author: DRANGINIS, J.

text:
    STATE OF CONNECTICUT v. MARK WEGMAN
    (AC 20999)
    Dranginis, Flynn and McDonald, Js.
    Argued January 23
    officially released June 4, 2002

      Michael Dolan, for the appellant (defendant).

      Kevin Doyle, assistant state’s attorney, with whom, on the brief, were Mary M. Galvin, state’s attorney, and Denise B. Smoker, assistant state’s attorney, for the appellee (state).
   Opinion

DRANGINIS, J.

The defendant, Mark Wegman, appeals from the judgment of conviction, rendered after a jury trial, of four counts of risk of injury to a child in violation of General Statutes § 53-21 and two counts of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2). On appeal, the defendant claims that the trial court improperly (1) denied his motion for a continuance to review subpoenaed documents, (2) permitted the victim to testify via videotape pursuant to General Statutes § 54-86g because she was fifteen years old at the time she testified and (3) denied his motion to recall the victim after receiving additional subpoenaed documents that inadvertently had been withheld. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. When the victim’s older brother was about ten or eleven years old, the defendant began a relationship with him. The victim’s family described the defendant as a sort of “big brother” to him. On most occasions when the brother was with the defendant, they were alone, but sometimes the victim, who was about eight or nine years old, also would go to the defendant’s apartment. The defendant let the children play video games, use a computer and watch television at his apartment. He took the children to church and to various restaurants, shopping, arcades and amusement parks. The defendant allowed them to take hot showers and fed them at his apartment. Between February, 1995, and August, 1996, the defendant sexually abused the victim and gave her money, usually $10 or $20, so that she would not tell anyone about the abuse. During that time, he took photographs and videotapes of the victim unclothed and exposing her vagina. He also gave her mother money with which she would purchase drugs, and told the victim that he and the victim would get into trouble if she told anyone about what the two of them had done together. The record reveals that the mother was aware that the defendant had a histoiy of child sexual abuse, but let her children go with him nonetheless.

In May, 1995, the victim’s brother, then age thirteen, moved out of state to live with his father, and the victim’s contact with the defendant increased. She testified that the defendant would pick her up every weekday after school. She also would see him on weekends. On some of those occasions, too many times for the victim to count accurately, he would sexually assault her and give her money in exchange for her silence. The first such incident about which she testified took place in 1995. On July 21, 1995, the police received a complaint that the victim, who then was nearly twelve years old, was alone with the defendant in his apartment. The victim took a shower and, still undressed, lay down on the defendant’s bed. He lay down next to her and, with his clothes on, masturbated and rubbed his penis on her leg. When the police knocked at the door, the victim ran into the bathroom to pretend that she was washing. The defendant gave her $10 or $20 on that occasion. In response to police questioning, the victim denied that any abuse had occurred. A few days later, the defendant had a meeting with the victim and her mother. The defendant videotaped the victim saying that he had never touched her inappropriately. On two or three other occasions between February, 1995, and August, 1996, the defendant photographed her naked after he digitally penetrated her vagina with his fingers. The victim and the defendant also had sexual intercourse, and the defendant masturbated in her presence. He also videotaped her posing naked during some of those episodes.

The victim was placed in foster care in August, 1996, after her mother’s parental rights were terminated. Soon thereafter, the victim first told her foster mother about the abuse. The defendant subsequently was arrested in 1997. The state executed a search warrant at the defendant’s apartment in 1998 to look for a videotape of the victim that she had described and said was hidden underneath the sink. The defendant told police that they did not need a search warrant because “there was nothing incriminating in his apartment. That he had gotten rid of it a long time ago . . . .” At no time did the police recover incriminating videotapes.

The jury returned a verdict of guilty on all six counts. The court sentenced the defendant to a total effective term of forty years incarceration and ten years probation. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the court improperly denied his motion for a continuance to review certain subpoenaed documents, thereby depriving him of his constitutional right to confrontation. We are not persuaded.

“A motion for continuance is addressed to the discretion of the trial court and its ruling will not be overturned absent a showing of clear abuse of that discretion. ... In our review of the trial court’s ruling on a motion for continuance, [e]very reasonable presumption in favor of the proper exercise of the trial court’s discretion will be made.” (Citations omitted; internal quotation marks omitted.) Hirsch v. Squillante, 17 Conn. App. 354, 356, 552 A.2d 1222 (1989). “ ‘It must be shown that the trial judge acted arbitrarily and substantially impaired [the] defendant’s ability to defend himself, before an appellate court will conclude that the trial judge abused his discretion.’ United States v. Ellenbogen, 365 F.2d 982, 985 (2d Cir. 1966), cert. denied, 386 U.S. 923, 87 S. Ct. 892, 17 L. Ed. 2d 795 (1967).” State v. Marra, 195 Conn. 421, 437-38, 489 A.2d 350 (1985); see also Hyllen-Davey v. Plan & Zoning Commission, 57 Conn. App. 589, 599, 749 A.2d 682, cert. denied, 253 Conn. 926, 754 A.2d 796 (2000). “Our assessment of the reasonableness of the trial court’s exercise of discretion is limited to a consideration of those factors on the record known to the court at the time it rendered a decision.” State v. Bradley, 39 Conn. App. 82, 87, 663 A.2d 1100 (1995), cert. denied, 236 Conn. 901, 670 A.2d 322 (1996).

Our Supreme Court, in State v. Hamilton, 228 Conn. 234, 636 A.2d 760 (1994), articulated several factors to be considered in determining whether a trial court abused its discretion in granting or denying a continuance. The factors include “the likely length of the delay; the age and complexity of the case; the granting of other continuances in the past; 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; the defendant’s personal responsibility for the timing of the request; the likelihood that the denial would substantially impair the defendant’s ability to defend himself; the availability of other, adequately equipped and prepared counsel to try the case; and the adequacy of the representation already being afforded to the defendant. . . . Another set of factors has included, as part of the inquiry into a possible abuse of discretion, a consideration of the prejudice that the defendant actually suffered by reason of the denial of the motion for continuance.” (Citations omitted.) Id., 240-41.

In this case, the defendant subpoenaed records from the department of children and families (department) and from a residential treatment facility at which the victim resided from May 28, 1998, to September 24, 1998. The court reviewed the documents in camera and, on the morning of the victim’s videotaped testimony, disclosed some of the documents to the state and to the defendant. Other documents given to the defendant by the state that morning included a medical report and evaluation from a hospital child sexual abuse clinic. The defendant sought a continuance so that he could review the documents before the videotaped testimony of the victim began. The state objected and averred that it had an “open file policy” such that the hospital report had been available to the defendant prior to that date.

The court denied the defendant’s motion, concluding that “by and large . . . defense counsel has had adequate time to prepare for this hearing. It has been set down, and the case has been pending for over two years. I don’t feel there is any sound legitimate reason why the case should not go forward today.” The court further stated that “if, when it comes to the defense opportunity to [cross-examine], if there is some part of that examination which they feel unprepared for today, which relates to those new records that you have received, then I will allow you to have a brief continuance or purposes of either viewing yourself or con-suiting with your expert or anyone else that you feel that you need. ... If at some point on cross you need time, I will give you a reasonable continuation . . . .” The court then clarified that “a brief continuance” could mean that the case would be continued to another date.

Under the circumstances of this case, we cannot conclude that the court abused its discretion. It appears that the court was mindful that the parties had been ready to proceed and that further delay would likely promote increased anxiety in the victim. Thus, the court properly was hesitant to grant a continuance at that time. The court was willing, however, to reconsider the motion if, during the course of cross-examination, the need arose. The court further indicated that such continuance might be only so long as to give the defendant another day. The defendant did not request such a continuance. Moreover, the materials that had been undisclosed prior to the morning of the victim’s testimony were limited or previously made available to the defendant. We conclude that the court’s denial of the defendant’s motion for a continuance was neither arbitrary nor unreasonable.

II

The defendant next claims that the court improperly allowed the victim to testify via videotape. Specifically, the defendant argues that he was deprived of his constitutional right to confront the witnesses against him because (1) the state failed to meet the requirements set forth in State v. Jarzbek, 204 Conn. 683, 529 A.2d 1245 (1987), cert. denied, 484 U.S. 1061, 108 S. Ct. 1017, 98 L. Ed. 2d 982 (1988), and (2) the victim was age fifteen at the time she gave her testimony and therefore could not be videotaped pursuant to § 54-86g. We disagree.

“It is well established that a defendant has the right to confront witnesses against him as guaranteed by the confrontation clauses of both our federal and state constitutions. . . . [T]he right of an accused in a criminal trial to due process is, in essence, the right to a fair opportunity to defend against the State’s accusations. The rights to confront and cross-examine witnesses and to call witnesses in one’s own behalf have long been recognized as essential to due process. ” (Citations omitted; internal quotation marks omitted.) State v. Rolon, 257 Conn. 156, 175, 777 A.2d 604 (2001).

We are mindful, however, that “the right to confront and to cross-examine is not absolute and may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process.” (Internal quotation marks omitted.) State v. Alexander, 254 Conn. 290, 298, 755 A.2d 868 (2000); State v. Jarzbek, supra, 204 Conn. 693.

In State v. Jarzbek, supra, 204 Conn. 704, our Supreme Court held that the practice of videotaping the testimony of young children outside the physical presence of the defendant is constitutionally permissible under certain circumstances. In that case, the court held that “a trial court must determine, at an evidentiary hearing, whether the state has demonstrated a compelling need for excluding the defendant from the witness room during the videotaping of a minor victim’s testimony. In order to satisfy its burden of proving compelling need, the state must show that the minor victim would be so intimidated, or otherwise inhibited, by the physical presence of the defendant that the trustworthiness of the victim’s testimony would be seriously called into question. Furthermore, the state bears the burden of proving such compelling need by clear and convincing evidence. . . . Although the trial court may consider the well-being of the witness as a significant factor in its analysis, the state cannot prove need simply by demonstrating that the victim would suffer some harm if forced to testify in the presence of the accused.” (Citations omitted.) Id., 704-705. The court reiterated that “in light of the constitutional right of confrontation at stake here, the primary focus of the trial court’s inquiry must be on the reliability of the minor victim’s testimony, not on the injury that the victim may suffer by testifying in the presence of the accused.” Id., 705.

Although Jarzbek predates § 54-86g, our Supreme Court has held that “the trial court’s discretion under § 54-86g to order the taking of the victim’s testimony-outside the defendant’s physical presence is circumscribed by the criteria established in Jarzbek.” State v. Snook, 210 Conn. 244, 251, 555 A.2d 390, cert. denied, 492 U.S. 924, 109 S. Ct. 3258, 106 L. Ed. 2d 603 (1989).

A

The defendant argues that the state failed to meet its burden under Jarzbek because the state did not offer evidence that the victim understood what it meant to testify in court. Specifically, he argues that its burden was not met because there was no testimony to indicate that the victim understood that other individuals would be present in the courtroom in addition to the defendant, including the prosecutor, court reporter, clerk and security officers. We are not persuaded.

The first requirement of Jarzbek is that “the minor victim would be so intimidated, or otherwise inhibited, by the physical presence of the defendant that the trustworthiness of the victim’s testimony would be seriously called into question.” (Emphasis added.) State v. Jarzbek, supra, 204 Conn. 705. Although the presence of other individuals in the courtroom in addition to the defendant may, in fact, diminish the likelihood that the victim would be so intimidated, the defendant provides no case law, and we know of none, in support of his claim that the state must affirmatively show that the victim understood that other people would be present in court besides the defendant.

The quantum of proof necessary for the state to prove that the videotaped testimony is proper is “clear and convincing evidence.” Id., 705. “The [clear and convincing] standard is a degree of belief that is between the belief required in the average civil case and the belief of guilt beyond a reasonable doubt required in a criminal action. Such a burden of persuasion requires a reasonable belief that the facts asserted are highly probably true [or] that the probability that they are true ... is substantially greater than the probability that they are false . . . .” (Internal quotation marks omitted.) Clark v. Drska, 1 Conn. App. 481, 487, 473 A.2d 325 (1984).

In the present case, Susan Morse, a licensed clinical social worker at a state facility for children and adolescents who are emotionally and psychologically impaired, testified at the Jarzbek hearing, which was held August 9, 1999. The victim was a resident at the facility from September, 1998, to July, 1999. Morse testified that she worked primarily with adolescents and that during her lengthy career in counseling, she worked closely with approximately sixty to eighty children who were victims of sexual abuse. She testified that in most cases, children are reluctant to give detailed descriptions of the abuse. She explained that in her opinion, it often is necessary to ensure that the child feels that he or she is in a safe environment and that the child has developed a rapport with the interviewer.

With respect to the victim, Morse testified that she saw her daily, but had individual therapy sessions with her twice a week until she was transferred to another unit. She testified that the victim had nightmares, including nightmares about court and about the defendant retaliating against her. Morse further testified that when the prospect of going to court arose, the victim would act out, sometimes physically. Morse spoke with the victim six weeks prior to the Jarzbek hearing, and testified that the victim continued to have nightmares about the defendant and testifying in court. She testified that the victim had stated that she hoped she could videotape her testimony, and that if she had to testify in front of the defendant, “I would be very afraid and I don’t think I could do it.”

Morse testified that the victim “tested in the borderline range of intellectual functioning. So, you really can’t compare her to an average fifteen year old because she is borderline, which means that her cognitive functioning is a little bit above what would be considered mildly mentally retarded.” Furthermore, on the basis of the victim’s development and behavior, Morse testified that she is “[e]motionally and socially . . . much younger than the average fifteen year old.” Emotionally, she is “eight to eleven years old.” Morse further testified that the victim’s reactions to stressors were disproportionate to the situation and how other children the same age would act under similar circumstances. In some instances, the victim would regress to such a young age as to suck her thumb and curl up in a fetal position. Finally, Morse testified that those behaviors — acting out, exhibiting increased anxiety and regression— would result when the issues of sexuality or of coming to court and testifying before the defendant were raised.

We conclude that under the circumstances, the state met its burden of proving a compelling need by clear and convincing evidence. The court found, and the evidence supports the finding, that “the child does not have the mental or social or emotional abilities of a child twelve years or older.” From the facts adduced at the Jarzbek hearing, it is reasonable to conclude that in addition to the victim’s suffering further harm and trauma, it was highly probable that had the victim been required to testify in court in front of the defendant, the truth seeking function of the court would have been undercut. We conclude that the victim’s feelings of intimidation and fear of the defendant compounded by developmental delays and her precarious emotional state likely would not have produced reliable testimony.

B

The defendant also argues that a proper reading of § 54-86g does not permit the testimony of a sexual assault victim to be videotaped if the victim is older than twelve at the time of the videotaping. The defendant argues, despite the plain language of the statute, that the legislative history requires that conclusion. The state, in response, argues that the plain language of the statute provides that the victim’s testimony may be videotaped if, at the time of the alleged abuse, the child was twelve or younger, and, thus, the statute applies in the present case. Alternatively, the state submits that the statute permits, and the legislative histoiy supports, videotaping of the testimony of children older than twelve if the court, in its discretion, finds that there are special circumstances warranting such videotaping.

The defendant’s claim raises an issue of statutory construction over which our review is plenary. State v. Russo, 259 Conn. 436, 447, 790 A.2d 1132 (2002). “We are obligated to interpret the legislative meaning inherent in the statutory enactment. . . . Where the language used in a statutory enactment is clear and unambiguous, we assume that the words themselves express the legislature’s intent and there is no need to look further for interpretative guidance. ... We are bound to interpret legislative intent by referring to what the legislative text contains, not by what it might have contained. . . . We will not read into clearly expressed legislation provisions which do not find expression in its words. (Internal quotation marks omitted.) Tower v. Miller Johnson, Inc., 67 Conn. App. 71, 78, 787 A.2d 26 (2001). “[I]t is axiomatic that the process of statutory interpretation involves a reasoned search for the intention of the legislature. ... In seeking to discern that intent, 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. Russo, supra, 447-48. Section 54-86g provides in relevant part: “In any criminal prosecution of an offense involving assault, sexual assault or abuse of a child twelve years of age or younger . . . .”

We conclude that the plain language of the statute is unambiguous. The statute refers to the child’s age at the time of the offense and makes no reference to the child’s age at the time testimony is given. “We are constrained to read a statute as written . . . and we may not read into clearly expressed legislation provisions which do not find expression in its words . . . .” (Citation omitted; internal quotation marks omitted.) Giaimo v. New Haven, 257 Conn. 481, 494, 778 A.2d 33 (2001). We conclude that the statute gives the court the discretion to permit a child to testify via videotape if the defendant (1) is charged with assault, sexual assault or abuse of the child and (2) the alleged act or acts were perpetrated against the child when he or she was twelve years of age or younger. Furthermore, the court had found that the child witness did not have the social or emotional abilities of a child twelve years of age or older. We therefore conclude that the court properly permitted the videotaping of the victim’s testimony outside the presence of the defendant.

Ill

The defendant finally claims that the court improperly denied his motion to recall the victim as a witness. As a result, the defendant claims, his constitutional rights were violated, specifically, his right to confront and to cross-examine the witnesses against him. We are not persuaded.

As described in part I, the defendant subpoenaed certain documents from the department and a residential treatment facility. The documents were reviewed in camera, and on the morning of the victim’s testimony, the parties were given certain pages of that material. During the course of trial, the department handed over additional documents that it inadvertently had withheld. Again, the court reviewed them in camera and released some of them to the parties prior to opening arguments. The defendant made a motion to recall the victim as a witness.

The newly released documents contained statements indicating that after the alleged incidents of sexual abuse, the victim had a problem with lying and stealing, and was taking several medications during the course of her treatment. The defendant argues on appeal that as a result of the court’s denial of his motion to recall the victim as a witness, he was unable to impeach her with respect to (1) her lying and stealing, including her foster mother’s disbelief of the allegations of sexual abuse, and (2) the effect of the medication on her ability to recall events.

The defendant had sought to recall the victim to question her about her alleged lying; however, he did not raise the issue of the effect of her medication on her ability to remember events before the court. In denying the defendant’s request to recall the victim, the court first noted that further cross-examination of her with respect to her foster mother’s beliefs would not produce anything different from her prior testimony. Moreover, the defendant would be able to elicit testimony from the foster mother herself. Additionally, the court concluded that the allegations of lying in general and stealing were irrelevant. The court noted that the victim had testified that she had lied to police, but ruled that the incidents of lying and stealing in the newly released documents had occurred after the alleged sexual abuse and did not relate to her claim of sexual abuse or to the events relating to the trial. Again, the court indicated that it might allow the defendant to call other witnesses who could attest to the defendant’s behavior.

“The trial court has broad discretion in determining whether to permit a witness to be recalled. See State v. Reed, 174 Conn. 287, 304, 386 A.2d 243 (1978); State v. Vandemark, 77 Conn. 201, 206, 58 A. 715 (1904). In determining whether the trial court abused its discretion, every reasonable presumption should be given in favor of the trial court’s ruling. State v. Mitchell, 8 Conn. App. 598, 604, 513 A.2d 1268, cert. denied, 201 Conn. 810, 516 A.2d 887 (1986).” State v. Arroyo, 13 Conn. App. 687, 692, 539 A.2d 581, cert. denied, 208 Conn. 805, 545 A.2d 1103 (1988). We are not persuaded that the court abused its discretion.

“In order to comport with the constitutional standards embodied in the confrontation clause, the trial court must allow a defendant to expose to the jury facts from which [the] jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness. ... In determining whether a defendant’s right of cross-examination has been unduly restricted, we consider the nature of the excluded inquiry, whether the field of inquiry was adequately covered by other questions that were allowed, and the overall quality of the cross-examination viewed in relation to the issues actually litigated at trial. . . . Although it is axiomatic that the scope of cross-examination generally rests within the discretion of the trial court, [t]he denial of all meaningful cross-examination into a legitimate area of inquiry fails to comport with constitutional standards under the confrontation clause.” (Internal quotation marks omitted.) State v. Hall, 66 Conn. App. 740, 754, 786 A.2d 466 (2001), cert. denied, 259 Conn. 906, 789 A.2d 996 (2002).

A

We cannot conclude that the court deprived the defendant of his constitutional right to cross-examine the victim by denying his motion to recall her as a witness. The record reveals that the defendant had the discharge summary from the residential treatment fácility as early as August 9,1999, when the court conducted a hearing to determine whether the victim’s testimony should be videotaped. The summary reveals that the victim was referred to the facility, in part, due to “excessive lying” and “manipulation, stealing.” The report further indicates that the victim “lash[ed] out at [her foster mother] in the form of accusations of physical punishment.” None of the later released documents provide any further detail as to any specific instances of lying or stealing that the defendant could have questioned the victim about. Thus, the defendant was afforded an opportunity to cross-examine the victim fully and fairly concerning her credibility. In fact, the defendant elicited testimony from the victim that she had lied to the police. At no time during the course of cross-examination, however, did the defendant question her about her alleged lying, stealing or false accusations of physical abuse as suggested by the discharge summary. “A defendant’s right to cross-examine is not infringed if he fails to pursue a line of inquiry open to him. The test is whether the opportunity for cross-examination existed, not whether full use of such opportunity was made.” State v. Vasquez, 66 Conn. App. 118, 131, 783 A.2d 1183, cert. denied, 258 Conn. 941, 786 A.2d 428 (2001). The defendant additionally had an opportunity to explore the extent of the victim’s lying and stealing through the examination of other witnesses, such as the victim’s foster mother and mental health care providers.

Having determined that the constitutional standard was satisfied, we further conclude that the defendant has not satisfied his burden of showing that the restriction on his cross-examination of the victim was an abuse of discretion. See State v. Hall, supra, 66 Conn. App. 755. “To establish that the court abused its discretion, the defendant bears the burden of demonstrating that the restrictions that the court imposed on the cross-examination were clearly prejudicial. . . . Once we conclude that the court’s ruling on the scope of cross-examination is not constitutionally defective, we will apply eveiy reasonable presumption in favor of the correctness of the court’s ruling in determining whether there has been an abuse of discretion.” (Citation omitted.) State v. Williams, 65 Conn. App. 449, 459, 783 A.2d 53, cert. denied, 258 Conn. 927, 783 A.2d 1032 (2001). The defendant has not shown that he was prejudiced by his inability to recall the victim as a witness and to question her on those matters.

B

With respect to the defendant’s claim that he was deprived of his right to cross-examine the victim about the effect of her medications on her testimony, we must first address whether that claim is reviewable on appeal, as the defendant did not properly preserve the issue at trial. The defendant seeks review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), or alternatively, under the plain error doctrine.

Because the record is adequate for review and the issue raised implicates a fundamental right, we will review the defendant’s claim. We conclude, however, that the defendant cannot establish that a constitutional violation clearly exists and that it clearly deprived him of a fair trial. The defendant therefore cannot prevail on his claim. We also conclude that his claim does not merit plain error review.

In State v. Person, 20 Conn. App. 115, 564 A.2d 626 (1989), aff'd, 215 Conn. 653, 577 A.2d 1036 (1990), cert. denied, 498 U.S. 1048, 111 S. Ct. 756, 112 L. Ed. 2d 776 (1991), this court stated that “[t]he capacity of a witness to observe, recollect and narrate an occurrence is a proper subject of inquiry on cross-examination. . . . Consumption of alcohol or drugs obviously can impair an individual’s ability to observe and recall accurately . . . .” (Citation omitted.) Id., 121-22.

We first note that “under our case law, [for impeachment purposes] there are two points at which a witness’ possible mental unsoundness is relevant: at or around the time of trial or of the incident about which he is to testify.” (Internal quotation marks omitted.) State v. Rosado, 52 Conn. App. 408, 419, 726 A.2d 1177 (1999). In this case, there is no evidence that the victim was taking medication at the time of the incidents at issue or at the time she testified. Although the evidence does indicate that she was taking some prescribed medications as part of her treatment, the record reveals that despite opportunities to do so, the defendant made no effort to question other witnesses about the victim’s medications and the effect they could have on the victim’s testimony. We conclude that the defendant’s constitutional right to confrontation has been satisfied because he was given ample opportunity “to expose to the jury the facts from which [the] jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness.” (Internal quotation marks omitted.) State v. Williams, supra, 65 Conn. App. 458.

The judgment is affirmed.

In this opinion the other judges concurred.

       Testimony began one week prior to the victim’s sixteenth birthday.

       The record reveals that the children’s mother had a long history of drug abuse and often left the children without supervision. The family was in and out of shelters. It often had no hot water with which to bathe and often went without food.

       The victim’s foster mother was not able to handle the child’s emotional needs and returned her to the care of the department.

       General Statutes § 54-86g provides: “(a) In any criminal prosecution of an offense involving assault, sexual assault or abuse of a child twelve years of age or younger, the court may, upon motion of the attorney for any party, order that the testimony of the child be taken in a room other than the courtroom in the presence and under the supervision of the trial judge hearing the matter and be televised by closed circuit equipment in the courtroom or recorded for later showing before the court. Only the judge, the defendant, the attorneys for the defendant and for the state, persons necessary to operate the equipment and any person who would contribute to the welfare and well-being of the child may be present in the room with the child during his testimony, except that the court may order the defendant excluded from the room or screened from the sight and hearing of the child only if the state proves, by clear and convincing evidence, that the child would be so intimidated, or otherwise inhibited, by the physical presence of the defendant that a compelling need exists to take the testimony of the child outside the physical presence of the defendant in order to insure the reliability of such testimony. If the defendant is excluded from the room or screened from the sight and hearing of the child, the court shall ensure that the defendant is able to observe and hear the testimony of the child, but that the child cannot see or hear the defendant. The defendant shall be able to consult privately with his attorney at all times during the taking of the testimony. The attorneys and the judge may question the child. If the court orders the testimony of a child to be taken under this subsection, the child shall not be required to testify in court at the proceeding for which the testimony was taken.
      “(b) In any criminal prosecution of an offense involving assault, sexual assault or abuse of a child twelve years of age or younger, the court may, upon motion of the attorney for any party, order that the following procedures be used when the testimony of the child is taken: (1) Persons shall be prohibited from entering and leaving the courtroom during the child’s testimony; (2) an adult who is known to the child and with whom the child feels comfortable shall be permitted to sit in close proximity to the child during the child’s testimony, provided such person shall not obscure the child from the view of the defendant or the trier of fact; (3) the use of anatomically correct dolls by the child shall be permitted; and (4) the attorneys for the defendant and for the state shall question the child while seated at a table positioned in front of the child, shall remain seated while posing objections and shall ask questions and pose objections in a manner which is not intimidating to the child.”

       Morse testified: “Because we knew when she first came into the hospital that this was an open court case, and she knew that she would have to be coming to court. Or that somehow this would come to court, and she had a lot of fears and worries and concerns about that. . . . She has said directly to me that she is very afraid of having to come to court. She is very afraid of having ever to face [the defendant], and she is afraid that somehow he will retaliate against her.”

       The defendant’s most persuasive argument in that regard relies on Representative William L. Wollenberg’s statement clarifying his interpretation of the legislation with respect to whether the age limit applied to the time of the offense or the time of the testimony: “I suppose if the case went on and on for some reason that seven or eight years later we could have a 19 or 20 year old trying to invoke this and I don’t think that makes any good sense and perhaps under the letter of the law rather than the spirit, after 12, perhaps they would not be allowed into the video situation . . . 28 H.R. Proc., Pt. 31, 1985 Sess., p. 11,337, remarks of Representative William L. Wollenberg.
      We note, however, that Representative Wollenberg further noted: “And I don’t think it makes sense after 12 unless there are some extenuating circMmstances and in that case the judge can make the decision and also make a decision upon how much weight they’re going to give it and so on. But I think 12 is the cutoff under the bill and I think that’s right.” (Emphasis added.) Id.
      Even if we were to conclude that the statute is ambiguous and it is necessary to look to the legislative history, the court’s decision was proper. The legislature did not intend the age limit to be an absolute bar; rather the decision to videotape a child victim’s testimony was left to the court’s discretion.

       The defendant also claims that his right to trial by an impartial jury and his right to the presumption of innocence were infringed. The defendant, however, failed to brief those claims. “The parties may not merely cite a legal principle without analyzing the relationship between the facts of the case and the law cited. . . . [Assignments of error which are merely mentioned but not briefed beyond a statement of the claim will be deemed abandoned and will not be reviewed by this court. . . . Where the parties cite no law and provide no analysis of their claims, we do not review such claims.” (Internal quotation marks omitted.) Baris v. Southbend, Inc., 68 Conn. App. 546, 550-51, 791 A.2d 713 (2002). We therefore consider those claims abandoned.

       When the foster mother testified, the defendant did not examine her in that respect.

       The defendant argues that his claim is preserved by virtue of his motion to recall the witness. We do not agree. “This court reviews rulings solely on the ground on which the party’s objection is based. . . . [AJrticulating the basis of the objection alert[s] the court to any claims of error while there is still an opportunity for correction.” (Citation omitted; internal quotation marks omitted.) State v. Prioleau, 235 Conn. 274, 310, 664 A.2d 743 (1995).

       Under Golding, “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail. The appellate tribunal is free, therefore, to respond to the defendant’s claim by focusing on whichever condition is most relevant in the particular circumstances.” (Emphasis in original.) State v. Golding, supra, 213 Conn. 239-40.

       “Pursuant to Practice Book § 60-5, this court may reverse or modify the decision of the trial court if it determines that the factual findings are clearly erroneous in view of the evidence and pleadings in the whole record, or that the decision is otherwise erroneous in law. . . . The court may in the interests of justice notice plain error. . . . We recently restated that [t]o prevail under the plain error doctrine, the defendant must demonstrate that the claimed error is both so clear and so harmful that a failure to reverse the judgment would result in manifest injustice. . . . This doctrine is not implicated and review of the claimed error is not undertaken unless 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. Hair, 68 Conn. App. 695, 704-705, 792 A.2d 179, cert. denied, 260 Conn. 925, 797 A.2d 522 (2002).


source: Caselaw Access Project

author: BISHOP, J.

license: Public Domain

text:
    DEAN VAN NEST, JR. v. VIRGINIA K. KEGG
    (AC 21541)
    Dranginis, Bishop and Healey, Js.
    Argued March 21
    officially released June 4, 2002

      Dean G. Van Nest, Jr., pro se, the appellant (plaintiff).

      Catherine P. Whelan, for the appellee (defendant).
   Opinion

BISHOP, J.

In this marriage dissolution action, the plaintiff, Dean Van Nest, Jr., appeals from the judgment of the trial court holding him in contempt and modifying the findings and orders of the original judgment of dissolution. The plaintiff claims that the court (1) improperly failed to order a mistrial or rehearing of the issues based on his allegations of ineffective assistance of counsel, (2) made improper findings regarding his obligation to maintain life insurance for the benefit of the defendant and their children, and (3) made improper evidentiary rulings regarding his job search activities. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to this appeal. On March 15, 2000, the court dissolved the marriage of the plaintiff to the defendant, Virginia K. Kegg. At the time of the dissolution, the parties had two minor children, ages seven and eleven. A separation agreement of the same date was incorporated in the court’s decree. The agreement provided, inter alia, that the plaintiff would make monthly payments of unallocated alimony and child support to the defendant, maintain medical insurance for the benefit of his children, share with the defendant the children’s unreimbursed medical expenses and provide for term life insurance, naming the children as beneficiaries in the amount of $100,000 per child.

On July 20,2000, the plaintiff filed a motion for modification of the orders due to a substantial change in his financial circumstances. Thereafter, the defendant filed an amended motion for contempt, alleging that the plaintiff was in wilful violation of the court’s orders and seeking their enforcement. On October 30, 2000, the court held an evidentiary hearing on both matters.

On December 14, 2000, the court issued a memorandum of decision holding the plaintiff in contempt for failure to maintain health and life insurance for the benefit of the children, modifying the orders of the original dissolution decree by reducing the plaintiffs alimony and child support obligation and his share of unreimbursed medical expenses, and affirming his obligation to maintain health and life insurance for the benefit of the children. On December 27,2000, the plaintiff, proceeding pro se, filed a motion for reconsideration of the postjudgment findings and orders, and requested a rehearing due to ineffective assistance of counsel. The court denied the motion on January 15, 2001.

On January 9, 2001, the plaintiff, continuing to represent himself, filed a motion for articulation of the court’s postjudgment findings and orders, and a motion for stay of judgment pending appeal. On February 27, 2001, the court issued a memorandum of decision granting in part and denying in part the motion for articulation, and correcting, vacating and amending portions of the postjudgment findings and orders. The court denied the motion for stay pending appeal.

I

The plaintiff first claims that the court improperly denied his motion for reconsideration, and failed to order a mistrial or rehearing on the issues addressed in the postjudgment findings and orders. He claims that he received ineffective assistance of counsel because his attorney failed to disclose certain evidence at the October, 2000 hearing, inadequately presented other evidence, and unduly misled and confused the court. We are not persuaded.

In his motion, the plaintiff claimed that his counsel had failed to present evidence of or to explain adequately that he had continued to maintain health insurance for his minor children, had not transferred his life insurance policies to a third party, was not aware of the claimed arrearage on his unallocated alimony and child support payments, and that his job search log was necessary evidence of his good faith efforts to obtain employment. He thus claimed that the court misunderstood the facts, made incorrect findings with respect to those issues and improperly concluded in its December, 2000 memorandum of decision that he wilfully had violated the dissolution orders. In light of the alleged inaccuracies and improper conclusions, the plaintiff requested numerous modifications to the postjudgment findings and orders.

Approximately two weeks later, the plaintiff filed a motion for articulation asking the court to explain further the basis for its postjudgment findings that he had failed to maintain health insurance for his minor children, transferred his life insurance policies to a third party and failed to maintain life insurance policies for the benefit of his children. He also requested an articulation of the findings that his alleged failure in matters of health and life insurance was wilful and without good cause and that he had been less than diligent in his efforts to obtain new employment, and of the court’s reasons for ruling that his job search log should not be entered into evidence. Although the court denied the motion for reconsideration without comment, it responded to the motion for articulation in a detailed memorandum of decision modifying the postjudgment findings and orders. The memorandum addressed the issues raised in both of the plaintiff’s motions.

“Our standard of review regarding challenges to a trial court’s ruling on a motion for reconsideration is abuse of discretion.” Federal Deposit Ins. Corp. v. Thompson, 56 Conn. App. 82, 89, 741 A.2d 972 (1999).

We first note that in his motion for reconsideration, the plaintiff requested a rehearing of the issues, not a mistrial. “This court is not bound to consider claimed errors unless it appears on the record that the question was distinctly raised . . . and was ruled upon and decided by the court adversely to the appellant’s claim.” (Internal quotation marks omitted.) Mitchell v. Commissioner of Correction, 68 Conn. App. 1, 7, 790 A.2d 463, cert. denied, 260 Conn. 903, 793 A.2d 1089 (2002). Because the plaintiff never requested that the court order a mistrial, he may not claim on appeal that the court improperly failed to do so. Accordingly, we decline to review this claim.

We also conclude that the court did not abuse its discretion in denying the motion for reconsideration and the request for a rehearing. Although the court denied the motion for reconsideration without comment, it addressed the issues raised therein in its response to the motion for articulation by correcting certain postjudgment findings, vacating others and further modifying the orders. Moreover, the plaintiff fails to explain what would be accomplished by rehearing the issues. He points to no errors in the postjudgment findings and orders, as corrected and amended by the February, 2001 memorandum of decision, other than the alleged errors in his remaining claims on appeal, and thus provides no justification for further proceedings.

The plaintiff cites Hauser v. Fairfield, 126 Conn. 240, 242, 10 A.2d 689 (1940), for the proposition that the court improperly failed to hold a rehearing on the evidence. In Hauser, our Supreme Court ruled that additional evidence could be heard by the trial court where the evidence previously had not been presented due to inadvertence or mistake, and if such evidence was material and its absence created a serious danger of a miscarriage of justice. Id. We conclude, however, that the present case is distinguishable.

Here, most of the plaintiffs claims in the motion for reconsideration involved his attorney’s alleged failure to present the available evidence effectively, not his total failure to produce the evidence. Moreover, insofar as the plaintiffs motion claimed that certain evidence was not presented, the court responded substantively to all of the issues raised in the motion in its February, 2001 memorandum of decision correcting, vacating and modifying its findings and orders. Accordingly, it cannot be said that the court abused its discretion or that denial of the plaintiffs request for a rehearing resulted in a miscarriage of justice. We therefore conclude that the court properly rejected the plaintiffs claim.

II

The plaintiff next claims that the court made improper findings and orders in its February, 2001 memorandum regarding his obligation to maintain life insurance for the benefit of the defendant and their children. He claims that the court improperly found that he was obligated to maintain a life insurance policy for the benefit of the defendant, and that he had acted wilfully and without good cause when he allowed his life insurance policies for the benefit of his children to expire after he lost his job. We agree with the plaintiff only with respect to the finding concerning the defendant.

In its February, 2001 memorandum of decision, the court found that “the husband has failed to maintain life insurance on his life for the benefit of the wife in derogation of the order of the court dated March 15, 2000 . . . and that the findings and order of this court dated December 14, 2000, should be amended to reflect that fact.” The court also found that the plaintiff had improperly permitted his life insurance policies for the benefit of his children to lapse, that his failure in that regard was wilful and without good cause, and that a finding of contempt was warranted. In connection with those findings, the court ordered the plaintiff to take steps to provide the required life insurance for the benefit of his children in accordance with the March, 2000 dissolution decree.

“Our standard of review in a domestic relations case is well settled. We will not substitute our judgment for that of the trial court and will not disturb an order of the trial court absent an abuse of discretion or findings lacking a reasonable basis in the facts.” (Internal quotation marks omitted.) Quindazzi v. Quindazzi, 56 Conn. App. 336, 338, 742 A.2d 838 (2000).

Our review of the record reveals that the court’s finding regarding the plaintiffs obligation to provide life insurance for the benefit of the defendant lacks a reasonable basis in the facts. The March, 2000 decree did not include such an order. Furthermore, the defendant’s counsel conceded at oral argument that no such provision was included in the parties’ separation agreement. Accordingly, the court improperly found in its February, 2001 memorandum of decision that the plaintiff had failed to fulfill a life insurance obligation to the defendant in derogation of the order in the original decree. Although that finding is incorrect and should be deleted from the court’s findings, it was harmless because it did not form the basis of the court’s order.

We turn next to the plaintiff’s claim that the court improperly found that he wrongfully allowed his life insurance policies for the benefit of his children to lapse after he lost his job, and that his failure to maintain those policies or to provide alternative coverage was wilful and without good cause. During the October, 2000 hearing, the plaintiff testified on direct examination that he had not continued the life insurance polices for his children after his termination because the premiums were too high. He explained: “[M]ost of the insurance was provided by my employer as part of my benefit package. . . . And when I was laid off, that coverage provided by the company discontinued and although I was — could have continued it, the premium was very high. They required a quarterly payment to continue it, and I did not have the resources to pay it.” The plaintiff subsequently testified that he believed the policies had expired on the day he was terminated or the last day of June, 2000, but, at that time, he had not been certain of their expiration date. He also testified that he initially did not know the cost of continuing the policies and was not able to conclude until after a discussion with his employer at the end of July, 2000, that he could not afford the payments necessary to extend the policies. He further conceded that he had taken no steps, after learning that the policies had expired, to comply with the order of the court by obtaining other coverage.

In addition, the plaintiff testified that his severance payments did not commence until the last week in July, 2000, more than four weeks after his termination, and that during July, 2000, he had made two alimony payments to the defendant of $2000 each and two payments to his attorneys for legal fees of more than $1000. Thereafter, he paid bills of more than $1100 for an August vacation with his children.

We conclude that the court’s finding as to the plaintiffs discontinuation of life insurance policies for the benefit of his children is supported by the facts in the record. Although the plaintiff now claims that the reason he did not continue the life insurance policies was the delayed receipt of his first severance payment, which prevented him from making a timely payment to continue the policies, the record reveals otherwise. The plaintiff testified at the hearing that the company policies were too expensive to continue and that he simply failed to obtain other coverage. His testimony also indicates that he had sufficient funds to pay more than $1000 in legal fees in July, 2000, and more than $1100 for an August, 2000 vacation with his children. At no time did the plaintiff testily that the reason he discontinued the life insurance policies was due to his delayed receipt of the first severance payment. Accordingly, the record supports the court’s finding that the plaintiffs violation of the order requiring him to continue the life insurance policies for the benefit of his children was wilful and without good cause.

Ill

The plaintiff finally claims that the court improperly excluded evidence of his job search activities and, consequently, concluded that he had been less than diligent in his efforts to obtain new employment, thus unduly prejudicing him with regard to modification relief. We disagree.

During the October, 2000 hearing, the plaintiffs counsel attempted to admit into evidence a series of documents consisting of e-mails that the plaintiff had sent to prospective employers and letters he received in reply. Defense counsel objected to the letters on the ground of hearsay, but did not object to the e-mails authored by the plaintiff. The plaintiffs counsel argued that the reply letters also should be entered into evidence because they were not offered for the truth of the matter asserted, but were necessary to show that the plaintiff had been making an adequate effort to find new employment. The court ruled that only the plaintiffs correspondence would be admitted into evidence, except in cases where the e-mail document itself contained the response. The plaintiffs counsel then observed that under the court’s ruling, only two of the pages offered into evidence would be excluded.

The plaintiffs counsel next attempted to enter into evidence a log of contacts with potential employers that the plaintiff had created in response to the defendant’s request for production. The log included the names of individuals the plaintiff had e-mailed, spoken to on the telephone or interviewed with. Defense counsel sought to exclude the log because it was created expressly for the hearing and was based on backup documents that the defendant did not have available in court and about which he consequently could not be cross-examined. The court sustained the defendant’s objection.

Thereafter, the plaintiffs counsel continued his direct examination of the plaintiff and elicited substantial information on his efforts to seek employment. Counsel asked the plaintiff how many contacts he had made with prospective employers and, before the plaintiff completed his answer, handed him a document to refresh his memory. After looking at the document several times during the colloquy that followed, the plaintiff revealed that he had made approximately ten employment contacts between the time of his termination and July 1, 2000, close to 100 contacts during the month of July, somewhat fewer contacts in August due to prescheduled vacation time with his children and approximately 100 contacts in September. The plaintiff also testified that he had sent an average of twenty emails per week to prospective employers, made ten to thirty telephone calls, and participated in twenty interviews and two or more telephone video conferences since the termination of his employment. In addition, the plaintiff testified that he had one present prospect that might result in an offer in the near future, several others that might come to fruition in the more distant future and two scheduled interviews in the coming week with two different companies.

“It is well settled that [t]he trial court’s ruling on the admissibility of evidence is entitled to great deference. . . . [T]he trial court has broad discretion in ruling on the admissibility ... of evidence. . . . [Its] ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . We will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion. . . . Moreover, evidentiary rulings will be overturned on appeal only where there was ... a showing by the defendant of substantial prejudice or injustice.” (Emphasis in original; internal quotation marks omitted.) State v. Nieves, 69 Conn. App. 96, 100-101, 793 A.2d 290, cert. denied, 260 Conn. 930, 798 A.2d 972 (2002). “[T]he defendant . . . must show that it is more probable than not that the erroneous action of the court affected the result.” (Internal quotation marks omitted.) State v. Collins, 68 Conn. App. 828, 831, 793 A.2d 1160, cert. denied, 260 Conn. 941, 835 A.2d 58 (2002).

Our review of the record reveals that despite the court’s evidentiary rulings, the plaintiffs counsel was able to present substantial evidence regarding the plaintiffs job search activities. Counsel himself noted that the court’s first ruling permitted all of the plaintiffs emails to be entered into evidence and that the only documents excluded were two letters from prospective employers in reply to the e-mails.

As for the second ruling on admission of the plaintiffs job search log, the court permitted counsel to hand the plaintiff a document to refresh his memory before answering questions as to the number of weekly contacts he had made with prospective employers, including e-mails, and the number of telephone calls, interviews and video conferences in which he had participated since the termination of his employment. We therefore conclude that the court did not abuse its discretion in ruling that the letters and job search log were inadmissible.

The plaintiff argues that the exclusion of the proffered evidence caused the court improperly to conclude that he had been less than diligent in his efforts to obtain new employment, thus “unduly prejudicing his standing with regard to modification relief.” He argues that in the February, 2001 memorandum of decision, the court made nine modifications to the December, 2000 findings and orders, and that those modifications show the court’s “proclivity to ‘substantial prejudice’ as a result of the considerable confusion” at the October, 2000 hearing.

We conclude that the plaintiff has not established that he was substantially prejudiced by the court’s evidentiary rulings. His contention that the February, 2001 modifications indicated a general state of confusion on the part of the court dining the October, 2000 hearing does not pertain to the more specific issue raised here of how, exactly, he may have been prejudiced by the court’s evidentiary rulings. Furthermore, the court’s postjudgment orders recognized the plaintiffs change in financial circumstances by significantly reducing his monthly alimony and child support obligation as well as his share of unreimbursed medical expenses. Accordingly, the plaintiff has not met his burden of showing that he was adversely affected by the rulings.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff requested relief from the orders regarding alimony and child support, health and life insurance, and payment of unreimbursed medical expenses.

       The defendant alleged failure of the plaintiff to make all of the required alimony and child support payments, and failure to maintain health and life insurance for the benefit of his children.

       It is not clear from an examination of the transcript if the document used by the plaintiff to refresh his memory was the job search log.


author: STOUGHTON, J.

text:
    STATE OF CONNECTICUT v. ALBERT RIVERA
    (AC 19998)
    Schaller, Bishop and Stoughton, Js.
    Argued January 16
    officially released June 4, 2002

      William B. Westcott, special public defender, for the appellant (defendant).

      Leon F. Dalbec, Jr., senior assistant state’s attorney, with whom, on the brief, were Eugene Callahan and David I. Cohen, state’s attorneys, and Maureen Omousky, senior assistant state’s attorney, for the appellee (state).
   Opinion

STOUGHTON, J.

The defendant, Albert Rivera, appeals from the judgment of conviction, rendered after a jury trial, of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4). On appeal, the defendant claims that (1) the Stamford police department’s failure to preserve intact the photographic arrays from which he was identified violated his state and federal due process rights, (2) the trial court improperly refused to instruct the juiy that it could consider the failure to preserve the photographic arrays in assessing the reliability of the identifications and (3) the trial court improperly refused to allow him to present evidence of a third party’s culpability. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On the evening of January 23, 1998, Daniel Berry and his father, James Berry, were working at Berry’s Turn of River Convenience store in Stamford. Shortly after 9 p.m., the defendant entered the store. As he entered, he brushed against a departing customer, Richard Ferrara. Ferrara had been in the store for some time purchasing and scratching off instant lottery tickets. Earlier that evening, Ferrara had seen the defendant sitting with another man in a car in the store’s parking lot. Also, two or three times during the evening, Ferrara and Daniel Berry had observed the defendant walk up to the store, look in and walk away.

Upon entering the store, the defendant proceeded to the candy rack, selected a couple of candy bars and brought them to the register. As Daniel Berry rang up the sale, the defendant pulled out a plastic bag and a handgun and demanded all the money in the register. Daniel Berry complied, putting approximately $800 or $900 in the plastic bag. As this was happening, James Berry, who was crouched behind the counter putting cigarettes on the shelf, stood up. The defendant pointed the gun at his face and told him to shut up. He then said to Daniel Berry, “[N]ow I want your receipts.” Daniel Berry again complied, putting some invoices in the bag with the money. The defendant then backed out of the store, pointing the gun at both Daniel and James Berry. After the defendant left, Daniel Berry called the police and described the robber to the officers when they arrived.

Later that evening, Daniel Beny and James Berry went to the Stamford police station and gave separate statements describing the incident. They were also shown a book containing numerous photographs of persons who previously had been arrested for armed robbery in Stamford. The defendant’s photograph was not in this book because, at that time, he never had been arrested for armed robbery. Neither Daniel Berry nor James Berry was able to identify the robber from any of the photographs in the book. Sometime thereafter, Sergeant Gerald Obuchowski and Officer Thomas McGinty put together an array of fourteen photographs based on Berry’s description of the robber. On February 6, 1998, McGinty showed the fourteen photographs to Daniel Berry and James Berry. James Berry picked out the defendant’s photograph from the array, but Daniel Berry was unable to identify any of the photographs. McGinty then shuffled the photographs and showed them again to James Berry, who again picked out the defendant’s photograph.

On February 9, 1998, McGinty showed Ferrara seven of the fourteen photographs that were shown to the Berrys, along with a duplicate photograph of the defendant. Ferrara selected the defendant’s photograph from the array as the person he had observed outside the store on the evening of January 23, 1998. Thereafter, the defendant was arrested. At trial, both James Berry and Ferrara made an in-court identification of the defendant. The defendant subsequently was convicted of robbery in the first degree, and this appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that his state and federal due process rights were violated by the Stamford police department’s failure to preserve intact the photographic arrays from which he was identified. Specifically, the defendant argues that because the police failed to preserve intact the actual photographs used in the arrays from which he was identified and the order in which they were shown, it was impossible for him to sustain his burden of showing that the procedure that the police used was unnecessarily suggestive and that the identification was unreliable. We are not persuaded.

The following additional facts are relevant to our resolution of the defendant’s claim. Prior to trial, the defendant moved to suppress “any identification testimony ... on the grounds that the identification procedures employed by the Stamford police department were unnecessarily suggestive and the identifications [were] unreliable under the totality of the circumstances.” During the hearing on the motion, the defendant argued that the Stamford police department’s failure to preserve the photographic arrays deprived him of his due process rights.

In its memorandum of decision on the defendant’s motion, the court found, inter alia, that the police showed James Berry fourteen photographs that corresponded to the general description of the perpetrator given by the Berrys. From this photographic array, James Berry selected the defendant’s photograph, which he signed and dated. The defendant’s photograph was then placed in the case file and the remaining photographs were returned to the mug shot files. Three days later, an array of eight photographs was shown to Ferrara from which he selected the defendant’s photograph. The court concluded that there was nothing in the record to indicate that the identification procedure that the police utilized was unduly suggestive. It also remarked that the defendant failed to show that Ferrara’s identification was unreliable under the totality of the circumstances. As to the preservation issue, the court, in rejecting the defendant’s argument, stated the following: “The record will reflect your comments. I don’t intend to make any further findings of fact or law for the record. I’ve made my decision . . . .”

In State v. Biggs, 13 Conn. App. 12, 18-19, 534 A.2d 1217 (1987), cert. denied, 207 Conn. 801, 540 A.2d 73 (1988), we stated that police departments should follow “our Supreme Court’s suggestion that they preserve photographic arrays or at least make a notation as to which pictures were included in the arrays” and that “[t]he failure to do so may, under [certain] circumstances, result in the exclusion of identification testimony and, perhaps, the unnecessary setting aside of an otherwise valid conviction.” “The rationale behind the Supreme Court’s suggestion is obvious. If the array is not preserved, the defendant will have a difficult, if not impossible, task in proving the suggestiveness of the array.” Id., 18.

At the evidentiary hearing on the defendant’s motion to suppress, McGinty testified with respect to the Stamford police department’s standard identification procedure. He stated that after a witness identified a photograph, he was asked to sign and date it on the back and the photograph was placed in the police case file. The police would then record the identification numbers of the other photographs in the array and the date each was taken and return them to the identification bureau file. He further testified that by utilizing this procedure, the police were able to reproduce the photographic array for trial, as they did in the present case.

Although the defendant cross-examined McGinty and other state’s witnesses with respect to the identification procedure, no evidence was presented that indicated that the photographs produced for trial were not the actual photographs used in the photographic arrays from which the defendant was identified, and if they were not, that they were in any way different from those photographs. Moreover, there is no evidence to suggest that the photographs were marked in any way, nor is there any reason for even the most cynical person to suppose that they might have been, since the police had no particular suspect in mind when they assembled the array to show James Berry. Also, the defendant has not indicated any reason why the order in which the photographs were displayed would make a difference in this case.

After a careful review of the record, we perceive nothing improper in the identification procedure used by the police. Although the police did not save the arrays intact, they did preserve the arrays by recording which photographs had been used in the arrays so that they could be reconstructed for trial. Indeed, by making a notation as to which photographs had been included in the arrays so that they could be reproduced if later needed, the police followed this court’s suggestion in State v. Biggs, supra, 13 Conn. App. 18. Moreover, even if the arrays were not adequately preserved, in State v. Hunt, 10 Conn. App. 404, 408, 523 A.2d 514 (1987), we held that “the failure to preserve a photographic array does not preclude a finding that an identification procedure was not suggestive” nor does it shift the burden of proof to the state. The facts of this case do not suggest any reason to depart from our holding in Hunt.

In the absence of any evidence to suggest that the photographs included in the arrays used to identify the defendant were in any way different from those produced at trial, we conclude that the photographic arrays were adequately preserved by the procedure that the police employed. Accordingly, the defendant’s claim is without merit.

II

The defendant next claims that the court improperly refused to instruct the jury that it could consider the failure to preserve the photographic arrays in assessing the reliability of the identifications. Because we already have concluded in part I of this opinion that the photographic arrays were adequately preserved, the defendant was not entitled to a jury instruction suggesting that the police failed to preserve the arrays. Accordingly, we conclude that the court properly refused to instruct the jury with respect to that issue.

m

The defendant’s final claim is that the court improperly refused to allow him to present evidence of a third party’s culpability in violation of his right to present a defense under the sixth and fourteenth amendments to the United States constitution. We disagree.

The following additional facts are relevant to our resolution of the defendant’s claim. Daniel Berry testified that, during the robbery, the defendant ordered him to put all the money in the register in a plastic bag and then demanded all the store’s receipts. Later, McGinty testified that he knew of only one other robbery in which the robber asked for receipts in addition to money. He testified that this other robbery occurred in Stamford at the Ava Marie Variety store four days after the subject robbery.

After the state rested its case, the defendant proposed to call as a witness Louis Velez, the victim of a second robbery. In an offer of proof, the defendant informed the court that Velez was prepared to testify that four days after the subject robbery he was robbed by a five foot, four inch Hispanic man with a slight beard, who wore a hooded jacket that partially obscured his face, displayed a nine millimeter weapon and demanded store receipts in addition to money. Velez also intended to testify that after the robbery, the police showed him a stack of photographs that included the defendant’s photograph. He further would testify that the police tried to persuade him to identify the defendant, whom he knew, as the robber and that he told the police that the defendant was not the person who had robbed him. The state objected to the admission of the testimony. The court sustained the state’s objection, ruling, inter alia, that the proffered evidence was collateral and therefore inadmissible.

“It is well established that a defendant has a right to introduce evidence that another person committed the offense with which the defendant is charged. . . . The defendant must, however, present evidence that directly connects the third party to the crime. ... It is not enough ... to show that another had the motive to commit the crime . . . nor is it enough to raise a bare suspicion that some other person may have committed the crime of which the defendant is accused.” (Internal quotation marks omitted.) State v. Walsh, 67 Conn. App. 776, 787, 789 A.2d 1031, cert. denied, 260 Conn. 906, 795 A.2d 546 (2002).

“The admissibility of evidence of third party culpability is governed by the rules relating to relevancy. . . . 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 and judicial experience. . . . The trial court has wide discretion in its rulings on evidence and its rulings will be reversed only if the court has abused its discretion or an injustice appears to have been done.” (Citations omitted; internal quotation marks omitted.) State v. Boles, 223 Conn. 535, 549, 613 A.2d 770 (1992).

In the present case, the defendant failed to offer any evidence directly linking a third party to the commission of the robbery at Berry’s Turn of River Convenience store. “Unless that direct connection exists it is within the sound discretion of the trial court to refuse to admit such evidence when it simply affords a possible ground of possible suspicion against another person.” (Internal quotation marks omitted.) State v. Baker, 50 Conn. App. 268, 279, 718 A.2d 450, cert. denied, 247 Conn. 937, 722 A.2d 1216 (1998). The fact that the victim of a similar robbery in Stamford stated that the defendant was not responsible for that robbery at most raises a bare suspicion that another person may have committed the subject robbery. See State v. Prunier, 28 Conn. App. 612, 621, 613 A.2d 311, cert. denied, 224 Conn. 903, 615 A.2d 1046 (1992). Accordingly, we conclude that the trial court did not abuse its discretion in excluding the proffered evidence.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-134 (a) provides in relevant part: “A person is guilty of robbery in the first degree when, in the course of the commission of the crime of robbery as defined in section 53a-133 or of immediate flight therefrom, he or another participant in the crime ... (4) displays or threatens the use of what he represents by his words or conduct to be a pistol, revolver ... or other firearm, except that in any prosecution under this subdivision, it is an affirmative defense that such pistol, revolver ... or other firearm was not a weapon from which a shot could be discharged.

       Daniel Berry testified that he observed a person fitting the defendant’s description “casing the place.” He stated that “[a]t least twice during the evening I saw him in the very front of the store ... the very front outside of the store, the exterior. . . .
      “[A]t least twice I saw him .... I can see outside from the window here from the register who is outside even though there’s magazines in a couple of the windows, but I saw him at least walk up here, look inside and observe what was going on and walk away again.”
      Ferrara testified that he observed the defendant looking in the store widow on three separate occasions that evening.

       Sergeant Gerald Obuchowski of the Stamford police department wrote down Daniel Berry’s description of the robber while at the scene of the robbery. At trial, Obuchowski testified that Daniel Berry described the robber as follows: “[A] Spanish — Hispanic male, heavy set in the vicinity of 200 pounds, approximately five feet eight, very stocky, he was wearing a hooded blue winter jacket, had a slight Spanish accent, and was armed with a long barrel gun.”

       Because, as required by Stamford police department procedure, McGinty had James Berry sign and date the back of the defendant’s photograph that he picked out of the array, a duplicate photograph had to be used in the array shown to Ferrara.

       The defendant fails to provide an independent analysis under the state constitution. Thus, we confine our analysis to a discussion of the defendant’s rights under the federal constitution. See State v. Cepeda, 61 Conn. App. 409, 413 n.8, 723 A.2d 331, cert. denied, 248 Conn. 912, 732 A.2d 180 (1999).


author:
MIHALAKOS, J.
      LAVERY, C. J.,

text:
    DONATO SANTORO v. REGINA SANTORO
    (AC 21550)
    Lavery, C. J., and Schaller and Mihalakos, Js.

      (One judge dissenting)
    Submitted on briefs September 12, 2001
    officially released June 4, 2002

      Robert P. Hanahan filed a brief for the appellant (defendant).
   Opinion

MIHALAKOS, J.

The defendant, Regina Santoro, now known as Regina Zamblauskas, appeals from the judgment of the trial court ordering the plaintiff, Donato Santoro, to pay her $5495 in exchange for the defendant’s quitclaiming to him certain property valued at $30,000. The sole issue on appeal is whether the court improperly offset a balance due for child support from the defendant to the plaintiff against a lump sum property settlement due from the plaintiff to the defendant in a matter in which the parties had appeared before the family support magistrate and agreed to a weekly payment of child support from which no appeal was taken. We conclude that the offset was improper for the reasons set forth in this opinion and, accordingly, reverse the judgment of the trial court.

The following facts and procedural history are relevant to our consideration of the defendant’s claim. On November 2, 1992, after a twelve year marriage, the plaintiff brought an action seeking dissolution of the marriage based on its irretrievable breakdown. The parties have one daughter, Stephanie, bom in 1986. On July 26, 1993, the court, McDonald, J., rendered judgment dissolving the marriage, establishing custody and visitation, and distributing the parties’ property. The court awarded the plaintiff $65 per week in child support to be paid by the defendant. In addition, the court, after finding it to be fair and equitable, incorporated by reference a stipulation entered into by the parties dated July 26, 1993. The stipulated agreement provided, inter alia, that the defendant shall quitclaim to the plaintiff her one-half interest in the jointly owned marital residence, and the plaintiff shall give the defendant the sum of $30,000 over a, term of five years secured by a note and mortgage. The parties, however, understood the agreement to require one lump sum of $30,000 at the end of five years. Moreover, the parties executed neither a note nor a mortgage.

Thereafter, the plaintiff alleged that the defendant was delinquent in complying with the court’s support order, an allegation that the defendant contested. On July 24,2000, the defendant filed a motion for contempt, alleging that the plaintiff had failed to make any payment in exchange for the quitclaim deed for the one-half interest in the marital home. On October 12, 2000, after a hearing regarding the defendant’s delinquency, the family support magistrate issued an order that the defendant pay to the plaintiff $65 per week in child support, plus an additional $15 per week as part of the existing arrearage of $24,505.

On October 17, 2000, the plaintiff filed a motion to open the judgment of the family support magistrate. On October 30, 2000, the court, Leheny, J., heard the defendant’s motion for contempt. The court ordered the plaintiff to record the quitclaim deed and to pay $5495 to the defendant within two weeks. In addition, the court ordered the plaintiff to pay to the defendant $15 per week for thirty-two years. Again, the parties returned to court and after a hearing on January 2,2001, the court ordered the quitclaim deed recorded and the plaintiff to pay to the defendant $5495. That sum is the value of the interest in the property owed to the defendant, which was $30,000, less the child support arrearage owed by the defendant, which was $24,505. This appeal followed.

“With respect to the financial awards in a dissolution action, great weight is given to the judgment of the trial court because of its opportunity to observe the parties and the evidence. . . . [J]udicial review of a trial court’s exercise of its broad discretion in domestic relations cases is limited to the questions of whether the [trial] court correctly applied the law and could reasonably have concluded as it did.” (Citations omitted; internal quotation marks omitted.) Bornemann v. Bornemann, 245 Conn. 508, 530-31, 752 A.2d 978 (1998).

We first address whether the offset was an improper modification of a property assignment. “The court’s judgment in an action for dissolution of a marriage is final and binding upon the parties, where no appeal is taken therefrom, unless and to the extent that statutes, the common law or rules of court permit the setting aside or modification of that judgment.” Bunche v. Bunche, 180 Conn. 285, 287-88, 429 A.2d 874 (1980). 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 .... This section shall not apply to [property] assignments under section 46b-81 . . . .” The statute, therefore, “deprives the Superior Court of continuing jurisdiction over that portion of a dissolution judgment providing for the assignment of property of one party to the other party under General Statutes § 46b-81.” Bunche v. Bunche, supra, 289.

Although the court has jurisdiction to assign property in connection with § 46b-81, that assignment is not modifiable. See Taylor v. Taylor, 57 Conn. App. 528, 533, 752 A.2d 1113 (2000). Moreover, “property distributions . . . cannot be modified to alleviate hardships that may result from enforcement of the original dissolution decree in the face of changes in the situation of either party.” (Emphasis in original; internal quotation marks omitted.) Simmons v. Simmons, 244 Conn. 158, 183-84, 708 A.2d 949 (1998). “[I]tis [however] within the equitable powers of the trial court to fashion whatever orders [are] required to protect the integrity of [its original] judgment.” (Internal quotation marks omitted.) Clement v. Clement, 34 Conn. App. 641, 646, 643 A.2d 874 (1994) .

Our resolution of that issue, therefore, turns on whether the court’s order modified or merely enforced the property distribution for which the original dissolution decree provided. A modification is “[a] change; an alteration or amendment which introduces new elements into the details, or cancels some of them, but leaves the general purpose and effect of the subject-matter intact.” (Internal quotation marks omitted.) Jaser v. Jaser, 37 Conn. App. 194, 202, 655 A.2d 790 (1995) . If a party’s motion “can fairly be construed as seeking an effectuation of the judgment rather than a modification of the terms of the property settlement, this court must favor that interpretation.” (Internal quotation marks omitted.) Woodward v. Woodward, 44 Conn. App. 99, 102, 686 A.2d 1010 (1997). Similarly, when determining whether the new order is a modification, we examine the practical effect of the ruling on the original order. See Jaser v. Jaser, supra, 202.

The original divorce decree provided that the defendant receive $30,000 for the value of her interest in the marital home. As indicated in a handwritten stipulation, the parties understood that the moneys would be in the form of a lump sum payment and paid five years from the date of dissolution. Because the original decree required the plaintiff to pay the defendant for her interest in the property prior to July 23, 1998, and he has not made a single payment, “noncompliance on the part of the parties made strict adherence to the terms of the [decree] impossible.” Niles v. Niles, 9 Conn. App. 240, 245-46, 518 A.2d 932 (1986).

In its October 30, 2000 order, the court ordered the plaintiff to pay only $5495 up front and the remaining $24,505 over the course of thirty-two years. Thereafter, in its January 2, 2001 order, the court offset the moneys owed to the defendant for her interest in the property against the child support arrearage owed to the plaintiff. We therefore conclude that the court did not alter the terms of the original order, but rather fashioned an appropriate remedy to protect the integrity of the original judgment.

We now turn to the court’s disposition of the child support arrearage. A determination of child support arrearage payments must be made in accordance with the child support and arrearage guidelines. General Statutes § 46b-215b. In addition, a child support order cannot be modified unless there is (1) a showing of a substantial change in the circumstances of either party or (2) a showing that the final order for child support substantially deviates from the child support guidelines absent the requisite findings. See General Statutes § 46b-86 (a). “The party seeking modification bears the burden of showing the existence of a substantial change in the circumstances.” (Internal quotation marks omitted.) Prial v. Prial, 67 Conn. App. 7, 11, 787 A.2d 50 (2001). “In these matters, as in other questions arising out of marital disputes, this court relies heavily on the exercise of sound discretion by the trial court.” (Internal quotation marks omitted.) Wingerd v. Wingerd, 3 Conn. App. 261, 263, 487 A.2d 212, cert. denied, 195 Conn. 804, 491 A.2d 1104 (1985).

The family support magistrate ordered the defendant to pay child support arrearage in the amount of $15 per week in accordance with the child support guidelines. Thereafter, the court modified the magistrate’s order by offsetting the child support arrearage owed by the defendant against the property distribution owed by the plaintiff. In ordering the offset without first finding that there was a substantial change in the circumstances of one of the parties, the court did not adhere to the mandates of § 46b-86 (a). Had the court found a showing of a substantial change in circumstances in accordance with § 46b-86 (a), the offset would be proper. Thus, the court improperly applied the law and, therefore, abused its discretion.

The judgment is reversed and the case is remanded to the trial court to consider whether the $30,000 debt owed to the defendant constitutes a substantial change in the defendant’s circumstances. If the court finds that there is a substantial change in the defendant’s circumstances, the court then can offset the amount owed to the defendant for her interest in the property against the child support arrearage owed to the plaintiff.

In this opinion SCIIALLER, J., concurred.

LAVERY, C. J.,

dissenting in part. I respectfully disagree with the conclusion of the majority because I believe that it was wholly within the equitable power of the court to fashion the rational, common sense solution that it imposed on the parties in this case. The court’s order did nothing but hold the parties to the terms of their original stipulation and protect the integrity of the judgment incorporating that stipulation and, as such, it was not an impermissible modification of a property assignment. Furthermore, in crafting its offset order, the court had the authority to displace the order of the family support magistrate requiring the defendant to pay $15 per week toward the child support arrearage for the parties’ fifteen year old daughter for the next thirty-two years.

It is well established that a court, subsequent to a dissolution judgment, may not revisit and modify the distribution of property effected by that judgment. General Statutes § 46b-86 (a); Bunche v. Bunche, 180 Conn. 285, 289, 429 A.2d 874 (1980). Nonetheless, our case law draws a distinction between orders that result in improper modification and those that serve merely to enforce the original decree.

In Roberts v. Roberts, 32 Conn. App. 465, 629 A.2d 1160 (1993), the parties stipulated in the dissolution decree that they would sell the marital residence and divide the proceeds, but the defendant was impeding the sale by listing the property at too high a price and by refusing the Realtor reasonable access. In response to the plaintiffs motions for contempt and to expedite the sale by order to lower the asking price, the trial court ordered that the residence be sold by auction and appointed a committee to conduct that auction. Noting that the original decree unquestionably ordered that the property be sold and “recogniz[ing] that it is within the equitable powers of the trial court ‘to fashion whatever orders [are] required to protect the integrity of [its original] judgment’ id., 471; this court concluded that the trial court properly granted the plaintiffs motion “as it sought only an effectuation of the judgment rather than a modification of it.” Id., 472. “Both parties continue [d] to be entitled to 50 percent of the proceeds of the sale”; id.; as contemplated by the original decree.

Similarly, in Clement v. Clement, 34 Conn. App. 641, 643 A.2d 874 (1994), we concluded that in ordering the plaintiff to pay the defendant $29,500, the trial court did not improperly modify the terms of a prior property distribution, but rather was enforcing it. As part of the dissolution decree, the defendant was awarded the entire interest in the family residence, and the plaintiff was required to hold the defendant harmless on two of three outstanding mortgages on the residence. When the plaintiff failed to make the mortgage payments, a judgment of strict foreclosure entered against the defendant, and the plaintiff no longer was required to make mortgage payments. In response to the defendant’s motion for contempt, the trial court ordered the plaintiff to pay her $29,500, an amount which represented the defendant’s lost equity in the residence. This court concluded that the trial court acted properly and within its jurisdiction because its order did not change the property assignment but, rather, preserved the integrity of the original judgment. Id., 646.

The majority recognizes this distinction but nonetheless concludes that the court’s order, which offset the child support arrearage owed by the defendant against the amount owed by the plaintiff pursuant to the property distribution agreement, was improper. It does so on a ground not raised in the trial court or argued by the parties on appeal. The majority reasons that the court, in crediting the defendant’s $24,505 arrearage against the $30,000 due and owing by the plaintiff, effected a “modification” of the order issued by the magistrate some three weeks prior such that the court first needed to find a substantial change in the parties’ circumstances. This elevates form over substance and will result in wasteful use of scarce judicial resources.

I believe that the court had the power to displace the magistrate’s support arrearage order. In ordering the offset, the court was not acting on a request for modification, but on the defendant’s motion to hold the plaintiff in contempt for failure to abide by the terms of the parties’ property settlement agreement. General Statutes § 46b-231 (q) provides in relevant part that “[w]hen an order for child or spousal support has been entered against an obligor by the Superior Court in an action originating in the Superior Court, such order shall supersede any previous order for child or spousal support against such obligor entered by a family support magistrate . . . .” (Emphasis added.) This makes sense because a court has jurisdiction to consider a much broader range of issues than does the magistrate, issues that might best be resolved when considered together. The contempt matter originated in the Superior Court. “Supersede” is defined by the Merriam-Webster dictionary as “replace,” “displace” or “to take the place of.” The court’s order, therefore, did not “modify” the magistrate’s order but replaced it and, as such, there was no need for the court to find a substantial change in circumstances.

“The paramount role of a court when considering domestic relations cases is one of a ‘court of equity.’ The court’s equity powers are essential to its ability to fashion the appropriate relief in domestic relations cases. The power to act equitably is the keystone to the court’s ability to fashion relief in the infinite variety of circumstances which arise out of the dissolution of a marriage. Without this wide discretion and broad equitable power, the courts in some cases might be unable fairly to resolve the parties’ dispute . . . .” (Internal quotation marks omitted.) Labow v. Labow, 13 Conn. App. 330, 351, 537 A.2d 157, cert. denied, 207 Conn. 806, 540 A.2d 374 (1988). The opinion of the majority unnecessarily constrains the power of the trial court to order the equitable relief appropriate under the circumstances of this case.

I would affirm the judgment.

       The plaintiffs motion to open the judgment of the family support magistrate was not necessary because “[w]hen an order for child or spousal support has been entered against an obligor by the Superior Court in an action originating in the Superior Court, such order shall supersede any previous order for child support or spousal support against such obligor entered by a family support magistrate . . . General Statutes § 46b-231 (q). The court, therefore, had jurisdiction to modify the family support magistrate’s child support order.

       The plaintiff was ordered to pay to the defendant a total of $30,000 representing the value of his interest in the property. To effectuate that order, the plaintiff was to pay $5495 to the defendant within two weeks and $24,505 over the course of thirty-two years by paying $15 a week. The court came to that resolution after the defendant’s attorney argued that the court did not have jurisdiction over the issue of child support. The following colloquy took place:
      “[Defendant’s Counsel]: Your Honor, there’s two proceedings pending. He went to child support enforcement; that was in court before, today. Thought it was over; it’s [going to] be back in court on Thursday, for whatever’s [going to] happen there, which is his effort to reverse the agreement that was made there.
      “All that’s before this court is our motion for a finding that he owes $30,000. . . . And then whatever happens on Thursday, happens. Whatever effect that would have ... I just don’t know, but when we were in court in the magistrate’s court, this, what we’re discussing today was raised there, too. And . . . the attorney general’s position was [that] he could not do that.....
      “The Court: He couldn’t handle it. That’s right, it’s not within his—
      “[Defendant’s Counsel]: Right.
      “The Court: — his bailiwick.
      “[Defendant’s Counsel]: And she’s under an order to pay the state of Connecticut, now, to the bureau of support, through the Fleet Bank. . . . I don’t think the court today could do anything here. Because that matter is over there; it’s just—
      “The Court: The court finds that both parties failed to live up to this dissolution decree and did what they wanted to do, with whatever they agreed to. Leaving the court holding the bag and the court has a real problem with that. The court is going to order that the quitclaim deed be recorded .... You’re not [going to] be happy with it. That he pay the sum of $30,000 minus $24,505, which is $5495. That if he’s going to pay the rest and that’s the way you want to work it out, that he pays her whatever he gets on the arrearage. ... I consider it abominable and I would do away with it. If you’re telling me that I don’t have the authority to do that, then I will simply say that he has to pay her the sum of $15 a week . . .

       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 . . . support . -. . may at any time thereafter be continued, set aside, altered or modified by said court upon a showing of a substantial change in circumstances of either party or upon a showing that the final order for child support substantially deviates from the child support guidelines established pursuant, to section 46b-215a, unless there was a specific finding on the record that the application of the guidelines would be inequitable or inappropriate. . .

       In this case, as noted in the trial testimony reproduced in footnote 2 of the majority opinion, the magistrate was not authorized to consider the defendant’s motion for contempt. The magistrate’s jurisdiction generally is limited to support matters. See General Statutes § 46b-231 (m).