author: ALVORD, J.

text:
    COLLEEN COLBERT v. CHARLES N. CARR
    (AC 33817)
    Alvord, Bear and Mihalakos, Js.

      Argued October 22, 2012
    officially released January 15, 2013

      Richard C. Stewart, for the appellant (plaintiff).

      Charles N. Carr, pro se, the appellee (defendant).
   Opinion

ALVORD, J.

The plaintiff, Colleen Colbert, appeals from the judgment rendered by the trial court in this paternity action that she brought against the defendant, Charles N. Carr. The plaintiff claims that the court improperly (1) denied her request for attorney’s fees, (2) failed to award three years of child support retroactive from the date of the filing of her petition to establish paternity and (3) refused to deviate from the mandatory child support guidelines. We affirm the judgment of the trial court.

The record discloses the following facts and procedural history, either as found by the trial court or undisputed by the parties. The parties, who were never married, conceived their son in 1997, when the plaintiff was thirty-six years old and the defendant was twenty-five years old. At that time, the plaintiff was employed by a “turnaround management company.” Subsequently, from 2001 until 2010, she was employed by various pharmaceutical companies. She has three college degrees. The defendant has been a police officer since 2000. Prior to that time, he was in the military service and then was involved in the operation of an indoor shooting range in the state of Washington.

The parties were not living together when the plaintiff became pregnant. When she advised him of the pregnancy, he told her that he was not emotionally willing or capable of being a father at that time. She told him that she could manage on her own. Their son was bom in February, 1998. The defendant saw his son a few days after his birth but chose not to establish a relationship with him. Nevertheless, the birth certificate lists the defendant as the father of the parties’ son, and the plaintiffs verified petition for paternity alleged that the defendant “acknowledged paternity orally and in writing.”

A few months after the child’s birth, the plaintiff contacted the defendant and indicated that she would need his financial support to raise their child. She told him the amount that she needed, and he paid her the amount requested. The defendant voluntarily continued to pay the plaintiff monthly child support in agreed upon amounts for thirteen years, i.e., continuing throughout the trial. In 2001, he procured a life insurance policy for the benefit of his son when the plaintiff voiced concerns that the defendant could be killed in the line of duty. In 2010, at the plaintiffs request, the defendant placed their son on his health insurance policy. Also in 2010, the defendant cooperated with the plaintiff in effecting a change to their son’s birth certificate to correct an error in the defendant’s first name. It was uncontested that the defendant never disputed nor denied that he was the father of the parties’ son, that he had acknowledged paternity on multiple occasions and that he had contributed to the child’s support from the time of their son’s birth throughout the child’s life.

On February 20, 2010, at the plaintiffs request, the defendant met with their son. Shortly after that meeting, the defendant told the plaintiff that he did not wish to maintain contact with their child. According to the plaintiff, this refusal to be a part of the child’s life adversely affected their child. Approximately four months later, the plaintiff contacted an attorney. By letter dated June 28,2010, the plaintiffs counsel advised the defendant that the plaintiff had retained his services to protect the child’s “financial security by putting into place in the Connecticut court system a finding of paternity, and an order of child support.” Enclosed with the letter was a copy of the verified complaint prepared by the plaintiffs counsel, which the plaintiffs counsel stated would not be served until he had heard from the defendant or the defendant’s counsel. The defendant contacted an attorney, who corresponded with the plaintiffs counsel.

The plaintiff commenced this action on October 26, 2010. In a one count complaint, the plaintiff alleged that (1) she gave birth to a son in February, 1998, (2) the child was conceived in May, 1997, (3) the defendant is the father of the child, (4) the defendant is named in the birth certificate and has acknowledged paternity orally and in writing, (6) the action was brought prior to the child’s eighteenth birthday and (6) the case did not involve recipients of public assistance. The defendant filed his answer on October 28, 2010, two days after he had been served with process, admitting the allegations in all six paragraphs. The trial commenced on March 4, 2011, and was continued to and concluded on August 8, 2011. After the parties rested, the court rendered its judgment orally, without argument by counsel or additional briefing of the issues.

The court noted that the plaintiff brought the action pursuant to the paternity statute. See General Statutes § 46b-160. The court stated, however, that it had not been necessary to proceed under that statutory scheme: “In this case, paternity of the child is already established in that [the defendant] had acknowledged paternity at the time of, or very close to, the birth of the child [and] has continuously acknowledged that paternity .... This is the kind of action that usually commences in a [family support] magistrate’s court; usually a petitioner goes to the support enforcement bureau and asks that another party be required to pay child support. . . . Based on the evidence that I’ve heard, I’ve heard no suggestion that [the defendant] was unwilling or unable to sign an acknowledgment of paternity [in accordance with General Statutes § 46b-172], making this entire proceeding unnecessary except to establish support, and there was another avenue available to do that, namely, the [family support] magistrate’s court as I’ve indicated.”

The court then entered child support orders pursuant to the guidelines, reserved jurisdiction for the purpose of postmajority educational support, denied the plaintiffs request for three years of retroactive child support and denied the plaintiffs request for an award of attorney’s fees pursuant to General Statutes § 46b-171 (a). This appeal followed.

I

The plaintiffs first claim is that the trial court improperly denied her request for an award of attorney’s fees. Because she commenced this action pursuant to § 46b-160, she argues that an award of attorney’s fees was mandatory rather than discretionary. It is the plaintiffs position that the defendant’s acknowledgment of paternity was insufficient to preclude such an award under § 46b-171 (a) because he failed to comply with the formal requirements for acknowledgment set forth in § 46b-172.

Section 46b-160 appears in chapter 815y of the General Statutes, which is entitled “Paternity Matters.” Chapter 815y sets forth classifications of persons and entities that may bring a statutory cause of action for paternity. Section 46b-160 (a) allows the mother of the child to bring such an action. General Statutes § 46b-162 provides in relevant part that “[t]he state or any town interested in the support of a child bom out of wedlock may, if the mother neglects to bring such petition, institute such proceedings against the person accused of begetting the child . . . This statutory scheme pertaining to paternity actions is not, however, the exclusive way to establish paternity.

A paternity action brought pursuant to § 46b-160must be instituted by service of a verified petition, summons and order upon the putative father himself. “Proceedings to establish paternity of a child bom or conceived out of lawful wedlock . . . shall be commenced by the service on the putative father of a verified petition of the mother or expectant mother. Such petition may be brought at any time prior to the child’s eighteenth birthday, provided liability for past support shall be limited to the three years next preceding the date of the filing of any such petition.” (Emphasis added.) General Statutes § 46b-160 (a) (1) (A). “[B]ecause § 46b-160 is in derogation of the common law, it is to be strictly construed.” Hayes v. Smith, 194 Conn. 52, 61, 480 A.2d 425 (1984).

Section 46b-171 (a) (1) (A), which also is part of chapter 815y, provides in relevant part: “If the defendant is found to be the father of the child, the court or family support magistrate shall order the defendant to stand charged with the support and maintenance of such child, with the assistance of the mother if such mother is financially able . . . and to pay a certain sum periodically until the child attains the age of eighteen years or as otherwise provided in this subsection. . . .” Section 46b-171 (a) (1) (B) provides in relevant part: “The court or family support magistrate shall order the defendant to pay such sum to the complainant, or, if a town or the state has paid such expense, to the town or state, as the case may be, and shall grant execution for the same and costs of suit taxed as in other civil actions, together with a reasonable attorney’s fee, and may require the defendant to become bound with sufficient surety to perform such orders for support and maintenance. . . .” (Emphasis added.)

The plaintiff claims that the wording of 46b-171 (a) clearly required that the trial court award her reasonable attorney’s fees because she commenced the action pursuant to § 46b-160 and the defendant was found to be the father of her child. She does not dispute the fact that an award of attorney’s fees by the trial court would not be mandatory if she had commenced her action pursuant to General Statutes § 46b-61.

At the time of trial, the plaintiff testified that she owed her attorney $20,994. Her attorney’s affidavit, which contained an itemization of his fees, was admitted as a full exhibit. Although the plaintiffs attorney argued that an award of attorney’s fees was mandatory under § 46b-171 (a) (1) (B) of the paternity statutes, the court declined to award them. The court stated that it believed that it had discretion to deny the request for attorney’s fees. The court emphasized that § 46b~160 is used to establish paternity, but, in this case, “paternity of the child is already established in that [the defendant] had acknowledged paternity at the time of, or very close to, the birth of the child, has continuously acknowledged that paternity, has paid child support and thereby acknowledged paternity continuously.” We agree with the trial court.

Under the circumstances of this case, paternity was never an issue and the court did not establish paternity. The court found that the defendant was the father of the child on the basis of the defendant’s own admissions, which he made before the trial commenced and, in fact, at the time of the child’s birth. The amount of child support, including any retroactive support, was the issue to be determined by the court. The statutes pertaining to contested child support, as opposed to contested paternity, do not provide for mandatory attorney’s fees. Accordingly, the trial court did not improperly deny the plaintiffs request for attorney’s fees.

II

The plaintiffs next claim is that the court improperly failed to award three years of child support retroactive from the date of the filing of her petition under § 46b-160. She concedes that such an award is discretionary under § 46b-171 (a) (1) (A), but argues that the court abused its discretion in denying an award of retroactive child support because the amounts voluntarily paid by the defendant “were deficient.” She claims that the defendant’s “rejection of the child” has taken an “emotional toll” on her and the child and “will lead to future expenses that are routinely covered by the other parent, for example, birthday and holiday gifts, clothing, vacations, etc.”

“[T]he standard of review in family matters is well settled. An appellate court will not disturb a trial court’s orders in domestic relations cases unless the court has abused its discretion or it is found that it could not reasonably conclude as it did, based on the facts presented. ... It is within the province of the trial court to find facts and draw proper inferences from the evidence presented. ... In determining whether a trial court has abused its broad discretion in domestic relations matters, we allow every reasonable presumption in favor of the correctness of its action.” (Interna! quotation marks omitted.) Vanicky v. Vanicky, 128 Conn. App. 281, 284, 18 A.3d 602 (2011). We have reviewed the record and find ample support for the court’s determinations. We cannot conclude that the court abused its discretion in denying the plaintiffs request for three years of retroactive child support when the defendant has been paying child support throughout his son’s life, has paid the amounts for child support requested by the plaintiff and, in some instances, has paid more than the amounts set forth in the child support guidelines.

Ill

The plaintiffs final claim is that the court improperly refused to deviate from the mandatory child support guidelines in determining the defendant’s required payments for child support. The plaintiff argues that the defendant’s refusal to have contact with their son has led to emotional difficulties and additional expenses for the child. She also claims that a deviation from the guidelines would have been in the best interests of the child.

Although judicial review of a trial court’s orders in domestic relations matters is generally confined to determining whether the court abused its broad discretion, “[i]n the case of [child] support . . . the parameters of the court’s discretion have been somewhat limited by the factors set forth in the child support guidelines.” Pagliaro v. Jones, 75 Conn. App. 625, 632, 817 A.2d 756 (2003). General Statutes § 46b-215b (a) provides in relevant part: “The child support and arrear-age guidelines issued pursuant to section 46b-215a, adopted as regulations pursuant to section 46b-215c . . . shall be considered in all determinations of child support award amounts, including any current support, health care coverage, child care contribution and past-due support amounts, and payment on arrearages and past-due support within the state. In all such determinations, there shall be a rebuttable presumption that the amount of such awards which resulted from the application of such guidelines is the amount to be ordered.

In the present case, the plaintiff claims that the court improperly refused to apply the deviation criteria set forth in § 46b-215a-3 of the Regulations of Connecticut State Agencies, which would justify a child support order different from the presumptive support amount. She concedes that the only two criteria that could apply here would be the “[b]est interests of the child” and “[o]ther equitable factors.” Regs., Conn. State Agencies § 46b-215a-3 (b) (6) (C) and (D). We disagree.

The plaintiff claims that deviation is warranted based on the best interests of the child and other equitable factors because the defendant “has utterly rejected [his son’s] attempts at forming a parental relationship,” which places “a double burden of parenting on [the plaintiff].” She further claims that the defendant has substantial assets that the court failed to consider, i.e., his interest in the shooting range in Washington and rental income from his property in Bridgeport. The trial court, in response to the plaintiffs claim that she had proven that a deviation from the presumptive amount was appropriate and equitable, stated: “It’s a factual matter and you have failed to do so.” Our review of the record does not lead us to a contrary conclusion. We find no fault in the court’s refusal to deviate from the presumptive amount of child support as set forth in the child support guidelines.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant owns 10 percent of the Washington business, which has been apassive investment for him from the time that he moved from Washington back to Connecticut.

       The defendant saw his son two additional times, once when the boy was approximately thirteen months old and again in February, 2010.

       The defendant signed a “Statement of Parentage” on March 13, 1998, in which he declared that he was the father of the parties’ son and that he consented to his name being placed on the child’s birth certificate.

       The letter was admitted, without objection, as a full exhibit at trial. The contents of the letter provided, in part, as follows: “It has been my experience that matters such as these are often handled best for all parties concerned if an amicable agreement is reached. Contested litigation is not only very expensive, it can also lead to results that are not as beneficial to either party as an agreement worked out amicably .... I suggest that you obtain the services of an attorney familiar with family law in Connecticut, and have the attorney contact me in the very near future.”

       See General Statutes § 46b-231 et seq.

       See General Statutes § 17b-179 (h).

       General Statutes § 46b-172 (a) (1) provides in relevant part: “In lieu of or in conclusion of proceedings under section 46b-160, a written acknowledgment of paternity executed and sworn to by the putative father of the child when accompanied by (A) an attested waiver of the right to a blood test, the right to a trial and the right to an attorney, and (B) a written affirmation of paternity executed and sworn to by the mother of the child shall have the same force and effect as a judgment of the Superior Court. It shall be considered a legal finding of paternity without requiring orpermitting judicial ratification .... Such acknowledgment shall not be binding unless, prior to the signing of any affirmation or acknowledgment of paternity, the mother and the putative father are given oral and written notice of the alternatives to, the legal consequences of, and the rights and responsibilities that arise from signing such affirmation or acknowledgment. . . . The notice to the putative father shall include, but not be limited to, notice that such father has the right to contest paternity, including the right to appointment of counsel, a genetic test to determine paternity and a trial by the Superior Court or a family support magistrate and that acknowledgment of paternity will make such father liable for the financial support of the child until the child’s eighteenth birthday. . . . The notices shall also explain the right to rescind the acknowledgment . . . and shall explain that the acknowledgment cannot be challenged after sixty days, except in court upon a showing of fraud, duress or material mistake of fact.”
      The “Statement of Parentage” that the defendant signed on March 13, 1998, contained his declaration that he was the father of the parties’ son and that he consented to his name being placed on the child’s birth certificate. The trial court, however, found that the defendant never had been asked to sign any additional acknowledgment of paternity: “Based on the evidence that I’ve heard, I’ve heard no suggestion that [the defendant] was unwilling or unable to sign an acknowledgment of paternity . . . .”

       In Weidenbacher v. Duclos, 234 Conn. 51, 661 A.2d 988 (1995), the petitioner brought a habeas corpus action for the custody of a child. The respondents claimed that he had no standing to bring the action because a putative father can establish paternity only by way of the statutory procedure set forth in General Statutes § 46b-172a, which is in chapter 815y. Id., 63-64. Our Supreme Court disagreed. “[W]e conclude that the statutory scheme pertaining to paternity actions . . . does not foreclose the Superior Court’s jurisdiction to determine whether a putative father is, in fact, the biological father of a child. . . . [T]he statutory procedures do not pose a barrier to the petitioner’s habeas corpus action for the custody of the child.” Id., 68.

       Section 46b-61 appears in chapter 815j of the General Statutes, which is entitled “Dissolution of Marriage, Legal Separation and Annulment.” It provides in relevant part that “[i]n all cases in which the parents of a minor child live separately, the superior court for the judicial district where the parties or one of them resides may, on the application of either party and after notice is given to the other party, make any order as to the custody, care, education, visitation and support of any minor child of the parties . . . General Statutes § 46b-61.
      General Statutes § 46b-62 provides in relevant part: “In any proceeding seeking relief under the provisions of this chapter . . . the court may order either spouse or, if such proceeding concerns the custody, care, education, visitation or support of a minor child, either parent to pay the reasonable attorney’s fees of the other in accordance with their respective financial abilities and the criteria set forth in section 46b-82. ...” (Emphasis added.)

       Furthermore, the statute requires service “on the putative father . . . .” (Emphasis added.) General Statutes § 46b-160 (a) (1) (A). “Putative” is defined as “[r]eputed; believed; supposed.” Black’s Law Dictionary (9th Ed. 2009). In this case, it was undisputed that the defendant was the biological father of the child.

       Section 46b-215a-3 (b) (6) of the Regulations of Connecticut State Agencies provides in relevant part: “In some cases, there may be special circumstances not otherwise addressed in this section in which deviation from presumptive support amounts may be warranted for reasons of equity. Such circumstances are limited to the following ...(C) Best interests of the child. (D) Other equitable factors.”

       The plaintiff repeatedly stresses the refusal of the defendant to be a part of his son’s life, as his son wants a parental relationship. It is not the function of the judicial system, however, to punish the defendant for his unwillingness to form a bond with his child. Under the law, the defendant is furnishing the financial support required of him.

       The defendant testified as to his limited interest in the shooting range and the income that he derives from that business. He also testified with respect to the expenses he incurred and the income he derived from his rental property.


source: Caselaw Access Project

author: GRUENDEL, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. GENE C.

    (AC 33111)
    Gruendel, Beach and Espinosa, Js.

      Argued October 17, 2012
    officially released January 15, 2013

      Christopher Y. Duby, appointed counsel, for the appellant (defendant).

      Amanda Shaffer, certified legal intern, with whom were Harry Weller, senior assistant state’s attorney, and, on the brief, Maureen Platt, state’s attorney, and Catherine Brannelly Austin, senior assistant state’s attorney, for the appellee (state).

       In accordance with our policy of protecting the privacy interests of the victims of sexual abuse and the crime of risk of injury to a child, we decline to use the defendant’s full name or to identify the victims or others through whom their identities may be ascertained. See General Statutes § 54-86e.

   Opinion

GRUENDEL, J.

The defendant, Gene C., appeals from the judgments of conviction, rendered after a jury trial, of three counts of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2), three counts of sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (1), two counts of sexual assault in the fourth degree in violation of General Statutes § 53a-73a (a) (1), and seven counts of risk of injury to a child in violation of General Statutes § 53-21 (a) (2). On appeal, the defendant claims that the court improperly (1) denied his posttrial motion for a judgment of acquittal and (2) admitted constancy of accusation testimony. We affirm the judgments of the trial court.

The jury reasonably could have found that, beginning at the ages of six and seven, respectively, the defendant sexually assaulted his two daughters, L and M, over the course of several years. More specifically, the defendant forced them to engage in oral and vaginal intercourse with him on numerous occasions.

On February 13, 2009, M informed an English teacher and a guidance counselor at her school that the defendant had touched her. That night, M confided to her maternal aunt (aunt) that the defendant had raped her “once a week for like five years.” The aunt shared this information with M’s mother, who later contacted the police. On February 17,2009, L and M provided a written statement to the police.

The defendant thereafter was arrested and charged with the aforementioned offenses. Prior to trial, the defendant filed a motion in limine to preclude “post-charge constancy testimony” pursuant to § 6-11 (c) of the Connecticut Code of Evidence. In that motion, the defendant sought preclusion of “any testimony regarding complaints made after an official complaint was made to the police.” During a pretrial proceeding, the court granted that motion as follows: “The next motion I have is the motion to preclude postcharge constancy testimony. I understand that the state agrees in principle that the constancy of accusation evidence should not include anything after the charge and that, in any event, it does not have any such evidence, so ... I believe the motion should be granted.”

At trial, both L and M provided detailed testimony regarding the sexual assaults. In addition, the aunt testified at trial that M informed her on the evening of February 13, 2009, that the defendant had sexually assaulted her on several occasions. The defendant testified in his own defense, categorically denying the accusations against him. At the conclusion of trial, the jury found the defendant guilty on all counts. The court rendered judgment accordingly and thereafter sentenced him to a total effective term of thirty-six years incarceration, execution suspended after twenty-four years, and twenty-five years of probation with special conditions that included lifetime registration as a sex offender. This appeal followed.

I

The defendant first claims that the court improperly denied his posttrial motion for a judgment of acquittal because there was insufficient evidence to support his conviction. He is mistaken.

“The standard of review employed in a sufficiency of the evidence claim is well settled. [W]e apply a two part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [jury] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. ... [A reviewing court] cannot substitute its own judgment for that of the jury if there is sufficient evidence to support the jury’s verdict. . . . [P]roof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the trier, would have resulted in an acquittal. . . . On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the jury’s verdict of guilty.” (Internal quotation marks omitted.) State v. St. Cyr, 100 Conn. App. 189, 194-95, 917 A.2d 578, cert. denied, 282 Conn. 915, 924 A.2d 140 (2007).

A reasonable view of the evidence plainly exists that supports the jury’s guilty verdict. L and M provided graphic testimony detailing the sexual assaults. It would serve no useful purpose to recite the specifics of that testimony. Suffice it to say that both L and M testified that, from the time they were six or seven years old, the defendant forced them to engage in oral and vaginal intercourse with him over a period of several years. The jury, as sole arbiter of credibility, was free to believe that testimony. See State v. Russell, 101 Conn. App. 298, 316, 922 A.2d 191, cert. denied, 284 Conn. 910, 931 A.2d 934 (2007).

On appeal, the defendant argues that “there is no evidence that the defendant committed any criminal act once [L and M’s] testimony is removed from the analysis,” emphasizing that “[t]he state presented no physical evidence and no evidence from anyone about the assaults other than those complaining of them.” In so doing, the defendant misconstrues the applicable legal standard.

It is well established that “[i]t is the [fact finder’s] exclusive province to weigh the conflicting evidence and to determine the credibility of witnesses. . . . The [fact finder] can . . . decide what — all, none, or some — of a witness’ testimony to accept or reject. . . . As a corollary, [questions of whether to believe or to disbelieve a competent witness are beyond our review. As a reviewing court, we may not retry the case or pass on the credibility of witnesses. . . . [W]e must defer to the [finder] of fact’s assessment of the credibility of the witnesses that is made on the basis of its firsthand observation of their conduct, demeanor and attitude.” (Citation omitted; internal quotation marks omitted.) State v. Altayeb, 126 Conn. App. 383, 387-88, 11 A.3d 1122, cert. denied, 300 Conn. 927, 15 A.3d 628 (2011). Credibility determinations are the exclusive province of the jury as fact finder, which we refuse to disturb.

In addition, this appellate tribunal cannot discard the testimony offered by the complainants in the present case, particularly when that testimony corroborates, in convincing fashion, the verdict returned by the jury. It matters little that the state’s case consisted primarily of that testimony or that it lacked physical evidence. Our Supreme Court has recognized that a jury reasonably can find a defendant guilty of sexual assault on the basis of the victim’s testimony alone. State v. Monk, 198 Conn. 430, 433, 503 A.2d 591 (1986); State v. Brice, 186 Conn. 449, 458 n.10, 442 A.2d 906 (1982). Because the testimony of L and M provides an ample basis for the jury to find the defendant guilty of the charged offenses, the defendant’s claim fails.

II

The defendant also contends that the court improperly admitted the constancy of accusation testimony offered by M’s aunt. The basis of his claim is twofold. First, he argues that M reported the sexual assaults to her aunt after filing a complaint with the police. Second, he insists that M reported the sexual assaults to her aunt after making a report to school officials. Both claims are unavailing.

“[WJhether evidence is admissible under the constancy of accusation doctrine is an evidentiary question that will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice. ... An appellate court will make every reasonable presumption in favor of upholding the trial court’s evidentiary rulings.” (Internal quotation marks omitted.) State v. Francis D., 75 Conn. App. 1, 5, 815 A.2d 191, cert. denied, 263 Conn. 909, 819 A.2d 842 (2003). To the extent that the eviden-tiary ruling in question is challenged as an improper interpretation of a rule of evidence, our review is plenary. State v. Saucier, 283 Conn. 207, 218, 926 A.2d 633 (2007).

As this court observed in State v. Antwon W., 118 Conn. App. 180, 982 A.2d 1112 (2009), cert. denied, 295 Conn. 922, 991 A.2d 568 (2010), “[t]he constancy of accusation doctrine traces its roots to the common-law concept of hue and cry whereby victims of violent crime were expected to cry out immediately and alert their neighbors that they had been violently assaulted. . . . In the context of sexual assault, evidence of a victim’s hue and cry was a necessary prerequisite for a court to hear a rape case such that a woman who had not so complained could not have her case prosecuted. . . . Until 1974 in Connecticut, the state was required to offer evidence corroborating a victim’s claims to obtain a conviction for sexual assault. . . . The General Assembly repealed this requirement of corroboration in Public Acts 1974, No. 74-131. Despite the repeal of the corroboration requirement, in cases such as the present one, the state often seeks to offer evidence corroborating the victim’s complaint of sexual abuse.” (Citations omitted; internal quotation marks omitted.) Id., 195.

In State v. Troupe, 237 Conn. 284, 677 A.2d 917 (1996), our Supreme Court “determined that the constancy of accusation doctrine should be modified to better accommodate the interest of the victim in being protected against the unwarranted, but nonetheless persistent, view that a sexual assault victim who does not report the crime cannot be trusted to testify truthfully about the incident . . . and the interest of the accused in being protected against an enhanced risk that the jury may be unduly swayed by the repeated iteration of the constancy of accusation testimony. . . . [The court] thus decided in Troupe to reject the then existing rule that a person to whom a sexual assault victim has complained may provide substantive testimony regarding the incident. . . . [It] concluded [that a] person to whom a sexual assault victim has reported the assault may testify only with respect to the fact and timing of the victim’s complaint; any testimony by the witness regarding the details surrounding the assault must be strictly limited to those necessary to associate the victim’s complaint with the pending charge, including, for example, the time and place of the attack or the identity of the alleged perpetrator. . . . Thus, such evidence is admissible only to corroborate the victim’s testimony and not for substantive purposes. Before the evidence may be admitted, therefore, the victim must first have testified concerning the facts of the sexual assault and the identity of the person or persons to whom the incident was reported. In determining whether to permit such testimony, the trial court must balance the probative value of the evidence against any prejudice to the defendant.” (Citations omitted; internal quotation marks omitted.) State v. Samuels, 273 Conn. 541, 547-48, 871 A.2d 1005 (2005).

The court further clarified that admission of constancy of accusation testimony is limited to reports made by the victim to constancy witnesses prior to the victim’s filing of an official complaint with the police. Id., 551-52 (“[o]nce a sexual assault victim has reported the crime to the police . . . corroborative testimony by constancy witnesses that is based on postcomplaint conversations with the victim, even if relevant, no longer serves the purpose of countering a negative inference as to the victim’s credibility because it is the inconsistency between the victim’s silence following the assault and her subsequent complaint to the police that gives rise to such an inference”); accord State v. Arroyo, 284 Conn. 597, 639-40, 935 A.2d 975 (2007) (limitation on constancy of accusation doctrine set forth in Sam-uels triggered “once a victim has herself reported the crime to the police”); State v. McKenzie-Adams, 281 Conn. 486, 541, 915 A.2d 822 (“statements made by a victim after he or she had filed an official complaint with the police [are] inadmissible as constancy of accusation evidence”), cert. denied, 552 U.S. 888, 128 S. Ct. 248, 169 L. Ed. 2d 148 (2007). With that context in mind, we turn to the specific claims raised by the defendant.

A

The defendant first argues that the court abused its discretion in admitting the constancy of accusation testimony of the aunt because M reported the sexual assaults to her subsequent to filing a complaint with the police. That claim fails because it is factually incorrect. The evidence at trial established that M reported the sexual assaults to the aunt on the evening of February 13, 2009, and that she thereafter spoke with the police on February 17, 2009. The defendant has not identified any evidence indicating otherwise. Because the undisputed evidence in the record before us demonstrates that M reported the sexual assaults to the aunt prior to filing a complaint or speaking with the police, his claim is without merit.

B

The defendant also claims that court abused its discretion in admitting the constancy of accusation testimony of the aunt because M reported the sexual assaults to school officials prior to reporting them to the aunt. He maintains that because school officials are mandated reporters pursuant to General Statutes § 17a-101, M’s complaint to them on the afternoon of February 13, 2009, triggered the limitation on constancy of accusation testimony, thereby barring the aunt’s testimony. We disagree.

Contrary to the defendant’s contention, under Connecticut law, the limitation on constancy of accusation testimony is triggered “once a victim has herself reported the crime to the police . . . .” State v. Arroyo, supra, 284 Conn. 639-40. In Arroyo, our Supreme Court rejected the claim that the limitation on constancy of accusation testimony is triggered when a mandated reporter files an official complaint on behalf of a victim. Id., 640. As the court explained, “a state agency cannot be considered as an agent or a surrogate for the child in making such a complaint but, rather, must be viewed as acting in fulfilling its own institutional and statutory obligations [as a mandated reporter pursuant to] § 17a-101 (b) . . . .” Id., 639. The defendant has neither acknowledged nor attempted to distinguish Arroyo in his principal and reply briefs. Bound by that precedent, we thus view the act of the school officials in reporting M’s allegations to the department of children and families as fulfillment of their own institutional and statutory obligations, rather than as surrogacy for M.

The mandated reporter statute “is intended to facilitate the protection of children and their removal from abusive situations. It is not a statute designed to preserve or protect evidence pertaining to such abuse.” In re Robert K., 12 Conn. App. 585, 591, 532 A.2d 1319 (1987). That purpose is embodied in § 17a-101 (a), which provides: “The public policy of this state is: To protect children whose health and welfare may be adversely affected through injury and neglect; to strengthen the family and to make the home safe for children by enhancing the parental capacity for good child care; to provide a temporary or permanent nurturing and safe environment for children when necessary; and for these purposes to require the reporting of suspected child abuse or neglect, investigation of such reports by a social agency, and provision of services, where needed, to such child and family.” That statute requires mandatory reporting of “child abuse and neglect” to the department of children and families, an administrative agency whose core function is protection, not prosecution. See General Statutes § 17a-3.

Although the department is required to notify law enforcement in certain circumstances; see General Statutes § 17a-101b; that imperative does not transform the department into an arm of law enforcement. Our Supreme Court has held that the act of a department agent filing a report with the police does not trigger the limitation on constancy of accusation testimony. State v. Arroyo, supra, 284 Conn. 639-40. If the filing of a report with police by department personnel does not constitute an official complaint to the police for purposes of constancy of accusation analysis, we cannot fathom how the filing of a report with the department by a mandated reporter constitutes such an official complaint.

The precedent of this state’s highest court instructs that the act triggering the limitation on constancy of accusation testimony is the filing of a complaint by the victim herself with the police. Id.; State v. McKenzie-Adams, supra, 281 Conn. 541; State v. Samuels, supra, 273 Conn. 551-52. The defendant has presented no cogent rationale for a departure from that precedent in the present case. Because M reported the sexual assaults to the aunt prior to filing her complaint with the police, the court did not abuse its discretion in admitting that constancy of accusation testimony.

The judgments are affirmed.

In this opinion the other judges concurred.

       This case involves the sexual assault of two children. Although the state originally charged the defendant in separate informations, the court consolidated the cases prior to trial.

       Consistent with the mandate of General Statutes § 17a-101, school officials immediately reported that allegation to the department of children and families.

       Section 6-11 (c) of the Connecticut Code of Evidence provides: “A person to whom a sexual assault victim has reported the alleged assault may testily that the allegation was made and when it was made, provided the victim has testified to the facts of the alleged assault and to the identity of the person or persons to whom the assault was reported. Any testimony by the witness about details of the assault shall be limited to those details necessary to associate the victim’s allegations with the pending charge. The testimony of the witness is admissible only to corroborate the victim’s testimony and not for substantive purposes.”

       Both the state and the defendant presented the testimony of other witnesses that is not relevant to this appeal.

       L testified at trial that the defendant repeatedly threatened to “kill” her mother if she ever informed her of the sexual assaults.

       General Statutes § 17a-101 (b) provides in relevant part that “a school employee, as defined in section 53a-65” shall be a mandated reporter. General Statutes § 53a-65 (13) defines “school employee” as “(A) A teacher, substitute teacher, school administrator, school superintendent, guidance counselor, psychologist, social worker, nurse, physician, school paraprofessional or coach employed by a local or regional board of education or a private elementary, middle or high school or working in a public or private elementary, middle or high school; or (B) any other person who, in the performance of his or her duties, has regular contact with students and who provides services to or on behalf of students enrolled in (i) a public elementary, middle or high school, pursuant to a contract with the local or regional board of education, or (ii) a private elementary, middle or high school, pursuant to a contract with the supervisory agent of such private school.”

       Our Supreme Court described the rule that the limitation on constancy of accusation testimony is triggered when the victim herself files a complaint to the police as a “bright line rule.” State v. Arroyo, supra, 284 Conn. 639. The court also rejected the claim that this bright line rule would be “rigid and unworkable,” stating that “[w]e do not agree that it is difficult to determine when a complaint has been made to the police.” State v. Samuels, supra, 273 Conn. 554.


author: PER CURIAM.

text:
    EDWARD B.
      v. COMMISSIONER OF CORRECTION
    (AC 32770)
    Graendel, Lavine and Robinson, Js.

      Argued October 26, 2012
    officially released January 15, 2013

      Sean P. Barrett, special public defender, for the appellant (petitioner).

      Kathryn W. Bare, assistant state’s attorney, with whom, on the brief, were Kevin D. Lawlor, state’s attorney, Jo Anne Sulik, supervisory assistant state’s attorney, and Brenda Hans, assistant state’s attorney, for the appellee (respondent).

       In accordance with our policy of protecting the privacy interests of the victims of sexual assault and the crime of risk of injury to a child, we decline to use the petitioner’s full name or to identify the victim or others through whom the victim’s identity may be ascertained. See General Statutes § 54-86e.

   Opinion

PER CURIAM.

The petitioner, Edward B., appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus. On appeal, the petitioner claims that the court improperly concluded that (1) his appellate counsel’s performance was not deficient because it did not fall below the standard of ordinary competence and (2) he did not suffer prejudice due to his appellate counsel’s performance. We affirm the judgment of the habeas court.

The following facts and procedural history are relevant to this appeal. A jury found the defendant guilty of two counts of sexual assault in the first degree in violation of General Statutes (Rev. to 1997) § 53a-70 (a) (2) and two counts of risk of injury to a child in violation of General Statutes (Rev. to 1997) § 53-21 (2). This court upheld the petitioner’s conviction on appeal. State v. Edward B., 72 Conn. App. 282, 284, 806 A.2d 64, cert. denied, 262 Conn. 910, 810 A.2d 276 (2002). On February 19, 2010, the petitioner filed a fourth amended petition for a writ of habeas corpus, alleging ineffective assistance of appellate counsel, among other things. By memorandum of decision issued on September 2, 2010, the habeas court denied the amended petition for a writ of habeas corpus and subsequently granted the petitioner’s petition for certification to appeal.

We review the relevant legal standards. “For claims of ineffective assistance of appellate counsel, we must assess whether there is a reasonable probability that, but for appellate counsel’s failure . . . the petitioner would have prevailed in his direct appeal, i.e., reversal of his conviction or granting of a new trial. . . . [T]o determine whether a habeas petitioner had a reasonable probability of prevailing on appeal, a reviewing court necessarily analyzes the merits of the underlying claimed error in accordance with the appropriate appellate standard for measuring harm.” (Internal quotation marks omitted.) Moody v. Commissioner of Correction, 127 Conn. App. 293, 301, 14 A.3d 408, cert. denied, 300 Conn. 943, 17 A.3d 478 (2011). “[A] reviewing court evaluates atrial error of constitutional magnitude under the harmless error standard .... [A] reviewing court must determine whether the state has proved that the unconstitutional error was harmless beyond a reasonable doubt.” (Citations omitted.) Small v. Commissioner of Correction, 286 Conn. 707, 723, 946 A.2d 1203, cert. denied sub nom. Small v. Lantz, 555 U.S. 975, 129 S. Ct. 481, 172 L. Ed. 2d 336 (2008).

The petitioner argues that his appellate counsel failed to brief adequately a claim that he “was not afforded the opportunity to cross-examine an available witness in violation of both his [federal and [s]tate [constitutional rights.” That witness was Florence Freudenthal, a social worker who did not testify. The victim had told Freudenthal that the petitioner penetrated her as part of the sexual abuse and Freudenthal relayed the victim’s statement to John Leventhal. Leventhal is a physician who treated the victim with the assistance of Freuden-thal, and he testified twice about the social worker’s statements to him. The petitioner claims that the trial court improperly admitted Leventhai’s testimony into evidence and that there is a reasonable probability that this court would have overturned his conviction due to insufficient evidence of sexual intercourse by penetration had his appellate counsel adequately briefed that claim. See General Statutes (Rev. to 1997) §§ 53a-65 (2) and 53a-70 (a) (2).

We assume without deciding that the testimony violated the petitioner’s constitutional rights, and that his claim on direct appeal had merit. Nevertheless, the petitioner cannot prevail because admitting the subject testimony was harmless beyond a reasonable doubt. See Small v. Commissioner of Correction, supra, 286 Conn. 723. After our review of the record, we agree with the habeas court’s conclusion that “[t]o be blunt, the evidence against the petitioner . . . was overwhelming and compelling.” Although the subject testimony goes to the statutory element of sexual intercourse, the state presented copious evidence that the petitioner penetrated the victim. This court discussed the abundant evidence of penetration when it rejected the petitioner’s insufficient evidence claim on direct appeal. See State v. Edward B., supra, 72 Conn. App. 292-98. This court did not rely on the subject testimony in affirming the petitioner’s conviction. Id. There is no reasonable probability that the petitioner would have prevailed on his direct appeal but for the alleged professional errors of counsel. See Small v. Commissioner of Correction, supra, 723. Accordingly, the petitioner’s claim fails.

The judgment is affirmed.

       At the petitioner’s criminal trial, the following testimony was elicited on direct examination:
      “[The Prosecutor]: I believe [the victim] in her initial interview had responded to social worker [Florence] Freudenthal that there was penetration?
      “[Leventhal]: She had indicated that.
      * * *
      “[Leventhal]: So if penetration had occurred, and she said it had, we believe that something occurred up to the hymen . . . .”


author: BEACH, J.

text:
    STATE OF CONNECTICUT v. SEAN T. RICKETTS
    (AC 33059)
    Beach, Bear and Bishop, Js.

      Argued October 25, 2012
    officially released January 15, 2013

      Robert T. Rimmer, special public defender, for the appellant (defendant).

      Emily Graner Sexton, special deputy assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, and Chris A. Pelosi, senior assistant state’s attorney, for the appellee (state).
   Opinion

BEACH, J.

The defendant, Sean T. Ricketts, appeals from the judgment of the trial court finding him in violation of probation pursuant to General Statutes § 53a-32. The defendant claims that (1) the evidence was insufficient to support the finding that he had violated the terms of his probation and (2) the court abused its discretion in sentencing him for a violation of probation. We affirm the judgment of the trial court.

The trial court found the following facts. On January 29, 2008, the defendant was convicted of robbery in the second degree in violation of General Statutes § 53a-135 and was sentenced to ten years incarceration, execution suspended after two and one-half years, and five years probation. His probationary period commenced upon his release from prison on November 17, 2009. A condition of his probation was that he not violate any criminal laws of this state. On February 19, 2010, at approximately 8:07 p.m., Hartford police officers noticed an Acura parked with the engine running and the lights on. Four individuals were in the car; the defendant was in the backseat. The officers saw a second car drive up to the Acura and park. Suspecting that a hand-to-hand drug transaction was occurring, the officers drove toward the Acura, and the Acura drove away at a high speed. The officers activated the fights and sirens on the patrol car. The officers saw the two rear passengers engage in movement as if they were trying to retrieve or conceal something. Once the Acura stopped, the officers saw a firearm under the front passenger seat. The firearm was later tested and found to be operable. None of the occupants had a valid permit to carry a firearm. The following day, at approximately 1 a.m., a judicial marshal found a bag of contraband in the defendant’s pocket while the defendant was being processed into lockup. The substance later tested positive for marijuana.

The court concluded that the defendant violated the terms of his probation. The court vacated the January 29,2008 sentence and sentenced the defendant to seven years incarceration, execution suspended after five years, with four years and nine months probation. This appeal followed.

“A revocation of probation hearing has two distinct components and two purposes. A factual determination by a trial court as to whether a probationer has violated a condition of probation must first be made. If a violation is found, a court must next determine whether probation should be revoked because the beneficial aspects of probation are no longer being served. . . . Since there are two distinct components of the revocation hearing, our standard of review differs depending on which part of the hearing we are reviewing.” (Citations omitted; internal quotation marks omitted.) State v. Hill, 256 Conn. 412, 425, 773 A.2d 931 (2001).

“ [A] probation revocation proceeding is civil in nature and, therefore, does not require all of the procedural components associated with an adversary criminal proceeding.” (Internal quotation marks omitted.) State v. Holmes, 70 Conn. App. 4, 8, 796 A.2d 561 (2002). “In a probation revocation proceeding, the state bears the burden of proving by a fair preponderance of the evidence that the defendant violated the terms of his probation. ... As a reviewing court, we may reverse the trial court’s initial factual determination that a condition of probation has been violated only if we determine that such a finding was clearly erroneous.” (Citation omitted; internal quotation marks omitted.) State v. Lanagan, 119 Conn. App. 53, 59-60, 986 A.2d 1113 (2010).

“The standard of review of the trial court’s decision at the [dispositional] phase of the revocation of probation hearing is whether the trial court exercised its discretion properly by reinstating the original sentence and ordering incarceration.” (Internal quotation marks omitted.) State v. Preston, 286 Conn. 367, 377, 944 A.2d 276 (2008).

I

The defendant first claims that the evidence was insufficient to support the court’s conclusion that he had violated the terms of his probation by violating the law. He raises insufficiency claims regarding both bases for the court’s conclusion: (1) that he possessed marijuana on the night in question and (2) that he violated General Statutes § 29-38. With respect to the former, he argues that “the state provided insufficient chain of custody evidence to allow a trial court to factually find that [the defendant] possessed marijuana based on the adduced evidence that a trained Hartford police officer was unable to find any marijuana on [the defendant] in a thorough search but that a judicial marshal (who could remember no other details of the event) ultimately discovered [it].”

Although the defendant characterizes this claim in terms of evidentiary sufficiency, it is, in essence, a claim that the court improperly admitted the marijuana into evidence. The defendant failed to object to the admission of the marijuana as a full exhibit. As the defendant’s evidentiary claim is unpreserved, we decline to afford it review. See, e.g., State v. Cosby, 99 Conn. App. 164, 171, 913 A.2d 1068 (“[assigning error to a court’s evi-dentiary rulings on the basis of objections never raised at trial unfairly subjects the court and the opposing party to trial by ambush” [internal quotation marks omitted]), cert. denied, 281 Conn. 920, 918 A.2d 273 (2007).

Accordingly, we affirm the court’s finding that the defendant violated his probation by being in possession of marijuana on February 20, 2010. This conclusion renders unnecessary any consideration of his claim that the court erred in finding him to have violated his probation by having violated § 29-38. “Our law does not require the state to prove that all conditions [of probation] alleged were violated; it is sufficient to prove that one was violated.” State v. Widlak, 74 Conn. App. 364, 370, 812 A.2d 134 (2002), cert. denied, 264 Conn. 902, 823 A.2d 1222 (2003).

II

The defendant next claims that the court abused its discretion in sentencing him to seven years incarceration, execution suspended after five years, with four years and nine months probation for violating the terms of his probation. Specifically, he argues that the court abused its discretion (1) because the maximum penalty for possession of a firearm without a permit under § 29-38 is five years incarceration and (2) because he should not have received any jail time for possession of marijuana because Public Act 11-71 “eliminated the opportunity to incarcerate any person in Connecticut for possession of less than one-half ounce of marijuana” and the marijuana at issue weighed 0.02 ounces. We are not persuaded.

After the court found the defendant had violated his probation, the court could, under § 53a-32 (d) (4) “revoke the sentence of probation. ... If such sentence is revoked, the court shall require the defendant to serve the sentence imposed or impose any lesser sentence. ...” The court acted within its discretion under § 53a-32 (d) (4) in sentencing the defendant to seven years incarceration, when he had served two and one-half years of his ten year sentence.

The question in the dispositional phase is not how much time, if any, the defendant would serve for being in possession of 0.02 ounces of marijuana and/or for being in possession of a firearm without a permit. Rather, the seven year sentence, suspended after five years, is punishment for the criminal conduct that led to his 2008 conviction. See State v. Fagan, 280 Conn. 69, 107 n.24, 905 A.2d 1101 (2006), cert. denied, 549 U.S. 1269, 127 S. Ct. 1491, 167 L. Ed. 2d 236 (2007). “[T]he element of punishment in probation revocation of [the] defendant is attributable to the crime for which he [or she] was originally convicted and sentenced. Thus, any sentence [the] defendant had to serve as the result of the [probation] violation . . . was punishment for the crime of which he [or she] had originally been convicted. Revocation is a continuing consequence of the original conviction from which probation was granted.” (Internal quotation marks omitted.) Id. Rather, the ultimate question in the dispositional phase is “whether the probationer is still a good risk .... This determination involves the consideration of the goals of probation, including whether the probationer’s behavior is inimical to his own rehabilitation, as well as to the safety of the public.” (Internal quotation marks omitted.) State v. Preston, supra, 286 Conn. 377. After making this assessment, the court exercised its discretion in sentencing the defendant according to § 53a-32 (d) (4).

The judgment is affirmed.

In this opinion the other judges concurred.

       At any rate, a review of the evidential sufficiency of the court’s conclusion that he had possessed marijuana would include review of all the evidence, including the marijuana introduced at trial, because “we review the sufficiency of the evidence as the case was tried .... [A] claim of insufficiency of the evidence must be tested by reviewing no less than, and no more than, the evidence introduced at trial.” (Internal quotation marks omitted.) State v. Coccomo, 115 Conn. App. 384, 395, 972 A.2d 757, cert. granted on other grounds, 293 Conn. 909, 978 A.2d 1111 (2009); see also State v. Rodriguez, 39 Conn. App. 579, 592-93, 665 A.2d 1357 (1995) (reviewing all evidence in addressing sufficiency of evidence claim, including improperly admitted evidence, after ordering remand because trial court failed to suppress evidence), reVd on other grounds, 239 Conn. 235, 684 A.2d 1165 (1996). The evidence introduced at trial, including the evidence that marijuana was found in the defendant’s pocket, was sufficient to support the trial court’s conclusion that he had violated the terms of his probation by possessing marijuana.

       Public Acts 2011, No. 11-71, § 1, which became effective on July 1, 2011, after the defendant’s arrest, provides in relevant part: “(a) Any person who possesses or has under his control less than one-half ounce of a cannabis-type substance, as defined in section 2 la-240 of the general statutes, except as authorized in chapter 420b of the general statutes, shall (1) for a first offense, be fined one hundred fifty dollars . . .

       The state introduced testimony from Laura Grestini, a chemist from the department of public safety’s division of scientific services toxicology controlled substance laboratory, that the substance taken from the defendant tested positive for marijuana and weighed 0.673 grams. This roughly converts to 0.02 ounces.

       The defendant acknowledges in his brief that the “maximum penalties attributable to [the defendant] relate back to his prior conviction . . . .”

       We further note that to the extent that the defendant challenges the length of the sentence, we cannot review such claims because those claims should be made through the sentence review process under General Statutes § 51-195. See State v. Fagan, supra, 280 Conn. 107 n.24.


author: SHELDON, J.

text:
    ARNEL AGUINALDO v. MARY ELLEN WARNER ET AL.
    (AC 31211)
    Beach, Sheldon and Borden, Js.
    Argued October 16, 2012
    officially released January 22, 2013

      Richard E. Castiglioni, with whom, on the brief, was Jonathan Kelson, for the appellant (plaintiff).
   Opinion

SHELDON, J.

The plaintiff, Amel Aguinaldo, appeals from the postjudgment decree of the trial court in this summary process action, passing title pursuant to General Statutes § 52-22 to the defendant, Mary Ellen Warner, to a parcel of real property located at 12 Franklin Avenue, Westport (the premises), from which the plaintiff had attempted unsuccessfully to evict her in this action. The plaintiff claims that the trial court improperly applied § 52-22 in the circumstances here presented, and thus that its judgment passing title must be reversed. We agree with the plaintiff and reverse the judgment of the trial court.

The following facts and procedural history are relevant to the resolution of this appeal. On June 28, 2000, the defendant and her former husband, Donald Warner (Warner), were divorced. Under the terms of their dissolution decree, the defendant acquired the premises, which had been the Warners’ marital residence, subject to an existing first mortgage in the amount of $242,000 (original mortgage) and a second mortgage in favor of Warner in the amount of $80,000. On September 24, 2003, the defendant executed and delivered a note in favor of Ameripath Mortgage Corporation (Ameripath) in the amount of $318,000, secured by a new first mortgage on the premises to Ameripath (Ameripath mortgage), the proceeds of which were used to pay off the original mortgage. Thereafter, the defendant defaulted on the Ameripath mortgage and Ameripath commenced a foreclosure action against her and Warner.

On March 10, 2006, the defendant purportedly transferred her ownership in the premises to Warner. Warner then borrowed funds from Freemont Investment & Loan (Freemont) to pay off the Ameripath mortgage and avoid foreclosure, by executing and delivering to Freemont a note secured by a new first mortgage on the premises (Freemont mortgage). The FYeemont mortgage was later assigned to HSBC Bank USA, National Association (HSBC), as Trustee. When Warner subsequently defaulted on the Freemont mortgage, HSBC commenced a foreclosure action against him. After advertising in local newspapers, a foreclosure auction was held on October 14, 2006. On November 21, 2006, however, before the sale in the foreclosure auction could be approved, Warner purportedly conveyed the premises to the plaintiff by a warranty deed, which was duly recorded in the Westport land records. To finance the purchase and satisfy the Freemont mortgage, the plaintiff borrowed funds from Fair Home Lending Financial, Inc. (Fair Home), to which the plaintiff delivered a duly executed note and mortgage on the premises to Saxon Mortgage Services, Inc. (Saxon).

Thereafter, on December 14, 2007, the plaintiff commenced the present summary process action against the defendant, seeking possession of the premises from her alleging that she had no right or privilege to occupy the premises or, in the alternative, that any pre-existing right or privilege she may once have had had terminated. The defendant alleged, as a special defense, that the plaintiff could not evict her from the premises because he was not the legal owner, having procured title from Warner by way of a forged or fraudulent document. See footnote 4 of this opinion. Following a bench trial, the court agreed with the defendant that the plaintiff had no legal right to evict her from the premises, and thus rendered judgment in her favor, finally disposing of the summary process action on December 23, 2008. Saxon and Fair Home were not parties to the summary process action.

On or about April 21,2009, Saxon commenced a separate action against the defendant, the plaintiff, Warner and Fair Home, to quiet title to the premises. Saxon based its claim to the premises upon the mortgage that the plaintiff had executed and delivered to Fair Home. On April 24, 2009, Saxon recorded a notice of lis pen-dens in the Westport land records in connection with its quiet title action. That action remains pending.

Approximately one week after Saxon commenced its quiet title action, the defendant filed a postjudgment motion in this summary process action seeking a decree, pursuant to § 52-22, that legal title to the premises should pass to her. On June 4, 2009, the court granted the defendant’s motion, entering a decree in her favor, which declared her to be the owner of and legal titleholder to the premises. This appeal followed.

Before reaching the plaintiffs specific claims, we note the legal principles governing our analysis. “Because the plaintiff challenges the legal authority of the court to issue the order [passing title], his claim raises a question of law that is subject to our plenary review.” Rosato v. Rosato, 77 Conn. App. 9, 17, 822 A.2d 974 (2003). “[W]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct . . . and whether they find support in the facts that appear in the record.” (Citation omitted; internal quotation marks omitted.) In re Jonathan M., 255 Conn. 208, 217, 764 A.2d 739 (2001). Furthermore, the issue of whether the court had authority to pass title under § 52-22 requires an interpretation of that statute. “Statutory construction . . . presents a question of law over which our review is plenary.” (Internal quotation marks omitted.) Rosato v. Rosato, supra, 18.

“The process of statutory interpretation involves a reasoned search for the intention of the legislature. . . . In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of this case. ... In seeking to determine that meaning, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter. ... In construing a statute, common sense must be used and courts must assume that a reasonable and rational result was intended.” (Internal quotation marks omitted.) Giulietti v. Giulietti, 65 Conn. App. 813, 851, 784 A.2d 905, cert. denied, 258 Conn. 946, 947, 788 A.2d 95, 96, 97 (2001).

The issue on appeal is whether the trial court erred in granting the defendant’s motion to transfer title to the subject premises pursuant to § 52-22 approximately six months after the court rendered judgment in the summary process action. The plaintiff argues that the court improperly applied § 52-22 in the circumstances of this case, and thus lacked authority to issue the challenged decree passing title to the premises to the defendant. We agree.

The resolution of the plaintiffs claim on appeal, therefore, lies at the intersection of our jurisprudence governing summary process actions and the proper application of § 52-22. The motion to pass title has aptly been described as “a creature not normally spotted in Connecticut’s jurisprudential forests.” (Internal quotation marks omitted.) Lee v. Tufveson, 6 Conn. App. 301, 307, 505 A.2d 18 (Bieluch, J., dissenting), cert. denied, 199 Conn. 806, 508 A.2d 31 (1986). Pursuant to § 52-22, “[t]he superior court in the exercise of its equitable jurisdiction may pass the title to real property by decree, without any act on the part of any party holding title to the real property, when in its judgment it is the proper mode to carry the decree into effect. When the decree is recorded in the land records in the town where the real property is situated, it shall be, while in force, as effectual to transfer the real property as the deed of the party or parties holding title.” “The statute provides the court with a more simple and direct method of transferring title than ordering a party to execute a deed especially when the court’s intention is merely to transfer legal title.” Lee v. Tufveson, supra, 305. A court, therefore, has authority to order the passing of legal title, pursuant to § 62-22, when, in the court’s judgment, such a transfer of title “is the proper mode to carry” its decree into effect.

We now turn to an examination of this summary process action to determine whether the trial court correctly decided that the passing of legal title to the premises here at issue under § 62-22 was the proper mode to carry its decree into effect. “Summary process is a special statutory procedure designed to provide an expeditious remedy. ... It enable[s] landlords to obtain possession of leased premises without suffering the delay, loss and expense to which, under the common-law actions, they might be subjected by tenants wrongfully holding over their terms.” (Internal quotation marks omitted.) Housing Authority v. DeRoche, 112 Conn. App. 355, 361, 962 A.2d 904 (2009). “The ultimate issue in a summary process action is the right to possession”; (emphasis added) Southland Corp. v. Vernon, 1 Conn. App. 439, 443, 473 A.2d 318 (1984); and “[t]he relief available in summary process actions is possession of the premises.” (Emphasis added.) Sullivan v. Lazzari, 135 Conn. App. 831, 836 n.5, 43 A.3d 750, cert. denied, 305 Conn. 925, 47 A.3d 884 (2012). Unlike actions to quiet title, summary process actions do not concern the question of legal title to the subject premises, except to the limited extent that that issue affects any party’s right to immediate possession of the premises.

Section 52-22 is not a separate source of statutory relief. A court may exercise its equitable powers under the statute when it has rendered a judgment affecting title to property, the enforcement of which has somehow been hindered or frustrated. In such a case, passing title under § 52-22 is the proper mode to equitably enforce the court’s decree. See Lee v. Tufveson, supra, 6 Conn. App. 301-302 (trial court properly utilized § 52-22 in action for breach of contract to sell real estate because order necessary to enforce stipulated judgment ordering defendants to convey title to subject property to plaintiff when defendants refused to comply therewith).

In this summary process action, the court determined that the plaintiff had no legal right to evict the defendant from the premises, and thus that the plaintiff could not disturb or interfere with the defendant’s right to possess such premises. After the court rendered judgment for the defendant herein, the defendant remained in possession of the premises, and no event occurred that in any way hindered or frustrated her continuing right to do so. Therefore, the court’s entry of a decree passing legal title to the premises to the defendant pursuant to § 52-22 was improper because it was unnecessary to carry the court’s judgment in the defendant’s favor into effect.

The judgment passing title to the defendant is reversed and the case is remanded with direction to deny the defendant’s motion to transfer record title to the property.

In this opinion the other judges concurred.

       This action was commenced against three defendants, but the counts against “John Doe” and “Jane Doe” were withdrawn prior to trial. We refer to Mary Ellen Warner as the defendant.
      On April 11, 2012, we granted the motion of Wofsey, Rosen, Kweskin & Kuriansky, LLP, to withdraw its appearance on behalf of the defendant. We then ordered that the appeal would be considered on the basis of the record and the plaintiffs brief alone unless the defendant filed an appearance and her appellee’s brief within thirty days of the order, which she failed to do. Accordingly, we decide this appeal based upon the record and the plaintiffs brief alone.

       The plaintiff also claims on appeal that: due to the pendency of a quiet title action concerning the premises, the prior pending action doctrine precluded the court from transferring title to the defendant; pursuant to General Statutes § 52-212a, the court’s decision was untimely; and the court’s judgment was improper because the summary process action failed to include all parties in interest. Because the plaintiffs argument concerning the applicability of § 52-22 is the dispositive issue in this case, we need not reach these additional arguments.

       Warner had agreed to make mortgage payments in lieu of child support payments. At trial he admitted that he failed to inform the defendant that he ultimately stopped making mortgage payments.

         The defendant maintains that she never executed or signed the deed purporting to transfer title of the premises to Warner, and, accordingly, that Warner’s conveyance to the plaintiff was fraudulent. The trial court credited the defendant’s testimony, and the testimony of her expert witness, and found that her signature on the deed purporting to transfer title from the defendant to Warner was a forgery.

       In its complaint dated April 21,2009, Saxon sought to quiet title pursuant to General Statutes § 47-31 and alleged, inter alia, equitable mortgage, unjust enrichment and fraud. See Saxon Mortgage Services, Inc. v. Aguinaldo, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-09-5011567-S.


author: BEAR, J.

text:
    THOMPSON GARDENS WEST CONDOMINIUM ASSOCIATION, INC. v. DANIEL MASTO ET AL.
    (AC 33771)
    DiPentima, C. J., and Bear and Borden, Js.

      Argued October 18, 2012
    officially released January 22, 2013

      Nicholas F. Bombace, with whom, on the brief, was Jonathan A. Kaplan, for the appellant (substitute defendant Deutsche Bank National Trust Company, as indenture trustee).

      Scott J. Sandler, with whom was Kasey Procko Burchman, for the appellee (plaintiff).
   Opinion

BEAR, J.

The defendant Deutsche Bank National Trust Company (Deutsche) appeals from the judgment of the trial court denying Deutsche’s motion to open and vacate the judgment of strict foreclosure rendered in favor of the plaintiff, Thompson Gardens West Condominium Association, Inc. (association), on an East Haven condominium unit then owned by the named defendant, Daniel Masto. The controlling issue in this case is whether the trial court, pursuant to General Statutes § 49-15, properly concluded that, because service properly had been effectuated on New Century Mortgage Corporation (New Century), the mortgagee listed on the land records, in accordance with the statutory requirements, it did not have jurisdiction to grant Deutsche’s motion to open the judgment of strict foreclosure, filed nearly eight months after judgment had been rendered in this strict foreclosure action and nearly six months after title had vested in the association. We agree with the court that it was without jurisdiction to grant the motion, but conclude that because there was no practical relief available to Deutsche, the court should have dismissed the motion to open instead of denying it.

The record reveals the following relevant facts. The association brought an action to foreclose a lien on Masto’s condominium unit, bearing a return date of April 27, 2010. The association also named in its complaint New Century, the record mortgage holder listed on the land records. New Century was served by a state marshal, via certified mail, in accordance with General Statutes § 33-929, and the state marshal received a signed return receipt dated April 9, 2010. In addition to the signed return receipt, the association also received a facsimile from someone purportedly acting on behalf of the “New Century Liquidating Trust” (trust), asserting that service of process was “ineffective” because New Century had filed for bankruptcy protection and had transferred or sold all of its loan accounts (facsimile). Neither Masto nor New Century appeared before the trial court, and they were defaulted on May 11, 2010. On June 15, 2010, the court rendered a judgment of strict foreclosure, and, on August 12, 2010, after Masto and New Century failed to redeem, title to the condominium unit vested in the association.

An appearance, dated October 6, 2010, was filed on behalf of New Century. On October 28, 2010, Deutsche, “as indenture trustee for New Century,” filed a motion to be substituted as a party defendant in place of New Century on the ground that it was “the current holder of the [mjortgage as shown by an assignment recorded in the East Haven [l]and [r]ecords on October 12, 2010 . . . .” A copy of the assignment was attached to the motion. On November 30, 2010, the court granted Deutsche’s motion to be substituted as a party defendant in place of New Century. On February 2, 2011, Deutsche filed a motion to open and vacate the judgment of strict foreclosure on the ground that (1) the judgment was void because “the court lacked personal jurisdiction over [New Century], the party against whom judgment entered, as well as [Deutsche], who is the proper party in interest; and (2) principles of equity require that the court exercise subject matter jurisdiction ... to avoid a windfall to the [association] . . . .” Following a hearing on the motion to open and vacate, the court concluded that, pursuant to § 49-15, it did not have jurisdiction to open the judgment of strict foreclosure, and it denied the motion on that basis. The court explained to the association’s counsel, however, that it was troubled by counsel's failure to disclose the assertions set forth in the facsimile. The court stated that the failure of Deutsche to record its assignment “certainly created a mess for . . . all of us who are trying to keep our land records straight. This is a battle between, it seems to me, the equitable interests of the way the judgment played out and the irresponsibility I think of Deutsche Bank in deciding not to record. That’s the . . . difficulty. I have no idea what would have motivated them not to record. On the other hand, I’m very troubled by the fact that the [association’s] counsel is notified by a bankruptcy trustee . . . and the trustee indicates to you that New Century . . . doesn’t own this anymore, [but does not] help yet at all by saying who does . . . .” Although the court was troubled by counsel’s nondisclosure of the assertions set forth in the facsimile, it, nevertheless, determined that it was without jurisdiction to open the judgment. This appeal followed.

“[A] judgment of strict foreclosure ordinarily cannot be opened after the law day has passed, [unless] the judgment [is] attacked on the ground that the court lacked jurisdiction over the party challenging it. . . . Once title has vested, no practical relief is available [provided that this vesting has occurred pursuant to an authorized exercise of jurisdiction by the trial court . . . .” (Citation omitted; internal quotation marks omitted.) Highgate Condominium Assn., Inc. v. Miller, 129 Conn. App. 429, 434-35, 21 A.3d 853 (2011). “It is axiomatic that a court cannot render a judgment without first obtaining personal jurisdiction over the parties. No principle is more universal than that the judgment of a court without jurisdiction is a nullity. . . . Such a judgment . . . may always be challenged. ... [A] defect in process . . . implicates personal jurisdiction . . . .” (Citation omitted; internal quotation marks omitted.) Argent Mortgage Co., LLC v. Huertas, 288 Conn. 568, 576, 953 A.2d 868 (2008). “A natural corollary of this principle is that a judgment of strict foreclosure may be opened only upon a finding that the court lacked jurisdiction over either the person or the case at the time the judgment of strict foreclosure was entered. Anything less would appear to be in direct contravention of the strictures of § 49-15 (a) and our subsequent case law.” Highgate Condominium Assn., Inc. v. Miller, supra, 435. A challenge to the personal jurisdiction of the trial court is a question of law, requiring that we employ a plenary standard of review. See Ryan v. Cerullo, 282 Conn. 109, 118, 918 A.2d 867 (2007).

The controlling issue in this case is whether the court properly determined that, because service of process properly was effectuated in accordance with our statutory requirements, it did not have jurisdiction to open the judgment of strict foreclosure, which had been rendered approximately eight months before Deutsche filed its motion to open and vacate and six months after title had become absolute in the association. We conclude that the court properly determined that it was without jurisdiction to open the judgment, but that its form of judgment was improper, the court having denied, rather than dismissed, the motion to open. See Argent Mortgage Co., LLC v. Huertas, supra, 288 Conn. 569-70 (after title had vested absolutely in plaintiff, court should have dismissed, rather than denied, late motion to open); see also D. Caron & G. Milne, Connecticut Foreclosures (4th Ed. 2004) § 9.01, p. 197 (“the limitation period of § 49-15 is definitely jurisdictional”); but see Falls Mill of Vernon Condominium Assn., Inc. v. Sudsbury, 128 Conn. App. 314, 318 n.5, 15 A.3d 1210 (2011) (explaining that motion to open judgment of strict foreclosure, filed one year after judgment rendered, involves trial court’s authority, rather than jurisdiction, but not citing Argent). In Argent, our Supreme Court determined that because the trial court possessed proper personal jurisdiction over the defendant at the time the judgment of strict foreclosure was rendered, the proper form of judgment in response to the defendant’s late motion to open that judgment was to dismiss the motion as moot because there was no practical relief available to that defendant, absolute title in the property already having vested in the plaintiff. Argent Mortgage Co., LLC v. Huertas, supra, 581-82; see also Highgate Condominium Assn., Inc. v. Miller, supra, 129 Conn. App. 435 n.8.

Although Deutsche primarily contends that the court did not obtain personal jurisdiction over it or New Century and that the judgment of strict foreclosure was void, a close review of the record does not support this contention. As stated previously in this opinion, the association, in accordance with § 33-929, properly served New Century, the entity recorded on the East Haven land records as the mortgage holder of the condominium unit. “It has always been the policy of our law that the land records should be the authentic oracle of title on which [anyone] might safely rely.” Safford v. McNeil, 102 Conn. 684, 687, 129 A. 721 (1925). “ ‘The whole system of [recordation] would become of no value if [one] could not rely upon the records as he finds them.’ ” Wheeler v. Young, 76 Conn. 44, 49, 55 A. 670 (1903).

In this case, it is not disputed that a state marshal properly sent notice by certified mail, return receipt requested, to New Century, the mortgagee listed on the land records. The receipt was returned to the state marshal, signed by someone at the New Century address. Deutsche attempts to assert that the facsimile purportedly sent to the association from the trust, informing the association that New Century had sold all of its loans, somehow rendered ineffective service that comported with § 33-929. The fact remains, however, that the association served the party recorded on the land records in accordance with the statutory requirements. Furthermore, we also note that although Deutsche asserted both before us and before the trial court that New Century had assigned Masto’s loan to Deutsche several years before this foreclosure action was commenced, but the assignment was not recorded in the land records prior to the judgment of strict foreclosure, our close review of the assignment document filed by Deutsche and contained in the court file reveals that it was not signed and dated by New Century until October 7, 2010, almost four months after the judgment.

In the present case, service of process properly was effectuated on New Century, the mortgagee appearing in the land records, in compliance with the statutory requirements, and, accordingly, the court had personal jurisdiction over New Century. Therefore, at the time Deutsche filed its motion to open the judgment of strict foreclosure, nearly six months after title had vested in the association, there was no practical relief that could have been afforded to Deutsche by the trial court without violating § 49-15. See Argent Mortgage Co., LLC v. Huertas, supra, 288 Conn. 581-82. In light of that fact, the court properly determined that it was without jurisdiction to open the judgment. Accordingly, after determining that service of process was properly effectuated, instead of denying the motion to open, the trial court should have dismissed it. See id.

The form of the judgment is improper, the judgment is reversed and the case is remanded with direction to dismiss Deutsche’s motion to open the judgment of strict foreclosure.

In this opinion the other judges concurred.

       Masto is not a party to this appeal and did not appear in the trial court. Approximately five months after the judgment of strict foreclosure had been rendered, Deutsche was substituted as the party in interest in place of the defendant New Century Mortgage Corporation.

       Deutsche has failed to provide this court with a signed transcript of the court’s oral decision on its motion to open the judgment of strict foreclosure. See Practice Book § 64-1 (a). Although this failure normally would result in an inadequate record for our review; see Bayer v. Showmotion, Inc., 292 Conn. 381, 405 n.10, 973 A.2d 1229 (2009), and Practice Book § 64-1 (a); a record may be adequate for our review when an unsigned transcript contains a sufficiently detailed basis for the trial court’s decision. See Assn. Resources, Inc. v. Wall, 298 Conn. 145, 162 n.21, 2 A.3d 873 (2010). Deutsche has provided us with a certified transcript of the hearing before the trial court, which includes the court’s detailed oral decision. Accordingly, we conclude that the record is adequate for our review.

       There is no dispute that Masto was served properly.

       The record reveals that counsel for the association already knew that New Century had filed for bankruptcy protection and that he previously had received notice that the automatic bankruptcy stay had been lifted in 2008.

       The association did not notify the trial court before the court rendered the judgment of strict foreclosure that it had received this facsimile asserting that service of process on New Century was ineffective.

       The association certified to the court that it had mailed its motion for a judgment of strict foreclosure to Masto and New Century.

       The association sent notice of the judgment of strict foreclosure to Masto and New Century on June 22, 2010. On that date, the association also sent New Century a certified letter explaining that New Century could pay $3200.41 as a redemption payment prior to the running of its law day on August 11, 2010. This letter was returned as “unclaimed” and “unable to forward.” Both the letter and the return receipt were submitted to the court on August 31, 2010.

       A close review of that assignment, a copy of which is in the court file, reveals that it was signed and dated October 7, 2010. The assignment provides in relevant part: “FOR VALUE RECEIVED, NEW CENTURY MORTGAGE CORPORATION . . . does [hereby] grant, sell, assign, transfer and convey, unto DEUTSCHE BANK NATIONAL TRUST COMPANY, AS INDENTURE [TRUSTEE], FOR NEW CENTURY HOME EQUITY LOAN TRUST 2005-3 ... all its right, title and interest in and to a certain Mortgage dated MAY 20, 2005 made and executed by DANIEL MASTO ... to and in favor of NEW CENTURY MORTGAGE CORPORATION .... IN WITNESS WHEREOF, the undersigned Assignor has executed this Assignment of Mortgage on October , 2010.” The document was signed by “Tom Croft, SVP” on behalf of “New Century Mortgage Corporation, by Carrington Mortgage Services, LLC, as Attomey-in-Fact” on October 7, 2010, and was recorded on the East Haven land records on October 12, 2010. To the extent that Deutsche has asserted any due process claims based on events occurring prior to October 7, 2010, the date of the mortgage assignment to it, we cannot consider them given Deutsche’s lack of standing to assert them. See Windels v. Environmental Protection Commission, 284 Conn. 268, 287, 933 A.2d 256 (2007) (if party lacks standing, court is without subject matter jurisdiction to determine case).

       General Statutes § 49-15 (a) provides: “(1) Any judgment foreclosing the title to real estate by strict foreclosure may, at the discretion of the court rendering the judgment, upon the written motion of any person having an interest in the judgment and for cause shown, be opened and modified, notwithstanding the limitation imposed by section 52-212a, upon such terms as to costs as the court deems reasonable, provided no such judgment shall be opened after the title has become absolute in any encumbrancer except as provided in subdivision (2) of this subsection.
      “(2) Any judgment foreclosing the title to real estate by strict foreclosure may be opened after title has become absolute in any encumbrancer upon agreement of each party to the foreclosure action who filed an appearance in the action and any person who acquired an interest in the real estate after title became absolute in any encumbrancer, provided (A) such judgment may not be opened more than four months after the date such judgment was entered or more than thirty days after title became absolute in any encumbrancer, whichever is later, and (B) the rights and interests of each party, regardless of whether the party filed an appearance in the action, and any person who acquired an interest in the real estate after title became absolute in any encumbrancer, are restored to the status that existed on the date the judgment was entered.”

       In Argent Mortgage Co., LLC v. Huertas, supra, 288 Conn. 569, the defendant, who had been incarcerated at the time a foreclosure action had been commenced, moved to open the judgment after title had vested in the plaintiff on the ground that the court did not have personal jurisdiction because service had been made to her residence rather than to the prison. The trial court determined that abode service at the residence, rather than the prison, comported with statutory requirements. Id. Although agreeing with the trial court’s determination, our Supreme Court concluded that the trial court should have dismissed, rather than denied, the motion to open as moot. Id., 569-70.

       We can find no explanation in the record for this postforeclosure written assignment. Apparently without noticing the actual date on the assignment, counsel for the association represented to the trial court that he had no reason to dispute, and that he would not dispute, that Deutsche had been assigned the mortgage prior to the institution of the strict foreclosure action. In any event, whether a preforeclosure assignment had occurred or not occurred, Deutsche filed with the court and relied on the October 7, 2010 assignment.