author: ALVORD, J.

text:
    MATTHEW G. BROWN v. NANCY BROWN
    (AC 34314)
    Beach, Alvord and Sullivan, Js.

      Argued November 13, 2013
    officially released February 4, 2014

      Louis Kiefer, for the appellant (plaintiff).

      Steven R. Dembo, with whom, on the brief, was P. Jo Anne Burgh, for the appellee (defendant).
   Opinion

ALVORD, J.

The plaintiff, Matthew G. Brown, appeals from the judgment of the trial court dissolving his marriage to the defendant, Nancy Brown. On appeal, the plaintiff claims that the court (1) improperly determined that it was in the best interests of the parties’ minor child to relocate to Canada to reside primarily with the defendant, (2) abused its discretion in its award of alimony to the defendant and improperly calculated the amount of child support that he was required to pay under the child support guidelines, (3) abused its discretion in limiting the circumstances under which he could seek modification of his alimony obligation, and (4) improperly ordered the parties to file a joint tax return for the 2011 tax year. We reverse the judgment of the trial court with respect to its order to file a joint tax return and affirm the judgment in all other respects.

The following facts and procedural history are relevant to the plaintiffs appeal. The court dissolved the parties’ twenty-one year marriage on January 6, 2012. At the time of the dissolution, the parties had two minor sons, aged seventeen and twelve. The court found that the marriage had broken down irretrievably and that neither party was solely responsible for the breakdown of the marriage. The court entered orders with respect to, inter alia, custody of the minor children and the primary residence of the younger son, the plaintiffs obligation to pay alimony and child support, and the filing of a joint tax return for the 2011 tax year.

The plaintiff appealed from the dissolution judgment on February 14,2012. On August 30,2012, the defendant filed a motion for articulation and a motion for rectification asking the trial court to “clarify” or “rectify” its order with respect to the filing of the joint tax return. The court held a hearing on September 26, 2012, and, at that time, acknowledged that its January 6, 2012 memorandum of decision did not reflect the court’s intent that the parties would have to agree before they could be ordered to file a joint tax return. The court then stated that it was willing to enter an order, if the parties would so stipulate, “clarifying and correcting” the decision to reflect the court’s intention that the requirement to file a joint tax return was applicable only if the parties agreed to file jointly for the 2011 tax year. The parties did not stipulate, and the plaintiff now claims that this court should order a new hearing and determination regarding all of the financial orders of the judgment of dissolution.

I

The plaintiffs first claim on appeal is that the court improperly determined that it was in the best interests of the parties’ younger son to relocate to Ontario, Canada, to reside primarily with the defendant. The plaintiff argues that the court “failed to follow General Statutes § 46b-56 (b)” because their son would not be provided with “the active and consistent involvement of both parents consistent with their abilities and interest.” He claims that because of the “difficulty of efficient airline flights, and [his] demanding schedule as a transplant surgeon,” he will be unable to exercise the visitation provided by the court.

The following additional facts are relevant to this claim. The defendant was bom and raised in Canada and attended college in Canada. She completed a three year nursing program and was licensed as a registered nurse in Canada. The defendant left Canada and secured employment as a nurse at Duke University, where she met the plaintiff during his internship. On August 11, 1990, they married in Ontario, Canada, and the parties moved to several locations between 1991 and 1997 in furtherance of the plaintiffs career development. The plaintiff obtained a fellowship in Ontario, Canada, and the parties resided there between 1995 and 1997. The defendant wanted to remain in Canada once the fellowship had been completed, and the plaintiff agreed to seek a permanent placement in Canada but was unsuccessful in his attempts. In 1997, the parties moved to West Hartford, and the plaintiff is currently employed as a transplant surgeon at Hartford Hospital.

The defendant was supportive of the plaintiff and left employment that she found rewarding when he wanted to relocate to take advantage of his professional opportunities. The defendant ceased working outside of the home when their first son was bom in 1994, and her nursing license expired in 1995. In 1999, the parties’ second son was bom, and the defendant continued to stay at home and attended to the children and their needs while the plaintiff worked long hours. The children are citizens of both the United States and Canada, and they have spent a significant portion of their childhood in Canada with the defendant and her extended family.

In the beginning of 2009, the plaintiff told the defendant that the marriage was over. Although the parties attempted marriage counseling in the spring of 2009, the plaintiff decided that he no longer wanted to be married and moved out of the marital home in August, 2009. Shortly thereafter, the defendant enrolled in a nursing refresher course that she completed in April, 2010. She believed that if she obtained her nursing license in Connecticut, that license would be recognized through reciprocity in Canada. The defendant later discovered that there was no reciprocity. She received a letter dated October 5, 2011, from the college of nurses in Ontario, Canada, advising her that she would have to complete several courses and a registered nurse clinical practice in order to obtain her Canadian license.

The plaintiff commenced this dissolution action on February 9,2010. The plaintiff was aware that the defendant wanted to move back to Canada. The parties and their attorneys signed a stipulation dated February 22, 2011, which was entered as an order of the court, regarding pendente lite alimony and the division of their 2010 federal tax refund. That stipulation additionally contained the following provision: “[The defendant] is relocating to Canada. After she relocates on or about March 5, 2011, [the plaintiff] shall have exclusive use of the marital home in West Hartford.” The older son went to live with the defendant in Canada after the school year ended in 2011, and decided to stay there. The younger son continued to live with the plaintiff and a nanny in West Hartford. At the time of the trial, the plaintiff sought sole custody of the younger son. The defendant sought joint custody of the younger son with his primary residence to be with her in Canada.

The court, after a six day trial, entered orders awarding the parties joint legal custody of the children. The parties already had agreed that the older son’s primary residence would be with the defendant in Canada. With respect to the younger son, the court found that it was in his best interests to relocate to Ontario, Canada, to reside primarily with the defendant. In making that determination, the court stated that it had considered the criteria set forth in § 46b-56 and applicable case law. The court made the following findings in its January 6, 2012 memorandum of decision: (1) the defendant’s decision to relocate to Canada was “reasoned and well thought out”; (2) the defendant’s extended family lived in Canada; (3) the children had spent significant periods of time in Canada; (4) the defendant would use her best efforts to continue to foster the relationship between the plaintiff and the younger son; (5) the younger son, by his conduct, indicated his preference to live in Canada; (6) the defendant’s reasons for moving to Canada were valid and included the betterment of her life and the lives of the children; (7) the defendant’s “nurturing and supportive style” would help the younger son’s transition with respect to the relocation; and (8) the plaintiff had the financial resources to visit the children in Canada and to have them visit him in Connecticut.

The plaintiff challenges the court’s findings and claims that the court could not reasonably conclude that it was in the younger son’s best interests to relocate to Canada to reside primarily with the defendant. “Our standard of review of a trial court’s decision regarding custody, visitation and relocation orders is one of abuse of discretion. . . . [I]n a dissolution proceeding the trial court’s decision on the matter of custody is committed to the exercise of its sound discretion and its decision cannot be overridden unless an abuse of that discretion is clear. . . . The controlling principle in a determination respecting custody is that the court shall be guided by the best interests of the child. ... In determining what is in the best interests of the child, the court is vested with a broad discretion. . . . [T]he authority to exercise the judicial discretion under the circumstances revealed by the finding is not conferred upon this court, but upon the trial court, and ... we are not privileged to usurp that authority or to substitute ourselves for the trial court. ... A mere difference of opinion or judgment cannot justify our intervention. Nothing short of a conviction that the action of the trial court is one which discloses a clear abuse of discretion can warrant our interference. . . .

“The trial court has the opportunity to view the parties first hand and is therefore in the best position to assess the circumstances surrounding a dissolution action, in which such personal factors as the demeanor and attitude of the parties are so significant. . . . [E]very reasonable presumption should be given in favor of the correctness of [the trial court’s] action. . . . We are limited in our review to determining whether the trial court abused its broad discretion to award custody based upon the best interests of the child as reasonably supported by the evidence.” (Internal quotation marks omitted.) Lederle v. Spivey, 113 Conn. App. 177, 185-86, 965 A.2d 621, cert. denied, 291 Conn. 916, 970 A.2d 728 (2009).

The court’s findings are supported by the record. Those findings support the court’s determination that it would be in the best interests of the minor son to relocate to Canada to reside primarily with the defendant. Although the plaintiff argues that other testimony at trial favors a different result, he essentially requests that we reassess and reweigh the evidence in his favor. “[W]e do not retry the facts or evaluate the credibility of witnesses.” (Internal quotation marks omitted.) Quinto v. Boccanfusco, 139 Conn. App. 129, 135, 54 A.3d 1069 (2012). The court expressly stated that it considered the criteria set forth in the applicable statutes and case law. “[T]he trial court is presumed to have applied the law correctly, and it is the burden of the appellant to show to the contrary.” (Internal quotation marks omitted.) Emrich v. Emrich, 127 Conn. App. 691, 703, 15 A.3d 1104 (2011). For these reasons, we conclude that the court did not abuse its broad discretion and properly based its decision on the best interests of the minor son.

II

The plaintiffs next claim is that the court abused its discretion in its award of alimony to the defendant and improperly calculated the amount of child support that he was required to pay under the child support guidelines. He argues that the court improperly (1) failed to find an earning capacity for the defendant, (2) applied the child support guideline percentage to the net income of the plaintiff before deducting the alimony that he was ordered to pay the defendant, and (3) failed to examine the actual needs of the children in determining the amount due under the guidelines. We are not persuaded.

A

We first address the plaintiffs claim that the court should have determined that the defendant had an earning capacity when it entered the financial orders with respect to alimony and child support. In its memorandum of decision, the court found that the defendant testified credibly that it would take her three years to obtain her nursing license in Canada. The court stated: “Due to the requirements that she must meet to obtain her license in Ontario, the court does not find that she has an earning capacity at this time. She will need to spend the next three years satisfying the requirements to obtain her license and attending to the children.” The plaintiff claims that the court’s determination was improper because the defendant could have stayed in the United States, taken a test in Connecticut for recerti-fication as a nurse, and secured a nursing position in this country for approximately $67,000 a year.

“In marital dissolution proceedings, under appropriate circumstances the trial court may base financial awards on the earning capacity rather than the actual earned income of the parties . . . when . . . there is specific evidence of the [party’s] previous earnings. ... It is particularly appropriate to base a financial award on earning capacity where there is evidence that the payor has voluntarily quit or avoided obtaining employment in [the payor’s] field.” (Citations omitted; emphasis added; internal quotation marks omitted.) Hart v. Hart, 19 Conn. App. 91, 94-95, 561 A.2d 151, cert. denied, 212 Conn. 813, 565 A.2d 535 (1989).

In the present case, the defendant has not worked as a nurse since 1994, coincident with the birth of their first child. Her nursing license expired in 1995. The court determined that the defendant had significant familial ties to Canada and that her reasons for relocating from the United States to Canada were valid. After three years of course work and clinical practice in Canada, the defendant could be recertified as a registered nurse and secure employment in her profession in her country of residence. At the time of the dissolution, the defendant was unemployed and the plaintiffs gross annual income as a transplant surgeon was $423,228.

“A fundamental principle in dissolution actions is that a trial court may exercise broad discretion in awarding alimony and dividing property as long as it considers all relevant statutory criteria. ... No single criterion is preferred over others, and the trial court has broad discretion in varying the weight placed on each criterion under the circumstances of each case.” (Internal quotation marks omitted.) Jungnelius v. Jungnelius, 133 Conn. App. 250, 262, 35 A.3d 359 (2012). The court expressly stated that it had considered all of the relevant statutes before rendering its judgment. With respect to its financial orders, the record supports the court’s determinations that the defendant had no earning capacity at the time of the dissolution judgment and that she needed three years to satisfy the requirements for obtaining her nursing license in Canada, where she resided. We cannot conclude that the court abused its broad discretion under the circumstances of this case.

B

The plaintiff further claims that the court improperly applied the child support guideline percentage to his net income before deducting the amount of alimony that he was ordered to pay the defendant. He argues that the court calculated his payment of child support based on income that he did not have. The plaintiff cites no statutes or case law in support of this argument.

The provisions in the child support guidelines compel a different conclusion. Section 46b-215a-l (17) of the Regulations of Connecticut State Agencies defines “ ‘[n]et income,’ ” for purposes of calculating the presumptive amount of child support, to be “gross income minus allowable deductions.” Section 46b-215a-l (1) (I) defines “ ‘[a]llowable deductions’ ” to include “court-ordered alimony and child support awards/or individuals not involved in the support determination . . . .” (Emphasis added.) Because of the plain language of the child support guidelines, we conclude that this claim of the plaintiff is without merit.

Ill

The plaintiffs next claim is that the court abused its discretion in limiting the circumstances under which he could seek modification of his alimony obligation. Specifically, he argues that the cohabitation and safe harbor provisions of the court’s orders “are inconsistent with the overall public policy which favors modification.”

In its memorandum of decision, the court recited the appropriate statutory factors for an award of alimony and entered the following orders: “[T]he plaintiff shall pay to the defendant alimony in the amount of $2500 per week for a period of three years from the date of the dissolution and then in the amount of $2000 per week for a period of six years (for a total duration of the alimony award of nine years, subject to earlier termination as set forth below). . . . Alimony shall terminate on the earliest of the following: (i) the death of either party; (ii) the remarriage of the defendant; (iii) nine years from the date of dissolution; or (iv) the defendant’s cohabitation with an unrelated person pursuant to General Statutes § 46b-86 (b). . . . The defendant shall be permitted to earn gross income from employment of $75,000 per year and the plaintiff shall be permitted to earn gross income from employment of $475,000 ayear without it being considered a substantial change [in] circumstances for a modification of alimony.”

“It is a well settled principle of matrimonial law that courts have the authority under § 46b-86 to preclude the modification of alimony awards. . . . Section 46b-86 (a) itself provides in relevant part that [u]nless and to the extent that the decree precludes modification . . . any final order for the periodic payment of permanent alimony . . . may at any time thereafter be continued, set aside, altered or modified by said court upon a showing of a substantial change in the circumstances of either party. . . . This statute clearly permits a trial court to make periodic awards of alimony nonmodifiable.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Marshall v. Marshall, 119 Conn. App. 120, 128-29, 988 A.2d 314, cert. granted on other grounds, 296 Conn. 908, 993 A.2d 467 (2010).

The plaintiff first challenges the court’s alimony award by claiming that the court “prohibited the plaintiff from seeking modification of alimony in the event that the defendant cohabits with Paul Peggie, her relative, during the next three years . . . .” During the trial, there had been testimony that the defendant began a romantic relationship with Peggie, a longtime friend and distant relative, in November, 2009. The court referenced this testimony at page seventeen of its forty-five page decision. The court’s alimony award, including the circumstances under which it was nonmodifiable, was set forth at pages thirty-two and thirty-three of its decision. In the alimony section of the opinion, the court stated that “[a]limony shall terminate on the earliest of the following: (i) the death of either party; (ii) the remarriage of the defendant; (iii) nine years from the date of dissolution; or (iv) the defendant’s cohabitation with an unrelated person pursuant to ... § 46b-86 (b).” The plaintiff claims that, by this language, the court has prohibited modification if the defendant cohabits with Peggie during the next three years.

The court did not preclude the plaintiff from seeking a modification of alimony if the defendant cohabits with Peggie. The subject provision pertains to the automatic termination of alimony under certain circumstances. Furthermore, the court expressly referred to § 46b-86 (b) in the cohabitation clause of its orders. This referenced statute provides in relevant part that the court “may, in its discretion . . . modify such judgment . . . upon a showing that the party receiving the periodic alimony is living with another person under circumstances” that should result in a modification. (Emphasis added.) General Statutes § 46b-86 (b). The fact that Peggie is a distant relative, as the court mentioned earlier in the opinion, does not mean that the court considered him to be a related person for purposes of the alimony portion of the court’s order, particularly in light of the fact that the court conditioned its applicability on § 46b-86 (b).

With respect to the safe harbor provisions regarding the defendant’s future income, the plaintiffs argument is simply a general pronouncement that “the overall public policy . . . favors modification.” As previously discussed, however, the statute expressly authorizes a trial court to preclude the modification of periodic alimony awards, and the court’s factual findings in this case, as detailed earlier in this opinion, support the limitations placed on future modification of the court’s award. Accordingly, the court did not abuse its broad discretion in limiting the circumstances under which the plaintiff could seek modification of his alimony obligation.

IV

The plaintiffs final claim is that the court improperly ordered the parties to file a joint tax return for the 2011 tax year. He argues that Kane v. Parry, 24 Conn. App. 307, 316, 588 A.2d 227 (1991), precludes such an order, and he requests a new hearing on all of the financial orders claiming “a break in the carefully crafted mosaic.” While we agree that the court did not have the authority to order the filing of a joint tax return in the absence of the parties’ agreement, we disagree that reversal of that portion of the judgment necessitates a new hearing and determination regarding all of the financial orders of the judgment of dissolution.

“A trial court has the authority to order a party to file a joint federal personal income tax return if there was a prior agreement between the parties to do so. ... In the absence of such an agreement, the trial court cannot order the plaintiff to file joint federal personal income tax returns.” (Citation omitted.) Kane v. Parry, supra, 24 Conn. App. 315-16. In the present case, the record does not show an agreement to file a joint tax return for the 2011 tax year. Accordingly, that order was improper.

The trial court acknowledged that its memorandum of decision failed to include language regarding the prerequisite agreement of the parties before it could issue such an order. The court informed the parties that the omission was unintentional, and the court offered to clarify and correct its order if the parties would so stipulate. The record does not disclose a stipulation regarding the subject tax return. Accordingly, that portion of the judgment requiring the parties to file a joint tax return for the 2011 tax year must be reversed.

Contrary to the plaintiffs argument, however, it is not necessary for us to remand the case for a new hearing on all of the financial orders because we conclude that reversal of that portion of the judgment ordering the filing of a joint tax return will not impact the “carefully crafted mosaic” of the financial awards. See Morrone v. Morrone, 142 Conn. App. 345, 348, 64 A.3d 803 (2013). This is particularly evident in light of the court’s remarks at the September 26, 2012 hearing on the defendant’s motion for rectification and motion for articulation. At that time, the court stated: “[T]he court acknowledges that the wording was not as artful as I would have wanted and in hindsight sort of properly reflected and did not properly reflect that the parties would need to agree to sign a joint tax return. I do argue that as a discreet issue, I don’t think that it’s of such a magnitude to implicate the mosaic that was crafted . . . .” Thus, we agree with the plaintiff that the court could not impose such an order in the absence of the parties’ agreement to file jointly, but we disagree that the reversal of that order requires a new hearing and determination of all of the court’s financial orders.

The judgment is reversed only as to the order requiring the parties to file a joint federal tax return for the 2011 tax year and the case is remanded for further proceedings consistent with this opinion with respect to that issue only. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       At the time of oral argument before this court, counsel for the plaintiff acknowledged that the older son had reached the age of majority.

       The parties had agreed that the older son’s primary residence would be with the defendant in Ontario, Canada.

       The plaintiff filed a motion for an. extension of time to file an appeal that was granted by the court on January 25, 2012.

         General Statutes § 46b-56 (b) provides in relevant part: “In making or modifying any order [re: custody, care, education, visitation and support of children], the rights and responsibilities of both parents shall be considered and the court shall enter orders accordingly that serve the best interests of the child and provide the child with the active and consistent involvement of both parents commensurate with their abilities and interests. . .

       In his appellate brief, the plaintiff also claims that the court improperly (1) failed to examine the actual needs of the children when it determined the child support award under the child support guidelines, (2) applied a shared parenting deviation rather than a split custody formula under the child support guidelines, (3) calculated the arrearage for child support, and (4) ordered him to pay a percentage of expenses for the children’s camps and extracurricular activities. We carefully have reviewed these claims and conclude that they are without merit.

       “The guidelines are defined as the rules, principles, schedule and worksheet established under [the applicable sections] of the Regulations of Connecticut State Agencies for the determination of an appropriate child support award . . . (Internal quotation marks omitted.) Maturo v. Maturo, 296 Conn. 80, 91, 995 A.2d 1 (2010).

       General Statutes § 46b-86 (b) provides: “In an action for divorce, dissolution of marriage, legal separation or annulment brought by a husband or wife, in which a final judgment has been entered providing for the payment of periodic alimony by one party to the other, the Superior Court may, in its discretion and upon notice and hearing, modify such judgment and suspend, reduce or terminate the payment of periodic alimony upon a showing that the party receiving the periodic alimony is living with another person under circumstances which the court finds should result in the modification, suspension, reduction or termination of alimony because the living arrangements cause such a change of circumstances as to alter the financial needs of that party.”

       At the time of oral argument before this court, counsel for the defendant stated that he believed the subject language in the court’s memorandum of decision would not preclude the plaintiff from filing a motion for modification of alimony if the defendant cohabited with Peggie.


source: Caselaw Access Project

author: MIHALAKOS, J.

license: Public Domain

text:
    WILLIAM THOMAS ET AL. v. BRUNO PRIMUS
    (AC 35985)
    DiPentima, C. J., and Lavine and Mihalakos, Js.

      Argued November 22, 2013
    officially released February 4, 2014

      David S. Rintoul, for the appellants (plaintiffs).

      Benjamin Ancona, Jr., for the appellee (defendant).
   Opinion

MIHALAKOS, J.

The plaintiffs, William Thomas, Craig B. Thomas and Andrea Thomas Jabs, appeal from the trial court’s declaratory judgment granting an easement by necessity and implication in favor of the defendant, Bruno Primus. On appeal, the plaintiffs claim that the court erred in finding an easement by necessity. The plaintiffs also claim that the defendant’s claim for an easement should have been barred by the defense of laches. We affirm the judgment of the trial court.

The following facts, as found by the court, are relevant to this appeal. The plaintiffs own property located at 460 Camp Street in Plainville. The defendant owns one and one-quarter acres of undeveloped land abutting the eastern boundary of the plaintiffs’ property. The dispute at issue here concerns the northernmost portion of the plaintiffs’ property, a twenty-five feet wide by three hundred feet long strip of land known as the “passway,” which stretches from the public road on the western boundary of the plaintiffs’ property to the defendant’s property to the east.

Both the plaintiffs’ and the defendant’s properties originally were part of a single lot owned by Martha Thomas, the grandmother of the plaintiffs. In 1959, Martha Thomas conveyed the one and one-quarter acres of landlocked property, currently owned by the defendant, to Arthur Primus, the defendant’s brother. At the conveyance, which the defendant attended, Martha Thomas and Arthur Primus agreed that access to the landlocked property would be through the passway, which until that time had been used by Martha Thomas to access the eastern portions of her property. In 1969, the defendant took possession of the land. In 2002, the plaintiffs took possession of the western portion of Martha Thomas’ property, including the passway.

In 2008, the plaintiffs decided to sell their property. When the defendant learned of their intention, he sent a letter to the plaintiffs asserting his right to use the passway to access his land. In 2009, the plaintiffs signed a contract to sell their property, but the prospective purchasers cancelled the contract when they learned of the defendant’s claimed right to use the passway. The plaintiffs then brought the action to quiet title that is the subject of this appeal, seeking, among other things, a declaratory judgment that the defendant had no legal interest in the property. The defendant brought a counterclaim asking the court to establish his right to use the passway uninterrupted by the plaintiffs. In response to the defendant’s counterclaim, the plaintiffs asserted the special defense of laches.

A trial was held on June 5 and 6, 2012. On August 31, 2012, the court issued its decision, finding in favor of the defendant on the plaintiffs’ complaint and on his counterclaim, and concluding that the defendant had an easement by necessity and an easement by implication over the passway. Specifically, the court found an easement by necessity was created when Martha Thomas conveyed a landlocked parcel to Arthur Primus, as it was absolutely necessary in order to access the property. The court rejected the plaintiffs’ special defense of laches. On September 20, 2012, the plaintiffs filed a motion to reargue, which subsequently was denied. This appeal followed. Additional facts will be set forth as necessary.

I

EASEMENT BY NECESSITY

On appeal, the plaintiffs claim that the court erred in finding an easement by necessity because (1) the defendant’s predecessor in title had the right to buy reasonable alternative access to the street, (2) the defendant failed to present full title searches of all adjoining properties, and (3) Martha Thomas and Arthur Primus did not intend for an easement to exist.

The plaintiffs’ claims present questions concerning the court’s application of the law of easements by necessity, over which our review is plenary. See Christensen v. Reed, 105 Conn. App. 578, 583, 941 A.2d 333 (whether court properly construed burden of party seeking easement by necessity is question of law over which review is plenary), cert. denied, 286 Conn. 912, 944 A.2d 982 (2008); see also Montanaro v. Aspetuck Land Trust, Inc., 137 Conn. App. 1, 27, 48 A.3d 107 (whether alternative access precludes finding of easement by necessity is question of law over which review is plenary), cert. denied, 307 Conn. 932, 56 A.3d 715 (2012). Nonetheless, “[t]he court’s factual findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole .... We cannot retry the facts or pass on the credibility of the witnesses. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Christensen v. Reed, supra, 583.

Originating in the common law, easements by necessity are premised on the conception that “the law will not presume, that it was the intention of the parties, that one should convey land to the other, in such manner that the grantee could derive no benefit from the conveyance . . . .” Collins v. Prentice, 15 Conn. 39, 44 (1842). An easement by necessity is “imposed where a conveyance by the grantor leaves the grantee with a parcel inaccessible save over the lands of the grantor . . . .” Hollywyle Assn., Inc. v. Hollister, 164 Conn. 389, 398, 324 A.2d 247 (1973). The party seeking an easement by necessity has the burden of showing that the easement is reasonably necessary for the use and enjoyment of the party’s property. Schultz v. Barker, 15 Conn. App. 696, 702, 546 A.2d 324 (1988).

A

First, the plaintiffs claim that an easement by necessity does not exist because the defendant’s predecessor in title had the right to buy reasonable alternative access to the street. We disagree.

In considering whether an easement by necessity exists, “the law may be satisfied with less than the absolute need of the party claiming the right of way. The necessity need only be a reasonable one.” Hollywyle Assn., Inc. v. Hollister, supra, 164 Conn. 399.

In this case, the plaintiffs presented evidence at trial that, at the time he purchased the property from Martha Thomas in 1959, Arthur Primus maintained bonds for deed that allowed him to purchase access to Camp Street through a different piece of property for $900. Although he did not exercise this right, the plaintiffs contend that the fact that Arthur Primus held this option establishes that the defendant’s use of the passway is not reasonably necessary.

The plaintiffs correctly note that the ability of a party to create alternative access through his or her own property at a reasonable cost can preclude the finding of reasonable necessity required to establish an easement by necessity. See Marshall v. Martin, 107 Conn. 32, 38, 139 A. 348 (1927) (“the test of necessity is whether the party claiming the right can at reasonable cost, on his own estate, and without trespassing on his neighbors, create a substitute”). Nonetheless, we are aware of nothing in our case law that suggests that a party is required to purchase additional property in order to create alternative access, even at a reasonable price.

Furthermore, easements by necessity need not be created at the time of conveyance. See D’Addario v. Truskoski, 57 Conn. App. 236, 247, 749 A.2d 38 (recognizing easement by necessity created by state taking and natural disaster), cert. denied, 253 Conn. 918, 755 A.2d 214 (2000); see also Pender v. Matranga, 58 Conn. App. 19, 26, 752 A.2d 77 (2000) (“[a]n easement of necessity may occur when a parcel has become landlocked from outside access such that the owner would have no reasonable means of ingress or egress except over lands promised by another and a right-of-way is necessary for the enjoyment of the parcel”). Even if we were to assume, arguendo, that Arthur Primus’ bonds for deed made use of the passway unnecessary at the time he owned the property, those bonds for deed expired in 1962, several years before the defendant owned the property, and provide no reasonable alternative access today. Thus, we see no reason to disturb the court’s finding that use of the passway is currently necessary for the use and enjoyment of the defendant’s property.

B

Next, the plaintiffs claim that the court improperly found an easement by necessity because the defendant failed to present full title searches of all adjoining properties. We are not persuaded.

In this case, the court found that the defendant met his evidentiary burden. See Schultz v. Barker, supra, 15 Conn. App. 702. Although the defendant did not provide evidence of title searches for all adjacent properties, the court was presented with maps and deeds of the property at issue and testimony to the effect that the defendant’s property was landlocked. This, coupled with the evidence that the passway traditionally had been used to provide access, was sufficient to support the court’s finding that the easement was reasonably necessary.

The plaintiffs argue that this court’s holding in Christensen v. Reed, supra, 105 Conn. App. 578, imposes an obligation on any party seeking an easement by necessity to perform title searches on all adjacent properties and to present those title searches to the court in order to satisfy the burden of showing reasonable necessity. We decline to subscribe to such a broad interpretation of Christensen. In that case, the party defending against the claimed easement by necessity specifically argued that there was alternative access through property owned by a third party, and the trial court found that the party seeking the easement had made use of that property for access on several occasions. Id., 584-87. The trial court concluded that, under those circumstances, a title search of that property and other adjacent properties was necessary to show that the purported easement was truly the sole means of access, as the party seeking the easement had claimed. Id., 586-87. On appeal, this court deemed that determination to be proper. Id., 587. In the present case, however, the plaintiffs did not argue at trial that the defendant had access through an alternate property, nor did they present any evidence that the defendant had used alternate access in the past. Thus, the court here acted properly in relying upon the maps, documents, and testimony before it as sufficient evidence to establish the reasonable necessity of the easement.

C

Finally, the plaintiffs argue that an easement by necessity does not exist because Martha Thomas and Arthur Primus did not intend for the easement to exist. We disagree.

The seminal case in this state on easements by necessity recognized that “the law will not presume, that it was the intention of the parties, that one should convey land to the other, in such manner that the grantee could derive no benefit from the conveyance .... The law, under such circumstances, will give effect to the grant according to the presumed intent of the parties. ” Collins v. Prentice, supra, 15 Conn. 44. This rationale does not, as the plaintiffs suggest, establish intent as an element of an easement by necessity. Instead, “[t]he presumption as to the intent of the parties is a fiction of law . . . and merely disguises the public policy that no land should be left inaccessible or incapable of being put to profitable use.” (Citation omitted.) Hollywyle Assn., Inc. v. Hollister, supra, 164 Conn. 400. Thus, absent an explicit agreement by the grantor and grantee that an easement does not exist, a court need not consider intent in establishing an easement by necessity. See O’Brien v. Coburn, 46 Conn. App. 620, 633, 700 A.2d 81 (holding that “the intention of the parties [was] irrelevant” in case establishing easement by necessity), cert. denied, 243 Conn. 938, 702 A.2d 644 (1997).

In this case, the court found that the defendant’s property was landlocked and that access over the pass-way was reasonably necessary for the use and enjoyment of the defendant’s property. Therefore, the court found an easement by necessity to exist over the pass-way. This conclusion was supported by the record and there is no legal deficiency in the court’s analysis.

II

LACHES

The plaintiffs also claim that the trial court incorrectly concluded that the defendant’s claims for an easement were not barred by the defense of laches.

Whether the defense of laches applies is “[a] conclusion ... of fact for the trier and not one that can be made by this court, unless the subordinate facts found make such a conclusion inevitable as a matter of law. . . . We must defer to the court’s findings of fact unless they are clearly erroneous. . . .

“The defense of laches, if proven, bars a [party] from seeking equitable relief .... First, there must have been a delay that was inexcusable, and, second, that delay must have prejudiced the [opposing party]. . . . The burden is on the party alleging laches to establish that defense. . . . The mere lapse of time does not constitute laches . . . unless it results in prejudice to the [opposing party] ... as where, for example, the [opposing party] is led to change his position with respect to the matter in question.” (Citations omitted; internal quotation marks omitted.) Caminis v. Troy, 112 Conn. App. 546, 552, 963 A.2d 701 (2009), aff'd, 300 Conn. 297, 12 A.3d 984 (2011).

In this case, the defendant did not assert a right to an easement over the passway until 2008, decades after he took an interest in the property. Nonetheless, the trial court found that this delay was not inexcusable, as the defendant “had not yet decided what to do with his easement but took action when he learned that . . . the sale of the [plaintiffs’ property] would cut off access to his property.”

The plaintiffs contend that, as a matter of law, any claim based on a nonrecord interest in property should be barred by laches in cases where that interest would have been extinguished by the Marketable Title Act if the interest had been duly recorded. The plaintiffs’ brief contains no case law or other authority in support of this contention. “We repeatedly have stated that [w]e are not required to review issues that have been improperly presented to this court through an inadequate brief. . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly. . . . Where a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without substantive discussion or citation of authorities, it is deemed to be abandoned.” (Internal quotation marks omitted.) Baranowski v. Safeco Ins. Co. of America, 119 Conn. App. 85, 89 n.4, 986 A.2d 334 (2010). Accordingly, we decline to consider this argument.

We are left to review the court’s factual finding that the defendant’s delay in asserting his right to an easement over the passway was not inexcusable. This finding is supported in the record by the defendant’s testimony that he had no reason to assert his right until the looming sale jeopardized his access to his property. As such, there is no cause to disturb the court’s conclusion that the defendant’s claim is not barred by the defense of laches.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiffs also claim that the court erred in finding an easement by implication. Because we conclude that the court properly found an easement by necessity, we need not consider this claim.

       The plaintiffs’ sole authority in support of their position; Griffeth v. Eid, 573 N.W.2d 829 (N.D. 1998); is distinguishable from the case before us. In that case, the North Dakota Supreme Court upheld a trial court’s ruling that a party seeking an easement by necessity had not met his burden of establishing reasonable necessity because potential alternate access existed, including the possibility of purchasing an easement over another abutting property, and the party had not provided evidence that he had pursued these options and found them unavailing. Id., 834. In this case, there is no evidence in the record that the defendant had the opportunity to purchase alternate access.

       See General Statutes § 47-33b et seq.


text:
    PATRICK A. TREGLIA v. SANTA FUEL, INC.
    (AC 34343)
    Beach, Alvord and Bear, Js.
    Argued October 30, 2013
    officially released February 4, 2014

      Ridgely Whitmore Brown, for the appellant (plaintiff).

      Joel Z. Green, with whom, on the brief, was Linda Pesce Laske, for the appellee (defendant).
   Opinion

ALVORD, J.

The plaintiff, Patrick A. Treglia, appeals from the judgment of the trial court rendered in favor of the defendant, Santa Fuel, Inc. On appeal, the plaintiff claims that “the trial court’s factual findings [are] clearly erroneous in view of the evidence and pleadings in the whole record.” He contends that these erroneous factual findings led the court improperly to render judgment in favor of the defendant. We affirm in part and reverse in part the judgment of the trial court.

The following relevant facts are not in dispute. In early November, 2007, the plaintiff contacted the defendant regarding possible delivery of home heating oil to his residence. The plaintiff also submitted a credit application. On November 2, 2007, the defendant approved the plaintiffs credit application and set up the plaintiffs account, orally agreeing to a “cap price plan” of $2,789 per gallon. The defendant then mailed the plaintiff a written contract for automatic deliveries of oil at the agreed upon cap price of $2,789 per gallon. On November 5, 2007, the defendant delivered 619.9 gallons of oil to the plaintiffs residence. Some time later, the plaintiff received a copy of the contract from the defendant with the $2,789 per gallon cap price. The contract stated it “must be signed and returned to [the defendant’s] office on or before 11/06/07 to qualify for these offers.” The plaintiff signed the contract and returned it to the defendant in an envelope that was postmarked November 20, 2007.

Shortly thereafter, the plaintiff received another envelope from the defendant, postmarked November 23, 2007. Contained within was another 2007 through 2008 pricing options contract now listing a $2,979 cap price per gallon. Attached to the contract was a “sticky” note informing the plaintiff that “[the defendant] cannot accept the old price agreement—it was due back on 11/6/07. Please sign both sides of this agreement.” (Emphasis omitted.)

Upon receipt of the new contract, the plaintiff contacted the defendant. The defendant informed the plaintiff that he could pay a rate of $2,789 for the oil delivered, but that future deliveries would be at the new rate of $2,979. The plaintiff signed the new contract and faxed it to the defendant on November 27, 2007. In December, 2007, the plaintiff received a past due notice from the defendant for $1847.28. The plaintiff paid $1728.90 and included a letter, dated December 29, 2007, reminding the defendant that its employee “told [the plaintiff] that she would honor the quoted price” and that the defendant should “contact her to clear up this matter.” The plaintiff also wrote that he has a total capacity of 660 gallons with a new high efficiency furnace, and he has “not use[d] one quarter of that thus fax,” therefore he “won’t need a delivery for some time” and that should be included in the defendant’s future delivery calculations. On January 4, 2008, the defendant delivered 203 gallons of oil to the plaintiff, and on February 29; 2008, the defendant delivered another 196.6 gallons to the plaintiff, billing the plaintiff at a higher rate of $2,979 per gallon for both deliveries. The plaintiff did not make payment for either of these deliveries.

The plaintiff commenced an action against the defendant in small claims court. On April 29, 2009, the defendant moved to transfer the action to the regular docket to assert a counterclaim, setoff, and special defense. In the plaintiffs revised, three count complaint, he alleged that the defendant (1) did not charge him the agreed upon price for the first delivery of oil, and therefore he “[c]laims as damages the difference between the price that [he] originally agreed to pay and the price that [the defendant] charged [him]”; (2) furnished the plaintiff with more home heating oil than he required; and (3) “damage[ed] [the plaintiff s] credit history” and violated “CUTPA [the Connecticut Unfair Trade Practices Act] for its unfair trade practices,” and therefore he is entitled to collect attorney’s fees. The defendant, in its answer, asserted two special defenses: (1) “there has been an accord and satisfaction with respect to the dispute between the parties regarding the per gallon price of home heating oil”; and (2) “[p]ursuant to the revised agreement between the parties, the plaintiff agreed to accept deliveries of home heating oil by automatic delivery from the defendant,” and “[a]t no time did the plaintiff ever notify the defendant to stop delivering home heating oil to his home.” By way of setoff and counterclaim, the defendant claimed (1) a balance due and owing on account of the oil sold and delivered to the plaintiff subsequent to November 27, 2007, and (2) that the plaintiff had been unjustly enriched to the detriment of the defendant. In its prayer for relief, the defendant claimed damages, attorney’s fees, interest, and costs.

On December 8, 2011, the matter was tried to the court. In the court’s order dated December 12, 2011, it found “for the defendant on the revised complaint and . . . for the defendant on the counterclaim . . . .” Thereafter, on January 23, 2011, the court issued a supplemental order awarding damages, interest, and reasonable attorney’s fees to the defendant on the counterclaim “in the amount of $1448.81, principal balance; $1016.71 interest; and $478.11 attorney’s fees, for a total judgment of $2943.63. Postjudgment interest shall accrue at 6 percent until further order from the court.” On February 10, 2012, the plaintiff filed this appeal.

I

The plaintiff claims that the trial court’s factual findings regarding the applicable contract and the agreed upon price are clearly erroneous in view of the evidence and pleadings in the whole record. We disagree.

In reviewing the court’s factual findings, we apply the clearly erroneous standard of review. Petrucelli v. Travelers Property Casualty Ins. Co., 146 Conn. App. 631, 638, 79 A.3d 895 (2013). “A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. ... In making this determination, every reasonable presumption must be given in favor of the trial court’s ruling.” (Internal quotation marks omitted.) Bailey v. Lanou, 138 Conn. App. 661, 667, 54 A.3d 198 (2012).

A

Count one of the plaintiffs revised complaint sounds in breach of contract and alleges that the defendant did not charge the plaintiff the agreed upon price for the first delivery of oil. It is not disputed that the defendant agreed to accept payment at the lower rate of $2,789 per gallon for the first delivery of 619.9 gallons; the defendant states in its special defense that “[i]n November of 2007, the plaintiff and the defendant entered into an agreement pursuant to which the plaintiff agreed to pay and the defendant agreed to accept a reduced price of $2,789 for the home heating oil that had previously been delivered to the plaintiff with the express understanding that the plaintiff would pay to the defendant a price of $2,979 per gallon for future deliveries of home heating oil by the defendant to the plaintiff.” It also is not in dispute that the plaintiff paid the defendant $1728.90, which was credited against his account. The evidence before the court, however, reveals that despite the plaintiff making payment for the fust delivery in full at the lower rate, the defendant continued to bill the plaintiff for an outstanding principal balance of $118.38 on the first delivery. Furthermore, an employee of the defendant admitted at trial that “all three deliveries were priced at [$] 2.979 [per gallon].” The pleadings and the record make clear that the parties agreed to the lower price of $2,789 per gallon for the first delivery of 619.9 gallons of heating oil, that the defendant did not charge the plaintiff this lower price, and that the defendant continuously attempted to recover more than the agreed upon lower price from the plaintiff.

Nonetheless, the fact that the defendant charged the plaintiff at rate higher than the contract rate does not render the court’s finding that the plaintiff “must pay for the oil he purchased at the agreed [upon] price” clearly erroneous, nor does it impact the court’s judgment in favor of the defendant on this count because the plaintiff is not entitled to damages. “The elements of a breach of contract action are the formation of an agreement, performance by one party, breach of the agreement by the other party and damages.” (Internal quotation marks omitted.) Ibar v. Stratek Plastic Ltd., 145 Conn. App. 401, 410, 76 A.3d 202 (2013). “The general rule in breach of contract cases is that the award of damages is designed to place the injured party, so far as can be done by money, in the same position as that which he would have been in had the contract been performed.” (Internal quotation marks omitted.) RBC Nice Bearings, Inc. v. SKF USA, Inc., 146 Conn. App. 288, 312, 78 A.3d 195 (2013). The plaintiff claimed as damages the difference between the price that he agreed to pay and the amount charged by the defendant. It is not in dispute that the plaintiff paid the defendant $1728.90 for the first delivery of 619.9 gallons, and that this is the agreed upon price. It is also not in dispute that the plaintiff did not make any subsequent payments to the defendant. The plaintiff is therefore not entitled to damages on this count because he has not been injured; he never paid the defendants in excess of the contract rate of $2,789 per gallon, and he is in the same position as he would have been had the contract been performed. Accordingly, we affirm the judgment of the trial court as to count one of the plaintiffs revised complaint.

B

Count two of the plaintiffs revised complaint alleges that the defendant furnished the plaintiff with more home heating oil than he required. It is not in dispute that the plaintiff signed the contract at the higher rate, and that he was informed that all subsequent deliveries would be governed by that rate. The terms of the contract make clear that the “[cjustomer agrees that [the defendant] is the sole supplier of heating oil and agrees to accept deliveries by automatic delivery from [the defendant].” (Emphasis added.) On the basis of the record, we conclude that it was not clearly erroneous for the trial court to find that the plaintiff “must pay for the oil he purchased at the agreed [upon] price” because “the plaintiff signed up for automatic delivery and, while he wrote the defendant on December 29, 2007, that ‘I won’t need a delivery for some time,’ he did not specify what amount of time was ‘some time,’ never terminated his contract for automatic delivery and never told the defendant not to deliver fuel.” (Emphasis added.) Accordingly, the findings related to count two of the plaintiffs revised complaint were not clearly erroneous.

C

Count three of the plaintiffs revised complaint alleges that the defendant violated CUTPA. The plaintiff has provided no analysis or legal authority to support a challenge to the court’s finding on this count. It is well established that “[w]e are not required to review claims that are inadequately briefed. . . . We consistently have held that [a]nalysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly. . . . [F]or this court judiciously and efficiently to consider claims of error raised on appeal . . . the parties must clearly and fully set forth their arguments in their briefs. . . . [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.” (Internal quotation marks omitted.) Russell v. Russell, 91 Conn. App. 619, 634-35, 882 A.2d 98, cert. denied, 276 Conn. 924, 925, 888 A.2d 92 (2005). Accordingly, we decline to reach this claim.

II

In its counterclaim, the defendant claimed “a balance due and owing” on account of the home heating oil sold and delivered to the plaintiff “[subsequent to November 27, 2007,” together with interest, attorney’s fees, and costs. The defendant also claimed that the plaintiff had been unjustly enriched to the detriment of the defendant. The court awarded the defendant principal balance, interest, and attorney’s fees. The plaintiff asserts that the amount awarded was clearly erroneous and “was not the subject of any computation or reconciliation.” “The determination of damages involves a question of fact that will not be overturned unless it is clearly erroneous.” (Internal quotation marks omitted.) Ed Lally & Associates, Inc. v. DSBNC, LLC, 145 Conn. App. 718, 733, 78 A.3d 148 (2013). Our review of the record reveals that the court’s calculation of damages is clearly erroneous. Accordingly, we reverse the court’s judgment as to the counterclaim and remand the case for a new hearing regarding the proper amount of damages.

The judgment on the defendant’s counterclaim is reversed and the case is remanded for a new hearing regarding the proper amount of damages thereon; the judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       According to the defendant’s 2007 through 2008 pricing options, “[t]he ‘[c]ap’ is the maximum price per gallon [a customer] mil pay through May 31, 2008. If [the defendant’s] [d]aily [pjosted [p]rice falls below [the] [c]ap on the day of delivery, [the customer] pay[s] the lower price per gallon. Requires automatic delivery.”

       There is significant debate as to when the plaintiff received the contract in the mail. The postage meter date on the envelope is November 5, 2007. The plaintiff claims that he received the envelope several days later than that date, due to the incorrect zip code in the address.

       The defendant’s mail stamp indicates that it received this contract on November 21, 2007.

       The defendant initially charged the plaintiff at a rate of $3,209 per gallon for the first delivery, which it claimed was the retail price of the day on November 5, 2007, for a total of $1989.88. We note, however, that the ticket that the defendant’s delivery driver gave to the plaintiff upon delivery of the oil states “today’s price” as $3,159, which an employee of the defendant testified at trial “was the retail price for customers that weren’t on any plans as of that date.” The defendant subsequently credited the $1989.88 total by $142.60, which is the source of the $1847.28 bill. Based upon this adjusted price, the defendant charged the plaintiff an adjusted rate of $2.9799 per gallon for the first delivery.

       This amount represents the original per gallon price of $2,789 for the 619.9 gallons delivered.

       The principal balance of the second delivery was $604.94, and it was $582.89 for the third delivery.

       “It is bedrock law that an admission in an answer to an allegation in a complaint is binding as a judicial admission. . . . A judicial admission dispenses with the production of evidence by the opposing party as to the fact admitted, and is conclusive upon the party making it.” (Citations omitted; internal quotation marks omitted.) Hartford v. McKeever, 139 Conn. App. 277, 304, 55 A.3d 787 (2012), cert. granted on other grounds, 307 Conn. 956, 59 A.3d 1191 (2013).

       See footnote 5 of this opinion.

       The only credit by the defendant on the plaintiffs account for this first delivery is $142.60, which brought the amount listed by the defendant as remaining due to $1847.28. As we previously have established, based upon this adjusted price, the rate per gallon was $2.9799, which was higher than then $2,979 rate of the second contract.

       In Ms complaint, the plaintiff states that he “called and spoke to [the defendant’s employee] and explained the situation, and she told me to pay the $2,789 for the oil that was delivered, but that I would have to pay the Mgher price for future deliveries. I signed the new contract and faxed it in on December 27,2007.” It is well settled that “[factual allegations contained in pleadings upon wMch the case is tried are considered judicial admissions and hence irrefutable as long as they remain in the case.” (Internal quotation marks omitted.) New London County Mutual Ins. Co. v. Bialobrodec, 137 Conn. App. 474, 481, 48 A.3d 742 (2012).

       There is some debate over whether the plaintiff checked off any of the contract’s price plan options: the original contract, wMch the plaintiff faxed to the defendant, did not have any of the options checked, but the fax receipt provided by the defendant shows a check mark by the cap price plan option. Nevertheless, all three price plan options required automatic deliveries.

       See General Statutes § 42-110a et seq.

       The court awarded damages to the defendant in the amount of $1448.81 for the principal balance, which was the amount that the defendant orally claimed at the January 23, 2011 hearing as being due and owing as of February 29, 2008. Although neither the court nor the defendant provided a basis for their calculation of this amount, the record reveals that it is the full amount of the first delivery of 619.9 gallons at the erroneous rate of $3,209 per gallon, plus the amounts of the second and third deliveries at the higher contract rate of $2,979 per gallon, minus the plaintiff’s payment of $1728.90. The mathematics of this calculation is as follows: $1989.88 + $604.94 + $682.89 - $1728.90 = $1448.81. As we have previously established, the defendant applied a credit of $142.60 against the first delivery, and ultimately agreed to accept the lower rate of $2,789 per gallon for the first delivery of 619.9 gallons. Neither modification to the plaintiff’s bill is correctly captured in the court’s calculation of the principal balance. Accordingly, the calculation of the principal balance is clearly erroneous, as are the interest charges and attorney’s fees that result therefrom.


author: BORDEN, J.

text:
    STATE OF CONNECTICUT v. LUIS NEFTALI FLORES
    (AC 34703)
    Lavine, Robinson and Borden, Js.

      Argued October 15, 2013
    officially released February 4, 2014

      Katharine S. Goodbody, assigned counsel, for the appellant (defendant).

      Rocco A. Chiarenza, assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, and Chris Pelosi, senior assistant state’s attorney, for the appellee (state).

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

   Opinion

BORDEN, J.

The defendant, Luis Neftali Flores, appeals from the judgment of the trial court denying his motion to correct an illegal sentence, filed pursuant to Practice Book § 43-22. The defendant claims that he is entitled to a new sentencing procedure because: (1) his sentence was based on inaccurate information; (2) his sentence was imposed in an illegal manner; and (3) it is appropriate in the present case to apply the aggregate package doctrine to his sentence. Because we conclude that the present case is controlled by this court’s decision in State v. Martin M., 143 Conn. App. 140, 141-50, 70 A.3d 135, cert. denied, 309 Conn. 919, 70 A.3d 41 (2013), we reject the defendant’s claims and, accordingly, affirm the judgment.

The self-represented defendant filed a motion to correct an illegal sentence. The court, Dewey, J., denied the motion. This appeal followed.

The following procedural history is pertinent to the present case. Pursuant to a jury trial, the defendant was convicted and sentenced on seven charges set forth in a long form information. The trial court, Hon. John F. Mulcahy, Jr., judge trial referee, imposed the following sentences: on count one, robbery in the first degree, sixteen years of incarceration; on count two, conspiracy to commit robbery in the first degree, sixteen years of incarceration; on count three, burglary in the second degree, ten years of incarceration; on count four, conspiracy to commit burglary in the second degree, ten years of incarceration; on count five, kidnapping in the first degree, sixteen years of incarceration; and on counts six and seven, larceny in the third degree, three years of incarceration on each count. The court ordered all of the sentences to run concurrently, for a total effective sentence of sixteen years of incarceration. Subsequently, the court vacated the sentence on count four and ordered that count merged with the conviction on count two, but did not change the total effective sentence of sixteen years of incarceration.

The facts of the case, as stated by the Supreme Court in the defendant’s direct appeal, are as follows: “At approximately 6 a.m. on August 13,2004, the defendant, together with Luis Vega and Jorge Marrero, entered the apartment of Madeline Garay on Zion Street in the city of Hartford. All three men were dressed in dark clothing and wearing ski masks. Garay knew Vega and Marrero from the neighborhood but did not socialize with them. The defendant and Garay, however, had known each other for many years, and Garay considered him to be a friend. After entering the apartment, the three men proceeded to the bedroom where Garay and her boyfriend, Carlos Ortiz, were sleeping. Garay’s two children were asleep in another bedroom. The defendant awakened Garay by tapping her on the shoulder with a gun and whispering, ‘[where’s] the money . . . ?’ Garay, fearing for her life, responded in a loud voice that there was no money. The defendant then passed the gun to one of his accomplices and attempted to cover Garay’s mouth with duct tape, but Garay immediately resisted. While the defendant was attempting to cover her mouth, Garay recognized the defendant’s voice and a distinctive roll of fat on the back of his neck. She called out his name to see if it was him, and the defendant immediately responded and told her, ‘don’t worry, we’re not going to hurt you.’ He then turned to Vega and Marrero and said: ‘Fuck it. She . . . know[s] who we are.’ Immediately thereafter, the defendant, Vega and Marrero removed their masks. Garay testified that, when the defendant told her that he was not going to hurt her, she believed him because he used to be the boyfriend of her best friend’s sister, and she had known him for many years.

“The defendant then proceeded to search the room for valuables. While he was doing so, one of his accomplices pointed the gun between Garay and Ortiz and appeared to pull the trigger, although no bullets discharged. At some point, Ortiz got up from the bed, hoping to escape through a window. When he attempted to lift the window shade, however, Vega asked him what he was doing. Vega then pointed the gun at Ortiz, demanded that he open his mouth, placed the gun inside his mouth, told him to ‘calm down’ and asked, ‘who’s the man?’ At the same time, Marrero came over and hit Ortiz on the head. Although Garay, who was on the bed the entire time, did not see Marrero hit Ortiz, she did see Vega put the gun inside Ortiz’ mouth, at which point she told everyone to whisper so as not to wake her children.

“The defendant, Vega and Marrero left the apartment as soon as they had finished searching the bedroom, taking with them Garay’s two sets of car keys, the keys to her apartment, her jewelry, and her cell phone. Once outside, the defendant, Vega and Marrero drove away in Garay’s two automobiles. The entire incident lasted between five and twenty minutes. Later that morning, when Garay called her cell phone, Marrero answered it and told her where she could find one of the vehicles. Marrero also told her that he, the defendant and Vega had had no intention of hurting her that morning and that what they had done ‘had nothing to do with [her].’ ” (Footnotes omitted.) State v. Flores, 301 Conn. 77, 80-82, 17 A.3d 1025 (2011).

The Supreme Court affirmed the judgment of conviction, except as to count five, kidnapping in the first degree. Id., 102. As to that count, the court, pursuant to its decisions in State v. Salamon, 287 Conn. 509, 949 A.2d 1092 (2008), and State v. DeJesus, 288 Conn. 418, 953 A.2d 45 (2008), held that the defendant was entitled to a new trial because the trial court failed to instruct the jury in accordance with Salamon that, in order to find the defendant guilty of kidnapping, it must find that the restraint or movement involved in the kidnapping was not merely incidental to one of the other crimes, and that this impropriety resulted in harmful error. State v. Flores, supra, 301 Conn. 82-89. Thereafter, the state nolled the kidnapping charge, and Judge Dewey dismissed the charge at the defendant’s request. These proceedings followed.

The defendant raises three closely related claims, namely, that his sentence was illegal and he must be resentenced because: (1) the trial court relied on inaccurate information; (2) even if the trial court did not rely on inaccurate information, his sentence was imposed in an illegal manner; and (3) it is appropriate to apply the aggregate package doctrine in resentencing the defendant. The first claim rests on the factual premise that Judge Mulcahy relied on the fact that the defendant hadbeen convicted of kidnapping at the time of sentencing, but that that conviction was subsequently vacated by the Supreme Court and the charge dismissed by Judge Dewey. The second claim rests on the legal premise that “a sentence imposed at a time when the defendant had been convicted of seven counts, was imposed in an illegal manner when the defendant subsequently stands convicted of only five counts.” The third claim, which flows from the first two, is that “the aggregate package theory dictates that the sentence in a multicount conviction be vacated and the defendant be resentenced after one or more counts of a multicount conviction are set aside.” We disagree.

In State v. Martin M., supra, 143 Conn. App. 140, the defendant moved to correct an illegal sentence pursuant to Practice Book § 43-22 on the ground that his sentence had been imposed in an illegal manner, in part because his kidnapping conviction was subsequently reversed on appeal. Id., 141-42. The trial court denied his motion, and this court affirmed the judgment. Id., 143-50. The facts and procedural history of Martin M. are strikingly similar to those in the present case.

In Martin M., the defendant was convicted of two counts of risk of injury to a child, one count of sexual assault in the first degree, and one count of kidnapping in the first degree. Id., 142. The court, Prescott, J., imposed sentence as follows: twenty years of incarceration for sexual assault in the first degree; twenty years of incarceration for kidnapping in the first degree; and ten years of incarceration for each count of risk of injury to a child. The terms of incarceration for the sexual assault and kidnapping were to be served concurrently with each other, and the terms for the two counts of risk of injury were to run concurrently with each other but consecutively to the terms for sexual assault and kidnapping, for a total effective sentence of thirty years imprisonment. Id.

On direct appeal, this court, on the basis of State v. DeJesus, supra, 288 Conn. 418, reversed the kidnapping conviction and ordered a new trial on that count. State v. Martin M., supra, 143 Conn. App. 142-43. After the remand, the state nolled the kidnapping charge, and the defendant in Martin M. subsequently moved to correct an illegal sentence, which the trial court, Damiani, J., denied. Id., 143.

In his subsequent appeal from the denial of his motion to correct an illegal sentence, the defendant in Martin M. raised three claims: (1) the sentence was imposed in an illegal manner because Judge Prescott had relied on inaccurate information in imposing the sentence, namely, the conviction of kidnapping that was subsequently reversed; (2) State v. Raucci, 21 Conn. App. 557, 563, 575 A.2d 234, cert. denied, 215 Conn. 817, 576 A.2d 546 (1990), required a resentencing hearing; and (3) the defendant was entitled to a new sentencing hearing pursuant to the aggregate package doctrine. State v. Martin M., supra, 143 Conn. App. 147-49. This court rejected each claim.

With respect to the defendant’s first claim in Martin M., this court concluded that “the record does not reflect that Judge Prescott relied on the reversed conviction of kidnapping when sentencing the defendant.” Id., 147. This court stated: “The sentence imposed for kidnapping was to be served concurrently with the sentence imposed for sexual assault, giving the sentence imposed for kidnapping essentially no punitive effect. After conducting a careful review of the sentencing hearing, it is clear that Judge Prescott focused on the sex offenses and considered the danger the defendant posed as a recidivist sex offender—the kidnapping conviction was incidental. . . . Judge Prescott mentioned the kidnapping count only in rote recitation and never discussed any of its particulars. . . . Aside from a brief colloquy discussing the relevant penalties in the presen-tence investigation report and a brief mention in the state’s summation, the arguments presented at the hearing did not involve the kidnapping conviction. Rather, the arguments concerned the sexual offenses; prior misconduct, including other sex offenses, domestic violence, burglary and violation of a protective order; and the effect of the assaults on the victim and the interests of the victim. The defendant has not shown that Judge Prescott relied on the kidnapping conviction in imposing sentence.” (Citations omitted.) Id., 147-48.

With respect to the reliance by the defendant in Martin M. on State v. Raucci, supra, 21 Conn. App. 557, as mandating a resentencing, this court distinguished Raucci on the ground that the sentence vacated therein was consecutive to the sentences imposed on all of the other counts. State v. Martin M., supra, 143 Conn. App. 149. In addition, in Raucci, the record showed that the sentencing court depended on the vacated conviction in arriving at the overall effective sentence. State v. Raucci, supra, 559. Thus, unlike Judge Prescott in Martin M., the court in Raucci did rely on the sentence imposed on the vacated conviction in imposing the total effective sentence. State v. Martin M., supra, 149.

Finally, this court in Martin M. rejected the defendant’s claim that the aggregate package doctrine entitled him to a new sentencing hearing for two reasons. First, “the doctrine concerns review of a revised sentence; it does not apply to the present appeal, which concerns whether an original sentence was imposed in an illegal manner.” (Emphasis in original.) Id. Second, the doctrine does not “[obviate] the requirement that there must be a showing of reliance on misinformation for a court to have jurisdiction to modify a sentence.” (Emphasis in original.) Id., 149-50.

With this background in mind, we now return to the defendant’s claims in the present case. The first claim is that, in sentencing the defendant, the court relied on the fact that he had been convicted of kidnapping, which conviction was subsequently reversed by the Supreme Court, and which count was subsequently dismissed by Judge Dewey. This claim fails for the same reason its counterpart failed in Martin M., namely, that it is clear from the record that Judge Mulcahy did not rely on the kidnapping conviction in imposing the original sentence.

All of the sentences imposed, including the sentence for kidnapping, ran concurrently, for an effective sentence of sixteen years of incarceration. That concurrent sixteen year sentence was equal to the sentences imposed for the conviction of robbery and conspiracy to commit robbery. There were no consecutive sentences imposed. In addition, in its sentencing remarks, the court referred to the purposes of sentencing, namely, the protection of society, deterrence, and punishment “for engaging in . . . felonious activity of a very serious nature.” Additionally, the court referred to the defendant’s extensive criminal record, and to the seriousness of the defendant’s conduct, namely, intruding in the early morning hours into a residence where two young children were sleeping, using duct tape on the victim and demanding money, and using a gun, all of which constituted “very, very serious, truly criminal conduct, posing a great risk to other persons . . . [and] a great danger ... to children.” Thus, the court concluded, “a significant sentence” was appropriate. As the state aptly points out, the court never even mentioned the kidnapping conviction in its sentencing remarks, except when referencing the conviction on the fifth count of the information.

In his second claim, the defendant asserts that his sentence was imposed in an illegal manner because it was imposed when he had been convicted of seven counts, whereas he now stands convicted of only five counts. In this respect, the defendant, like the defendant in Martin M., relies principally on Raucci. Again, this claim fails for the same reason that its counterpart in Martin M. failed, namely, that, unlike the situation in Raucci, the sentencing court did not rely on the kidnapping conviction that was subsequently reversed, and the court made clear in its sentencing remarks that it did not rely on that conviction in imposing its overall sentence of sixteen years imprisonment.

Finally, the defendant’s third claim, resting on the aggregate package doctrine, fails for the same reasons that a similar claim failed in Martin M. That doctrine does not apply to the present case, which involves whether an original sentence was imposed in an illegal manner—not a revised sentence as the doctrine requires; and there is nothing in that doctrine that obviates the requirement that there must be a showing of reliance on misinformation for a court to modify a sentence. We conclude, therefore, that Judge Dewey properly denied the defendant’s motion to correct an illegal sentence.

The judgment is affirmed.

In this opinion the other judges concurred.

       “The judicial authority may at any time correct an illegal sentence or other illegal disposition, or it may correct a sentence imposed in an illegal manner or any other disposition made in an illegal manner.” Practice Book § 43-22.


author: ROBINSON, J.

text:
    CAROL S. GORDON v. ALAN J. GORDON
    (AC 35274)
    Beach, Robinson and Flynn, Js.

      Argued December 2, 2013
    officially released February 4, 2014

      Anthony V. Zeolla, for the appellant (defendant).

      Irving H. Perlmutter, with whom, on the brief, was Andrew M. Ullman, for the appellee (plaintiff).

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

   Opinion

ROBINSON, J.

The defendant, Alan J. Gordon, appeals from the denial of his motion to open the court’s judgment dissolving his marriage to the plaintiff, Carol S. Gordon, which incorporated by reference the terms of a separation agreement entered into by the parties. The defendant claims that the court abused its discretion in denying his motion to open because its decision was based on erroneous findings that the separation agreement was fair and equitable, that neither the plaintiff nor her counsel had coerced the defendant into signing the separation agreement, and that no fraud was committed by the plaintiff with respect to errors in her financial affidavit. We conclude that the record is inadequate to review the defendant’s claim, and, thus, we affirm the judgment of the trial court.

The record reveals the following relevant facts and procedural history. The parties were married on May 28, 1989. In October, 2010, the plaintiff initiated the present action to dissolve the marriage. The defendant filed an answer and a cross complaint seeking dissolution of the marriage. Throughout the dissolution proceedings, both parties were represented by counsel.

On April 18,2011, the parties appeared in court having negotiated and executed a separation agreement. The court, after conducting under oath a thorough canvass of both parties regarding their understanding of the terms of the agreement, rendered a judgment of dissolution of marriage that incorporated by reference the separation agreement. Neither the defendant nor his counsel raised any issues at the hearing regarding the content, the making or the validity of the separation agreement.

On August 9, 2011, the defendant filed an appearance as a self-represented party along with a motion to open the judgment of dissolution. According to the defendant, he had signed the separation agreement “under duress and intimidation by the plaintiffs counsel.” In his motion, the defendant stated that he had been arrested prior to the filing of the divorce action for “questionable non-physical domestic circumstances.” The arrest resulted in the issuance of a protective order. The defendant claimed in his motion to open that “[d]uring settlement discussions, the plaintiffs counsel threatened to execute an arrest warrant against the defendant for violation of the protective order unless the defendant agreed to the terms of the settlement. The defendant’s counsel failed to apprise the defendant of improper act[s] of intimidation, duress, and coercion brought to the table by the plaintiffs counsel. The defendant’s counsel also failed to recognize or protect the defendant’s rights from the plaintiffs unethical conduct.” On September 22, 2011, following a hearing, the court issued an order denying the motion to open without comment. The defendant did not appeal from that decision.

On August 31, 2012, the defendant filed a second motion to open the dissolution judgment. The defendant argued in the second motion to open that the plaintiff had “omitted critical information and made fraudulent misrepresentations on her April 18, 2011 financial affidavit,” and that, as a result, it would have been impossible for the court to have divided fairly and equitably the marital assets. According to the motion, the asset that the plaintiff failed to disclose on her financial affidavit was a residence on Patton Road in North Haven allegedly valued at $350,000. The plaintiff filed an objection to the motion to open, arguing that the sole purpose of the motion was to “harass and vex the plaintiff.”

The court held a hearing on the second motion to open and other postjudgment motions on November 26, 2012. When counsel for the defendant tried to raise an allegation that the plaintiffs counsel had coerced the defendant into signing the agreement, the court indicated that that issue already had been previously argued and decided by the court against the defendant. The defendant never requested an opportunity from the court to present evidence of the alleged fraud or to call any witnesses. After hearing arguments, the court stated on the record: “I don’t see anything here that in any way would permit this court to reopen. You’re absolutely correct, I have the discretion to do that, but my personal recollection as well as a review of the file indicates that this gentleman entered into an agreement, he knew what he was doing, he had adequate counsel, and as I said, he has struck me, to the times he’s been in front of me, as an intelligent man. I recollect that he is a professional. I think I’m remembering the gentleman correctly, and, I, you know, I just don’t see it. As far as I’m concerned, the motion to open is denied.” The court did not file any written memorandum of decision. The court denied the motion on the papers without further comment. This appeal followed.

We first set forth the legal standards governing our review. “[0]ur courts have inherent power to open, correct and modify judgments, but that authority is restricted by statute and the rules of practice. ... A motion to open a judgment is governed by General Statutes § 52-212a and Practice Book § 17-4. Section 52-212a provides in relevant part: Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, a civil judgment or decree rendered in the Superior Court may not be opened or set aside unless a motion to open or set aside is filed within four months following the date on which it was rendered or passed. . . . Practice Book § 17-4 states essentially the same rule.” (Internal quotation marks omitted.) Dougherty v. Dougherty, 109 Conn. App. 33, 38, 950 A.2d 592 (2008). Nevertheless, it is also well settled that “[a] judgment rendered may be opened after the four month limitation [set forth in § 52-212a and Practice Book § 17-43] if it is shown that the judgment was obtained by fraud, in the absence of actual consent, or because of mutual mistake.” (Internal quotation marks omitted.) Richards v. Richards, 78 Conn. App. 734, 739, 829 A.2d 60, cert. denied, 266 Conn. 922, 835 A.2d 473 (2003); see also Kenworthy v. Kenworthy, 180 Conn. 129, 131, 429 A.2d 837 (1980).

“We do not undertake a plenary review of the merits of a decision of the trial court to grant or to deny a motion to open a judgment. ... In an appeal from a denial of a motion to open a judgment, our review is limited to the issue of whether the trial court has acted unreasonably and in clear abuse of its discretion. . . . In determining whether the trial court abused its discretion, this court must make every reasonable presumption in favor of its action. . . . The manner in which [this] discretion is exercised will not be disturbed so long as the court could reasonably conclude as it did.” (Internal quotation marks omitted.) Weinstein v. Weinstein, 275 Conn. 671, 685, 882 A.2d 53 (2005). A trial court’s determinations regarding the existence of a mutual mistake or the elements of fraud or duress are findings of fact that we will not disturb on appeal unless they are shown to be clearly erroneous. See Jenks v. Jenks, 232 Conn. 750, 753, 657 A.2d 1107 (1995); Terry v. Terry, 102 Conn. App. 215, 223, 925 A.2d 375, cert. denied, 284 Conn. 911, 931 A.2d 934 (2007).

The defendant’s sole claim on appeal is that the court abused its discretion in denying his second motion to open. In support of that claim,' the defendant argues that the court’s decision was based on three erroneous findings; specifically, that the separation agreement was fair and equitable, that there had been no coercion by the plaintiff or her counsel in securing the defendant’s signature on the separation agreement, and that the plaintiff had not committed fraud with respect to her financial affidavit disclosures. In the second motion to open and accompanying memorandum of law, however, the only ground that the defendant raised as a basis for opening the judgment was the plaintiffs alleged fraud in failing to disclose assets on her financial affidavit. “[A] party cannot present a case to the trial court on one theory and then seek appellate relief on a different one . . . .” Albemarle Weston Street, LLC v. Hartford, 104 Conn. App. 701, 709, 936 A.2d 656 (2007). “[W]e have consistently declined to review claims based on a ground different from that raised in the trial court.” (Internal quotation marks omitted.) In re Jah’za G., 141 Conn. App. 15, 21, 60 A.3d 392, cert. denied, 308 Conn. 926, 64 A.3d 329 (2013). Because fraud was the only ground properly before the court in its consideration of the second motion to open, that was the sole ground preserved for appeal.

We next must consider whether we have an adequate record for review of the defendant’s fraud allegation. We conclude that we do not. “The denial of a motion to open is an appealable final judgment”; Alix v. Leech, 46 Conn. App. 1, 3, 692 A.2d 1309 (1997); therefore, pursuant to Practice Book § 64-1 (a), the court was required to state, either orally or in writing, a decision that encompassed “its conclusion as to each claim of law raised by the parties and the factual basis therefor. . . .” If an oral decision is rendered, a signed transcript of the oral decision should be created and filed for use in any appeal. If the court fails to file an oral or written decision, the appellant, who has the duty to provide an adequate record for appellate review; see Practice Book § 61-10; must file a notice to that effect with the appellate clerk in accordance with Practice Book § 64-1 (b).

The court in the present case did not file a written memorandum of decision explaining its ruling denying the motion to open, nor did it prepare and sign a transcript of an oral ruling. The defendant did not file a notice pursuant to Practice Book § 64-1 with the appellate clerk’s office, nor did he file a motion asking the court to articulate the factual and legal basis for its ruling. See Practice Book § 66-5. On occasion, we have overlooked an appellant’s failure to ensure that the trial court sign a transcript of an oral decision provided that the appellant had filed an unsigned transcript and “we [were] able to identify readily the court’s decision, encompassing its findings . . . .” (Emphasis added.) State v. Payne, 121 Conn. App. 308, 312, 996 A.2d 302, cert. denied, 297 Conn. 919, 996 A.2d 1193 (2010); see also Stechel v. Foster, 125 Conn. App. 441, 445-46, 8 A.3d 545 (2010), cert. denied, 300 Conn. 904, 12 A.3d 572 (2011). Here, although the defendant has provided us with an unsigned copy of the transcript of the hearing on the motion to open, we cannot readily identify any portion that encompasses the court’s factual findings with respect to the defendant’s claim of fraud. Other than stating at one point that the defendant was intelligent, knew what he was doing, and was represented by counsel when he agreed to the terms of the separation agreement, the court concluded upon its review of the record that there was no basis for opening the dissolution judgment. The record contains no findings by the court with regard to the defendant’s claim of fraud involving the plaintiff’s financial disclosures. Cognizant that we must make every reasonable presumption in favor of the correctness of the court’s decision to deny the motion to open, we are left to conclude on the basis of our review of the limited record provided that the court acted reasonably and did not abuse its discretion in denying the defendant’s motion.

The judgment is affirmed.

In this opinion the other judges concurred.

       There axe three children of the marriage. The children were bom in August, 1991, September, 1994, and August, 1998.

       The complaint was in two counts. Count one sought a dissolution of the marriage on allegations that the marriage had broken down irretrievably with no possibility of reconciliation. Count two sought enforcement of a July 5, 1991 postnuptial agreement of the parties.

       As part of its canvass, the court asked each party if he or she was satisfied with their legal representation regarding the negotiation and drafting of the separation agreement as well as with the dissolution itself. Both the defendant and the plaintiff answered in the affirmative. Part XU, paragraph 19.1, of the separation agreement further provides in relevant part that “each party, upon such legal advice and upon such knowledge, feels this [a]greement to be fair, just and reasonable, and each party signs this [agreement freely and voluntarily.”

       The defendant attached a transcript from a hearing in his criminal matter as an exhibit to an objection he filed in response to a request by the plaintiff for attorney’s fees to respond to the motion to open. The existence of a protective order is indicated in that transcript. The defendant’s criminal file is not otherwise before this court, and neither party has asked us to take judicial notice of the content of that file.

       On October 19, 2011, the defendant filed a motion with the trial court that was titled a motion for extension of time, but that in fact sought permission to file a late appeal. The defendant also filed an application for a waiver of fees to file the appeal. The court granted the application for a waiver of fees, but did not act on the motion for permission to file a late appeal, presumably because it lacked the authority to extend the appeal period once it had expired; Practice Book § 66-1 (c) (4); and the authority to allow a late appeal lies with this court in accordance with Practice Book § 60-2. On December 16, 2011, the defendant filed a second motion with the trial court seeking permission to file a late appeal challenging the September 22, 2011 denial of his motion to open. In that motion, the defendant raised additional arguments as to why the dissolution judgment should be opened, namely, that the settlement agreement did not contain a fair and equitable distribution of the parties’ assets and that the plaintiff committed fraud by failing to include several key assets on her financial affidavit. The motion was denied on February 3, 2012.

       lthough new counsel had filed an appearance on April 24, 2012, in addition to the defendant’s appearance, the second motion to open was signed and filed by the defendant as a self-represented party.

       Counsel conceded at oral argument before this court that the defendant was aware of the residence when he executed the separation agreement. In his appellate brief and at oral argument before this court, the defendant argued that the plaintiff also misrepresented the value of nine rooms of household contents and failed to disclose other assets, but those allegations were not raised in the motion to open or at the hearing on the motion.

       The court stated: “We already dealt with that issue, counselor, and I think it may have been before your time in the case, but that issue has already been dealt with, all right. I made a finding previously, and I do recall that very succinctly I made a finding previously that that argument absolutely holds no water, with all due respect to you and your client.”

       Even if we were to conclude on the basis of statements made by counsel during the hearing on the motion to open that the defendant properly preserved for appeal his arguments regarding the fairness of the separation agreement and the allegations of coercion despite not raising those arguments in his written motion; see, e.g., Poisson v. Quality Electrical Contractors, Inc., 29 Conn. App. 151, 155, 612 A.2d 1232 (1992); as we will explain with regard to the defendant’s fraud argument, the record before us is not adequate for meaningful review. Finally, additional legal hurdles would stand to thwart any relief on the merits of the defendant’s unpreserved arguments. In ruling on the second motion to open, the court never made any factual finding regarding the fairness of the separation agreement. Although such a factual finding was made by the court in rendering the dissolution judgment, that finding cannot be collaterally attacked by a motion to open filed outside the four month statutory period because it does not implicate fraud, lack of consent or a mutual mistake. See Kenworthy v. Kenworthy, supra, 180 Conn. 131. The court also never made a finding in conjunction with its ruling on the second motion to open that there was no coercion on the part of the plaintiff or her counsel; rather, the court refused to revisit that issue, having previously found it to lack merit in disposing of the defendant’s first motion to open. The defendant could have appealed from the decision on the first motion to open, but he never perfected an appeal despite some failed efforts to do so. A party is precluded from raising on appeal any nory'urisdictional claim of error that it had an opportunity to raise in an appeal from an earlier judgment. See In re Shamika F., 256 Conn. 383, 406-408, 773 A.2d 347 (2001).

       Pursuant to Practice Book § 61-10, which was amended to take effect after the defendant filed his second motion to open, this court will no longer decline to review a claim on appeal solely on the basis of a party’s failure to seek an articulation. See Practice Book § 61-10 (b). As stated in the commentary to the rule, however, the new subsection (b) that was created by the amendment was not intended to preclude this court from “declining to review an issue where the record is inadequate for reasons other than solely the failure to seek an articulation, such as, for example, the failure to procure the trial court’s decision pursuant to [Practice Book §] 64-1 (b) . . . .” Practice Book § 61-10, commentary. The new subsection also in no way alters the responsibility of an appellant to ensure that the appellate record is perfected for proper presentation of all claims raised.
      In the present case, we do not decline to review the defendant’s claim, rather we review the claim on the record provided. Nor is our resolution founded solely upon the defendant’s failure to seek an articulation, but upon his failure to procure a memorandum of decision.