text:
    State of Connecticut v. William Satti
    (2101)
    Dannehy, C.P.J., Dupont and Borden, Js.
    Argued January 5
    decision released June 26, 1984

      Hyman Wilensky, for the appellant (defendant).

      Linda N. Knight, deputy assistant state’s attorney, with whom, on the brief, were Carl J. Schuman and John R. Donovan, assistant state’s attorneys, for the appellee (state).
   Dupont, J.

The defendant was denied accelerated pretrial rehabilitation which he sought under the provisions of General Statutes § 54-56C. He appealed from that denial to the Appellate Session of the Superior Court which dismissed the appeal as not having been taken from a final judgment. The defendant subsequently entered a plea of nolo contendere, and again appeals from the denial of his application.

The state argues that the denial of an application for accelerated rehabilitation is not reviewable after a plea of nolo contendere and that, even if the denial were reviewable, the trial court, in this case, did not abuse its discretion.

A plea of nolo contendere; while not an express admission of guilt, is tantamount to a finding of guilt. North Carolina v. Alford, 400 U.S. 25, 36 n.8, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970). Upon entering such a plea, the defendant consents to the judgment of the court, agrees to be punished as though he were guilty and waives certain constitutional rights. State v. Godek, 182 Conn. 353, 365 n.13, 438 A.2d 114 (1980), cert. denied, 450 U.S. 1031, 101 S. Ct. 1741, 68 L. Ed. 2d 226 (1981). Among the constitutional rights waived are the right to a speedy, public trial by an impartial jury, the right to assert the privilege against self-incrimination, and the right to require the state to prove guilt beyond a reasonable doubt. United States v. Broome, 628 F.2d 403, 404 (5th Cir. 1980); State v. Battle, 170 Conn. 469, 473, 365 A.2d 1100 (1976). The defendant waives all nonjurisdictional defects and all defenses by a plea of nolo contendere. United States v. DePoli, 628 F.2d 779, 781 (2d Cir. 1980); Buckley v. Warden, 177 Conn. 538, 542, 418 A.2d 913 (1979). After such a plea, the defendant is limited in the claims he may make on appeal. He may assert, for example, that the indictment or information failed to state an offense; United Brotherhood of Carpenters v. United States, 330 U.S. 395, 412, 67 S. Ct. 775, 91 L. Ed. 973 (1947); or, in some instances, that the statute under which he was prosecuted is unconstitutional. United States v. Broome, supra, 405; see State v. Eason, 192 Conn. 37, 39-40, 470 A.2d 688 (1984). A defendant may not raise claims of constitutional violations occurring before his plea, although he can attack the voluntary or intelligent character of his plea. Myers v. Manson, 192 Conn. 383, 393, 472 A.2d 759 (1984).

Courts are generally in agreement that a plea of nolo contendere or a guilty plea acts as a cutoff point for the assertion on appeal of claims which preceeded the plea and which relate to defenses, nonjurisdictional defects or a deprivation of constitutional rights. Buckley v. Warden, supra; note, 89 A.L.R.2d 540, 592. In accordance with this general decisional rule, the state argues, in essence, that as soon as the defendant entered his plea of nolo contendere, he waived any complaint which he may have had that the court had previously abused its discretion in the denial of his application for accelerated pretrial rehabilitation.

The state also cites General Statutes § 54-94a to bolster its argument. That statute provides that a defendant, prior to the commencement of trial, may enter a plea of nolo contendere conditional on the right to take an appeal from a denial of a motion to suppress evidence based on an unreasonable search or seizure or from a denial of a motion to dismiss. The defendant argues that the statute is not all-inclusive and does not bar an appeal to test the denial of an application for accelerated rehabilitation after a plea of nolo contendere. Section 54-94a expands the exceptions to the general rule that a plea of nolo contendere precludes a review on appeal of all but a few specific claims as discussed above. The statute authorizes limited appeals where none would otherwise exist and should, therefore, be strictly construed. State v. Audet, 170 Conn. 337, 340, 365 A.2d 1082 (1976).

The defendant cannot appeal from a denial of an application for accelerated rehabilitation prior to trial. State v. Spendolini, 189 Conn. 92, 93, 454 A.2d 720 (1983). His access to the program, however, is not irreparably lost should he be tried and convicted. Id., 97. The Spendolini court cites State v. Lavorgna, 37 Conn. Sup. 767, 437 A.2d 131 (1981), for the latter proposition. The Lavorgna court held that after a denial of accelerated rehabilitation and after a trial in which the defendant was found guilty, an appellate court could review the denial, at least to the extent of determining whether the trial court committed error in failing to hear any of the circumstances surrounding the alleged offense before concluding that the crime involved was of a serious nature.

The question posed by the present case is whether the denial of an application for accelerated rehabilitation is appealable in the absence of a trial and conviction after a plea of nolo contendere. Insofar as this record discloses, the defendant’s plea was unconditionally made in open court, without reservation. The cases previously cited make it clear that he waived almost all rights he may have had prior to the entry of his plea. Although the denial of an application for accelerated rehabilitation is not functionally related to guilt or innocence, as is a ruling on the admissibility of evidence, but is, rather, available to one accused of a nonserious crime who will “probably not offend in the future,” the denial is not equal to a deprivation of a constitutional right. Accelerated rehabilitation is not a right at all. It is a statutory alternative to the traditional course of prosecution available for some defendants and totally dependent upon the trial court’s discretion. Without a specific statutory grant of access to appellate review after a plea of nolo contendere, the defendant has no right to such review.

Since the defendant chose to plead nolo contendere and makes no claim here that his plea was not voluntarily, intelligently and knowingly made, he has lost the right to appeal the denial of his application for accelerated rehabilitation. The question of whether that denial was an abuse of discretion need not be reached.

The appeal is dismissed.

In this opinion the other judges concurred.

       “[General Statutes] Sec. 54-56e. accelerated pretrial rehabilitation. There shall be a pretrial program for accelerated rehabilitation of persons accused of a crime, not of a serious nature. The court may, in its discretion, invoke such program on motion of the defendant or on motion of a state’s attorney or prosecuting attorney with respect to an accused who, the court believes, will probably not offend in the future and who has no previous record of conviction of crime and who states under oath in open court under the penalties of perjury that he has never had such program invoked in his behalf, provided the defendant shall agree thereto and provided notice has been given by the accused, on a form approved by rule of court, to the victim or victims of such crime, if any, by registered or certified mail and such victim or victims have an opportunity to be heard thereon. This section shall not be applicable to any person charged with a violation of section 14-227a. Unless good cause is shown, this section shall not be applicable to persons accused of a class A, class B, or class C felony or to any youth who has previously been adjudged a youthful offender under the provisions of sections 54-76b to 54-76n, inclusive. Any defendant who enters such program shall agree to the tolling of any statute of limitations with respect to such crime and to a waiver of his right to a speedy trial. Any such defendant shall appear in court and shall be released to the custody of the office of adult probation for such period, not exceeding two years, and under such conditions as the court shall order. If the defendant refuses to accept, or, having accepted, violates such conditions, his case shall be brought to trial. If such defendant satisfactorily completes his period of probation, he may apply for dismissal of the'charges against him and the court, on finding such satisfactory completion, shall dismiss such charges. Upon such dismissal all records of such charges shall be erased pursuant to section 54-142a.”

         State v. Satti, 38 Conn. Sup. 552, 454 A.2d 280 (1982). State v. Spendolini, 189 Conn. 92, 93, 454 A.2d 720 (1983), makes it clear that the holding of State v. Satti, supra, was correct.

       The plea was accepted and was followed by a finding of guilty, and a sentence of a $50 fine, plus costs of $15.

       This appeal was originally filed in the Appellate Session of the Superior Court. Public Acts, Spec. Sess., June, 1983, No. 83-29, § 3 (c).

       In State v. Eason, 192 Conn. 37, 470 A.2d 688 (1984), the defendant had pleaded guilty and the court, on appeal, reviewed the constitutionality of the statute which was the basis of the plea. The court does not discuss the issue of whether the defendant, after a plea of guilty, waived his right to assert that the statute was so unconstitutionally vague as to violate his due process rights. The state, however, in a footnote in its brief, assumes that a void for vagueness claim is a jurisdictional claim. The issue is not otherwise mentioned in the record or briefs of the parties.

       A defendant may, however, after a plea of guilty, raise constitutional claims in a separate action for damages, brought under 42 U.S.C. § 1983. Haring v. Prosise, 462 U.S. 306, 103 S. Ct. 2368, 76 L. Ed. 2d 595 (1983).

        State v. Lavorgna, 37 Conn. Sup. 767, 437 A.2d 131 (1981), does not specifically hold that appellate review of a denial of accelerated rehabilitation is never lost after a trial. The court in State v. Spendolini, 189 Conn. 92, 93, 454 A.2d 720 (1983), in using a “see” citation to State v. Lavorgna, supra, was aware of that fact but has expanded the Lavorgna holding. Justice Peters in her concurring opinion in State v. Longo, 192 Conn. 85, 94-95, 469 A.2d 1220 (1984), notes that the denial of accelerated rehabilitation is vested in the “virtually unreviewable discretion of the trial court” which may be a view more closely paralleling Lavorgna itself than the wider scope of Spendolini.

       In some federal jurisdictions, it is possible to enter pleas of guilty or nolo contendere which are contingent upon preserving the right to appeal pretrial rulings, but such conditional pleas require the consent of the trial judge and the prosecuting authority. United States v. DePoli, 628 F.2d 779, 780-81 (2d Cir. 1980). Although the Second Circuit adheres to' this rule, other federal circuits do not. Our law does not recognize such conditional pleas except as provided by statute.

       On the basis of the record of this case, it is unlikely that any review of the denial of the defendant’s application for accelerated rehabilitation would result in a conclusion that there was an abuse of discretion.


source: Caselaw Access Project

author: Hull, J.

license: Public Domain

text:
    Robert J. Hackett v. City of New Britain et al.
    (2367)
    Dannehy, C.P.J., Testo and Hull, Js.
    Argued April 11
    decision released June 26, 1984

      Harold J. Geragosian, for the appellant (plaintiff).

      Joseph E. Shelly, Jr., for the appellees (defendants).
   Hull, J.

The plaintiff appeals from the denial of his petition for an order of mandamus by which the plaintiff sought to compel the defendants to continue undiminished payment of his pension benefits. The defendants are the city of New Britain and the board of trustees of the New Britain firemen’s pension fund.

The plaintiff, Robert J. Hackett, was appointed to the position of substitute fireman in the New Britain fire department. Approximately one year later, on November 20,1950, he was made a full-time fireman. He then became a lieutenant in the fire department on May 24,1968. After obtaining the highest mark on the captain’s examination, Hackett was promoted to captain on May 13,1974. He thereafter obtained the highest score on the examination for promotion to deputy chief and was promoted to that rank on September 18, 1977.

The trial court found that Hackett had paid a certain sum of money to a third party to ensure that he attained the highest rank on the promotional examinations for the positions of captain and deputy chief. The court stated that “[tjhis litigation became necessary solely as a result of the plaintiff’s criminal acts in purchasing his last two promotions.” In addition, the court found that Hackett had participated in the, “fixing” and “attempted fixing” of twelve examinations for other members of the department from as early as 1972.

Pursuant to the charter and regulations of the city of New Britain relative to the firemen’s pension fund, the plaintiff contributed 5 percent of his weekly salary to the retirement fund until 1968, when he became a lieutenant, after which the city began to match his 5 percent contribution to the retirement fund. On April 29,1980, the defendant board of trustees granted the plaintiff a pension in the amount of $13,250.76 per year based upon his salary after achieving the position of deputy fire chief. The board stipulated, however, that the pension benefits were subject to review in the event that subsequent evidence established that the position of deputy chief had been illegally obtained.

The plaintiff was subsequently convicted of numerous felonies for his role in “fixing” the results of certain promotional examinations. After a hearing on April 15, 1981, the board found that Hackett had illegally obtained both the rank of captain and deputy chief. The board, therefore, reduced the plaintiff’s pension by the amount of $5483.97 per year.

The plaintiff filed a petition for an order of mandamus to compel the defendants to continue to pay to the plaintiff pension benefits in the original amount prior to the reduction. The court denied the relief and rendered judgment for the defendants. We agree.

The plaintiff, in essence, seeks to compel the defendant to grant him pension benefits based upon the salary level for the position of deputy chief, a position the plaintiff attained as a direct result of his own fraudulent conduct.

A writ of mandamus is an extraordinary remedy. McAllister v. Nichols, 193 Conn. 168, 171, 474 A.2d 792 (1984). It may issue only when: (1) the law imposes upon the party against whom the writ would run a duty the performance of which is mandatory and not discretionary; (2) the party applying for the writ has a clear legal right to have the duty performed; and (3) there is no other specific adequate remedy. Bahramian v. Papandrea, 184 Conn. 1, 3, 440 A.2d 777 (1981).

In this case, the plaintiff has not satisfied the second prong of the test, for he has not established a clear legal right to pension benefits in the original amount of the award. There is clear and convincing proof of the plaintiff’s fraudulent conduct directly relating to his attainment of the positions of captain and deputy chief. See Fattibene v. Fattibene, 183 Conn. 433, 438, 441 A.2d 3 (1981). The original amount of the pension benefits was based upon the salary level for the position which the plaintiff attained as a direct result of his fraudulent conduct. A person who obtains his employment by fraud is not entitled to compensation at the contract rate, although he may be entitled to the reasonable value of his services, and, furthermore, if a person induces his employer through fraud to enter into a transaction, he is not entitled to any compensation for his services in connection with it. 2 Restatement (Second), Agency § 469, comment c; see Heyman v. Kline, 344 F. Sup. 1110, 1113-14 (D. Conn. 1970), rev’d on other grounds, 456 F.2d 123 (2d Cir. 1972). Proof of fraud in the inducement to contract allows the defrauded party various remedies including rescission; Duksa v. Middletown, 173 Conn. 124, 129, 376 A.2d 1099 (1977); restitution; see 2 Restatement (Second), Agency § 403; or damages. A. Sangivanni & Sons v. F. M. Floryan & Co., 158 Conn. 467, 472, 262 A.2d 159 (1969).

Since mandamus neither gives nor defines a right which one does not already have, it cannot, and does not, act upon a doubtful or contested right. McAllister v. Nichols, supra, 171-72; Gerrity v. Bisciglia, 178 Conn. 235, 238-39, 423 A.2d 871 (1979). There is a great deal of doubt as to whether the plaintiff has a clear and legal right to the original award in light of these circumstances. The defendant contests this claim of right and has, in effect, rescinded its prior award due to the discovery of the fraud. We conclude that the plaintiff failed to establish a clear legal right to benefits in the amount of the original award. The plaintiff has failed to satisfy the second prong of the test for the issuance of a mandamus and, therefore, the court did not err in denying the plaintiffs request.

Mandamus, although it is a legal remedy, is not awarded as a matter of right, but is within the exercise of the sound discretion of the court; Sullivan v. Morgan, 155 Conn. 630, 635, 236 A.2d 906 (1967); and its allowance is controlled by equitable principles. Id.; United States v. Dern, 289 U.S 352, 359, 53 S. Ct. 614, 77 L. Ed. 1250 (1933). While a writ of mandamus may not issue unless the three prong test is satisfied, satisfaction of the test does not give rise to an automatic obligation on the part of the court to issue the requested writ of mandamus. The Supreme Court of Connecticut has stated that “[i]f the right to the issuance of the writ is ‘asserted contrary to the public interest, the court might refuse its aid in mandamus proceedings.’ ” Sullivan v. Morgan, supra, 635. There are, therefore, circumstances where a court may, even where the test has been satisfied, deny an application for a writ of mandamus.

In the present case, even if the plaintiff had established a clear legal right to undiminished payment of the original pension award, the extraordinary circumstances of this case support the court’s exercise of discretion in denying a writ of mandamus. Because the writ is not issued as a matter of right, a court may, in the exercise of its sound discretion, take into account considerations other than the legal right asserted. State ex rel. Costelo v. Middlesex Banking Co., 87 Conn. 483, 487, 88 A. 861 (1913). “The writ of mandamus is not always demandable as an absolute right, and whether it shall be granted or not frequently rests in the discretion of the court. . . . The writ will be granted to prevent a failure of justice, but never to promote manifest injustice. It is a remedial process and may be issued to remedy a wrong, not to promote one, to compel the discharge of a duty which ought to be performed, but not to compel the performance of an act which will work a public and private mischief, or to compel a compliance with the strict letter of the law in disregard of its spirit or in aid of a palpable fraud. The relator must come into court with clean hands.” (Emphasis added). Id., 487-88.

The trial court, in taking into account matters other than the legal right asserted, found that the equitable principle enunciated within the clean hands doctrine applied in this case and that this doctrine served as a bar to the plaintiffs claim. We do not find that, under the circumstances of this case, the trial court abused its discretion in denying the writ of mandamus.

It is unnecessary, in light of our conclusions above, to address the plaintiff’s claims concerning the board’s lack of authority to reduce the amount of the pension benefits.

There is no error.

In this opinion the other judges concurred.

       This appeal, originally filed in the Supreme Court, was transferred to this court. Public Acts, Spec. Sess., June, 1983, No. 83-29, § 2 (c).

       Courts of other jurisdictions have reached similar conclusions where an employee’s fraud or misconduct was found to have a direct bearing on that party’s right to, or interest in, employee benefits. See McIntyre v. Retirement Board of San Francisco, 42 Cal. App. 2d 734, 109 P.2d 962 (1941); State v. Booker, 146 Fla. 402, 1 So. 2d 167 (1941); Bucher v. Oloer, 204 Md. 568, 105 A.2d 480 (1954); Van Coppenolle v. Detroit, 313 Mich. 580, 21 N.W.2d 903 (1946); Hadden v. Consolidated Edison Co., 45 N.Y.2d 466, 410 N.Y.S.2d 274, 382 N.E.2d 1136 (1978).


author: Dupont, J.

text:
    John Flynn et al. v. Town of Newington et al. Board of Education of the Town of Newington v. Newington Teachers Association
    (2521)
    (2486)
    Testo, Hull and Dupont, Js.

      Argued April 5
    decision released June 26, 1984

      Edward G. Pizzella, with whom, on the brief, were Robert G. Pizzella and Sidney G. Pizzella, for the appellants (defendant town of Newington in the first case, plaintiff board of education in the second case).

      Vincent F. Sabatini, with whom, on the brief, was Pamela Lorch, for the appellees (plaintiffs in the first case).

      Ronald Cordilico, for the appellee (defendant in the second case).
   Dupont, J.

This is a combined appeal of two cases. Both cases involve a collective bargaining agreement between the Newington Teachers Association (NTA) and the board of education of the town of Newington (board) and relate to a claim of a retired teacher, John Flynn, for medical expenses incurred by his wife, Margaret Flynn, after he had retired. In the first case, Flynn v. Newington, the teacher and his wife sought reimbursement for those expenses from the town and the board claiming a breach of the collective bargaining agreement between the board and the NTA. That action was instituted in November of 1978. A motion to stay court proceedings pending arbitration of the plaintiff’s claim was made in May of 1980 by the defendant town. Its motion was allegedly filed pursuant to General Statutes § 52-409. Upon the representation of the town that it was ready and willing to proceed with arbitration, the trial court granted the motion.

At the arbitration proceeding held, the parties were the board and the NTA. The arbitrator concluded that the issue of whether the teacher’s family members were covered by the major medical insurance policy provided in the collective bargaining agreement was not arbitrable because the grievance was not timely filed. The plaintiffs then filed an application to vacate the arbitration award, a motion to terminate the stay and to allow a trial on the merits, and a motion for contempt for failure to arbitrate the merits of the case. The court rendered judgment granting the application and the motions. The defendant town appeals from that judgment.

In the second case, Board of Education v. Newington Teachers Assn., the board brought an action to confirm the arbitration award entered in the first case. The action was instituted in September of 1982, after the plaintiffs had filed their motions for contempt and for a vacation of the arbitration award. The trial court heard all of the motions in both cases simultaneously and rendered judgment denying the board’s motion to confirm the award. That judgment is also appealed.

The issues contained in the preliminary statement of issues and the subsidiary questions relating thereto, as discussed in the briefs of the parties, are many. Those issues, however, may be distilled into two main issues. They are whether the trial court erred (1) in concluding that the town and the board could not raise the arbitrability of the plaintiffs’ claim for the first time before the arbitrator, after the town had represented to the court that it was ready and willing to proceed with arbitration; and (2) in concluding that the arbitration process was expanded to include the town and the retired teacher when admittedly neither was a party to the collective bargaining agreement.

The trial court determined that it was within its province to decide whether arbitration was a condition precedent to court action and that the parties could not submit the question of the arbitrability of the issue to the arbitrator. The court’s memorandum of decision makes it clear that it ordered arbitration with the expectation that arbitration would proceed on the merits of the Flynns’ claim. It did so because of the representation of the town that it was ready and willing to proceed with arbitration. The defendant town did not raise the issue of timeliness at the hearing on its motion for a stay of the court proceedings but agreed to arbitrate the dispute if the stay was granted. The Flynns objected to the stay and, in fact, appealed to the Supreme Court from the granting of the stay. At the time of the granting of the stay and the motion to proceed with arbitration, the NTA was not a party to any proceeding pending in court.

The trial court was correct in concluding that, on the facts of this case, the timeliness of the Flynns’grievance or the arbitrability of the grievance could not be considered by the arbitrator, and that the town had foregone or waived the arbitrability issue when it sought the stay. It is settled law in this state that the arbitrability of a dispute is a legal question for the court unless the parties have clearly agreed to submit the arbitrability question to arbitration. Bridgeport v. Bridgeport Police Local 1159, 183 Conn. 102, 104, 438 A.2d 1171 (1981); Board of Education v. Frey, 174 Conn. 578, 580-81, 392 A.2d 466 (1978). In the present case, the town, which was not a party to the collective bargaining agreement, sought arbitration of the dispute. Neither of the Flynns was a signatory to the agreement and both resisted arbitration. The only person or entity which could seek arbitration as of right was the NTA. Section 4-2.4 of the collective bargaining agreement states that if the NTA determines a grievance should be submitted to arbitration and notifies the board in writing, a single arbitrator is to be selected. No other section in the agreement provides for arbitration in the event of any other dispute. In seeking arbitration, the town and the board, which had notice of the town’s motion to stay court proceedings, affirmatively acquiesced in arbitration on the merits of the plaintiffs’ court action. Neither defendant raised the issue of timeliness in seeking and obtaining arbitration.

The town’s motion to stay proceedings in order to proceed with arbitration and the words of the agreement itself precluded the submission of arbitrability as an issue to the arbitrator.

A failure to follow the prerequisite procedure for arbitration as provided in a collective bargaining agreement may result in a waiver of the right to arbitrate. Gary Excavating, Inc. v. North Haven, 164 Conn. 119, 125, 318 A.2d 84 (1972). Even if the town or the board, in this case, could have sought arbitration under the terms of the agreement, the failure to raise the claim of a procedural deficiency—the timeliness of the plaintiffs’ grievance—in the trial court constituted a waiver of that claim. Were this case a suit brought by the NTA to compel arbitration, arbitrability might have been an issue for the aribitrator to decide since the NTA joined in the submission of that question to the arbitrator. See New Britain v. Connecticut State Board of Mediation & Arbitration, 178 Conn. 557, 424 A.2d 263 (1979).

The appropriate procedure to follow in instances where arbitrability is an issue is discussed in Waterbury Board of Education v. Waterbury Teachers Assn., 168 Conn. 54, 357 A.2d 466 (1975). The parties to a collective bargaining agreement may either submit the question of arbitrability to the arbitrator or seek a prior judicial determination of the issue. Naugatuck v. AFSCME, 190 Conn. 323, 326-27, 460 A.2d 1285 (1983). Even if the question of arbitrability is submitted to the arbitrator, the court is not foreclosed from later reviewing whether the award disregarded the procedural necessities of the agreement.

The trial court correctly concluded that arbitration was not a condition precedent to the plaintiffs’ action for reimbursement for medical expenses. No language in the collective bargaining agreement of this case provides that arbitration is such a condition precedent and there is no language in it from which the necessary implication arises that arbitration must first be had. Multi-Service Contractors, Inc. v. Vernon, 181 Conn. 445, 435 A.2d 983 (1980). Furthermore, three parties in the Flynn action were not signatories to the collective bargaining agreement and could not be compelled to arbitrate. Id., 449. The trial court was aware of these facts and ordered arbitration, as requested by the town, not as the right of the town, but as an expeditious alternative route for the resolution of a dispute, believing it was thereby obviating the necessity for the lengthier route of a jury trial. For eighteen months following the institution of the plaintiffs’ action, the defendants took no action to seek arbitration. Even if they had a right to arbitration, which is not the case here, it could be concluded that they had waived it. See Waterbury Teachers Assn. v. Waterbury, 164 Conn. 426, 324 A.2d 267 (1973). The decision to refer the merits of the case to arbitration, the timeliness of the grievance never having been raised as a defense to the action, was not reflective of a right, but of the trial court’s belief that the merits of the plaintiffs’ claim could be resolved more swiftly by an arbitrator than by a jury trial.

The second issue of this appeal, whether the arbitration process was expanded to include the plaintiffs, is an attack on the standing of the plaintiffs to move to vacate the arbitration award and to terminate the stay of proceedings in their action against the defendants. The plaintiffs were not parties to the collective bargaining agreement and, therefore, ordinarily would lack the requisite standing to seek confirmation or vacation of an arbitration award. Housing Authority v. Local 1161, 1 Conn. App. 154, 468 A.2d 1251 (1984). In this case, however, the plaintiffs did not bring an action either to confirm or vacate an arbitration award. Instead, they brought a direct action against the town and the board and never sought arbitration under the agreement. The Flynns are a retired employee and his wife. The legal remedies of a pensioner are not wholly prescribed by the collective bargaining agreement itself but by standard contractual principles, including promissory estoppel and third party beneficiary principles. Note, “Pension Plans and the Rights of the Retired Worker,” 70 Colum. L. Rev. 909, 916-17 (1970). Retirees are not employees for the purposes of the National Labor Relations Act, and the union which may have represented them while they were active members of the bargaining unit is under no statutory duty to represent them in negotiations with their former employer. Allied Chemical Workers v. Pittsburgh Plate Glass Co., 404 U.S. 157, 92 S. Ct. 383, 30 L. Ed. 2d 341 (1971). A retired employee has contractual rights under a collective bargaining agreement for which he may independently seek redress regardless of whether the union chooses to represent him. Id., 181 n.20. The signatories to a collective bargaining agreement are not the only entities with rights which arise from that contract. The trustees of a pension and welfare fund are third party beneficiaries of the agreement and are not bound by the grievance-arbitration provisions of an agreement under federal law statutes, allowing them a direct right of access to the courts, without the necessity of arbitration. Robbins v. Prosser’s Moving & Storage Co., 700 F.2d 433, 436-37 (8th Cir. 1983). Although active employees are deprived of the ability to deal with or directly sue their employer when their bargaining agent has entered into a collective bargaining agreement with the employer, retired employees have no duty to exhaust arbitration procedures required by the agreement before bringing a direct action against their employer. Anderson v. Alpha Portland Industries, 727 F.2d 177, 184-85 (8th Cir. 1984). The trial court here was not prohibited from referring the merits of the dispute to arbitration. Nor was it bound to limit the arbitration process to the two parties, the board and the union, which had executed the collective bargaining agreement.

John Flynn retired as an employee of the board in 1974. The medical expenses of his wife were incurred in August of 1977 and thereafter. As of March, 1983, her bills totalled $150,611.31. Mr. and Mrs. Flynn are now 71 years old, still bereft of a decision on the relatively simple question of whether Mrs. Flynn was entitled to payment of her medical expenses under the terms of the collective bargaining agreement. The case is a study in procedural gymnastics. It ground its way to this court via a tortuous route of contested motions including motions to dismiss, to strike from the jury list, to strike, for summary judgment, to consolidate, to stay proceedings, to vacate and to confirm an arbitration award, and for contempt. It has been on the motion calendars of the Supreme Court and this court. The time for a substantive decision is overdue. In the case of Flynn v. Newington, the court properly granted the plaintiffs’ application to vacate the arbitration award, their motion to terminate the stay and to allow a trial, and their motion for contempt. An immediate trial on the merits is ordered. In the case of Board of Education v. Newington Teachers Assn., the court was correct in denying the motion of the board to confirm the arbitration award.

There is no error in either case.

In this opinion the other judges concurred.

       Travelers Insurance Company was also a defendant in the case but has not joined in this appeal.

       General Statutes § 52-409 provides as follows: “stay of proceedings in court. If any action for legal or equitable relief or other proceeding is brought by any party to a written agreement to arbitrate, the court in which such action or proceeding is pending, upon being satisfied that any issue involved in such action or proceeding is referable to arbitration under such agreement, shall, on motion of any party to the arbitration agreement, stay the action or proceeding until an arbitration has been had in compliance with the agreement, provided the person making application for the stay shall be ready and willing to proceed with such arbitration.”

       The questions posed to the arbitrator in which both the board and the NTA joined were as follows: (1) Is the following issue arbitrable? (2) Was there a violation of Article VIII of the parties’ agreement as applied to John Flynn? If so, what shall be the remedy?

       No party, in either of the cases consolidated for appeal, disputes that the grievance was not timely filed.

       The issue in Board of Education v. Newington Teachers Assn, is whether the court erred in denying the application of the board to confirm this arbitration award. That issue is embodied within the two issues stated in the text. The discussion in this decision primarily relates to the case of Flynn v. Newington since it was in that case that the arbitration was ordered and the court proceedings stayed. The purpose of the second case was to seek confirmation of the arbitration proceedings which had been ordered in the Flynn case. Reference to the plaintiffs in this opinion is to the Flynns.

       That appeal was dismissed, presumably on the ground that the granting of the stay was not a final judgment.

       In this case, the union represented the plaintiff, a retired employee, at the arbitration hearing ordered by the court. The union, contrary to the employee’s theory of his case, joined in the submission of the question of arbitrability to the arbitrator.

       The contempt issue has not been discussed in this opinion in view of the decision of this court. The trial court imposed no sanctions in connection with the granting of the plaintiffs’ motion for contempt. Furthermore, in view of the trial court’s finding in its memorandum of decision that its original order was to proceed to arbitration on the merits, that order was specific and definite enough to allow the trial court to grant the plaintiffs’ motion for contempt for the failure of the defendant town to arbitrate the merits of the case.


text:
    Carol M. Arseniadis v. George Arseniadis
    (2801)
    Testo, Dupont and Borden, Js.

      Argued March 7
    decision released June 26, 1984

      Rita A. Steinberger, with whom, on the brief, was Lawrence J. Merly, for the appellant (plaintiff).

      Mary D. Mix, with whom, on the brief, was Edward R. Karazin, for the appellee (defendant).
   Dupont, J.

This appeal arises from a dissolution of marriage action. At the time of the dissolution, the parties had been married for twenty-seven years and had four children, one of whom was a minor. The trial court rendered judgment in accordance with a stipulation of the parties which was orally stated in open court and recorded in the presence of both parties and their respective counsel. Just prior to rendering judgment, the court asked each party whether each understood and agreed to the stipulation. Both answered in the affirmative and the court then stated that the settlement agreement was fair and appropriate.

The settlement agreement was reached after almost two days of trial and included a provision relating to the disposition of a $105,000 life insurance policy on the defendant’s life. It is that provision which contains the core issue of this appeal. The terms of the judgment which relate to the disposition of the life insurance policy parrot the agreement and provide as follows: “The husband has life insurance in the amount of $105,000 and will continue to maintain that life insurance policy in full force and effect with his wife, the plaintiff, as irrevocable beneficiary for the sum of $75,000 until Laura reaches the age of eighteen years. Thereafter he will continue to maintain said life insurance in effect with the plaintiff as irrevocable beneficiary of $35,000 worth of life insurance and the children as irrevocable beneficiary [sic] of the rest of that policy. If the husband has a change of employment and cannot carry this life insurance policy, he shall notify the wife in advance so that appropriate steps may be taken concerning modification.”

Less than a month after the judgment was rendered, the defendant filed a motion to clarify “the transcript and Orders of the Court,” claiming, in pertinent part, that the words “the rest of that policy” referred to the balance of $75,000, and not to the balance of the entire policy of $105,000. The motion stated that it was the husband’s intention to provide $35,000 of life insurance for the wife and $40,000 for all of the children after the minor child attained eighteen years of age. The trial court agreed with the defendant’s interpretation as to the meaning of the words “the rest of that policy” and found that the original order of the court entitled the wife to $35,000 of the policy and the minor child to $40,000 once she had attained eighteen years of age.

On appeal, the defendant raises for the first time the issue of whether the court had subject matter jurisdiction to render orders relating to support, education, care or maintenance of children over the age of eighteen years. A lack of subject matter jurisdiction can be raised at any time and cannot be waived by either party. Vogel v. Vogel, 178 Conn. 358, 362, 422 A.2d 271 (1979). If a judgment is rendered without jurisdiction to do so, it may be opened and modified at any time. Misinonile v. Misinonile, 190 Conn. 132, 135, 459 A.2d 518 (1983). The parties to an action cannot confer subject matter jurisdiction on the court by their consent, silence, waiver or private agreement. Hayes v. Beresford, 184 Conn. 558, 562, 440 A.2d 224 (1981).

Since the defendant is not precluded from belatedly asserting a lack of subject matter jurisdiction, the first issue to be decided is whether the trial court had such jurisdiction to render a judgment pursuant to an oral stipulation of the parties which included an order requiring the husband to maintain life insurance with his children over eighteen years of age named as irrevocable beneficiaries.

It is the defendant’s contention that General Statutes § 46b-66 prohibits any court order incorporating an agreement providing for the care, education, maintenance or support of a child beyond the age of eighteen years unless it is “in writing,” and that an oral stipulation made in open court is insufficient to satisfy the words “in writing.” The defendant concedes, however, that had the agreement in this case been reduced to the written word, the trial court would have had subject matter jurisdiction to render the judgment, and could have incorporated or otherwise made such support a part of its orders.

It is now axiomatic that support for a minor child extends to age eighteen years only, and that, absent a written agreement, a court has no jurisdiction to render orders requiring the supporting spouse to name adult children as the irrevocable beneficiaries of life insurance policies. Gallo v. Gallo, 184 Conn. 36, 440 A.2d 782 (1981); Broaca v. Broaca, 181 Conn. 463, 435 A.2d 1016 (1980). The question of this case is whether an oral stipulation made in open court constitutes an agreement in writing for the purposes of § 46b-66.

Litigation about whether subject matter jurisdiction exists should take into account whether the litigation is a collateral or direct attack on the judgment, whether the parties consented to the jurisdiction originally, the age of the original judgment, whether the parties had an opportunity originally to contest jurisdiction, the prevention of a miscarriage of justice, whether the subject matter is so far beyond the jurisdiction of the court as to constitute an abuse of authority, and the desirability of the finality of judgments. Connecticut Pharmaceutical Assn., Inc. v. Milano, 191 Conn. 555, 468 A.2d 1230 (1983); Vogel v. Vogel, supra; Monroe v. Monroe, 177 Conn. 173, 413 A.2d 819, appeal dismissed, 444 U.S. 801, 100 S. Ct. 20, 62 L. Ed. 2d 14 (1979); 1 Restatement (Second), Judgments § 12. The important factor in this case is that the appeal is a direct attack on the judgment made shortly after the judgment was rendered. Such an attack is more likely to be sustained than if such were not the case. See Monroe v. Monroe, supra, 177-78.

Oral stipulations recorded in open court are just as binding, obligatory and conclusive as if in writing and executed with every legal formality if the court has subject matter jurisdiction. Bryan v. Reynolds, 143 Conn. 456, 460, 123 A.2d 192 (1956). The court in this case, however, did not have subject matter jurisdiction. The legislature amended General Statutes § 46b-66 (then § 46-49) in order to provide for the support of post-majority children only if there is an agreement to do so and if it is in writing. Public Acts 1977, No. 77-488, § 1. The legislative history of the amendment makes it clear that such is the case. The purpose of the amendment was to ensure that a written agreement involving support for adult children and submitted to the court by the parties in connection with an action for a dissolution of marriage could be incorporated into the judgment or orders of the court, thereby making such orders enforceable through contempt proceedings. 20 H.R. Proc., Pt. 8, 1977 Sess., pp. 3022-25; 20 H.R. Proc., Pt. 13, 1977 Sess., pp. 5591-92; 20 S. Proc., Pt. 8, 1977 Sess., pp. 3013-14. The legislature recognized that although a contract for the support of adult children might be enforceable by instituting a separate action for the enforcement of that contract, such a suit would require a lengthier time for resolution and that the agreement could not be enforced by contempt proceedings.

Two recent Connecticut cases have obliquely involved the issue of this case but did not resolve it. In Venuti v. Venuti, 185 Conn. 156, 440 A.2d 878 (1981), the court left undisturbed an order of the trial court requiring the defendant to maintain three life insurance policies with his children as irrevocable beneficiaries until the youngest child reached the age of thirty years. The defendant, however, did not claim error as to the order and the record was deemed insufficient for a review of the order. Id., 160 n.3. The issue was also tangentially involved in the case of Costello v. Costello, 186 Conn. 773, 443 A.2d 1282 (1982). In that case, the trial court, subsequent to its approval of an oral stipulation of the parties providing for the support of adult children, unilaterally modified the agreement of the parties to substitute a minor child as sole beneficiary of an annuity in place of all the children of the parties, whether adults or minors. Both the plaintiff and the defendant, however, had conceded that the trial court should not have varied the terms of the agreement in that respect. The defendant, the supporting spouse, stated in his brief that although the court had no power to order him to provide for the support of his adult children, he had agreed to make all of his children beneficiaries of the annuity and, pursuant to that oral agreement made in open court, he opted to be bound by it. Costello v. Costello, A-791 Rec. & Briefs, pos. 6, Appellant’s brief, pp. 5-6.

The legislature has provided that agreements for the support of adult children may be incorporated by reference into the dissolution decree or may be the subject of orders of the court if the agreements are in writing. Had the legislature intended that the parties could orally agree in court that such support be the subject of a court order, the legislature could have so provided. The language of the statute is clear and unambiguous and we cannot by our construction substitute other words for the words “in writing.” Brunswick Corporation v. Liquor Control Commission, 184 Conn. 75, 81, 440 A.2d 792 (1981).

Since, absent an agreement in writing, the court did not have subject matter jurisdiction to render orders for the support of children over eighteen years of age and since the plaintiff wife may not have agreed to the other provisions of the agreement without the provision relating to life insurance benefits for her adult children, the matter as to alimony and the disposition of property must be retried.

There is error, the judgment is set aside and a new trial is ordered limited to a determination of alimony and the disposition of the property of the parties.

In this opinion the other judges concurred.

       This appeal, originally filed in the Supreme Court, was transferred to this court. Public Acts, Spec, Sess., June, 1983, No. 83-29, § 2 (c).

       The plaintiffs complaint alleges that the parties had five children. Her brief states that they had four children. For the purposes of this decision, the number of adult children of the parties is immaterial.

       The transcript of the agreement of the parties contains slightly different words. The second sentence of it contains the words “the children as irrevocable beneficiaries of the rest of the policy.” (Emphasis added.)

       The plaintiff and the defendant in their briefs and on oral argument stated that the court ruled that all of the children were to be the beneficiaries of $40,000. Clearly, the transcript, the original judgment, and the defendant’s motion to clarify all indicate that all of the children were to be beneficiaries. The dispute concerns the amount of life insurance to be provided for all of the children rather than whether one or all of them were to be beneficiaries.

       The plaintiff’s preliminary statement of issues and her brief raise the issues of whether the stipulation of the parties needed clarification and whether the court could modify a stipulated judgment without a showing of a substantial change in circumstances. Neither party claimed at the hearing on the “motion to clarify” that a modification of the judgment was sought or resisted because there had or had not been a material change in circumstances and, therefore, this appeal is not considered as one involving General Statutes § 46b-86 (a).

       The defendant claims that the original judgment of the court exceeded the subject matter jurisdiction of the court as to $30,000 of the policy, but not as to $40,000 which he voluntarily agrees to pay. If, however, the court had no jurisdiction to render judgment pursuant to an oral stipulation for support of children over eighteen years of age, the entire provision would be void ab initio.

       General Statutes § 46b-66 provides, in pertinent part, as follows: “If the agreement [of the parties to a dissolution of marriage action] is in writing and provides for the care, education, maintenance or support of a child beyond the age of eighteen, it may also be incorporated or otherwise made a part of any such order . . . .”


author: Borden, J.

text:
    Alice Lazoff v. Joseph W. Padgett et al.
    (2406)
    Dannehy, C.P.J., Dupont and Borden, Js.

      Argued March 1
    decision released July 3, 1984

      Robert A. Fuller, for the appellant-appellee (plaintiff).

      Philip H. Bartels, with whom, on the brief, was David P. Burke, for the appellees-appellants (defendants).
   Borden, J.

This is an adverse possession case in which the plaintiff appeals from the judgment of the trial court in favor of the defendants. The disputed property is a trapezoidal parcel containing less than one tenth of an acre which the plaintiff alleged in her complaint she maintained as a side yard to her residence and to which she claimed title by adverse possession. The defendants are the record owners of the parcel and are the plaintiffs adjoining neighbors. The trial court found that beginning in 1957 the plaintiffs predecessor in title, McFadden, improved the disputed property, planting on it a lawn with some lilac bushes. It further found that the plaintiff and her predecessors in title continued to use the property in a similar manner until 1979, when this controversy arose. That court also found, however, that in 1963 McFadden acknowledged to the defendant’s predecessor in title, Keeler, that the property belonged to Keeler. The court further found that at that time Keeler consented to McFadden’s use of the property, and that McFadden continued this acknowledged and consensual use of the property until 1966. On the basis of these findings, the court concluded that the plaintiff’s claim for adverse possession failed because she had not proven that her possession was without the consent of the owner.

The plaintiff’s appeal raises a constellation of claims which orbit about these critical findings and conclusions of the trial court. We find no error.

“The essential elements of adverse possession are that the owner shall be ousted from possession and kept out uninterruptedly for fifteen years under a claim of right by an open, visible and exclusive possession of the claimant without license or consent of the owner.” Roche v. Fairfield, 186 Conn. 490, 498, 442 A.2d 911 (1982); Meshberg v. Bridgeport City Trust Co., 1 Conn. App. 10, 13, 467 A.2d 685 (1983). Adverse possession must be proven by clear and positive proof, and is to be taken strictly. Roche v. Fairfield, supra, 498-99.

The plaintiff first claims error in two related evidentiary rulings concerning which Keeler was permitted to testify, over the plaintiff’s objection, as to his intent in giving permission to McFadden to use the property. The plaintiff’s argument that these rulings permitted impermissible opinion and conclusion testimony is without merit. Whether Keeler gave consent or not was a factual issue involving his intent. It has long been our law that “ ‘[w]hen the intention of a witness is a fact relevant to the issue he may testify directly as to his intent.’ ” Horowitz v. F. E. Spencer Co., 132 Conn. 373, 378, 44 A.2d 702 (1945).

The plaintiff also claims error in the court’s conclusion that consent was given by the “owner” of the property, because Keeler was not the record title holder at the time of the pivotal conversation in 1963. We disagree.

The court found that Keeler was not the record title holder but was a silent 50 percent owner of the property together with the record title owner. McFadden recognized him as an owner of the property. Thus, it was clear that Keeler was an equitable owner of the property.

One of the elements of adverse possession is that the claimant’s possession be “without license or consent of the owner.” Roche v. Fairfield, supra, 498. “ ‘The word “owner” has no fixed meaning but must be interpreted in its context and according to the circumstances in which it is used.’ ” General Realty Improvement Co. v. New Haven, 133 Conn. 238, 241, 50 A.2d 59 (1946). It is “not restricted to one who has the legal or rightful title, whether the possessor or not.” Hope v. Cavallo, 163 Conn. 576, 582, 316 A.2d 407 (1972). “Courts, when applying equitable principles, ‘ “can always look behind the technical legal title if necessary to work out . . . the rights of the parties.” ’ ” Middlebury v. Steinmann, 189 Conn. 710, 716, 458 A.2d 393 (1983). And “one who has actual notice of equitable rights not of record is nevertheless bound to recognize them.” Home Owners’ Loan Corporation v. Sears, Roebuck & Co., 123 Conn. 232, 240, 193 A. 769 (1937). We conclude that Keeler’s equitable interest coupled with McFadden’s recognition of it sufficed to make Keeler an “owner” for purposes of adverse possession.

This leaves for consideration the plaintiffs claim that the court erred in holding in effect that the consent by Keeler, given subsequent to the presumably nonconsensual entry by McFadden, was sufficient to vitiate the plaintiffs claim of possession without the owner’s consent. There is some authority, on which the plaintiff relies, to the effect that if the claimant’s initial entry is nonconsensual a subsequent grant of consent by the owner, without more, is insufficient to vitiate the element of lack of consent. See, e.g., Naporra v. Weckwerth, 178 Minn. 203, 226 N.W. 569 (1929); Macias v. Guymon Ind. Foundation, 595 P.2d 430, 433 (Okla. 1979).

We need not decide, however, whether this authority applies here. The court found in effect that in 1963 McFadden acknowledged Keeler’s ownership of the property, and that McFadden’s use from 1963 until January, 1966, was pursuant to this acknowledgment. This finding brings the case squarely within the principle that “[t]he possession of one who recognizes or admits title in another, either by declaration or conduct, is not adverse to the title of such other. . . . Occupation must not only be hostile in its inception, but it must continue hostile, and at all times during the required period of fifteen years challenge the right of the true owner, in order to found title by adverse use upon it.” (Citations omitted.) Paton v. Robinson, 81 Conn. 547, 551, 71 A. 730 (1909). Such an acknowledgment of the owner’s title terminates the running of the statutory period, and any subsequent adverse use starts the clock anew. 3 American Law of Property § 15.9, pp. 810-11; 7 Powell, Real Property § 1014. Thus, while the route we take is somewhat different from that of the trial court, we agree with its ultimate judgment that the plaintiff failed to prove her case. See Caldor’s, Inc. v. Bedding Barn, Inc., 177 Conn. 304, 326, 417 A.2d 343 (1979).

We have considered the other claims of the plaintiff. They either flow from those claims which we have already rejected, or involve factual determinations which are not clearly erroneous.

There is no error.

In this opinion the other judges concurred.

       This appeal, originally filed in the Supreme Court, was transferred to this court. Public Acts, Spec. Sess., June, 1983, No. 83-29, § 2 (c).

       The defendants filed a cross appeal in which they attempt to present certain other factual grounds, none of which was addressed by the trial court. We regard the cross appeal as a statement of alternate grounds upon which the judgment may be affirmed, under Practice Book § 3012 (a). Our disposition of the appeal makes it unnecessary to reach those grounds.


author: Per Curiam.

text:
    John R. Graham, Jr. v. Estate of Edwina C. Graham
    (2394)
    Dannehy, C.P.J., Hull and Dupont, Js.
    Argued January 31
    decision released July 3, 1984

      Frederick W. Odell, for the appellant (plaintiff).

      Francis V. Manion, for the appellee (defendant).
   Per Curiam.

From the decree of the Probate Court for the district of Hartford approving the final account of the conservator of the estate of Edwina C. Graham, the plaintiff, John R. Graham, Jr., appealed to the Superior Court in the judicial district of Hartford-New Britain at Hartford.

These facts are undisputed. The plaintiff is the son of Edwina C. Graham. On April 17, 1980, upon the application of the plaintiff to the Probate Court for the district of Hartford, United Bank & Trust Company was appointed conservator of the estate of Edwina C. Graham on the ground that Edwina C. Graham was incapable of managing her affairs by reason of “mental illness due to chronic use of drugs.”

Thereafter, Edwina C. Graham filed her own application in the Probate Court for the restoration of her estate. That court made an order for due service of and hearing upon her application. Edwina C. Graham and her conservator were both present at the hearing held on November 3,1981. On that date, the Probate Court decreed that Edwina C. Graham had been restored to her capacity and, by order of the court, the remaining portion of her estate was restored to her. Upon the termination of the conservatorship, the conservator was ordered to file its final account.

No appeal was taken from the Probate Court decree finding Edwina C. Graham capable of managing her own affairs and ordering that the conservatorship of her estate be terminated. Neither the plaintiff nor anyone on behalf of Edwina C. Graham objected to the Probate Court or to her conservator concerning the order restoring her estate.

Notice of the hearing on the conservator’s final account was duly served on the plaintiff, and both he and his mother attended the hearing held on February 9,1982. Proceedings in Probate Courts are generally somewhat informal. Thomas v. Arafeh, 174 Conn. 464, 470, 391 A.2d 133 (1978). The conduct of the hearing was in the control of the court. The interests of Edwina C. Graham were fully represented. Nowhere does it appear that her representatives might not be vigilant in her interests. Efforts by the plaintiff to be heard in opposition to certain items of administrative expenses were unsuccessful. There is no suggestion that Edwina C. Graham and her representatives did not earnestly examine the account and no facts are presented to warrant such a conclusion. It was entirely discretionary whether the plaintiff should be allowed to participate in the proceedings. See General Statutes § 45-77. No situation for the abuse of that discretion existed in the hearing upon the settlement and allowance of the final account of the conservator. On February 9, 1982, after a hearing, the Probate Court approved the conservator’s final account. The plaintiff appealed to the Superior Court from that decision.

From the sparse record in this case, it plainly appears that the final account of her conservator was not allowed until after Edwina C. Graham had been restored to her capacity, when what remained of her estate had been restored to her. She was satisfied that her conservator had rendered a proper accounting and was entitled to the compensation for its services allowed by the court. She contradicted what the plaintiff alleged in his motion for appeal from probate and challenged his aggrievement.

On March 8, 1982, the plaintiff filed, in the Probate Court for the district of Hartford, his motion for appeal from the decree of that court, dated February 9,1982, approving the final account of the conservator of the estate of Edwina C. Graham. The appeal was allowed and made returnable to the Superior Court in the judicial district of Hartford-New Britain at Hartford on April 6,1982. Before the return day, the defendant filed a motion to dismiss on the ground that the Superior Court lacked jurisdiction of the subject matter because the plaintiff was not an aggrieved party under General Statutes § 45-288. The court, Satter, J., granted the motion to dismiss and rendered judgment dismissing the appeal. The appeal before us is from the judgment of the Superior Court dismissing the appeal from the Probate Court.

The only allegations of the motion for appeal filed by the plaintiff in the Probate Court which purported to set forth his interest were that he is the son and heir at law of “the incapable” and is potentially liable for her support. In view of the determination, made on November 3, 1981, that Edwina C. Graham had been restored to capacity, it is at once apparent that the allegation of his mother’s incapacity is inaccurate. In any event, this and other inaccuracies have not been brought into question in this appeal.

In an appeal from probate, the Superior Court is a court of limited jurisdiction. It has only the jurisdiction granted to it by statute. Section 45-288 authorizes appeals from probate only by those who are aggrieved by the decree appealed from. Accordingly, if an appellant is not actually aggrieved, the court is without jurisdiction to hear the appeal. Lenge v. Goldfarb, 169 Conn. 218, 220, 363 A.2d 110 (1975); Palmer v. Reeves, 120 Conn. 405, 409, 182 A. 138 (1935).

Was the plaintiff aggrieved? In Maloney v. Taplin, 154 Conn. 247, 249, 224 A.2d 731 (1966), the Supreme Court stated: “The basis for the appellant’s claim of aggrievement should be clearly stated in his motion for appeal.” Illustrative cases are collected therein. The contention of the plaintiff that he is aggrieved because he is potentially liable for his mother’s support is based on false alarm rather than actual fact. See General Statutes § 46b-215. He presently has no responsibility for the care and maintenance of his mother. It is plain that the mere possibility of future liability for her support involves no real interest in the matter in controversy. His pecuniary interest or personal right as an alleged heir presumptive is not affected by the decree in the slightest degree, and no possible future interest he may have in his mother’s estate is affected by the decree approving the final account of the conservator after the change in the possession and management of her estate from the conservator to Edwina C. Graham.

There is no error.

       The question of aggrievement was decided on the affidavits submitted by the parties. Ordinarily, when issues of fact are necessary to the determination of the court’s jurisdiction, a trial-like hearing must be held, in which the parties are provided an opportunity to present evidence and to cross-examine adverse witnesses. Affidavits, however, are an acceptable alternative to an evidentiary hearing when they disclose, as here, that no genuine issue as to a material fact exists. Standard Tallow Corporation v. Jowdy, 190 Conn. 48, 56, 459 A.2d 503 (1983).

       This appeal, originally filed in the Supreme Court, was transferred to this court. Public Acts, Spec. Sess., June, 1983, No. 83-29, § 2 (c).

       General Statutes § 46b-215 provides in pertinent part: “(a) The superior court shall have authority to make and enforce orders for payment of support against any person who neglects or refuses to furnish necessary support to his or her spouse, a child under the age of eighteen or a parent under the age of sixty-five, according to his or her ability to furnish such support . . . . ” (Emphasis added.) Edwina C. Graham, on February 9, 1982, was possessed of a considerable estate. Her need of support is unlikely. Moreover, there is no mention in the record of the date of her birth nor the plaintiffs ability to furnish support.


text:
    Harold Revoir v. City of New Britain
    (2060)
    Hull, Dupont and Borden, Js.

      Argued February 7
    decision released July 3, 1984

      Henry S. Zembko, Jr., for the appellant (plaintiff).

      Joseph E. Skelly, Jr., corporation counsel, for the appellee (defendant).
   Hull, J.

This is an appeal by the plaintiff, Harold Revoir, from the decision of the compensation review division of the workers’ compensation commission which affirmed the commissioner’s finding and award. The decision of the commissioner ordered the defendant city of New Britain to pay benefits under General Statutes § 7-433c equal to benefits payable under chapter 568 of the General Statutes, the Workers’ Compensation Act, for disability from employment. The decision, however, denied that the plaintiff was entitled to permanent disability benefits as a result of being disabled from employment specifically as a fireman.

The plaintiff had been a full time member of the New Britain fire department since 1957. Prior to being hired as a fireman, he underwent a physical examination which did not reveal any evidence of hypertension or heart disease. On October 10, 1980, the plaintiff suffered a myocardial infarction (heart attack) and was subsequently diagnosed as suffering from coronary artery disease. As a result, he was permanently disabled from employment as a fire fighter. He was not, however, disabled from performing all types of gainful employment. The plaintiff was retired on a disability pension effective January 19,1981, by the New Britain board of fire commissioners.

The plaintiff thereafter filed a claim with the workers’ compensation commission pursuant to General Statutes § 7-433c. After a hearing on July 1,1981, the commissioner ordered that the plaintiff receive benefits under § 7-433c “equal to those of Chapter 568 [of the General Statutes] for temporary or permanent, total or partial disability—not disability as a policeman or a fireman.”

The plaintiff appealed to the workers’ compensation review division, claiming that the commissioner erred in failing to award compensation benefits based upon his disability from employment as a fire fighter. The compensation review division affirmed the finding and award of the commissioner and the plaintiff filed this appeal asserting the same claim of error.

The plaintiff contends that it was error to find that he was only entitled to benefits equal to those of chapter 568 of the General Statutes for temporary or permanent, total or partial disability. He alleges that § 7-433c is a special compensation provision which entitles a qualified fireman to permanent disability benefits for as long as the claimant is disabled from employment as a fireman. We disagree.

Section 7-433c provides in pertinent part that where a member of a paid municipal fire department or a regular member of a paid municipal police department “suffers either off duty or on duty any condition or impairment of health caused by hypertension or heart disease resulting in his death or his temporary or permanent, total or partial disability, he or his dependents . . . shall receive from his municipal employer compensation and medical care in the same amount and the same manner as that provided under chapter 568” for those employees who have established that the personal injury or death arose out of and in the course of employment. Section 7-433c further provides that “[tjhe benefits provided by this section shall be in lieu of any other benefits which such policeman or fireman or his dependents may be entitled to receive from his municipal employer under the provisions of chapter 568 or the municipal or state retirement system under which he is covered, except as provided by this section, as a result of any condition or impairment of health caused by hypertension or heart disease resulting in his death or his temporary or permanent, total or partial disability.” The statute twice refers to “temporary or permanent, total or partial disability” in general terms without modifying with any specificity the type of employment from which the claimant must be disabled. If the legislature had intended the statute to create an entitlement to benefits based upon the extent to which a fireman or policeman became temporarily or permanently, totally or partially disabled from employment as a fireman or policeman, it would have inserted such language. Cf. State v. Turello, 183 Conn. 330, 336, 439 A.2d 364 (1981). This court will not, by construction, read into a statute provisions not clearly expressed therein. Brunswick Corporation v. Liquor Control Commission, 184 Conn. 75, 81, 440 A.2d 792 (1981); Gomeau v. Forrest, 176 Conn. 523, 527, 409 A.2d 1006 (1979).

It is a basic tenet of statutory construction that a statute is to be construed as a whole. Duguay v. Hopkins, 191 Conn. 222, 230, 464 A.2d 45 (1983). “[W]here the meaning of a statute is plain and unambiguous, the enactment speaks for itself and there is no occasion to construe it.” Frazier v. Manson, 176 Conn. 638, 642, 410 A.2d 475 (1979). We fail to find that § 7-433c, read in its entirety, is ambiguous or that it confers benefits upon claimants on the basis of the degree to which their disability precludes them from continued employment as a fireman or policeman, whichever the case may have been at the time of the disabling injury or illness. In addition, the statute clearly provides that benefits for compensation and medical care shall be payable “in the same amount and the same manner as that provided under chapter 568 . . . .” Therefore, once it is established that a claimant qualifies under § 7-433c, chapter 568 then controls the amount of benefits to which he is entitled, subject to the limitations of General Statutes § 7-433b. As we stated in Middletown v. Local 1073, 1 Conn. App. 58, 63, 467 A.2d 1258 (1983), § 7-433 incorporates the Workers’ Compensation Act, “not for purposes of liability, but to determine the amount of the benefits due.”

There is nothing in the Workers’ Compensation Act indicating that benefits payable under chapter 568 are based upon the degree to which the claimant’s disability precludes him from continuing in the job he held at the time the injury was sustained. In Czeplicki v. Fafnir Bearing Co., 137 Conn. 454, 456, 78 A.2d 339 (1951), the Supreme Court stated that “total incapacity to work” meant the inability of an employee, because of his injuries, to work at his customary calling or at any other occupation which he might reasonably per-, form. The court goes on to explain that the rationale for this interpretation is based upon the fact that the purpose of a workers’ compensation statute is to protect against economic loss when the claimant’s labor becomes unmarketable. Id., 456-57. The court has also stated: “ ‘We cannot accept a claim of the plaintiff that his incapacity to work [in a particular occupation] would of itself show that he is totally disabled.’ ” Clark v. Henry & Wright Mfg. Co., 136 Conn. 514, 517, 72 A.2d 489 (1950).

Section 7-433c provides that one purpose of the statute is to protect firemen and policemen “against economic loss resulting from disability or death caused by hypertension or heart disease . . . .” It is also clear that § 7-433c depends procedurally upon chapter 568 in establishing the amount of the benefits paid. Therefore, because a claimant is entitled, under § 7-433c, to benefits payable in the “same amount and the same manner” as are payable under the Workers’ Compensation Act, we find that it is clear that such claimant is not entitled to permanent disability benefits because of his inability to work specifically as a fire fighter or policeman.

The plaintiff is correct in his assertion that § 7-433c is a bonus or special compensation statute. The bonus, however, is two-fold and is not as broad as the plaintiff would have us hold. First, the statute provides benefits to those qualified policemen and firemen who are disabled due to hypertension and heart disease because those persons suffer an unusually “high degree of susceptibility” to these ailments. Second, the outright bonus provided by the statute is that the claimant is not required to prove that the heart disease is causally connected to his employment, which he would ordinarily have to establish in order to receive benefits pursuant to the Workers’ Compensation Act. Plainville v. Travelers Indemnity Co., 178 Conn. 664, 674, 425 A.2d 131 (1979); Middletown v. Local 1073, supra, 62. We cannot accept the plaintiff’s claim that § 7-433c additionally provides, as a bonus for firemen and policemen, that the claimant’s incapacity to work as a fireman or policeman in and of itself establishes a statutory right to permanent disability benefits. The purpose of § 7-433c is to protect firemen and policemen from economic loss. The measure of economic loss must be determined by the extent to which the claimant is precluded from rejoining the work force in his former capacity or any other reasonable occupation due to his disability.

There is no error.

In this opinion the other judges concurred.

       This appeal was originally filed in the Appellate Session of the Superior Court. Public Acts, Spec. Sess., June, 1983, No. 83-29, § 3 (c).

       General Statutes § 7-433c is entitled “benefits foe policemen or FIREMEN DISABLED OR DEAD AS A RESULT OF HYPERTENSION OR HEART DISEASE.”


text:
    Manchester Modes, Inc., et al. v. Sidney Ellis
    (2389)
    Dannehy, C.P.J., Hull and Borden, Js.
    Argued March 6
    decision released July 3, 1984

      Frank J. Silvestri, Jr., with whom, on the brief, was Lawrence W. Kanaga, for the appellants (plaintiffs).

      Julia L. Aurigemma, with whom, on the brief, was Elliot B. Pollack, for the appellee (defendant).
   Per Curiam.

This case came before the trial court on remand from the Supreme Court for a determination of the reasonable compensation to which the defendant, Sidney Ellis, was entitled for the performance of services for the plaintiff, Manchester Modes, Inc. (Modes). The facts essential to this appeal were set forth in First Hartford Realty Corporation v. Ellis, 181 Conn. 25, 434 A.2d 314 (1980) (Ellis I), and need not be repeated here.

The trial court, upon concluding that the Supreme Court had held that a contract existed between Modes and Ellis, referred to the contract price for the value of the services rendered. It found, in the alternative, that, on the basis of quantum meruit, the proper measure of damages was also the contract price. The court therefore concluded that under either theory of recovery Ellis was entitled to $40,000, plus interest from August 11, 1976. We find no error.

Modes argues in effect that Ellis I did not establish that a contract existed between Ellis and Modes, and that Ellis failed to establish the reasonable value of his services. We disagree.

On remand, the trial court is limited to the specific direction of the appellate court interpreted in the light of its opinion. Arterburn Convalescent Home v. Committee on State Payments to Hospitals, 176 Conn. 82, 87, 405 A.2d 48 (1978) (Loiselle, J., concurring). If the Supreme Court determined in Ellis I that a contract existed between Ellis and Modes, that determination was the law of the case upon a retrial, and was binding equally upon the parties and the trial court. See Dacey v. Connecticut Bar Assn., 184 Conn. 21, 23, 441 A.2d 49 (1981).

In Ellis I, the Supreme Court stated: “To put . . . [Ellis] in the same position he would have been in had the contract for his services not been breached by Manchester Modes; Lar-Rob Bus Corporation v. Fairfield, [170 Conn. 397, 402, 365 A.2d 1086 (1976)]; at least until he was fired in December, 1975, he is entitled to the reasonable value of his services rendered in 1975 not to exceed $40,000.” First Hartford Realty Corporation v. Ellis, supra, 37. The Supreme Court stated in the rescript: “[TJhere is error on the counterclaim for the services rendered in 1975 in the case of Manchester Modes, Inc. v. Sidney Ellis, the judgment is set aside and a new trial is ordered to determine reasonable compensation for those services in accordance with this opinion.” Id. Interpreting this mandate in light of the opinion; see id., 36-37; the conclusion is inescapable that Ellis I determined that a contract existed between Ellis and Modes, and that Modes breached that contract. That determination was binding upon the parties and on the trial court on remand. The court was correct in concluding that Ellis was entitled to the contract price of $40,000. We need not discuss, therefore, the trial court’s alternate finding.

Modes’ final claim, that the trial court abused its discretion in awarding interest to Ellis, is without merit. See State v. Stengel, 192 Conn. 484, 487, 472 A.2d 350 (1984).

There is no error.

       This appeal, originally filed in the Supreme Court, was transferred to this court. Public Acts, Spec. Sess., June, 1983, No. 83-29, § 2 (c).

       The Supreme Court concluded in Ellis I that Ellis demanded payment for his services on August 11,1976. First Hartford Realty Corporation v. Ellis, 181 Conn. 25, 37, 434 A.2d 314 (1980).

       Modes also argues that had the Supreme Court, in Ellis I, concluded that a contract existed, it would have remanded the case with direction to render judgment for Ellis in accordance with the terms of the contract. We disagree. We read the rescript as providing for the possibility that Ellis did not perform services for the full calendar year of 1975. The trial court here found that he did, and that finding is not challenged on this appeal.

       Concerning Modes’ claim, made only at oral argument, that interest was improperly awarded here because the remand in Ellis I did not mention it, neither the trial court nor the Supreme Court in Ellis I had occasion to consider the question of interest, which is “an element of damages.” State v. Stengel, 192 Conn. 484, 487, 472 A.2d 350 (1984). Thus, there is no basis whatsoever for this claim.


text:
    A & C Corporation v. Giulio Pernaselci et al.
    (2431)
    Dannehy, C.P.J., Dupont and Borden, Js.
    Argued March 1
    decision released July 3, 1984

      Angelo P. Costa, for the appellants (defendants).

      Robert R. Sheldon, with whom, on the brief, were T. Paul Tremont and Thomas M. Yuditski, for the appellee (plaintiff).
   Per Curiam.

The basic issue on appeal is whether the trial court erred in applying the doctrine of unjust enrichment to the facts.

The plaintiff and the defendants entered into a contract, the terms of which were that for a specified sum the plaintiff was to build masonry walls on premises owned by the defendants. The contract price was paid. After the walls were built, high winds blew down a substantial portion of the walls. The plaintiff rebuilt the walls, at the request of the defendants, at a cost to it of $7905.46. The plaintiff submitted a claim to its liability insurance carrier but coverage was denied because of a lack of fault. The defendants then submitted a proof of loss to their insurance carrier and were paid $9348 for the damage to the walls.

The trial court found that the defendants were unjustly enriched at the expense of the plaintiff in the amount of $7905.46, and rendered judgment for the plaintiff in that amount.

The defendants argue that the doctrine of unjust enrichment should not have been applied because they and the plaintiff, after the collapse of the wall, had entered into an agreement whereby the plaintiff agreed to rebuild the walls for the additional sum of $2450. Although the plaintiff received a check in that amount from the defendants, the check was not cashed. The trial court found that there was no meeting of the minds and that, therefore, there was no contract. Finding no contract, the court applied the doctrine of unjust enrichment.

Whether the plaintiff and the defendants entered into a contractual commitment to rebuild the walls for the sum of $2450 is a question of the intent of the parties as gleaned from all of the evidence and is a fact to be decided by the trial court. If the finding that there was no contract is supported by subsidiary facts, as it is here, it will not be disturbed on appeal. Hughes v. Contemporary Mission, Inc., 180 Conn. 150, 152, 429 A.2d 827 (1980).

Unjust enrichment is a legal doctrine to be applied when no remedy is available pursuant to a contract. 5 Williston, Contracts (Rev. Ed.) § 1479. In order for the plaintiff to recover under the doctrine, it must be shown that the defendants were benefitted, that the benefit was unjust in that it was not paid for by the defendants, and that the failure of payment operated to the detriment of the plaintiff. Monarch Accounting Supplies, Inc. v. Prezioso, 170 Conn. 659, 665-66, 368 A.2d 6 (1976); Providence Electric Co. v. Sutton Place, Inc., 161 Conn. 242, 246, 287 A.2d 379 (1971).

The facts of this case are that the defendants were benefitted by the labor and supplies furnished by the plaintiff to rebuild the walls, that they did not pay for the benefit and that the plaintiff had expended the labor and supplies at a cost to it of $7905.46. Even upon payment to the plaintiff of that amount, the defendants will own the walls for which they originally contracted at no extra cost to them, and will have the additional sum of $1442.54, the difference between the insurance proceeds and $7905.46.

There is no error.

       This appeal, originally filed in the Supreme Court, was transferred to this court. Public Acts, Spec. Sess., June, 1983, No. 83-29, § 2 (c).


text:
    Donald G. Walker et al. v. Peter Lombardo et al.
    (2405)
    Dannehy, C.P.J., Dupont and Borden, Js.
    Argued February 2
    decision released July 3, 1984

      Barry D. Cutiano, with whom, on the brief, were Dominic J. Squatrito and William J. Shea, for the appellants (defendants).

      Constantine Constantine, for the appellees (plaintiffs).
   Per Curiam.

This appeal arises out of the granting of the plaintiffs’ motion for summary judgment. Judgment was rendered for the plaintiffs in the amount of $3800, the sum paid by the plaintiffs as a down payment on the purchase of realty owned by the defendants.

The issue on appeal, as stated by the parties, is whether the trial court erred in concluding that the plaintiffs were unable to receive a particular mortgage commitment and, as provided in a sales agreement of the parties, were therefore entitled to a return of their deposit. There is, however, a subsidiary and more basic issue. That is whether the trial court committed error by rendering summary judgment when the documents submitted by the plaintiff, as the moving party, did not demonstrate that there was no genuine issue of material fact as to other relevant issues raised by the pleadings.

The agreement of the parties was made contingent upon procurement by the plaintiffs of a written commitment for a mortgage in the amount of at least $33,200 for a term of at least thirty years at an interest rate not to exceed 12.75 percent per annum. The agreement further provided that the plaintiffs were to make application for such a loan diligently, and if there was a failure to obtain the commitment, upon written notice to the defendants, the sums paid as a deposit by the plaintiffs were to be returned to the plaintiffs.

The plaintiffs’ complaint alleges that the plaintiffs “were unable to obtain said mortgage and notified defendants of said inability.” The complaint does not allege that the plaintiffs gave written notification to the defendants that the mortgage commitment could not be obtained nor does it allege that the plaintiffs used diligence in the making of an application for a mortgage. The complaint does, however, allege that the parties entered into an agreement and quotes the entire mortgage contingency clause.

The issue presented to the trial court, and as stated in the briefs of both the plaintiffs and the defendants, was whether there was a genuine issue of material fact regarding the inability of the plaintiffs to obtain a mortgage commitment containing the specific terms as provided in the agreement of the parties. If this were the sole issue of the case, the trial court would have been correct in concluding that there was no genuine issue as to any material fact, and that the plaintiffs were entitled to judgment as a matter of law. Practice Book § 384. The trial court, however, was not presented with any documentary evidence by any of the parties as to whether the plaintiff had diligently made an application for a mortgage commitment or whether the plaintiff had given written notice to the defendants of their inability to obtain the commitment.

On appeal, the defendants raise for the first time their claim that the plaintiffs were not entitled to summary judgment because of the lack of any documents which would show that the material facts of diligence and written notice were not in dispute. Thus, the defendants argue on appeal that there were material facts genuinely in issue which precluded the granting of summary judgment for the plaintiffs. Ordinarily, where issues are raised for the first time on appeal and were not distinctly raised before the trial court, they will not be considered. Practice Book § 3063; McDermott v. New Haven Redevelopment Agency, 184 Conn. 444, 449, 440 A.2d 168 (1981). This case, however, involves a motion for summary judgment which requires the trial court to decide, on the basis of the pleadings and other documentary evidence, whether there was no genuine issue of material fact and whether the movant is entitled to judgment as a matter of law. Practice Book § 384.

The pleadings here established the terms of the mortgage contingency clause and alerted the trial court to the failure of the plaintiff to produce any documents which would show that there was no material fact genuinely in issue as to all of the conditions for the return of their deposit.

There is no Connecticut case which is dispositive of the particular issue of this case. Summary judgment procedure in Connecticut, however, is similar to that followed in the federal courts, and reference may be had to federal authorities. United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 376, 260 A.2d 596 (1969). If a moving party’s papers are insufficient to discharge his burden of showing that no material fact is genuinely in issue, the opposing party does not have to produce contravening material. 6 Moore, Federal Practice (2d Ed. 1983) § 56.15 (3). Summary judgment should be denied where the affidavits of the moving party do not affirmatively show that there is no genuine issue of fact as to all of the relevant issues of the case. Mack v. Cape Elizabeth School Board, 553 F.2d 720, 722 (1st Cir. 1977).

The plaintiffs should have submitted proof as to all of the material facts in order to allow the trial court to determine if there was any genuine issue as to them. Since they did not do so, they were not entitled to summary judgment. “If the trial court grants a motion for summary judgment in the mistaken belief that the factual predicate for that judgment is present, such action is clearly erroneous.” Tucker v. Connecticut Ins. Placement Facility, 192 Conn. 653, 662, 473 A.2d 1210 (1984).

There is error, the judgment is set aside and the case is remanded for further proceedings.

       This appeal, originally filed in the Supreme Court, was transferred to this court, Public Acts, Spec. Sess., June, 1983, No. 83-29, § 2 (c).

       The plaintiffs filed an affidavit of an assistant treasurer of a bank, stating that a mortgage had been approved for $52,000 at an interest rate of 13.75 percent for thirty years. A letter attached to the affidavit from the affiant to one of the plaintiffs stated that the interest rate would be 13.74 percent whether the mortgage sought was $52,000 or $33,200. One of the defendants filed an affidavit in opposition to the plaintiff’s motion for summary judgment. None of the statements contained therein, however, put into issue the material fact that the plaintiffs were unable to obtain the requisite mortgage commitment. The defendants concede that obtaining a mortgage as described in the agreement was a condition precedent to the enforcement of the agreement.


text:
    Paula Weisbaum v. Stuart I. Weisbaum
    (2332)
    Hull, Dupont and Borden, Js.
    Argued February 7
    decision released July 10, 1984

      George B. Simoncelli, Jr., with whom, on the brief, was Jess H. Smith, for the appellant (plaintiff).

      Zbigniew S. Rozbicki, for the appellee (defendant).
   Borden, J.

In this dissolution of marriage case the plaintiff wife appeals claiming error in certain of the financial orders. The parties were married on December 17,1966, and have two children, ages six and two, as of the date of the judgment. The court found the following facts. The plaintiff is a regular attendant at meetings of Alcoholics Anonymous. Most of the household unpleasantness was brought about by arguments relating to her drinking. She was reluctant to compromise, displaying instability and immaturity. The cause of the marital breakdown could not be attributed solely to either party. The husband recently inherited $50,000, which he placed in two equal custodial accounts for the benefit of the children, with himself as custodian, under the Uniform Gifts to Minors Act (UGMA), General Statutes §§ 45-101 through 45-109b.

The court issued the following financial orders which are involved in this appeal. The defendant is to provide medical insurance for the benefit of the minor children; to pay any unreimbursed hospital, medical, dental, orthodontic and optical expenses of the children; and to continue his life insurance for their benefit until each reaches the age of majority. The plaintiff was given possession of the parties’ house until the occurrence of various contingencies, the principal one being the youngest child’s reaching the age of eighteen, at which time the property is to be sold and the net proceeds divided equally between the parties. During the plaintiff’s occupancy of the house, the defendant is to pay the mortgage payments, taxes, insurance, utilities and nontoll telephone expenses. The defendant is also to pay the plaintiff forty dollars per week for the support of each child. The court ordered that the defendant may pay from the children’s custodial funds all the medical and life insurance expenses; all the mortgage, taxes, insurance, utilities and telephone expenses; and the weekly support payments. The court declined the plaintiffs requests for periodic alimony and counsel fees.

I

We agree with the plaintiffs claim that the court abused its discretion in permitting invasion of the custodial funds for the purpose of discharging the defendant’s support and other obligations under the judgment.

The gifts to the children under the UGMA were “irrevocable and convey[ed] to [them] indefeasibly vested legal title to the custodial property given. . . .” General Statutes § 45-103 (a). We note first that the court’s order permitted invasion of these funds for the entire basic expenses of the house, even that portion attributable to shelter for the plaintiff. It is difficult for us to conceive of any basis on this record for such an invasion of these trust funds for that portion of the shelter expense. Such an invasion of children’s property should be permitted, if at all, only under extreme circumstances indicating that it is necessary to the children’s best interests to do so.

This leaves for consideration the invasion of the trust funds for expenses relating to the children. “The primary duty of the parent to support his minor children, if he is able to do so, is not relieved by the fact that they may have income from a trust created in their favor.” Fitzgerald v. Fitzgerald, 169 Conn. 147, 152, 362 A.2d 889 (1975). Even where the parties agree to an invasion of custodial funds for the benefit of the children, that agreement is subject to the scrutiny of the court to see if it is in the best interests of the children. Id.

A parent has both a statutory and common law duty to support his minor children within the reasonable limits of his ability. General Statutes § 46b-215; Pezas v. Pezas, 151 Conn. 611, 616, 201 A.2d 192 (1964). General Statutes § 46b-84 (a) provides in relevant part that upon dissolution of a marriage “the parents of a minor child of the marriage, shall maintain the child according to their respective abilities, if the child is in need of maintenance.” (Emphasis added.) General Statutes § 46b-84 (b) provides in relevant part that “[i]n determining whether a child is in need of maintenance and, if in need, the respective abilities of the parents to provide such maintenance and the amount thereof,” the court shall consider, inter alia, the amount and sources of income of the child. (Emphasis added.) These latter two statutory sections reinforce in a dissolution action the basic principle that the primary duty of support of minor children, even those owning property, falls on their parents. The judgment here had the effect of permitting the defendant to shift that duty onto the shoulders of the very children whom he is obligated to support. Absent a finding of reasonable necessity for such a drastic dislocation, and absent a finding that it would be to the children’s best interests to do so; see Fitzgerald v. Fitzgerald, supra; this was an abuse of discretion.

The defendant argues in effect that the order in question simply confirms what the defendant is permitted to do under General Statutes § 45-104 (b), which is part of the UGMA. This argument misses the mark. The purpose of General Statutes § 45-104 (b) is to insulate the custodian from claims, by the minor or by third parties dealing with the custodian, of improper management or unauthorized disbursements. Its purpose is not to control the exercise of the court’s discretion in a marital dissolution case; nor is its purpose, in such a case, to discharge the parent’s primary duty of support. It must be read together with the statutory and common law provisions regarding that duty. In re Marriage of Wolfert, 42 Colo. App. 433, 435-36, 598 P.2d 524 (1979). “The section does nothing to relieve a parent of the separate duty to support the children .... This interpretation is unavoidable in light of the fact that the gift is irrevocable and gives the children an ‘indefeasible vested legal title’ to the gift . . . .’’Id. Furthermore, the record here indicates that at the trial the defendant agreed that the funds should be reserved for the benefit of the children and not used for his or the plaintiff’s purposes.

The effect of the court’s order here was to permit the defendant to discharge from the custodial funds those other obligations which the court imposed on him. It may be that upon a rehearing the court will impose the same obligations without the access to those funds; but on this record we cannot be certain of that. It is appropriate, therefore, that the rehearing which we order embrace those obligations as well.

II

The plaintiff also argues that the court abused its discretion in declining to order the defendant to pay her any alimony. She had requested alimony of one dollar per year modifiable only in the event of physical incapacity to work. The court found that the cause of the marital breakdown could not be attributed solely to either party. The only evidence relating to physical incapacity to work was that in 1981 the plaintiff had her pancreas and gall bladder removed, from which she has recovered. She has medical insurance coverage through her employment. She is a legal secretary, earning approximately $155 per week take-home pay. We cannot find an abuse of discretion in this aspect of the judgment.

For similar reasons, the order denying counsel fees must stand. The financial affidavits indicate that upon the division of the joint savings account the plaintiff will have approximately $1913. Neither those affidavits nor the plaintiff’s brief indicates what she owes her attorneys, who are also her employers, for their services. The court attributed the breakdown to both parties, a factor to be considered in the award of counsel fees. Arrigoni v. Arrigoni, 184 Conn. 513, 440 A.2d 206 (1981). We find no abuse of discretion.

There is error in part, the judgment is set aside as to the orders relating to the custodial funds, support, medical and life insurance, unreimbursed medical, dental, orthodontic and optical expenses, and to mortgage, taxes, insurance, utilities and telephone expenses and the case is remanded for a rehearing limited to those issues.

In this opinion the other judges concurred.

       This appeal, originally filed in the Supreme Court, was transferred to this court. Public Acts, Spec. Sess., June, 1983, No. 83-29, § 2 (c).

       The record indicates that certain of the issues were either uncontested or agreed to at the trial. These are the dissolution of the marriage, custody and visitation, equal division of the parties’ joint savings account after payment therefrom of certain outstanding medical and hospital bills, and the allocation of certain tangible personalty.

       The record indicates that at the trial the defendant indicated a willingness to continue bearing the expenses of the house.

       General Statutes § 45-104 (b) provides as follows: “The custodian shall pay over to the minor for expenditure by him, or expend for the minor’s benefit, so much of or all the custodial property as the custodian deems advisable for the support, maintenance, education and benefit of the minor in the manner, at the time or times, and to the extent that the custodian in his discretion deems suitable and proper, with or without court order, with or without regard to the duty of himself or of any other person to support the minor or his ability to do so, and with or without regard to any other income or property of the minor which may be applicable or available for any such purpose.”