author: ROBINSON, J.

text:
    PETER OLDANI v. JACQUELINE OLDANI
    (AC 31652)
    Gruendel, Robinson and Sullivan, Js.
    Argued September 9
    officially released December 20, 2011

      George J. Markley, for the appellant-appellee (defendant).

      Edward Kanowitz, for the appellee-appellant (plaintiff).
   Opinion

ROBINSON, J.

The defendant, Jacqueline Oldani, appeals from the judgment of the trial court dissolving her marriage to the plaintiff, Peter Oldani. The plaintiff cross appeals from the judgment of dissolution and from the court’s subsequent decisions granting a motion for contempt filed by the defendant and denying the plaintiff’s motion for modification of child support. On appeal, the defendant claims that the court erred (1) in determining that the parties’ prenuptial agreement was enforceable and (2) by ordering the defendant to pay $25,000 in attorney’s fees to the plaintiff. In his cross appeal, the plaintiff claims that the court erred (1) by failing to enforce all provisions of the prenuptial agreement, (2) by deviating from the child support guidelines in calculating the child support award, (3) in calculating the amount of attorney’s fees to be paid to the plaintiff by the defendant, (4) by finding the plaintiff in contempt for failing to pay his share of the mortgage, the taxes and the insurance on the parties’ marital home as well as alimony payments in accordance with the dissolution judgment and (5) by denying the plaintiffs motion for modification of child support. We reverse the dissolution judgment as to the trial court’s determination that the prenuptial agreement was enforceable and remand the matter for a new hearing as to all financial orders. We also affirm the court’s decision granting the motion for contempt.

The record reveals the following undisputed facts and procedural history. The plaintiff commenced the underlying marital dissolution action by complaint dated May 2,2008. The plaintiff alleged in the complaint that the parties’ marriage had broken down irretrievably without any prospect for reconciliation, and he sought enforcement of the parties’ prenuptial agreement. The defendant filed an answer, special defense and cross complaint for dissolution of marriage in which she challenged the enforceability of the prenuptial agreement. The matter was tried to the court over five days in June and July, 2009.

On August 10, 2009, the court issued a memorandum of decision dissolving the parties’ marriage, in which it made the following factual findings. The parties met through a dating service in February or March, 2002. The plaintiff is approximately twenty years older than the defendant. The plaintiff had substantial assets in 2002, but the defendant had limited resources. They became engaged in June, 2002, and the defendant moved into the plaintiffs home in August, 2002. Shortly after their engagement, the parties began to discuss a prenuptial agreement. During negotiations, each party was represented by independent counsel of their own choosing. The parties were under no duress or stress other than what ordinarily would be expected in planning a wedding. The parties signed a prenuptial agreement on December 2, 2002. The parties were married on December 6, 2002. They had a single child issue of the marriage, a daughter, bom on June 25, 2004. The parties executed a modification to the prenuptial agreement on January 7, 2006, to account for a second mortgage on the marital home.

In its memorandum of decision, the court concluded that the parties’ prenuptial agreement was valid and enforceable. In accordance with the terms of the prenuptial agreement, the court ordered the plaintiff to pay the defendant alimony of $4166.67 per month for a period of eighty months or until the death, remarriage or cohabitation of the defendant. The plaintiff also was ordered to pay $350 per week in child support. The court explained that it had deviated from the child support guidelines “based upon other resources available to the plaintiff, coordination of total family support, best interest of the child and other equitable factors.” The court ordered the parties to sell the jointly owned marital home, with the net proceeds from the sale to be divided equally between the parties. The court awarded exclusive possession of the home to the defendant until the property was sold. The parties were ordered to share equally in the payment of the first mortgage, taxes and insurance on the home until the closing of a sale, with the plaintiff solely responsible for payment of the second mortgage. Finally, the court ordered that the defendant was to be solely responsible for her own attorney’s fees and that “[t]he defendant shall pay to the plaintiff $25,000 at the closing of the marital home for attorney fees incurred by the plaintiff pursuant to paragraph 8.9 of the prenuptial agreement.”

Both parties filed motions to reargue portions of the court’s dissolution orders, which were denied. The defendant’s appeal from the dissolution judgment and the plaintiffs cross appeal followed. The defendant later filed a motion asking the court to terminate the appellate stay with respect to the order requiring the plaintiff to pay one half of the first mortgage, taxes and insurance and all of the second mortgage associated with the marital home. The court granted the motion to terminate the stay, finding that tire due administration of justice required a lifting of the stay. The defendant later filed a motion for contempt, claiming that, despite the lifting of the appellate stay, the plaintiff was not making the required payments regarding the marital home, and he was also making unauthorized reductions in his alimony and child support payments to offset money he claimed he was owed by the defendant. The plaintiff filed a motion to modify the amount of the child support payments, arguing that his income and other resources available to him had been reduced substantially.

The court held an evidentiary hearing on the motion for contempt and the motion to modify on October 27, 2010. The court heard final arguments on October 28, 2010, following which it issued an oral decision finding the plaintiff in contempt based on his offsetting of alimony payments and his failure to pay his one half of the first and all of the second mortgage. The court ordered the plaintiff to pay the defendant $12,463.50 on or before November 30, 2010. The court also effectively denied the plaintiffs motion to modify child support, finding that the plaintiff had failed to meet his burden of showing a substantial change in circumstances. The plaintiff amended his cross appeal to include challenges to the court’s October 28,2010 rulings. Additional facts will be set forth as necessary.

I

The defendant first claims that the court erred in determining that the parties’ prenuptial agreement was enforceable because (1) the plaintiff had failed to make a fair and reasonable disclosure of his income and (2) the agreement was unconscionable at the time the plaintiff sought to enforce it. Before turning to the defendant’s claim, we first set forth the legal standard governing our review.

Prenuptial agreements entered into on or after October 1,1995, are governed by the Connecticut Premarital Agreement Act (act), General Statutes §§ 46b-36a through 46b-36j. See Friezo v. Friezo, 281 Conn. 166, 182, 914 A.2d 533 (2007). The prenuptial agreement in the present case was signed by the parties on December 2, 2002. Accordingly, the act is applicable in assessing whether the agreement is enforceable. The statutory scheme provides in relevant part that “[a] premarital agreement or amendment shall not be enforceable if the party against whom enforcement is sought proves that: (1) Such party did not execute the agreement voluntarily; or (2) The agreement was unconscionable when it was executed or when enforcement is sought; or (3) Before execution of the agreement, such party was not provided a fair and reasonable disclosure of the amount, character and value of property, financial obligations and income of the other party; or (4) Such party was not afforded a reasonable opportunity to consult with independent counsel.” General Statutes § 46b-36g (a). Our Supreme Court has held that a court’s determination whether a prenuptial agreement is unenforceable pursuant to § 46b-36g presents a mixed question of fact and law over which our review is plenary. See Friezo v. Friezo, supra, 180. In reviewing the court’s decision, we must therefore determine whether the court’s conclusions are legally and logically correct and supported by the facts in the record. Id., 181.

The defendant first argues that the court erred in concluding that the prenuptial agreement was enforceable because, before execution of the agreement, the plaintiff failed to provide her with a fair and reasonable disclosure of his income. In particular, the defendant contends that (1) the financial statement provided by the plaintiff prior to the execution of the prenuptial agreement was an insufficient disclosure as to the plaintiffs income, (2) the court should have considered the defendant’s ability to understand the plaintiffs financial disclosure in deciding whether the disclosure was fair and reasonable and (3) the plaintiffs financial disclosure contained other errors and omissions. Because we agree with the defendant that the plaintiff failed to provide the defendant with a fair and reasonable disclosure of his income prior to her signing the agreement, we need not address the remainder of the defendant’s arguments concerning the enforceability of the prenuptial agreement.

In Friezo v. Friezo, supra, 281 Conn. 181-93, our Supreme Court first construed the meaning of “fair and reasonable disclosure” as that term is used in § 46b-36g. The court first noted that the term is not defined in the statute, but “a plain reading of the statute indicates that the term was intended to be understood in the context of the phrase that directly follows, namely, ‘the amount, character and value of property, financial obligations and income of the other party . . . .’ Accordingly, ‘fair and reasonable’ disclosure refers to the nature, extent and accuracy of the information to be disclosed, and not to extraneous factors such as the timing of the disclosure.” (Citation omitted.) Id., 182-83.

The court next looked at the legislative history of the act. It noted that the bill as originally conceived had required a party who sought to invalidate a prenuptial agreement to prove “not only that he or she was not provided a ‘fair and reasonable disclosure of the amount, character and value of property, financial obligations and income of the other party,’ but that he or she ‘[d]id not voluntarily and expressly waive, in writing, any right to disclosure of the property, financial obligations and income of the other party beyond the disclosure provided’ and ‘[d]id not have, or reasonably could not have had, an adequate knowledge of the property, financial obligations and income of the other party, and of the legal rights which that party would relinquish under the agreement . . . .’ Substitute House Bill No. 6932, § 6 (1995 Sess.). An amendment, however, eliminated the second and third requirements. See Substitute House Bill No. 6932, § 6 (1995 Sess.), as amended by House Amendment Schedule A.” Friezo v. Friezo, supra, 281 Conn. 185. The Friezo court reasoned that the elimination of the additional requirements was intended to make it easier for a party to prove lack of a “fair and reasonable” financial disclosure and “demonstrated the legislature’s intent that the disclosure requirement focus on the information to be disclosed rather than on the party to whom disclosure is made.” (Emphasis added.) Id. The court concluded that the legislative history nevertheless was unhelpful in determining what constitutes a fair and reasonable disclosure. Id.

Finally, the court turned to a discussion of case law from this jurisdiction and others. The court first considered McHugh v. McHugh, 181 Conn. 482, 436 A.2d 8 (1980), the seminal Connecticut case addressing the adequacy of financial disclosures in prenuptial agreements under common-law standards. In McHugh, the court had “articulated the principle that, because the parties to a prenuptial agreement stand in a relationship of directly mutual confidence, [t]he duty of each party to disclose the amount, character, and value of individually owned property, absent the other’s independent knowledge of the same, is an essential prerequisite to a valid antenuptial agreement containing a waiver of property rights. . . . The burden is not on either party to inquire, but on each to inform, for it is only by requiring full disclosure of the amount, character, and value of the parties’ respective assets that courts can ensure intelligent waiver of the statutory rights involved.” (Internal quotation marks omitted.) Friezo v. Friezo, supra, 281 Conn. 186.

Although the court in McHugh was not discussing the meaning of a fair and reasonable disclosure as that term is used in § 46b-36g, the Friezo court recognized that “the decision is helpful in interpreting the statute because the financial disclosure requirements described in McHugh and the statute are, for all practical purposes, the same. Moreover . . . the proposed statute was intended to clarify McHugh, not to supplant the legal principles espoused therein.” Id., 185-86 n.23, citing Conn. Joint Standing Committee Hearings, Judiciary, Pt. 7,1995 Sess., p. 2492; Dornemann v.Dornemann, 48 Conn. Sup. 502, 511, 850 A.2d 273 (2004) (“[t]he [act] endorses, clarifies and codifies the McHugh standards”). According to the Friezo court, the court in McHugh made three significant points: “First, the pin-pose of disclosure is to ensure that each party has sufficient knowledge of the other party’s financial circumstances to understand the nature of the legal rights being waived. ... In other words, a party cannot know what is being waived unless he or she is privy to all of the relevant facts, in particular, the financial status of the other party. . . . Second, financial disclosure in Connecticut must be understood as a burden to inform borne solely by the disclosing party. . . . Accordingly, the court’s examination of whether proper disclosure has been made must focus on the actions of the disclosing party rather than on the party to whom disclosure is made. . . . Third, ‘full’ financial disclosure is required in a prenuptial agreement only if the party to whom disclosure is made does not have independent knowledge of the other party’s financial circumstances.” (Citations omitted.) Friezo v. Friezo, supra, 281 Conn. 186-87.

After discussing cases from other jurisdictions with similar statutory provisions, the Supreme Court concluded that financial disclosures by parties to a prenuptial agreement are not required “to be exact or precise”; id., 189; rather, in accord with many other jurisdictions, “a fair and reasonable financial disclosure requires each contracting party to provide the other with a general approximation of their income, assets and liabilities, and ... a written schedule appended to the agreement itself, although not absolutely necessary, is the most effective method of satisfying the statutory obligation in most circumstances.” Id., 191. Because in Friezo, the defendant’s written financial disclosure attached to the prenuptial agreement contained “an accurate representation, in writing, of his income and financial assets at the time the agreement was executed,” the Supreme Court ultimately determined that the prenuptial agreement in that case was enforceable. Id., 192.

In the present case, the parties also exchanged written financial disclosures that were appended to the prenuptial agreement. The plaintiffs financial statement consists of a three page document purporting to provide information regarding the plaintiffs finances as of May 1, 2002. The first page contains a fist of the plaintiffs assets and liabilities itemized by category and, in some instances, referencing certain schedules. The plaintiffs total assets were listed as $8,416,104.30, with the largest category of assets being his real estate investments, which were valued at $7,856,736.30. The plaintiffs total liabilities were fisted as $3,056,023.69, leaving the plaintiff with a stated net worth at the time of $5,360,060.61. The next two pages consist of the schedules referenced on the first page of the disclosure. The first schedule contains some additional details about the plaintiffs bank accounts, notes and loans receivable, life insurance policies and securities. The second schedule, titled “real estate schedule,” is a spreadsheet listing the plaintiffs interests in eleven commercial real estate properties, two residential lots, a rental home, a condominium and a private residence. In addition to the location and general description of each property, the real estate schedule includes, for each property, the plaintiffs percentage of ownership, the overall replacement value for the property, the total mortgage debt and corresponding annual payments, the plaintiffs portion of the mortgage debt obligation and the plaintiffs overall net equity in the property. The schedule also includes the annual gross rent received for each property where applicable, the annual operating expenses of those properties, and a column with the heading “N.O.I.” That heading is not defined on the disclosure itself; however, at trial, the plaintiff testified that it stands for “net operating income.”

In its memorandum of decision addressing the defendant’s allegation that the plaintiffs financial statement was not a fair and reasonable disclosure of the plaintiffs income, the court expressly found that “[t]he plaintiffs financial statement does not specifically indicate his income.” The court nevertheless went on to consider whether, despite the lack of an express disclosure of income, the financial statement provided by the plaintiff contained sufficient information from which to determine the plaintiffs income. The court stated: “The plaintiff prepared a spreadsheet (Exhibit A), which extrapolated the information provided in the financial statement to show net income of $179,642.” Ultimately, the court concluded that “the plaintiffs disclosure was more than adequate to ensure that the defendant would be able to make an intelligent waiver of her statutory rights.”

Nowhere on the real estate schedule does the plaintiff expressly identify the amount of net income that he had received or was entitled to receive as a result of his various real estate investments. The schedule does not provide any formula or directions for calculating the plaintiffs share of the rental income. The schedule does not contain a statement or figure that represents the plaintiffs income at the time. In fact, the word “income” does not appear on any of the pages of the plaintiffs financial disclosure. The plaintiff argued at trial that all the necessary figures for approximating his rental income, nevertheless, were included on his financial statement and that the defendant simply had to do the mathematical calculation. The plaintiff testified that his share of rental income as to each property could be calculated from the numbers provided by subtracting from the annual gross rents both the annual mortgage payments and the annual operating expense and then multiplying the result by his percentage of ownership. On cross-examination, however, the plaintiff conceded that there often was a holdback of a portion of the rental income; thus, even if one did the calculations he described, this would not accurately reflect his rental income. The defendant was represented by counsel prior to execution of the prenuptial agreement, and no credible evidence was presented that the defendant or her counsel questioned the sufficiency of the plaintiffs disclosure prior to signing the prenuptial agreement; however, as our Supreme Court has stated, the law places no duty or burden on either party to inquire as to the requisite disclosure of the other party, only a duty on each to inform. See Friezo v. Friezo, supra, 281 Conn. 186.

The court concluded that the defendant should have been able to approximate the plaintiffs income from the information she was provided. The court supported that conclusion, however, by referencing an exhibit prepared by the plaintiff for the dissolution trial for the purpose of aiding the court in understanding the plaintiffs original financial disclosure with respect to income. Unlike the financial statement disclosed to the defendant, the exhibit contains a column specifically noting net income. There is nothing in the record to suggest that the exhibit relied on by the trial court, or any equivalent tool, was ever provided to the defendant or to the defendant’s counsel prior to the signing of the prenuptial agreement. In other words, in evaluating the “nature, extent and accuracy” of the plaintiffs disclosure regarding income, the court relied on information and calculations that were not part of the disclosure provided to the defendant prior to her signing the prenuptial agreement.

In addition to the passive income derived from his real estate investments, the plaintiff testified that he occasionally took in other income in the form of consulting fees for supervising construction projects and, less frequently, distributions attributable to mortgage refinances or the sale of properties in which he held an interest. He also testified to collecting both interest and dividend income. No information with respect to any of those additional sources of income was provided on the plaintiffs financial statement. In its decision, the court credited the plaintiffs testimony that he was not receiving income from consulting fees at the time of the marriage, but then found “the failure to list any such income as irrelevant to the validity of the disclosure.” Any failure on the part of the plaintiff to disclose a portion of Ms income would be relevant to the task of considering the accuracy of Ms disclosure. The court similarly accepted the plaintiffs argument that he had not received any distributions attributable to refinances or sales of properties m 2002 or 2003, “and that he had no control over when or whether there would be a distribution.” Ultimately, the court stated that it found any failure “to list these distributions did not render the disclosure to be unfair or unreasonable.”

In considering how the plaintiffs alleged failure to disclose Ms nonrental sources of income should affect the court’s determination whether the plaintiff had made a fair and reasonable disclosure of Ms income, the court also noted the defendant’s testimony that “she knew that [the plaintiff] had substantial assets” and that “she did not care about the agreement, and that she signed the agreement because she wanted the plaintiff to know that she did not want Ms money.” That particular testimony, however, does not pertain to “the nature, extent and accuracy of the information to be disclosed . . . .” Friezo v. Friezo, supra, 281 Conn. 183. The court made no finding that the defendant had independent knowledge of the plaintiffs income or earning capacity, oMy that the defendant generally knew that the plaintiff had “substantial assets.” See Winchester v. McCue, 91 Conn. App. 721, 727-28, 882 A.2d 143 (2005) (holding under common-law standard that parties’ failure to disclose income not fatal to prenuptial agreement if parties had mdependent knowledge of each other’s income). In considering the defendant’s reason for sigmng the prenuptial agreement, the court appears to have been considering extraneous factors unrelated to whether the financial information provided by the plaintiff was fair and reasonable.

We are cogMzant of the general proposition that “[c]ontracting parties are normally bound by their agreements . . . irrespective of whether the agreements embodied reasonable or good bargains . . . .” (Citation omitted; internal quotation marks omitted.) Friezo v. Friezo, supra, 281 Conn. 199, quoting Simeone v. Simeone, 525 Pa. 392, 400, 581 A.2d 162 (1990). Section 46b-36g (a) (3) nevertheless provides that a prenuptial agreement is unenforceable unless, prior to execution of the agreement, each party gives a fair and reasonable disclosure of “the amount, character and value of property, financial obligations and income . . . .” (Emphasis added.) Our Supreme Court has determined that, to be “fair and reasonable,” a party’s disclosure does not need to be exact but must at least provide a general approximation. Focusing on the information disclosed by the plaintiff, our plenary review of the record reveals that, although the plaintiff may have provided a sufficient approximation of his property holdings and other financial obligations, he failed to provide the defendant with sufficient information regarding his income prior to her signing the prenuptial agreement. Because the plaintiff failed to meet this burden to inform, it was not legally and logically correct for the court to have determined that the prenuptial agreement was enforceable. Accordingly, we reverse that portion of the court’s dissolution judgment.

Our decision regarding the enforceability of the prenuptial agreement places in question the propriety of the financial orders, which were rendered in accordance with the prenuptial agreement. We must, therefore, remand the matter to the trial court with direction to hold a new hearing as to all financial orders, including attorney’s fees. We need not address the remainder of the defendant’s arguments concerning the enforceability of the prenuptial agreement or her additional claim on appeal challenging the propriety of the attorney’s fee award, which also must be reconsidered on remand.

II

Turning to the plaintiffs cross appeal, the plaintiff claims that the trial court improperly (1) failed to enforce all of the provisions of the party’s prenuptial agreement, (2) deviated from the child support guidelines in calculating the child support order, (3) calculated the award of attorney’s fees to the plaintiff, (4) found the plaintiff in contempt and (5) denied the plaintiffs motion for modification of the child support order. Our conclusion in part I of this opinion regarding the enforceability of the parties’ prenuptial agreement and our remand order will require a new trial as to all financial orders, including revisiting the child support orders and the award of attorney’s fees. Accordingly, we need address only the plaintiffs claim that the court erred in granting the defendant’s postdissolution motion for contempt.

“The abuse of discretion standard applies to a trial court’s decision on a motion for contempt. ... A finding of contempt is a question of fact, and our standard of review is to determine whether the court abused its discretion in [finding] that the actions or inactions of the [party] were in contempt of a court order. ... To constitute contempt, a party’s conduct must be wilful. . . . Noncompliance alone will not support a judgment of contempt. . . . We review the court’s factual findings in the context of a motion for contempt to determine whether they are clearly erroneous. ... A factual finding is clearly erroneous when it is not supported by any evidence in the record or when there is evidence to support it, but the reviewing court is left with the definite and firm conviction that a mistake has been made. . . . The resolution of conflicting factual claims falls within the province of the trial court. . . . The trial court’s findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. . . . We cannot retry the facts or pass on the credibility of the witnesses. ... A reviewing authority may not substitute its findings for those of the trier of the facts. . . . In a civil contempt proceeding, the movant has the burden of establishing, by a preponderance of the evidence, the existence of a court order and noncompliance with that order.” (Citations omitted; internal quotation marks omitted.) Gravius v. Klein, 123 Conn. App. 743, 748^9, 3 A.3d 950 (2010).

In the present case, the court found the plaintiff in contempt for violating the court’s orders requiring the plaintiff to pay $4166.67 in monthly alimony to the defendant and to pay one half of the taxes, insurance and first mortgage payment on the marital home and all of the second mortgage payment. The plaintiff claims that the court abused its discretion because the evidence did not support findings that he wilfully disregarded the court’s orders. We disagree.

The court issued an oral ruling on the motion for contempt on October 28, 2010. With respect to the alimony payments, the court found that the plaintiff, on several occasions, failed to make full payments because he deducted moneys that he believed were owed to him by the defendant. The court recognized that the defendant had conceded the fact that she owed money to the plaintiff. The court nevertheless found the defendant’s testimony credible that there was never any agreement between the parties that the plaintiff would obtain repayment by deducting money from the alimony payments. The court found that the plaintiffs testimony to the contrary was not credible. We will not revisit the court’s credibility findings because such determinations are wholly within the province of the court as the trier of fact. See Somers v. Chan, 110 Conn. App. 511, 530, 955 A.2d 667 (2008). The court wanted to ensure that the plaintiff understood that such “self-help” was not permissible and stated that the plaintiff was “charged with understanding that from the existing orders.” In other words, the plaintiff should have known that he was not permitted to alter the amount he paid in alimony without a subsequent order of the court, but he nevertheless did so. In light of the evidence and the record as a whole, the court’s findings are not clearly erroneous, and the trial court did not abuse its discretion in finding the plaintiff in contempt.

As to the property taxes, insurance and mortgage payments, the plaintiff conceded that, after the court terminated the appellate stay, he failed to make all required payments in accordance with the dissolution judgment but argued that he was unable to pay based on a change in his financial circumstances. “The burden to prove financial incapacity in such instances rests with the contemnor. . . . Whether the defendant established his inability to pay the order by credible evidence is a question of fact . . . subject to the clearly erroneous standard of review.” (Internal quotation marks omitted.) Creatura v. Creatura, 122 Conn. App. 47, 59, 998 A.2d 798 (2010). Here, the court determined that the plaintiff had failed to show any real change in his financial situation. The court found that the plaintiffs testimony regarding his finances was not credible. The court later stated: “I would have expected [the plaintiff] to bring some scintilla of evidence corroborating his claim that his chief source of income was markedly reduced over the last — from where it was ten months ago. Instead, he basically indicated he didn’t really have much specific knowledge, he didn’t know the information. You know, he brought nothing. He brought no — no partner, no — no profit and loss statements, absolutely nothing to show the — the claim of his that one of his businesses has decreased so dramatically over the last few months. In general, his testimony was not very credible, and I didn’t find very credible his verbal representation to the court regarding that loss of income.” The court also stated that it was particularly struck by the fact that, despite the plaintiffs having received a distribution of $25,000 in April, the plaintiff did not use any of that money toward payment of his obligations on the mortgage. On the basis of our review of the record, we cannot say that the court’s findings regarding the plaintiffs ability to pay are clearly erroneous, especially where the plaintiff relied almost entirely on his own testimony, which the court found was not credible. We conclude that the court did not abuse its discretion in finding the plaintiff in contempt and we affirm the court’s decision granting the defendant’s motion for contempt.

The judgment is reversed only as to the finding that the parties’ prenuptial agreement is enforceable and the case is remanded for a new hearing as to all financial orders. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       The parties filed a stipulated parenting plan awarding the defendant sole legal and physical custody of the child subject to visitation with the plaintiff. The parenting plan was approved by the court and incorporated into the judgment of dissolution.

       Specifically, the court concluded that the stay had to be lifted to avoid a foreclosure of the marital home. The court found that the defendant could not service the debt on the property alone and that the plaintiffs financial affidavit showed that he had the financial ability to comply with the court’s order without suffering irreparable harm. The plaintiff filed a motion for review of the termination of stay. This court granted the motion for review but denied the relief sought therein.

       In its oral ruling, the court also specifically declined to find the plaintiff in contempt with regard to his failure to comply with the court’s child support order because the court found that the plaintiff legitimately was mistaken about how certain social security retirement benefits of the plaintiff that the Social Security Administration recently had begun to pay to the defendant on behalf of the minor child affected his child support obligation. The court later prepared a written order memorializing the terms of its oral decision. The written order states that the court found the plaintiff in contempt for failing to make the required mortgage payments and “for offsetting child support payment.” In light of the court’s more detailed oral ruling, we conclude that the written order contains a scrivener’s error to the extent that it uses the term child support instead of alimony.

       The plaintiff filed an earlier amended cross appeal from the court’s denial of his motion that sought reinstatement of the court’s pendente lite orders requiring the defendant to pay for costs and expenses associated with the marital home during the pendency of the appeal. In denying the request, the court noted that “it would be inequitable to only reinstate a portion of the pendente lite orders without considering alimony and child support and the parties’ ability to pay.” Because the plaintiff has not addressed that ruling in his appellate brief, any claims of error are deemed abandoned. See McKeon v. Lennon, 131 Conn. App. 585, 595 n.2, 27 A.3d 436, cert. denied, 303 Conn. 901, 31 A.3d 1178 (2011).

       The enforceability of prenuptial agreements executed prior to October 1, 1995, is governed by common-law principles and “the seminal, three-prong test” set forth in McHugh v. McHugh, 181 Conn. 482, 485-86, 436 A.2d 8 (1980). Crews v. Crews, 295 Conn. 153, 159-60, 989 A.2d 1060 (2010).

       The legislature’s use of the disjunctive in § 46b-36g (a) means that a party only needs to prove one of the enumerated bases listed in the statute in order to demonstrate that a prenuptial agreement is unenforceable. See Leonard v. Commissioner of Revenue Services, 264 Conn. 286, 299-300, 823 A.2d 1184 (2003).

       In its memorandum of decision, the court noted that “[although the financial statement was dated May, 2002, the plaintiff testified that the information was reliable as of December, 2002. The court finds this testimony credible.”

       Attorney David Erdos, who represented the defendant during the negotiation and execution of the prenuptial agreement, testified at trial that he believed that the plaintiffs financial disclosure was insufficient as to the plaintiffs income at the time the prenuptial agreement was executed but nonetheless allowed his client to sign the agreement. In its decision, the trial court expressly found that attorney Erdos’ testimony was not credible.

       The plaintiff testified about several inaccuracies with the figures on the exhibit. Thus, it is not even clear that the exhibit is an accurate representation of the plaintiffs net income at the time the prenuptial agreement was executed.

       “Normally, when a portion of the court’s financial order is found to be flawed, we return the matter to the trial court for a new hearing on the ground that in marital dissolution jurisprudence, financial orders often are interwoven.” Rosato v. Rosato, 77 Conn. App. 9, 20, 822 A.2d 974 (2003). “[0]ur courts have utilized the mosaic doctrine as a remedial device that allows reviewing courts to remand cases for reconsideration of all financial orders . . . .” Casey v. Casey, 82 Corn. App. 378, 389 n.9, 844 A.2d 250 (2004).

       To be clear, it is unnecessary for us to review the first three claims, all of which challenge aspects of the financial orders rendered in conjunction with the dissolution judgment, based on our partial reversal of that judgment and our remand to the trial court for new financial orders. As to the final claim, any argument that the court improperly denied the plaintiffs motion for modification of the child support order has similarly been rendered moot by our remand order, and there is no need for us to further address the claim. See Watrous v. Watrous, 108 Conn. App. 813, 815 n.2, 949 A.2d 557 (2008).


source: Caselaw Access Project

author: BEAR, J.

license: Public Domain

text:
    MISITI, LLC, ET AL. v. TRAVELERS PROPERTY CASUALTY COMPANY OF AMERICA ET AL.
    (AC 33243)
    Robinson, Bear and Dupont, Js.
    Argued October 20
    officially released December 20, 2011

      Paul G. Roche, for the appellant (named defendant).

      Jack G. Steigelfest, for the appellees (plaintiffs).
   Opinion

BEAR, J.

In this declaratory judgment action, the defendant, Travelers Property Casualty Company of America (Travelers), appeals both from the trial court’s granting of summary judgment for the plaintiffs, Misiti, LLC (Misiti), and the Netherlands Insurance Company (Netherlands), and from the denial of its own motion for summary judgment. On appeal, Travelers claims that the court improperly construed the insurance contract at issue in this case and determined that Travelers had a duty to defend Misiti in an underlying action. We agree and, accordingly, reverse the judgment of the trial court.

The parties submitted to the trial court a stipulation, which contains the following undisputed facts:

“1. [The] plaintiffs seek the costs of defense and indemnity from Travelers with respect to the claims in an underlying lawsuit brought by Sarah and Geoffrey Middeleer against Misiti .... That underlying suit has now settled.
“2. The third revised amended complaint in the underlying action . . . contains the following pertinent allegations:
“2. Misiti . . . was at all times relevant herein and is the owner of record of the real property, structures and improvements situated at, behind and adjacent to the commercial buildings located at 1, 3 and 5 Glen Road, Sandy Hook, Connecticut ([Misiti’s] ‘premises’).
“3. A portion of [Misiti’s] premises . . . consisted of a steep retaining wall of over six (6) feet in height. Beneath the retaining wall located on [Misiti’s] premises is the riverbed of the Pootatuck River.
“4. There was at all times relevant herein and is a wood guard consisting of a wooden fence of split-rail design located along the top of the above-described retaining wall.
“5. On July 22, 2008, [Middleleer] was a business invitee upon [Misiti’s] premises.
“6. While . . . Middeleer leaned against the top rail of the wood guard, the top rail collapsed into pieces, causing [her] to fall off the retaining wall onto the rocks situated on the riverbed located below the retaining wall ....
“9. The purpose of [Misiti’s] premises involved persons being invited onto [them] to do business with its commercial tenants.
“10. . . . Misiti . . . managed, operated, possessed and/or controlled the premises where the injury occurred at all times relevant herein.
“3. Travelers issued [an insurance policy] to Church Hill Tavern LLC dba Red Brick Tavern [(tavern)], 1 Glen Road, Sandy Hook . . . for the period May 3, 2008 to May 3, 2009.
“4. The policy contains the following additional insured endorsement that is the subject of the parties’ motions [for summary judgment]:
‘ADDITONAL INSURED — MANAGERS OR LESSORS OF PREMISES
This endorsement modifies insurance provided under the following:
COMMERCIAL GENERAL LIABILITY COVERAGE PART
SCHEDULE
1. Designation of Premises (Part Leased to You): 1 GLEN ROAD
SANDY HOOK CT 06482
2. Name of Person or Organization (Additional Insured):
MISITI, LLC
PO BOX 69
NEWTOWN CT 06470
3. Additional Premium: INCLUDED
(If no entry appears above, the information required to complete this endorsement will be shown in the Declarations as applicable to this endorsement.)
WHO IS AN INSURED (Section II) is amended to include as an insured the person or organization shown in the Schedule but only with respect to liability arising out of the ownership, maintenance or use of that part of the premises leased to you and shown in the Schedule and subject to the following additional exclusions:
This insurance does not apply to:
1. Any “occurrence” which takes place after you cease to be a tenant in that premises.
2. Structural alterations, new construction or demolition operations performed by or on behalf of the person or organization shown in the Schedule.’ . . .
“5. The parties agree that the following language from the Policy’s additional insured endorsement determines whether Misiti’s status as an additional insured under the Travelers policy extends to the claim of . . . Middeleer: ‘WHO IS AN INSURED (Section II) is amended to include as an insured the person or organization shown in the Schedule but only with respect to liability arising out of the ownership, maintenance or use of that part of the premises leased to you [the tavern].’
“6. The parties dispute the legal question of the extent to which the court should consider facts outside the pleadings in deciding the cross motions for summary judgment, but do not dispute those facts. The remaining paragraphs of this stipulation are derived from facts outside the pleadings, the sources for which are exhibits attached to the parties’ summary judgment papers.
“7. . . . Middeleer met her boss in the early evening of July 22, 2008, at Mocha Café, located at 3 Glen Road, part of Misiti’s property, to prepare for a business presentation related to their work in the field of landscape design.
“8. Middeleer left her car in a parking lot on the Misiti property while she went to the business presentation.
“9. After the business presentation, Middeleer and her boss went back to the Misiti property where her car was located and decided to get something to eat at [the tavern] at 1 Glen Road ....
“10. Middeleer ate food and drank wine at the tavern.
“11. Upon leaving the tavern, Middeleer and her boss walked down a path along a river toward the parking area.
“12. As they approached the parking area, Middeleer and her boss did not take the branch of the path that led directly to where her car was parked, instead [they] continued to walk along the river in an open area beside the parking area, past a stage area, to look at the river and to look at a waterfall.
“13. Middeleer and her boss walked along the river until they reached the location of her fall through a fence.
“14. At the location of the fall, Middeleer was not on the paved path.
“15. Middeleer did not fall in the parking lot.
“16. The fall occurred on [Misiti’s] ‘premises,’ that is, on 1, 3, and 5 Glen Road, as defined in the Middeleer complaint.
“17. Misiti owns the commercial buildings and property located at 1, 3 and 5 Glen Road, Sandy Hook, Connecticut.
“18. At the. time of the incident, the [tavern] operated in a building located at 1 Glen Road pursuant to a lease with Misiti.
“19. The premises leased by Misiti to the tavern were the first floor of 1 Glen Road, together with a parking area to be used in common with others.
“20. The fence through which Middeleer fell was not located on the part of [Misiti’s] premises leased to the tavern.
“21. The tavern had no control over and was not responsible for maintenance of the fence that gave way.
“22. The Newtown police department’s medical assist report states, in part, the following: ‘[Middeleer’s boss] stated that he and Middeleer had been walking through the park discussing potential renovations to the property after a business meeting at the [tavern]. He stated that when Middeleer leaned against the top rail of the wooden fence it broke and she fell down into the water.’
“23. A Microsoft photo of the Misiti property, showing the tavern, parking lots and the path along the river, contains a distance measure showing the distance from the tavern, and from the parking area, to the site of the accident.
“24. A Google photo of the Misiti property area, which was an exhibit to the Middeleer deposition in the underlying case, and was an exhibit to Travelers’ motion, shows the tavern, parking lots and the path along the river.
“25. A map of the Misiti property area, which was an exhibit to the Middeleer deposition in the underlying case, and was an exhibit to Travelers’ motion, shows the tavern, parking lots and the path along the river.
“The foregoing facts are hereby agreed to by the parties and stipulated to as not being in dispute.” (Citation omitted.)

We further set forth the relevant procedural history of this case, as explained by the trial court. “[T]he plaintiffs . . . commenced this action against the defendants . . . seeking a determination that Misiti is an additional insured entitled to the protection of an insurance policy issued by Travelers with respect to an underlying action against Misiti brought by [the Middeleers]. Netherlands provided a defense to Misiti with respect to that underlying action. Subsequent to the filing of the present action, Netherlands settled [the] Middeleers’ underlying claim within the limits of its policy. . . . Netherlands seeks reimbursement from Travelers for its defense costs and the amount paid in indemnification to settle the claim against Misiti. . . .

“Travelers filed the operative motion for summary judgment on the ground that there is no coverage for . . . Netherlands and Misiti based on the policy’s additional insured endorsement, which provides for coverage ‘only with respect to liability arising out of the ownership, maintenance or use of that part of the premises leased to [the tavern].’ . . . Netherlands and Misiti filed the operative objection to Travelers’ motion for summary judgment and cross motion for partial judgment as to liability. It is . . . Netherlands’ and Misiti’s position that the underlying incident is one ‘arising out of [the tavern’s] use of that part of [Misiti’s] premises leased to it that [implicated] Travelers’ . . . duty to defend the underlying Middeleer action, and that as a result of its wrongful failure to do so, Travelers is liable to indemnify Netherlands up to the limits of its policy.”

On the basis of the aforementioned facts, the court determined that Travelers had a duty to defend Misiti in the underlying action and, therefore, rendered judgment in favor of the plaintiffs. This appeal followed.

Travelers claims on appeal that the court improperly granted the plaintiffs’ motion for summary judgment and denied its motion for summary judgment after concluding that Travelers had a duty to defend Misiti in the underlying lawsuit. We agree.

We begin by setting forth our well established standard of review. “In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. . . . Our review of the trial court’s decision to grant [a] motion for summary judgment is plenary. . . . Moreover, [construction of a contract of insurance presents a question of law for the court which this court reviews de novo.” (Citations omitted; internal quotation marks omitted.) R.T. Vanderbilt Co. v. Continental Casualty Co., 273 Conn. 448, 455-56, 870 A.2d 1048 (2005).

“The question of whether an insurer has a duty to defend its insured [or additional insured] is purely a question of law, which is to be determined by comparing the allegations of [the injured party’s] complaint with the terms of the insurance policy.” Community Action for Greater Middlesex County, Inc. v. American Alliance Ins. Co., 254 Conn. 387, 395, 757 A.2d 1074 (2000). “Whether the plaintiff ha[s] a duty to defend under the policy depends on whether, in light of the policy language, the complaints in the underlying . . . actions alleged conduct for which coverage was provided. [A]n insurer’s duty to defend ... is determined by reference to the allegations contained in the [injured party’s] complaint. . . . The duty to defend an insured arises if the complaint states a cause of action [that] appears on its face to be within the terms of the policy coverage. . . . Because [t]he duty to defend has a broader aspect than the duty to indemnify and does not depend on whether the injured party will prevail against the insured . . . [i]f an allegation of the complaint falls even possibly within the coverage, then the insurance company must defend the insured.” (Citations omitted; internal quotation marks omitted.) Imperial Casualty & Indemnity Co. v. State, 246 Conn. 313, 323-24, 714 A.2d 1230 (1998). This is true “even [if] facts outside the four comers of those pleadings indicate that the claim may be meritless or not covered . . . .” (Internal quotation marks omitted.) QSP, Inc. v. Aetna Casualty & Surety Co., 256 Conn. 343, 352, 773 A.2d 906 (2001). We, therefore, must compare the allegations contained in the Middeleers’ complaint with the language of the policy to determine whether Travelers had a duty to defend in the underlying litigation. See Board of Education v. St. Paul Fire & Marine Ins. Co., 261 Conn. 37, 41, 801 A.2d 752 (2002). In this case, we also consider the facts to which the parties stipulated. See footnote 3 of this opinion.

In their operative complaint, the Middeleers alleged that Misiti was the owner of real property at, behind and adjacent to the buildings located at 1, 3 and 5 Glen Road, which they defined as Misiti’s “premises.” A portion of Misiti’s premises “consisted of a steep retaining wall of over six (6) feet in height. Beneath the retaining wall located on [Misiti’s] premises is the riverbed of the Pootatuck River. . . . There was . . . a wood guard consisting of a wooden fence of split-rail design located along the top of the . . . retaining wall.” They also alleged that Middeleer was a business invitee on Misiti’s premises and that when she “leaned against the top rail of the wood guard, the top rail collapsed into pieces, causing [her] to fall off the retaining wall onto the rocks situated on the riverbed located below the retaining wall . . . .”

The stipulation of facts provided further information that Middeleer had parked her vehicle in a parking lot on Misiti’s premises and met her boss at the Mocha Café, located at the 3 Glen Road portion of Misiti’s premises. Following that meeting, she went to a business presentation, leaving her car on Misiti’s premises. After she and her boss returned from the presentation, they decided to have dinner at the tavern, located at the 1 Glen Road portion of Misiti’s premises. “Upon leaving the tavern, Middeleer and her boss walked down a path along a river toward the parking area. ... As they approached the parking area, Middeleer and her boss did not take the branch of the path that led directly to where her car was parked, instead continu[ing] to walk along the river in an open area beside the parking area, past a stage area, to look at the river and to look at a waterfall. . . . Middeleer and her boss walked along the river until they reached the location of her fall through a fence. ... At the location of the fall, Middeleer was not on the paved path.”

The additional insured policy provision provided by Travelers to Misiti specifically states that coverage was provided “only with respect to liability arising out of the ownership, maintenance or use of that part of the [Misiti] premises leased to [the tavern] . . . .” The parties agree that resolution of this appeal turns on whether the injuries alleged by Middeleer arose or resulted from the use of the tavern within the meaning of the policy language. See Board of Education v. St. Paul Fire & Marine Ins. Co., supra, 261 Conn. 41.

Travelers argues that it had no duty to defend Misiti in the underlying case because “liability did not arise out of the use of the leased premises.” It explains: “In order to assess whether the policy provides coverage for the claims asserted in the underlying action, it is necessary to carefully examine this language to determine if the underlying complaint contains allegations that [Misiti’s] liability arose out of . . . [the] use of the leased premises. In this case, the leased premises is the tavern. Thus, if the underlying complaint does not contain allegations concerning . . . [the] use of the [t]avem . . . then there is no additional insured coverage.” (Emphasis in original.) The plaintiffs argue that “[u]nder Connecticut law, the phrase ‘arising out of found in an insurance provision is broadly construed to signify a minimal causal relation less than proximate causation.” They contend that the complaint alleges such a causal relation.

We conclude that the underlying complaint, read alone or in combination with the stipulated facts, does not allege that Middeleer’s harm was causally related to the use of the tavern. Rather, those factual allegations say no more than that Middeleer’s use of the tavern preceded her use of that separate part of Misiti’s premises on which she was injured; according to the complaint and/or the stipulation those activities merely occurred in sequence. Therefore, the allegations of the complaint, either alone or in combination with the stipulation, do not set forth a cause of action within the scope of coverage afforded by the policy. Accordingly, we conclude that Travelers did not have a duty to defend Misiti in the civil action brought against it by the Middeleers. See Imperial Casualty & Indemnity Co. v. State, supra, 246 Conn. 324 (duty to defend implicated when allegations of complaint arguably set forth cause of action within scope of coverage).

“[T]he term ‘arising out of is very broad .... ‘[I]t is generally understood that for liability for an accident or an injury to be said to “arise out of’ [an occurrence], it is sufficient to show only that the accident or injury “was connected with,” “had its origins in,” “grew out of,” “flowed from,” or “was incident to” [that occurrence], in order to meet the requirement that there be a causal relationship between the accident or injury and [that occurrence].’ Hogle v. Hogle, 167 Conn. 572, 577, 356 A.2d 172 (1975), and cases cited therein. To ‘arise’ out of means ‘to originate from a specified source.’ Webster’s Third New International Dictionary (1961); see also Black’s Law Dictionary (7th Ed. 1999) (defining ‘arise’ as T. [t]o originate; to stem [from] . . . 2. [t]o result [from]’). ‘The phrase arising out of is usually interpreted as indicating] a causal connection.’ . . . Coregis Ins. Co. v. American Health Foundation, United States Court of Appeals, Docket No. 99-9300 (2d Cir. February 14, 2001); see also McGinniss v. Employers Reinsurance Corp., 648 F. Sup. 1263, 1267 (S.D.N.Y. 1986). Simply because we recognize, however, the breadth of the term ‘arising out of and often interpret coverage ambiguities in favor of the insured does not mean that we will ‘obligate an insurer to extend coverage based . . . [on] a reading of the complaint that is . . . conceivable but tortured and unreasonable.’ ” QSP, Inc. v. Aetna Casualty & Surety Co., supra, 256 Conn. 373-74.

In the case of Edelman v. Pacific Employers Ins. Co., 53 Conn. App. 54, 59, 728 A.2d 531, cert. denied, 249 Conn. 918, 733 A.2d 229 (1999), we reviewed the interpretation of a premises insurance policy that provided coverage for an innkeeper for injuries “arising out of the . . . use of . . . the premises . . . .” (Internal quotation marks omitted.) The case arose from an assault of a state trooper by an innkeeper who was resisting arrest following a domestic dispute. Id., 56. Although we recognized that the use of the phrase “arising out of the . . . use of . . . the premises” was a limitation on coverage, we held that the term “use” should be accorded its general meaning. Id., 60-61. We cited with approval the dictionary meaning of the term “use” to include “the legal enjoyment of property that consists in its employment, occupation, exercise, or practice.” (Internal quotation marks omitted.) Id., 61. On the facts of that case, we concluded that insurance coverage properly had been denied because the innkeeper’s assault of a state trooper was not an ordinarily intended use of the insured premises. Id., 62. In Board of Education v. St. Paul Fire & Marine Ins. Co., supra, 261 Conn. 37, our Supreme Court interpreted the term “use,” in the context of a school bus, to include “all proper uses of the vehicle.” Id., 43-45 (insurance coverage for sexual assault of student who was permitted to exit school bus without supervision by school personnel where assuring student safety upon disembarkation was included in proper use of bus within meaning of policy).

In the present case, we are called upon specifically to interpret the meaning of the phrase “arising out of the . . . use of that part of [Misiti’s] premises leased to [the tavern]” as that phrase is set forth in the additional insured section of the tavern’s policy of insurance. In accordance with our decisional precedent, we conclude that this phrase refers to liability originating, stemming or resulting from a person’s legal or proper enjoyment of the tavern. See Board of Education v. St. Paul Fire & Marine Ins. Co., supra, 261 Conn. 48; QSP, Inc. v. Aetna Casualty & Surety Co., supra, 256 Conn. 373-74; Edelman v. Pacific Employers Ins. Co., supra, 53 Conn. App. 61.

Here, the facts establish that Middeleer parked her vehicle in a parking area on Misiti’s premises. She then went to the Mocha Café with her boss to discuss a business presentation. Leaving her vehicle in the parking area, she next went to the business presentation, away from Misiti’s premises, and returned to Misiti’s premises thereafter. She and her boss then decided to have dinner at the tavern. When they finished dinner, they left the tavern and walked down a path, on a separate part of Misiti’s premises, that went along the river. Upon coming to a fork in the pathway, rather than taking the path that went to her vehicle in the parking area, they proceeded to walk along the river, past a stage area, where Middeleer eventually fell through a fence on an unpaved portion of Misiti’s premises. After viewing the allegations set forth in the complaint, both alone and in combination with the stipulation, we conclude that there are no allegations that Middeleer’s walk along an unpaved portion of Misiti’s premises and her subsequent fall through a fence originated, stemmed or resulted from her legal or proper enjoyment of the tavern. Although the facts demonstrate that these occurrences followed sequentially, there is no allegation that they were connected causally, one resulting from the other. Accordingly, the allegations of the complaint, either alone or in combination with the stipulated facts, do not set forth a cause of action within the scope of coverage afforded by the policy.

The judgment is reversed and the case is remanded with direction to deny the plaintiffs’ motion for summary judgment and to grant Travelers’ motion for summary judgment and to render judgment thereon for Travelers.

In this opinion the other judges concurred.

       In addition to Travelers, the other named defendants were Church Hill Tavern, LLC, Christopher Ghista, E. Gaynor Brennan, Melissa DeMeglio, Elias Reynolds, Sarah Middeleer, Geoffrey Middeleer and Porco Construction Company, Inc. Those parties are not involved in this appeal.

       “Although the denial of a motion for summary judgment is not a final judgment and thus is not ordinarily appealable; see Practice Book § 4000 [now Practice Book § 61-1]; Gurliacci v. Mayer, 218 Conn. 531, 541 n.7, 590 A.2d 914 (1991); Greengarden v. Kuhn, 13 Conn. App. 550, 552, 537 A.2d 1043 (1988); the rationale for this rule is not applicable where both sides have filed motions for summary judgment and the court has granted one of them. Aetna Casualty & Surety Co. v. Jones, 220 Conn. 285, 295 n.12, 596 A.2d 414 (1991). Thus, [an appellate court] may consider both of the summary judgment rulings contested by [an appellant] on appeal.” CTB Realty Ventures XXII, Inc. v. Markoski, 33 Conn. App. 388, 391 n.3, 636 A.2d 379, cert. granted on other grounds, 228 Conn. 929, 640 A.2d 115 (1994) (appeal withdrawn July 18, 1994).

       There was some disagreement during the trial court proceedings regarding the court’s use of undisputed facts outside of the complaint in determining whether Travelers had a duty to defend Misiti. The court had requested that the parties submit to it a stipulation of facts. See generally Hartford Casualty Ins. Co. v. Litchfield Mutual Fire Ins. Co., 274 Conn. 457, 466-67, 876 A.2d 1139 (2005) (“[a]n insurer may be obligated to provide a defense not only based on the face of the complaint but also if any facts known to the insurer suggest that the claim falls within the scope of coverage” [internal quotation marks omitted]). Although Misiti voiced concern about the consideration of facts outside of those alleged in the underlying complaint, the parties complied with the court’s request. On appeal, although both parties state that the allegations of the complaint control, they also agree that additional facts may be considered if those facts are relevant, were known to the insurer and broaden the duty to defend. See id. There is no claim on appeal that the trial court’s use of stipulated facts in this case was improper. Accordingly, we assume, without deciding, that the court’s use of the stipulated facts in determining whether Travelers had a duty to defend was proper. Furthermore, we conclude that the outcome of the case does not vary under either circumstance.

       For convenience, we refer to Sarah Middeleer as Middeleer, and to Sarah Middeleer and Geoffrey Middeleer as the Middeleers, throughout this appeal.

       See footnote 1 of this opinion.

       As stipulated, there actually were four sequential activities on the date of the accident that were not alleged to be causally connected to Middeleer’s accident and subsequent injuries. First, Middeleer met her boss at Mocha Café, located at 3 Glen Road, a separate part of Misiti’s premises, to prepare for a business presentation related to their work in the field of landscape design. Second, Middeleer and her boss went to the business presentation away from Misiti’s premises but Middeleer left her car in the parking lot on Misiti’s premises. Third, after the business presentation, they returned to Misiti’s premises and then decided to get something to eat at the tavern. Fourth, they left the tavern and walked on a portion of the Misiti premises separate from and leading away from the tavern, past the parking lot in which Middeleer’s vehicle was located, to a scenic overlook. See paragraphs 3-13 of the stipulated facts as set forth in this opinion. There are no allegations causally connecting Middeleer’s use of the tavern with her subsequent fall through the fence on a portion of Misiti’s premises away from the physical location of the tavern.


text:
    HILARY KAWECKI, CONSERVATOR (PERSON OF SOPHIE TRENT-STEVENS), ET AL. v. WILLIAM J. SAAS, SR., ET AL.
    (AC 32630)
    Gruendel, Robinson and Schaller, Js.

      Argued October 14
    officially released December 20, 2011

      Zbigniew S. Rozbicki, for the appellant (named plaintiff).

      Vincent T. McManus, Jr., for the appellee (named defendant).
   Opinion

ROBINSON, J.

The named plaintiff, Hilary Kawecki, as conservator of the person of Sophie Trent-Stevens, appeals from the judgment of the trial court granting a motion to dismiss the complaint as to him. He claims on appeal that the court erred in concluding that he lacked standing as the conservator of the person of Trent-Stevens to assert the claims raised in the complaint, which relate to the estate of Trent-Stevens, not to the person. We affirm the judgment of the trial court.

The record reveals the following facts and procedural history. On August 20, 2007, Kaweeki was appointed by the Probate Court for the district of Meriden as conservator of the person of Trent-Stevens. Attorney Renee Fahey Gentile was appointed as conservator of the estate of Trent-Stevens on June 30, 2008. In March, 2009, Fahey Gentile and Kaweeki brought a six count complaint on behalf of their ward against the defendants, William J. Saas, Jr., and William J. Saas, Sr. Saas, Jr., had been the appointed conservator of the estate of Trent-Stevens from November 15, 2006 to June 23, 2008, at which time he was removed by order of the Probate Court. The plaintiffs allege in the complaint that, during the time in which Saas, Jr., was acting as conservator of the estate, he was employed by his father, Saas, Sr., at his father’s accounting firm. They farther alleged that Saas, Sr., appeared with his son before the Probate Court and made representations that the affairs of the estate were being handled using proper accounting and inventory procedures. According to the allegations in the complaint, Saas, Sr., led the plaintiffs and the Probate Court to believe that Saas, Jr., was a member of his father’s accounting firm although Saas, Jr., allegedly is not an accountant. The complaint contends that Saas, Sr., became a de facto conservator of the estate by assuming joint responsibility with Saas, Jr.

The first five counts of the complaint were brought by the plaintiffs against both of the defendants. Count one sounds in breach of fiduciary duty and alleges that the defendants failed to perform their statutory duties by failing to properly safeguard the assets of the estate. Count two sounds in conversion and alleges that the defendants wrongfully misappropriated and converted estate funds and assets, including jewelry, cash and securities. Count three alleges a breach of the implied covenant of good faith and fair dealing. Count four sounds in fraud and misrepresentation. Count five alleges a violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110b et seq. The sixth count, which the plaintiffs brought against Saas, Sr., only, sounds in professional malpractice.

On March 10,2010, Saas, Sr., filed a motion to dismiss the complaint as to the claims of Kawecki on the ground that Kawecki lacked standing to prosecute the claims raised in the complaint. On June 2, 2010, the court issued a memorandum of decision granting the motion to dismiss, in which it concluded that the plaintiffs had “not met their burden of establishing Kawecki’s standing.” The action remains pending as to the claims of the coplaintiff Fahey Gentile. The plaintiffs filed a motion for reargument on June 21, 2010. The court denied the motion for reargument, notice of which issued on August 9, 2010. The present appeal by Kawecki followed.

Our standard of review of the granting of a motion to dismiss is well settled. “In ruling upon whether a complaint survives a motion to dismiss, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader. ... A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction. . . . Whether the trial court has subject matter jurisdiction is a question of law over which we exercise a plenary standard of review.” (Internal quotation marks omitted.) Wright v. Teamsters Local 559, 123 Conn. App. 1, 4-5, 1 A.3d 207 (2010).

“The issue of standing implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss. Practice Book § 10-31 (a). [I]t is the burden of the party who seeks the exercise of jurisdiction in his favor . . . clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute.” (Internal quotation marks omitted.) May v. Coffey, 291 Conn. 106, 113, 967 A.2d 495 (2009). “Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he [or she] has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy. . . . When standing is put in issue, the question is whether the person whose standing is challenged is a proper party to request an adjudication of the issue .... Standing is established by showing that the party claiming it is authorized by statute to bring suit or is classically aggrieved.” (Internal quotation marks omitted.) Id., 112.

We first consider whether Kawecki has standing on the basis of statutory authority to raise the type of claims alleged in the underlying action. “A conservator has only such powers as are expressly or impliedly given to him by statute.” (Internal quotation marks omitted.) Murphy v. Wakelee, 247 Conn. 396, 406, 721 A.2d 1181 (1998). “The statutory duties of a conservator are clearly defined in General Statutes § 45a-655, which delineates the duties of a conservator of the estate, and General Statutes § 45a-656, which prescribes the duties of a conservator of the person.” (Emphasis in original.) Jewish Home for the Elderly of Fairfield County, Inc. v. Cantore, 257 Conn. 531, 539-40, 778 A.2d 93 (2001). Our construction of the relevant statutory provisions is guided by well settled principles of statutory construction. See also General Statutes § l-2z.

A conservator of the estate is defined by statute as one appointed “to supervise the financial affairs” of a conserved person. General Statutes § 45a-644 (a). General Statutes § 45a-655 (a) provides in relevant part that the conservator of the estate, in addition to compiling an inventory of the estate’s assets, “shall manage all the estate and apply so much of the net income thereof, and, if necessary, any part of the principal of the property, which is required to support the conserved person and those members of the conserved person’s family whom the conserved person has the legal duty to support and to pay the conserved person’s debts, and may sue for and collect all debts due the conserved person. ...” (Emphasis added.)

By contrast, the conservator of the person is defined as someone appointed “to supervise the personal affairs” of a conserved person. General Statutes § 45a-644 (b). General Statutes § 45a-656 (a) provides that the duties and authority of the conservator of the person may include the following: “(1) The duty and responsibility for the general custody of the conserved person; (2) the authority to establish the conserved person’s residence within the state, subject to the provisions of section 45a-656b; (3) the authority to give consent for the conserved person’s medical or other professional care, counsel, treatment or service; (4) the duty to provide for the care, comfort and maintenance of the conserved person; and (5) the duty to take reasonable care of the conserved person’s personal effects.”

The complaint in this case seeks compensatory damages and attorney’s fees based on allegations that a former conservator of the estate did not properly perform his statutory duties, mismanaged the estate and converted assets of the estate for his own benefit. A plain reading of the statutory duties described in § 45a-656 reveals that the conservator of the person generally is tasked with ensuring that the comfort, safety and health care needs of the conserved person are met. There is no express or implied provision authorizing the conservator of the person to bring an action on behalf of the conserved person to collect debts owed the estate or to otherwise protect the ward’s estate. The statutory duty to recover debts due to a conserved person’s estate expressly is left to the discretionary authority of the conservator of the estate. See General Statutes § 45a-655 (a). Although we are cognizant of the fact that § 45a-656 does not contain an exhaustive list of the duties of the conservator of the person and does not expressly prohibit the conservator of the person from ever bringing an action on behalf of the ward, when read in conjunction with § 45a-655, we conclude that the conservator of the estate is the proper party to request adjudication of the issues raised in the complaint. As previously noted, a conservator’s powers are limited to those expressly or impliedly provided by statute; see Murphy v. Wakelee, supra, 247 Conn. 406; and Kawecki, as conservator of the person of Trent-Stevens, lacks the statutory authority to establish standing to prosecute the underlying complaint.

Kawecki also failed to demonstrate that he had standing on the basis of classical aggrievement. “The fundamental test for establishing classical aggrievement is well settled: [F]irst, the party claiming aggrievement must successfully demonstrate a specific personal and legal interest in the subject matter of the decision .... Second, the party claiming aggrievement also must demonstrate that its asserted interest has been specially and injuriously affected in a way that is cognizable by law.” (Internal quotation marks omitted.) Trumbull v. Palmer, 123 Conn. App. 244, 251, 1 A.3d 1121, cert. denied, 299 Conn. 907, 10 A.3d 526 (2010). Kawecki’s interest in the underlying litigation is not personal, but as conservator of the person of Trent-Stevens. Further, as we have already determined, the subject matter of the complaint does not fall within Kawecki’s statutory responsibilities as conservator of the person, and, therefore, he has no legal interest in the litigation on the basis of that role. Because Kawecki cannot demonstrate a specific personal and legal interest in the underlying litigation, he is not classically aggrieved.

For the foregoing reasons, we agree with the court’s decision that the claims raised in the underlying complaint do not relate to the person of Trent-Stevens, but to Trent-Stevens’ estate, and that Kawecki is not authorized by statute to bring an action on behalf of the estate and is not otherwise aggrieved. Accordingly, Kawecki lacks standing to invoke the court’s jurisdiction, and the corut properly granted the motion to dismiss the complaint as to him.

The judgment is affirmed.

In this opinion the other judges concurred.

       Renee Fahey Gentile, as conservator of the estate of Trent-Stevens, is also a plaintiff in the underlying action, but is not a party to this appeal.

       As a preliminary matter, we note that Kaweeki has attempted to frame the issue on appeal as whether the trial court’s action in dismissing the complaint deprived his ward of her rights to due process, equal protection of the law and access to the courts under both the state and federal constitutions. Kaweeki, however, has failed to do much more than simply assert those constitutional claims. “Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly. . . . Where a claim receives only cursory attention in the brief without substantive discussion, it is deemed to be abandoned.” (Internal quotation marks omitted.) Foster v. Foster, 84 Conn. App. 311, 324, 853 A.2d 588 (2004) (declining to review inadequately briefed federal constitutional claim); see also State v. Sinvil, 270 Conn. 516, 518 n.1, 853 A.2d 105 (2004) (deeming state constitutional claim abandoned because defendant had not provided independent analysis of constitutional issue). Because Kaweeki has failed to adequately brief his constitutional claims, we decline to review them, and we limit our review to whether the court erred in granting the motion to dismiss on the ground that Kaweeki lacked standing.

       Although the motion to dismiss was brought only by Saas, Sr., we construe the trial court’s judgment as disposing of Kawecki’s case against both defendants. See de Repentigny v. de Repentigny, 121 Conn. App. 451, 462-63, 995 A.2d 117 (2010) (construction of judgment is question of law and effect should be given to both that which is expressly set forth as well as that which is implied). The court’s intention to dismiss Kawecki’s action against both defendants is evidenced by the court’s statement in the judgment file that judgment on the motion to dismiss was rendered “in the defendants’ favor.” The parties have not claimed that the trial court’s judgment did not dismiss all of Kawecki’s claims against both defendants.

       The determination that Kawecki lacks standing as a party plaintiff to litigate the underlying action in no way precludes him from otherwise exercising his duties as conservator of the person with respect to the litigation.