most importantly, we must examine the impact of the [improperly admitted] evidence on the trier of fact and the result of the trial.” (Internal quotation marks omitted.) State v. Sawyer, supra, 279 Conn. 358.

“The harmless error doctrine is rooted in the fundamental purpose of the criminal justice system, namely, to convict the guilty and acquit the innocent. . . . [W]e must examine the impact of the evidence on the trier of fact and the result of the trial. ... If the evidence may have had a tendency to influence the judgment of the jury, it cannot be considered harmless. . . . That determination must be made in light of the entire record [including the strength of the state’s case without the evidence admitted in error].” (Citations omitted; internal quotation marks omitted.) State v. Mitchell, 296 Conn. 449, 459-60, 996 A.2d 251 (2010). The defendant claims that admission of the uncharged misconduct evidence was not only improper, but harmful. The most relevant factors to be considered are the strength of the state’s case and the impact of the allegedly improperly admitted evidence on the trier of fact. See State v. Sawyer, supra, 279 Conn. 358.

We conclude that the defendant has failed to show that the admission was harmful because of the overall strength of the state’s case and the impact of the evidence on the jury. There is no question that the victim and the defendant previously had a romantic relationship. Based on, not only the victim’s testimony, but also the testimony of various law enforcement officials, the jury reasonably could have found that the defendant prevented the victim from acting on her clear desire to leave him. Their encounter began with the defendant forcing the victim out of the driver’s séat and deeper into the vehicle. The defendant then applied direct physical force on the victim in the form of grabbing her hair and hitting her face against the vehicle’s dashboard, causing her to bleed. He then continued to hold the victim’s head down as he drove her and her vehicle on the parkway away from Stamford.

In an attempt to escape, the victim convinced the defendant to pull off of the parkway into the rest area where she then proceeded to exit the vehicle. Again the defendant applied direct physical force by grabbing the victim’s pants until they ripped at the crotch area, after which the victim successfully escaped. These facts, which the jury could have reasonably found, demonstrate that the defendant used direct physical force intended to intimidate the victim and prevent her from leaving, starting in the Stamford parking lot and continuing until her flight from her vehicle at the New Canaan rest area.

Numerous law enforcement officers corroborated the fact that the victim was both visibly upset and injured. State Trooper Humberto Henriques testified that when he observed the victim at the rest area she had facial bruising and scratches consistent with being struck. Coppola testified that when he arrived at the rest area the victim was very upset and shaking. DiCarlo testified that when he met her at the police department after the incident, he observed the victim visibly upset and crying, with facial bruising and scratches, as well as tom jeans. The defendant’s sunglasses were also found in the victim’s vehicle and at trial the defendant stipulated that those found belonged to him.

The state’s case was very strong, even without the prior misconduct evidence. We therefore conclude that the defendant has failed to satisfy his burden of showing that any impropriety was harmful because it cannot be said, with fair assurance, that the alleged error substantially affected the verdict.

Under the given circumstances, with due regard for the broad leeway possessed by the trial courts in determining the admissibility of evidence, we conclude that the trial court did not abuse its broad discretion in admitting the evidence of the defendant’s prior misconduct. Accordingly, we conclude that the trial court acted properly.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-94 provides: “(a) A person is guilty of kidnapping in the second degree when he abducts another person, (b) Kidnapping in the second degree is a class B felony for which three years of the sentence imposed may not be suspended or reduced by the court.”
      “Abduct” is defined in General Statutes § 53a-91 (2) as “to restrain a person with intent to prevent his liberation by either (A) secreting or holding him in a place where he is not likely to be found, or (B) using or threatening to use physical force or intimidation.”
      “Restrain” is defined in General Statutes § 53a-91 (1) as “to restrict a person’s movements intentionally and unlawfully in such a manner as to interfere substantially with his liberty by moving him firom one place to another, or by confining him either in the place where the restriction commences or in a place to which he has been moved, without consent. As used herein ‘without consent’ means, but is not limited to, (A) deception . . . .”
      Specifically, the defendant was found guilty of violating § 53a-94 (a) as defined by § 53a-91 (2) (B). The jury also found the defendant guilty of being a persistent dangerous felony offender. However, the court granted the defendant’s motion for acquittal on that charge.

       On appeal the defendant also argues for the first time that the prior misconduct evidence offered was too vague to be used for any of the purposes permitted by § 4-5 (b) of the Connecticut Code of Evidence. He did not request plain error review nor did he claim entitlement to review under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). Under such circumstances, “[t]his [c]ourt will not consider claimed errors on the part of the trial court unless it appears that the question was distinctly raised at the trial and was ruled upon and decided by the court adversely to the appellant’s claim." State v. Simms, 170 Conn. 206, 208, 365 A.2d 821, cert. denied, 425 U.S. 954, 96 S. Ct. 1732, 48 L. Ed. 2d 199 (1976).

       It should be noted that although the court references both of these memoranda and each party has submitted a copy of their respective memo-randa in the appendices to their respective briefs, the court file is devoid of these documents.

       Section 4-5 (b) of the Connecticut Code of Evidence provides: “Evidence of other crimes, wrongs or acts of a person is admissible for purposes other than [to prove the bad character or criminal tendencies of that person], such as to prove intent, identity, malice, motive, common plan or scheme, absence of mistake or accident, knowledge, a system of criminal activity, or an element of the crime, or to corroborate crucial prosecution testimony.”

       Our Supreme Court has since ruled in State v. DeJesus, 288 Conn. 418, 462-63, 953 A.2d 45 (2008), that in sexual assault cases, such evidence can be used to suggest that the defendant has a propensity for criminal sexual behavior.

       The victim testified in relevant part: “The threats, he would say that he knows somebody, that he’s gonna blow my van—blow up my van with me in it. He would say that he would have his friends, or he would have somebody fix me. And the more he say that, the more I get scared.”

       At trial the victim testified: “[0]ne time we went to the Port Chester to watch a movie. As a visiting nurse, I work very hard, and I fell asleep in the car. He was angry that I fell asleep in the car because he was accusing me that I was seeing somebody.
      “So, he grabbed my cell phone. He wants to look at the numbers and then he step on it. And broke my sunglasses and he took off and he left me there in the parking lot.”

       The victim testified in relevant part: “And one time I was headed to my car and I saw my van. The two car—the two tires on the driver’s side, the front and the back, were slashed.
      * * *
      “[The defendant] admitted that my—you know, he had something to do with slashing of my tire. And he told me to go to Town Fair in High Ridge. That he will pay for—he paid for my tire, all I have to do is just go there.”

       The victim testified to two instances of sexual assault by the defendant. The first instance happened as the defendant was driving himself and the victim back from dinner. The victim testified: “[The defendant] pulled into that driveway and I beg him not to go there, but he did.
      * * *
      “He told me not to say anything or otherwise something is going to happen to me. So, I was on the passenger side and he was driving.
      “So, he grabbed me from the passenger side, towards the back. And— and he take advantage on me [in a sexual nature].”
      The second sexual assault, to which the victim testified, happened when the victim went to the defendant’s house, in her capacity as a nurse, at his request because he was complaining of stomach discomfort. The victim testified: “So, that afternoon, I went to his house and all he wants is my cell phone. And I told him that my cell phone, it’s in my van. He wants my cell phone. He wants to see the numbers. I said, it’s in the van. So, he wants to get it himself.
      “And while he’s getting my cell phone, he was going to handcuff me to his bed so I won’t go anywhere while he goes down to—to get my cell phone. And I beg him not to. I—I told him that at this time—I told him that I will just put my hand—my hand—because his bed—behind his bed was a glass window which you can look down where I park.
      “I told him that I’ll just put my hands on the glass so he could see both of my hands. I begged, so he wouldn’t handcuff me. And I told him I won’t move.
      “[The Prosecutor]: Okay, so—am I getting from that that he didn’t want you to leave his room?
      “[The Victim]: Yes.
      “[The Prosecutor]: Okay, and what happened after that?
      “[The Victim]: He came and got my cell phone and he wants to check the numbers. Then he—I—he asked for my password because he will not allow me to do it myself. So, I gave him my password.

      “[The Victim]: He continued to sexually take advantage of me. And I looked down, I—I saw the paper towel holder and it looked like marble. And he was going to use that in me. I begged because I—I feel the pain [from her recent hysterectomy].”

       The first prong of the admissibility test for prior misconduct evidence, as delineated in State v. Randolph, supra, 284 Conn. 340, can be interpreted to stand for the proposition that if evidence is relevant and material to one of the grounds set forth in § 4-5 (b) of the Connecticut Code of Evidence, the prong is then satisfied as to that evidence. But see State v. Kalil, 136 Conn. App. 454, 465-69, 46 A.3d 272 (2012) (trial court admitted evidence to show defendant’s intent and to complete story, this court affirmed, holding evidence admissible to show defendant’s intent, but did not analyze for completing story, defendant sought certification from our Supreme Court, but did not seek certification as to admission of evidence for completing story, our Supreme Court granted certification as to both intent and completing story), cert. granted, 307 Conn. 955, 59 A.3d 1191 (2013).


author: DiPENTIMA, C. J. ALVORD, J.,

text:
    JUDITH DESHPANDE v. ANIRUDDHA DESHPANDE
    (AC 33366)
    DiPenthna, C. J., and Alvord and Bishop, Js.
    Argued December 10, 2012
    officially released May 7, 2013

      William F. Gallagher, for the appellant (defendant).

      William H. Cashman, for the appellee (plaintiff).
   Opinion

DiPENTIMA, C. J.

The defendant, Aniruddha Desh-pande, appeals from the judgment of the trial court rendered in connection with the underlying dissolution action in which the court entered an order for child support and from the judgment of the trial court denying his motions for modification of the child support order. The defendant claims that the court (1) improperly entered a child support order without finding the presumptive amount of child support due under the child support and arrearage guidelines or explaining the reasons for any deviation from the presumptive amount, as required by General Statutes § 46b-215b (a); (2) improperly refused to allow him to introduce evidence pertaining to the financial circumstances of the plaintiff, Judith Deshpande, in order to establish grounds for a modification of the child support order; (3) improperly refused to allow him to present evidence regarding certain factors supporting a deviation from the presumptive child support amount under the guidelines; and (4) erroneously stated in its memorandum of decision that a hearing was held to address his two motions for modification. We agree with the defendant’s first claim and, accordingly, reverse the judgment of the court.

The following undisputed facts and procedural history are relevant to our resolution of this appeal. The parties married on September 6, 1991. They have three children, all of whom had yet to reach the age of twenty-three at the time of the court’s judgment. The plaintiff filed a marital dissolution complaint on November 24, 2009. On May 13, 2010, the parties filed an agreement in which the defendant agreed to pay to the plaintiff $322 per week in child support. The court, Markle, J., approved the agreement and made it an order of the court. On November 4, 2010, the parties filed an agreement modifying the May 13, 2010 agreement. The defendant again agreed to pay to the plaintiff $322 per week in child support. The court, Abery-Wetstone, J., approved the modified agreement and made it an order of the court. In approving each agreement, the court did not make any finding regarding the presumptive amount of child support due under the child support guidelines nor did it make a finding regarding any deviation from the guidelines. The defendant did not appeal from the court’s November 4, 2010 order.

On January 10, 2011, the defendant filed a motion to modify the court’s November 4, 2010 order. In the motion, the defendant requested that the court decrease the amount of child support to be paid. On January 27, 2011, the court, Hon. James G. Kenefick, Jr., judge trial referee, ordered the defendant’s motion for modification to be addressed at the final hearing on the divorce. That trial was held on February 7 and 8, 2011. At trial, the court, Gould, J., denied the defendant’s January 10, 2011 motion for modification. In rendering its judgment of dissolution, the court ordered the defendant to continue paying $322 per week in child support. Neither at trial nor in its judgment of dissolution did the court make any finding regarding the presumptive amount of child support due under the statutory child support guidelines nor did it make a finding regarding a deviation from the guidelines.

On February 14, 2011, the defendant filed a second motion to modify the court’s child support order. A hearing on the motion was held on March 24, 2011. At the conclusion of the hearing, the court, Gould, J., denied the defendant’s motion. On March 29, 2011, the defendant filed a motion for reargument and reconsideration of the corut’s denial of his motion for modification, which the court denied on March 31, 2011. On April 15, 2011, the defendant appealed from the March 24, 2011 judgment of the court denying his February 14, 2011 motion to modify the court’s child support order and from the February 8, 2011 judgment of dissolution with respect to the order of child support and the denial of his first motion for modification.

The defendant claims that the court erred by entering a child support order without making an initial finding that specified the presumptive amount of his child support obligation under the statutory child support guidelines as mandated by General Statutes § 46b-215b (a). Further, the defendant claims that, to the extent that the court’s child support order deviated from the presumptive amount, the court failed to make any findings explaining the reasons for its deviation. We agree.

We first set forth the standard of review and applicable law governing the defendant’s claim. “The well settled standard of review in domestic relations cases is that this court will not disturb trial court orders unless the trial court has abused its legal discretion or its findings have no reasonable basis in the facts. ... 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. . . . Notwithstanding the great deference accorded the trial court in dissolution proceedings, a trial court’s ruling . . . may be reversed if, in the exercise of its discretion, the trial court applies the wrong standard of law.” (Citations omitted; internal quotation marks omitted.) Maturo v. Maturo, 296 Conn. 80, 87-88, 996 A.2d 1 (2010).

Section 46b-215b (a) provides: “The child support and arrearage guidelines issued pursuant to section 46b-215a, adopted as regulations pursuant to section 46b-215c, and in effect on the date of the support determination shall be considered in all determinations of child support award amounts, including any current support, health care coverage, child care contribution and past-due support amounts, and payment on arrearages and past-due support within the state. In all such determinations, there shall be a rebuttable presumption that the amount of such awards which resulted from the application of such guidelines is the amount to be ordered. A specific finding on the record that the application of the guidelines would be inequitable or inappropriate in a particular case, as determined under the deviation criteria established by the Commission for Child Support Guidelines under section 46b-215a, shall be required in order to rebut the presumption in such case.” (Emphasis added.)

“The guidelines incorporate these statutory rules and contain a schedule for calculating the basic child support obligation, which is based on the number of children in the family and the combined net weekly income of the parents. . . . Consistent with ... § 46b-215b (a), the guidelines provide that the support amounts calculated thereunder are the correct amounts to be ordered by the court unless rebutted by a specific finding on the record that the presumptive support amount would be inequitable or inappropriate. . . . The finding must include a statement of the presumptive support amount and explain how application of the deviation criteria justifies the variance. . . . [Our Supreme Court] has stated that the reason why a trial court must make an on-the-record finding of the presumptive support amount before applying the deviation criteria is to facilitate appellate review in those cases in which the trial court finds that a deviation is justified. ... In other words, the finding will enable an appellate court to compare the ultimate order with the guideline amount and make a more informed decision on a claim that the amount of the deviation, rather than the fact of a deviation, constituted an abuse of discretion.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Kiniry v. Kiniry, 299 Conn. 308, 319-20, 9 A.3d 708 (2010); O'Brien v. O'Brien, 138 Conn. App. 544, 550, 53 A.3d 1039 (2012).

Section 46b-215a-3 (a) of the Regulations of Connecticut State Agencies provides in relevant part: “An agreement of the parties may be sufficient to rebut the presumption when such finding cites one or more deviation criteria, which may include other equitable factors, to support such agreement. Any such finding shall state the amount that would have been required under such sections and include a factual finding to justify the variance. Only the deviation criteria stated in the lettered subparagraphs of subdivisions (1) to (6), inclusive, of subsection (b) of this section, and indicated by the check boxes in section VII of the worksheet, shall establish sufficient bases for such findings.” In Tuckman v. Tuckman, 308 Conn. 194, 61 A.3d 449 (2013), our Supreme Court recently stated that “the applicable statutes, as well as the guidelines, provide that all child support awards must be made in accordance with the principles established therein to ensure that such awards promote equity, uniformity and consistency for children at all income levels.” (Emphasis altered; internal quotation marks omitted.) Id., 206.

It is evident from our thorough review of the record that the court failed to make any findings regarding the presumptive amount of child support under the guidelines or regarding a deviation from that amount. Although the May 13, 2010 and November 4, 2010 agreements by the parties—both of which were approved by the court and incorporated into its orders—specified a child support amount of $322 per week, neither agreement stated the presumptive amount of support that should have been calculated in accordance with the child support guidelines. As previously noted, an agreement of the parties may be sufficient to rebut the presumption that the support amount calculated under the guidelines is the correct amount; however, the court must still make such a finding, cite one or more deviation criteria to support the agreement, state the amount that would have been required under such sections and make a factual finding to justify the variance. Regs., Conn. State Agencies § 46b-215a-3. Here, the court made no such findings.

At no time during the trial on February 7 and 8, 2011, did the court state the presumptive amount of support due under the guidelines or make any reference whatsoever to the guidelines. Instead, the court stated only that the $322 per week in child support on which the parties previously agreed would continue. Similarly, the court failed to make any reference to the presumptive amount in its February 8, 2011 judgment containing its final order requiring the defendant to continue to pay $322 in child support. Because the court failed to specify the presumptive amount or make any findings regarding a deviation from that amount, we can only speculate as to the amount, whether the court’s child support order deviated from that amount and, to the extent that there was a deviation, whether the circumstances of this case justified a variance from the presumptive amount based on the court’s application of the deviation criteria. Therefore, we conclude that the court abused its discretion by rendering a child support order without first articulating the presumptive amount due under the child support guidelines or explaining any deviation from that amount.

The judgment is reversed only with respect to the order of child support and the case is remanded for further proceedings consistent with this opinion.

In this opinion BISHOP, J., concurred.

ALVORD, J.,

dissenting. I do not disagree with the majority’s legal analysis with respect to a trial court’s obligation to make a factual finding regarding the presumptive amount of child support due under the child support and arrearage guidelines prior to entering a child support order. I respectfully dissent, however, because I believe this court should not reach the merits of a collateral attack on a dissolution judgment that was not timely appealed. For that reason, I would affirm the judgment of the trial court.

With respect to the majority’s statement of the facts, I would emphasize the fact that the plaintiff, Judith Deshpande, and the defendant, Aniruddha Deshpande, agreed on a specified weekly amount for child support, based on their earning capacities, on November 4,2010. The agreement of the parties was reached with the assistance of the family relations office and was signed by the plaintiff, the defendant and their respective attorneys. The court, Abery-Wetstone, J., did not make a finding of the presumptive amount for child support or indicate whether there were any deviation criteria when it accepted the parties’ agreement and made it an order of the court.

Subsequently, after a two day trial, a judgment of dissolution was rendered by the court, Gould, J., on February 8, 2011. At that time, the court ordered the defendant to continue paying the amount of child support that had been agreed upon by the parties, and made an order of the court, as requested by the parties, in November, 2010. The defendant represented himself at the dissolution trial and now was dissatisfied with that amount. He requested that the court decrease his child support obligation. The court told him that either party could file a postjudgment motion for modification. When rendering the dissolution judgment, the court did not make a finding of the presumptive amount for child support or indicate whether there were any deviation criteria when it entered the agreed upon, earning capacity child support order, although there were two child support guideline worksheets in the file. The self-represented defendant did not appeal timely from the judgment of dissolution in which the pendente lite child support order had become a final order.

Less than one week after the judgment of dissolution was rendered, the defendant filed a motion to modify the court’s child support order. The court denied the defendant’s postjudgment motion after a hearing on March 24, 2011, on the ground that he had failed to demonstrate a substantial change of circumstances. After the court’s denial of the defendant’s motion for reargument and reconsideration, which had been filed pursuant to Practice Book § 11-11, the defendant timely appealed from the court’s judgment denying his February 14, 2011 motion to modify the child support order. The defendant again was represented by counsel when he filed his appeal on April 15, 2011. The appeal form noted that the defendant, in addition to appealing from the denial of the motion for modification of child support, was appealing from “the judgment.” The judgment of dissolution, however, was rendered on February 8, 2011, and any appeal from that judgment should have been filed on or before February 28, 2011. See Practice Book § 63-1.

The plaintiff did not file a motion to dismiss that portion of the appeal challenging the judgment of dissolution. See Practice Book § 66-8. By motion dated May 10, 2011, the defendant requested that the trial court “articulate the factual and legal basis of its rulings on February 8 and March 24, 2011, denying [the] defendant’s motions for modification of child support.” The plaintiff timely filed an objection, claiming, inter alia, that “[n] either the appeal nor the articulation was filed within the 20-day appeal period from the judgment on February 8, 2011.” The plaintiff additionally raised the issue of the untimeliness of the appeal with respect to the judgment of dissolution in her brief filed with this court. The defendant, in his reply brief, argued that the plaintiff waived any right to challenge the timeliness of his appeal because she had failed to file a motion to dismiss within ten days of the filing of the appeal. The majority agrees with the defendant’s position in his reply brief and proceeds to review the merits of the defendant’s claim relating to the failure to make factual findings about the child support guidelines. It then reverses the judgment of the trial court despite the defendant’s failure to timely appeal from that judgment.

Because the amount of child support was not challenged until two months after that order had entered, I consider the defendant’s claim to be a collateral attack on the underlying judgment.1 do not believe that we are compelled to review this stale claim simply because the plaintiff did not attack the untimeliness by way of a motion to dismiss. The appeal form did not make it clear that the appeal was being taken from the judgment rendered on February 8, 2011. The defendant simply referred to “the judgment” and did not specify that it was the judgment of dissolution. Parties often refer to decisions on postjudgment motions as being judgments. Furthermore, the preliminary statement of issues filed by the defendant at that time was limited to: “Did the court err in denying defendant’s motions for modification of child support?” When it became clear that the defendant was challenging the underlying judgment at the time he filed his motion for articulation, the plaintiff immediately filed her objection to the untimeliness of that portion of the appeal addressing the underlying dissolution judgment.

I conclude that this court has the discretion to refuse to review stale claims and collateral attacks on judgments regardless of whether the opposing party timely challenges those claims by way of a motion to dismiss. We should not be bound by any claimed waiver. In Nicoll v. State, 38 Conn. App. 333, 661 A.2d 101 (1995), this court addressed the reasons for dismissing an untimely appeal. Chief Judge Dupont wrote: “It is well settled that this court has jurisdiction to consider late appeals if, in our discretion, we choose to do so. . . . This is so even when a party timely moves to dismiss an untimely appeal. . . . Given the large number of appeals and motions filed in this court, however, we have adopted a policy that gives precedence to those appeals that are timely filed in compliance with Practice Book § [63-1]. Therefore, when a motion to dismiss that raises untimeliness is, itself, timely filed ... it is ordinarily our practice to dismiss the appeal if it is in fact late, and if no reason readily appears on the record to warrant an exception to our general rule.

“This practice is based in part on the fact that if the untimely appeal is entertained, a delinquent appellant would obtain the benefit of the appellate process after contributing to its delay, to the detriment of others with appeals pending who have complied with the rules and have a right to have their appeals determined expeditiously.'” (Citations omitted; emphasis added.) Id., 335-36.

If we have discretion to consider a late filed appeal, I believe we reasonably also have discretion to refuse to consider a late filed appeal. Under the circumstances of this case, we should decline to address the merits of the defendant’s claim that collaterally attacks the underlying judgment. This action was commenced in 2009, and the record reveals that the case was particularly contentious and reaching agreement on the financial orders was problematic. The case was referred to the family relations office several times during its two year pendency in an attempt to resolve multiple issues. To the credit of the parties, their trial lawyers and the family relations office, over time, most of those issues were resolved by agreement. As of the date of trial, only a few outstanding matters remained. I have no doubt that had the plaintiff filed a timely motion to dismiss that portion of the appeal relating to the February 8, 2011 judgment, this court would have granted that motion. For these reasons, I believe that we should exercise our discretion and refuse to address the merits of a stale claim relating to the child support and arrear-age guidelines in the underlying judgment. Accordingly, I would affirm the judgment of the trial court.

       The defendant challenges the court’s judgment only with respect to its child support order. The defendant does not challenge the court’s judgment dissolving the marriage.

       The guidelines are set forth in § 46b-215a-l et seq. of the Regulations of Connecticut State Agencies.

       Specifically, the defendant claims that the court refused to allow him to present evidence regarding recurring contributions or gifts from the plaintiffs domestic partner and his claim of extraordinary parental expenses for health care.

       Because we reverse the court’s February 8, 2011 judgment with respect to its child support order, we do not reach the defendant’s other three claims, which concern the court’s denial of his motions for modification of that order.

       With respect to the May 13, 2010 agreement, there was no space designated for the court, Markle, J., to specify the presumptive amount of support and the court did not refer to the presumptive amount anywhere on the form. On the form that the court, Abery-Wetstone, J., signed approving the parties’ November 4, 2010 agreement, no responses were provided in the spaces that asked for the presumptive amount under the guidelines, for the reason(s) explaining any deviation from the presumptive amount, and whether the child support provisions of the agreement complied with the child support guidelines. The court did not make any additions to the form that referred to the presumptive amount. In addition, we note that, although there are two child support guideline worksheets in the record, the court made no reference to the worksheets or their contents in its findings.

       Although the defendant did not timely appeal from the court’s February 8,2011 judgment or the court’s judgment denying his first motion for modification, the plaintiff did not move to dismiss as untimely any portion of the defendant’s appeal.

       The plaintiff does not dispute the applicability of the child support guidelines in this case or that it is a mandatory requirement for the court to make a finding regarding the presumptive amount of support due under the guidelines. The plaintiffs sole response to the defendant’s first claim is that the defendant’s appeal of the court’s November 4, 2010 and February 8, 2011 orders was not timely. As noted in footnote 6 of this opinion, the plaintiff did not raise this claim in a motion to dismiss within ten days of the filing of the defendant’s appeal, as required by Practice Book § 66-8. Because she failed to file a motion to dismiss within ten days of the filing of the defendant’s appeal, the plaintiff waived her right to seek a dismissal of the defendant’s appeal as untimely. See Rubenstein v. Rubenstein, 107 Conn. App. 488, 499, 945 A.2d 1043, cert. denied, 289 Conn. 948, 960 A.2d 1037 (2008). Further, we note that “the failure to take an appeal within the proper time is not a jurisdictional defect, but merely renders an appeal voidable.” State v. Johnson, 301 Conn. 630, 641 n.11, 26 A.3d 59 (2011).
      We also note that, in her “statement of the proceedings,” the plaintiff appears to contradict her claim that a presumptive finding is mandatory by stating that the “court did not need to make any findings relative to the presumptive amount of child support under the guidelines.” The plaintiff has cited no authority for this proposition and, for the reasons set forth in this opinion, we reject any suggestion that the court was not required to make a finding regarding the presumptive amount of child support.

       The deviation criteria are set forth in § 46b-215a-3 of the Regulations of Connecticut State Agencies.

       Even if the court had made findings regarding the presumptive support amount and any deviation therefrom prior to the judgment of dissolution, the court was obligated to make an independent, on-the-record determination of the presumptive support amount in its final orders contained in the judgment of dissolution. See Kiniry v. Kiniry, supra, 299 Conn. 321-22.

       The November 4, 2010 agreement provided that the defendant was to pay $322 per week for child support and 44 percent of the children’s unreim-bursed medical expenses. The parties previously had agreed to those amounts in an earlier court approved agreement filed on May 13, 2010. Significantly, in addition to continuing the defendant’s agreed upon obligation to pay $322 per week for child support and 44 percent of the children’s unreimbursed medical expenses, the November 4,2010 agreement contained the following language: “The parties agree that this is a final agreement regarding the issues in this paragraph and the other paragraphs of the May 13, 2010 agreement not modified above.”

       During the trial, the defendant claimed that the November 4, 2010 agreement was not a final agreement with respect to his request to lower his child support obligation. The defendant maintained, however, that the November 4, 2010 agreement was a “binding final agreement” with respect to his alimony obligation ($1 per year) in his trial motion in limine to exclude testimony and argument regarding alimony filed on February 7, 2011.

       “Unless a litigant can show an absence of subject matter jurisdiction that makes the prior judgment of a tribunal entirely invalid, he or she must resort to direct proceedings to correct perceived wrongs .... A collateral attack on a judgment is a procedurally impermissible substitute for an appeal.” (Internal quotation marks omitted.) Urban Redevelopment Commission v. Katsetos, 86 Conn. App. 236, 244, 860 A.2d 1233 (2004), cert, denied, 272 Conn. 919, 866 A.2d 1289 (2005).