author: FOTI, J.

text:
    LYNDA B. RUGGIERO v. ROBERT A. RUGGIERO
    (AC 17880)
    Foti, Schaller and Daly, Js.

      Argued May 27
    officially released October 12, 1999

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

      James V. Somers, for the appellee (movant).
   Opinion

FOTI, J.

The plaintiff, Lynda B. Ruggiero, appeals from the trial court’s order correcting the transcript of the proceedings of a dissolution action between the plaintiff and the defendant. On appeal, the plaintiff claims that (1) the trial court; lacked jurisdiction to act, and (2) even if it had jurisdiction to correct the record, the court acted improperly in doing so given the evidence before it. We affirm the judgment of the trial court.

On May 4, 1993, the plaintiff, represented by attorney Maureen E. Donahue, proceeded before the trial court, Susco, J., in a dissolution hearing. Judgment was rendered that day granting a dissolution of the marriage between the plaintiff and the defendant. Subsequently, the plaintiff commenced a legal malpractice action against Donahue. Thereafter, Donahue, citing a number of errors in the transcript of the May 4, 1993 hearing, filed a motion to correct the record, along with a supporting affidavit from the official court reporter for the judicial district where the hearing had been held. The plaintiff filed an objection along with a motion to dismiss, claiming that the court lacked jurisdiction and that Donahue lacked standing.

By memorandum of decision, the trial court, Dran-ginis, J., denied the plaintiffs motion to dismiss. The court noted that Donahue “claims standing not only because of the continuing jurisdiction in this court of a family matter, but as a commissioner of the Superior Court, she has a continuing duty to alert the court as to a mistake in an official transcript.” The court found that “Donahue has standing, but does not need standing to bring to the attention of the court that there should be a correction in its record.” Further, the court stated that “[l]egal claims in an appeal or in a subsequent action predicated upon the transcript must be adjudicated upon a correct record. The Superior Court is a court of record, and its record should be correct.” The court further stated that a trial court has “a duty to correct its transcript for any ancillary or continuing proceeding, in addition to its duty on an appeal and pursuant to Practice Book § 4051 [now § 66-5].”

Thereafter, on June 24 and June 30, 1997, the trial court, Walsh, J., conducted an evidentiary hearing on Donahue’s motion. In rejecting the plaintiffs objections, the court incorporated and adopted Judge Dranginis’ memorandum of decision denying the plaintiffs motion to dismiss. The court concluded that the corrections sought by Donahue were justified and ordered the transcript corrected. This appeal followed.

I

The plaintiff first claims that the trial court lacked jurisdiction because Donahue lacked standing and because, under the particular circumstances of this case, the court had no power to act. We disagree.

The issue presented is not one of standing but rather of the trial court’s inherent power. It is axiomatic that the Superior Court, as part of an independent and separate branch of government, has inherent power to do all that is reasonably necessary to enable the court to discharge its judicial responsibilities and to provide for the efficient administration of justice. By necessity, this includes maintaining proper and accurate records of trial court proceedings and correcting, sua sponte, a transcript as part of the court record.

While we recognize that Practice Book § 66-5 concerns the rectification of the record prior to an appeal; see footnote 2; we agree with the trial court that the Superior Court has a duty to ensure that the record is correct for any “ancillary or continuing proceeding . . . .’’In this regard, the trial court has the power and the duty to act, in the interest of justice, regardless of how it learns of an impropriety or an error in the record.

II

The plaintiff next claims that, even if the trial court had the inherent authority to correct the transcript, it could not do so on the basis of the evidence in this case. Specifically, she claims that the original trial judge should have presided at the evidentiary hearing. In addition, she claims the audiotape listened to by the trial court and the testimony of the official court reporter did not constitute a sufficient evidentiary basis for the trial court to have concluded as it did. We disagree.

The plaintiff never objected to Judge Dranginis’ or Judge Walsh’s hearing the matter, nor did she raise the issue that she raises for the first time on appeal, i.e., that Judge Susco should have conducted the evidentiary hearing. We will not entertain this issue, which is raised for the first time on appeal. State v. Harvey, 27 Conn. App. 171, 186, 605 A.2d 563, cert. denied, 222 Conn. 907, 608 A.2d 693 (1992). Accordingly, we decline to review this claim.

In addition, our review of the record leads us to conclude that the audiotape, as testified to by the official court reporter, was the full and complete record of the proceedings on May 4, 1993. The plaintiff argues that the court monitor who taped the proceedings had to testify for the tape to be admissible. We do not agree. Further, if the plaintiff wanted to question the court monitor, she certainly was free to call that person as her own witness. The plaintiffs claim that there was an insufficient evidentiary basis is without merit.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant, Robert. A. Ruggiero, while1 a parly t.o the underlying dissolution proceeding, is not a party to this appeal.

       Practice Book § 4051, now § 66-5, provides in relevant part: “A motion seeking corrections in the transcript or the trial court record or seeking an articulation or further articulation of the decision of the trial court shall be called a motion for rectification or a motion for articulation, whichever is applicable. Any motion filed pursuant to this section shall state with particularity the relief sought. An original and three copies of such motion shall be filed with the appellate clerk. Any other party may oppose the motion by filing an original and three copies of an opposition with the appellate clerk within ten days of the filing of the motion for rectification or articulation.

        “The appellate clerk shall forward the motion for rectification or articulation and the opposition, if any, to the trial judge who decided, or presided over, the subject matter of the motion for rectification or articulation for a decision on the motion. If any party requests it and it is deemed necessary by the trial court, the trial court shall hold a hearing at which arguments may be heard, evidence taken or a stipulation of counsel received and approved. The trial court may make such corrections or additions as are necessary for the proper presentation of the issues raised or for tire proper presentation of questions reserved. The trial judge shall file the decision on the motion with the appellate clerk.
      “Nothing herein is intended to affect the existing practice with respect to opening and correcting judgments and the records on which they are based. The trial judge shall file any such order changing the judgment or the record with the appellate clerk.
      “Corrections made before the record is prepared shall be included in it. If the record has been prepared, the appellate clerk may prepare a supplemental record, to be distributed in the same way as the original record. . . .”

       The importance of this duty is reflected by the fact that trial courts can open judgments to make “clerical modifications or corrections” even after the four month period provided in Practice Book § 17-4, formerly § 326. DiSimone v. Vitello, 6 Conn. App. 390, 392, 505 A.2d 745 (1986); see also Practice Book § 17-4 (civil judgment or decree may not be opened or set aside unless motion to open or set aside is filed within four months). The expiration of this four month period normally deprives the court of jurisdiction to make substantive modifications to a judgment. DiSimone v. Vitello, supra, 392.


source: Caselaw Access Project

author: O’CONNELL, C. J.

license: Public Domain

text:
    BART RIVEZZI v. ANTHONY MARCUCIO ET AL.
    (AC 18221)
    O’Connell, O. J., and Sullivan and Daly, Js.
    Argued June 8
    officially released October 12, 1999

      Arthur R. Riccio, Jr., for the appellant (plaintiff).

      Thomas P. Chapman, with whom, on the brief, was David M. Tilles, for the appellee (named defendant).
   Opinion

O’CONNELL, C. J.

The plaintiff, Bart Rivezzi, appeals from the judgment rendered on a general verdict in favor of the named defendant, Anthony Marcucio, following a jury trial, in this negligence action. The plaintiffs sole claim on appeal is that the trial court improperly admitted into evidence a hearsay statement from a hospital record. The defendant asserts that the general verdict rule applies, precluding appellate review of the plaintiffs claims. We agree with the defendant and affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The plaintiffs uncle and the defendant own adjacent farms. The boundary between the farms is marked by a stone wall and cedar posts. On the day that he was injured, the plaintiff was riding a motorcycle, of the type commonly known as a dirt bike, on a dirt road that made a circuit around his uncle’s farm. As he passed near the boundary separating his uncle’s and the defendant’s farms, he struck a large rock and was thrown from his bike causing his injuries. The plaintiff claims that while the defendant was clearing his farm he pushed the rock over the boundary and into the plaintiffs bike path.

The plaintiff was taken to a hospital where a notation was made on a hospital record that he told the hospital staff that he had been riding at seventy miles per hour. This record was admitted into evidence over the plaintiffs hearsay objection.

The court instructed the jury to utilize the general verdict form for the defendant if it found either that the plaintiff had not proven that the defendant was negligent or if it found that the plaintiff was more than 50 percent negligent. The plaintiff did not object to the court’s instruction and no interrogatories concerning comparative negligence were submitted. The jury returned a general verdict in favor of the defendant.

Before we address the merits of the plaintiffs claim, we must first address the defendant’s assertion that the general verdict rule applies and precludes our review. “Under the general verdict rule, if a jury renders a general verdict for one party, and no party requests interrogatories, an appellate court will presume that the jury found every issue in favor of the prevailing party. . . . Thus, in a case in which the general verdict rule operates, if any ground for the verdict is proper, the verdict must stand; only if every ground is improper does the verdict fall. . . . The rule rests on the policy of the conservation of judicial resources, at both the appellate and trial levels. . . . On the appellate level, the rule relieves an appellate court from the necessity of adjudicating claims of error that may not arise from the actual source of the jury verdict that is under appellate review. . . . Therefore, the general verdict rule is a rule of appellate jurisprudence designed to further the general principle that it is the appellant’s responsibility to provide a record upon which reversible error may be predicated.” (Citations omitted; internal quotation marks omitted.) Dowling v. Finley Associates, Inc., 248 Conn. 364, 371-72, 727 A.2d 1245 (1999).

Our Supreme Court has held that the general verdict rule applies to the following five situations: “(1) denial of separate counts of a complaint; (2) denial of separate defenses pleaded as such; (3) denial of separate legal theories of recovery or defense pleaded in one count or defense, as the case may be; (4) denial of a complaint and pleading of a special defense; and (5) denial of a specific defense, raised under a general denial, that had been asserted as the case was tried but that should have been specially pleaded.” (Internal quotation marks omitted.) Id., 372.

This case falls squarely within the fourth category, denial of a complaint and pleading of a special defense. In his answer, the defendant denied the allegations of negligence set forth in the complaint and raised the special defense of comparative negligence. “The defendant’s denial of the plaintiffs allegations of negligence and the defendant’s special defense of contributory negligence constituted two separate and distinct defenses, either of which may have supported the verdict for the defendant.” Rogers v. Northeast Utilities, 45 Conn. App. 23, 25, 692 A.2d 1301, cert. denied, 241 Conn. 924, 696 A.2d 1266 (1997). Because it is not evident whether the general verdict reached by the jury was based on a finding of a lack of negligence on the defendant’s part or on a finding that the plaintiff was more than 50 percent negligent, the general verdict rule must be applied. Curry v. Burns, 225 Conn. 782, 788, 626 A.2d 719 (1993); O'Brikis v. Supermarkets General Corp., 34 Conn. App. 148, 152, 640 A.2d 165 (1994).

If a party wants to avoid the consequences of the general verdict rule, it may obtain the specific grounds for the verdict by submitting interrogatories to the jury. Without interrogatories, we cannot determine whether the jury found for the defendant because it found that the defendant was not negligent in causing the plaintiffs injury or because the plaintiff was more than 50 percent negligent. Small v. Stop & Shop Cos., 42 Conn. App. 660, 662, 680 A.2d 344 (1996). The rule requires that we presume that the jury found for the defendant on all of the issues, including the defendant’s denial of negligence. Because the plaintiffs hearsay challenge goes to testimony relevant only to the plaintiffs comparative negligence, we presume that the jury based its determination on a finding that the defendant was not negligent, which finding is not challenged on appeal. The general verdict, therefore, will not be disturbed, and the plaintiffs claims of error relating to the improperly admitted evidence need not be reviewed.

The judgment is affirmed.

In this opinion the other judges concurred.

       Summary judgment was rendered in favor of the defendant Anthony Rivezzi, and the court directed a verdict in favor of the defendant Carmelina Marcucio. The plaintiff challenges only the judgment rendered on the jury’s verdict in favor of the named defendant, Anthony Marcucio. We refer in this opinion to Anthony Marcucio as the defendant.


author: SPEAR, J.

text:
    BEVERLY WILKES v. LAWRENCE WILKES
    (AC 16904)
    O’Connell, C. J., and Foti and Spear, Js.

      Argued December 2, 1998
    officially released October 19, 1999

      William H. Narwold, with whom were John P. Ek-berg III and, on the brief, Charles D. Ray and John P. McKinney, for the appellant-appellee (plaintiff).

      Mary Ellen Wynn, with whom was Leah Pavelti Hogan, for the appellee-appellant (defendant).
   Opinion

SPEAR, J.

The plaintiff, Beverly Wilkes, appeals from the judgment of the trial court that dissolved her marriage to the defendant, Lawrence Wilkes, and awarded her alimony. She claims that the trial court improperly (1) based the alimony award on clearly erroneous factual conclusions regarding the earning capacities of the parties, (2) approved an agreement that equally divided the parties’ property even though the defendant had not made a full and frank disclosure of all his assets, (3) concluded that the plaintiff did not contribute to the defendant’s assets after the parties separated, (4) excluded critical testimony relating to the defendant’s marital infidelity and (5) denied her motion to open the original judgment of dissolution, which was based on the alleged fraud of the defendant. We affirm the judgment of the trial court.

The trial court found the following facts. The parties were married on October 9, 1976, in Palm Beach, Florida. No children were born of the marriage. The defendant was a successful stockbroker who, at the time of the dissolution, was a senior vice president at a securities firm. The plaintiff was an attorney who had enjoyed a successful career working primarily in the field of commodities trading. At the time of the dissolution, the plaintiff had ceased practicing law in New York and had moved to Florida, where she had started a horse boarding business in October, 1994.

In October or November, 1992, the plaintiff visited the defendant’s office and demanded that either he terminate the employment of his female sales assistant or she would seek a divorce. After refusing to fire his assistant, the defendant asked the plaintiff for a divorce. Thereupon, the plaintiff suggested that neither party hire an attorney because she would prepare a separation agreement and thereafter commence a dissolution action. Together, the parties visited their certified public accountant to review a division of their assets and to ascertain the resulting tax consequences. Pursuant to their agreement, the parties divided their assets equally. Thereafter, the parties executed an agreement, effective as of June 1, 1993, that reflected the division of the parties’ property and was to be used in the dissolution action.

The trial court found the agreement to be fair and equitable and incorporated it in the dissolution decree. The court dissolved the marriage, awarded the plaintiff $150,000 in counsel fees and ordered periodic alimony in the amount of $8500 monthly to terminate “on the remarriage of the plaintiff, the death of either party, or further court order whether based on [General Statutes § 46b-86] or upon the expiration of six years, in all events despite any change of circumstances.” This appeal followed.

I

The plaintiff first claims that the trial court’s findings regarding the earning capacities of the parties were clearly erroneous because (1) the court relied on financial information from the defendant that was one year old at the time of trial, (2) concluded that the defendant’s earning capacity was $515,000 per year despite evidence showing a substantially higher earning capacity and (3) failed to specify the plaintiffs earning capacity. We disagree.

“Our standard of review is well settled. We review financial awards in dissolution actions under an abuse of discretion standard. . . . [T]o conclude that the trial court abused its discretion, we must find that the court either incorrectly applied the law or could not reasonably conclude as it did.” (Citations omitted; internal quotation marks omitted.) Lake v. Lake, 49 Conn. App. 89, 91, 712 A.2d 989, cert. denied, 246 Conn. 902, 719 A.2d 1166 (1998). “[T]he factual findings of atrial court on any issue are reversible only if they are clearly erroneous. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it . . . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. . . . [W]here the factual basis of the court’s decision is challenged we must determine whether the facts set out in the memorandum of decision ar e supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous.” (Citation omitted; internal quotation marks omitted.) Rolla v. Rolla, 48 Conn. App. 732, 737, 712 A.2d 440, cert. denied, 245 Conn. 921, 717 A.2d 237 (1998).

Although the plaintiff claims that the trial court’s factual findings that underpin the award of alimony are clearly erroneous, she does not challenge the award itself as an abuse of the trial court’s discretion. She fails to assert or brief that any prejudice or harm at all flowed from the allegedly flawed factual findings.

The plaintiff complains that there is “no internal consistency in the trial court’s memorandum of decision and no explanation of how the trial court arrived at its determination of the parties’ respective earning capacities.” The plaintiff cites Ehrenkranz v. Ehrenkranz, 2 Conn. App. 416, 479 A.2d 826 (1984), for the proposition that “where a decision suffers from such internal problems, the court’s financial awards must be reversed.” In Ehrenkranz, the defendant claimed that “in arriving at its decision, the court made a serious error in computation which, under the circumstances of this case, amounted to an abuse of discretion.” Id., 417. We agreed and reversed the judgment. That case is of no avail to the plaintiff here because, unlike the appellant in Ehrenkranz, she neither asserts nor briefs any claim that the trial court abused its discretion. Absent any challenge at all to the amount or term of the alimony award, we have no basis to conclude that the claimed erroneous fact-finding resulted in an abuse of discretion.

II

The plaintiff next claims that the trial court improperly incorporated the June 1,1993 separation agreement into the decree of dissolution because the defendant did not make a full disclosure of his assets, thereby rendering the agreement unfair and fraudulent. We disagree.

Resolution of this claim requires us to state certain additional facts. The plaintiff claims that the agreement was induced by fraud because the lack of formal financial affidavits meant that there was no lull disclosure of assets by the defendant. She does not identify any undisclosed assets or income. The trial court found that “[t]he plaintiff examined the defendant’s records at his office, he gave her copies of all documents and records she requested and he had a reasonable basis to assume she was acting on his behalf.” The court went on to state that it was “satisfied that the parties did know the nature and value of their respective IRAs and other tax-deferred compensation, and that the values were roughly equal at the time the parties’ assets were divided. It would be most inequitable to allow the plaintiff to retain the benefits of the agreement, which she prepared and which she now seeks to void.” Moreover, in the body of the agreement, the parties represented that “each has fully and completely disclosed his or her income, assets and liabilities to the other party, and that neither he nor she is holding any undisclosed assets.”

The plaintiff claims that this “mid-nuptial” agreement should be considered the same as premarital agreements that are protected by General Statutes § 46b-36g with respect to disclosure. Section 46b-36g (a) (3), which is applicable to premarital agreements executed on or after October 1,1995, the effective date of Public Acts 1995, No. 95-170, precludes enforcement of a premarital agreement where, prior to execution, a party is “not provided a fair and reasonable disclosure of the amount, character and value of property, financial obligations and income of the other party . . . .” The plaintiff asserts that, even if § 46b-36g does not apply, the agreement was not fair and equitable as required by General Statutes § 46b-66. There is no merit to this claim because § 46b-36g (a) (3) requires “fair and reasonable disclosure,” as opposed to more formal financial affidavits, and the trial court had the benefit of formal financial affidavits at the time it decided that the agreement was fair and equitable.

The trial court specifically found that the plaintiff was not credible with respect to her claim that she was not qualified to draft the agreement and that she was under extreme emotional stress when the assets were divided. In drafting the property agreement, the plaintiff received forms and assistance from her mother, who was an attorney licensed in Massachusetts with an “emphasis on matrimonial law in her practice.” The court also noted: “Her recognized expertise in drafting complicated derivative agreements belies this claim.” We are satisfied that the trial court, in reviewing all of the circumstances, properly found the agreement to be fair and equitable.

Ill

The plaintiff next claims that the trial court improperly concluded that she did not contribute to the defendant’s assets after the separation occurred and that, as a result, the court failed to value the marital property as of the date of dissolution. The plaintiff claims that she referred accounts to the defendant from the time of the separation until well into 1996, and that those referrals made significant contributions to the defendant’s business. In addition, the plaintiff maintained her own brokerage account with the defendant.

The trial court did not explain the basis for its conclusion that neither party contributed to the assets of the other after the separation. As a result of that conclusion, the court further concluded that it was equitable to allow the division of assets to stand, citing Papageorge v. Papageorge, 12 Conn. App. 596, 600, 533 A.2d 229 (1987). The plaintiff did not request an articulation from the trial court on that issue and, therefore, the record is inadequate to review the plaintiffs claim that the court’s fact-finding was clearly erroneous. See In re Bruce R., 34 Conn. App. 176, 188, 640 A.2d 643 (1994), aff'd, 234 Conn. 194, 662 A.2d 107 (1995).

IV

The plaintiff next claims that the trial court improperly precluded her from presenting certain expert testimony from Thomas Donovan. We disagree.

Donovan was employed by the Philadelphia Ritz Carlton Hotel and was offered as a witness with respect to the defendant’s alleged rendezvous at the hotel with one of his female employees on a certain weekend in October, 1991. Donovan was asked to testify as to hotel policies and procedures that would have enabled him to determine the location from which the defendant placed certain telephone calls.

The testimony was proffered to rebut the defendant’s claims that he placed only one telephone call to the plaintiff from the woman’s hotel room and that the other calls to the plaintiff were made from a telephone in the hotel lobby. The plaintiff also sought to rebut the defendant’s testimony that he needed the woman’s bill to exit the hotel parking garage.

The plaintiff claims that Donovan would have testified that the notations on the hotel bill indicated that all of the telephone calls made to the plaintiffs home were made from the woman’s room and not from the hotel lobby, and that the defendant did not need a copy of the woman’s bill to exit the garage. In addition to eroding the defendant’s credibility generally, the plaintiff claims that this evidence would have shown that his adulterous affair with the woman began at a much earlier time than he had admitted and that it caused the breakup of the marriage.

In response to an objection by the defendant, the trial court noted that Donovan was proffered as an expert in hotel procedures, but the plaintiff had not met the requirements of then Practice Book § 220 (D), now § 13-4 (4). After sustaining the defendant’s objection to the plaintiffs proffer of Donovan as an expert, the trial court explained that the disclosure was late. In response to the question of whether there was undue prejudice as a result of the late disclosure, the court responded that the other side had not had an opportunity to combat the opinions, nor did it have sufficient time to get an opposing expert to test Donovan’s opinions.

We review tihe trial court’s preclusion of the proffered evidence by an abuse of discretion standard. Ormsby v. Frankel, 54 Conn. App. 98, 101, 734 A.2d 575 (1999). The plaintiff challenges the trial court’s conclusion that the proffered testimony called for expert opinions. The questions at issue required an interpretation of the hotel bill, an analysis of the workings of the telephone system and an application of hotel practices and policies to determine, on the basis of the witness’ specialized knowledge and training, the place of origin of the telephone calls. In light of all these factors, we cannot say that the trial court’s characterization of the evidence as expert testimony and the resulting exclusion were an abuse of the court’s discretion.

The plaintiff also claims that the trial court improperly precluded Donovan from testifying as to factual matters that did not involve any expert opinions. The plaintiff specifically references two questions to which the defendant inteiposed objections. These questions were also offered to show that the affair began at a date earlier than the defendant admitted and that the affair caused the breakdown of the marriage. We find no merit to the claim.

First, even if we assume that a policy of providing free parking occasionally was a factual matter, exclusion of the testimony was harmless as the plaintiff points to no evidence that any free parking was offered at the relevant time in this case. With respect to testimony that would have explained the $44 item on the bill, the trial court concluded that the question called for an interpretation as there was no explanation for the charge on the bill. Because there was no offer of proof as to the witness’ answer and the basis therefor, we cannot say that the ruling was improper. Moreover, even if the court’s rulings were improper, we would consider the error harmless because the trial court included the weekend trip in October, 1991, as a contributing, although not the exclusive, cause of the breakdown of the marriage.* We conclude that the trial court did not abuse its discretion in sustaining the objections.

V

The plaintiff next claims that the trial court improperly denied her motion to open the judgment based on alleged fraud committed by the defendant. We disagree.

The trial court rendered judgment on January 31, 1997. On November 20, 1997, the plaintiff moved to open and set aside the judgment on the ground that the defendant had failed to disclose the existence of a certain trust at a deposition taken on November 17, 1995, and thereafter failed to disclose the trust in his financial affidavits. There was no express allegation of fraud in the motion to open judgment.

The defendant initially funded the subject trust by deeding to himself, as trustee, the parties’ former marital residence. He also made the trust the beneficiary of a life insurance policy in the amount of $38,000.

After a hearing, the trial court denied the plaintiffs motion to open the judgment for two reasons. First, the court ruled that the motion was untimely in that it was filed more than four months after the date of the judgment in violation of Practice Book § 17-4. Second, the court found that the plaintiff had not proven fraud, which is an exception to the four month rule. A judgment rendered may be opened after the four month limitation if it is shown that the judgment was obtained by fraud, in the absence of actual consent or because of mutual mistake. Hill v. Hill, 25 Conn. App. 452, 455, 594 A.2d 1041, cert. denied, 220 Conn. 917, 597 A.2d 333 (1991). We conclude that the motion fairly could be read as alleging fraud and, therefore, we address the merits of the plaintiffs claim.

“ ‘A motion to open and vacate a judgment filed during the four months after which judgment was rendered is addressed to the court’s discretion, and the action of the trial court will not be disturbed on appeal unless it acted unreasonably and in clear abuse of its discretion. ... In determining whether the trial court abused its discretion, this court must make every reasonable presumption in favor of its action.’ ” (Citations omitted.) Acheson v. White, 195 Conn. 211, 214-15, 487 A.2d 197 (1985).

The court found that fraud had not been established by clear and convincing evidence. The court also found that (1) the assets that were the subject of the trust were disclosed in the August 6, 1996 financial affidavit of the defendant, (2) the affidavit was before the court at trial and (3) the plaintiff knew of those assets at the time of the trial. The court also ruled that, in light of the relief provided in the judgment, there was no harm to the plaintiff.

The plaintiff claims that had the dissolution court known of the defendant’s deception at the deposition, the court would have found him to be a less credible witness and the court’s decision would have been more favorable to the plaintiff. The trust assets were disclosed during the trial, and the court in ruling on the motion to open concluded that the ruling of the dissolution court would not have been different had the defendant disclosed this trust at the deposition. We conclude that the court’s finding that the plaintiff failed to prove fraud was not clearly erroneous.

The judgment is affirmed.

In this opinion the other judges concurred.

       After the plaintiff appealed from the judgment of dissolution, she filed a motion in the trial court to open that judgment on the basis of the alleged fraud of the defendant with respect to the agreement to divide the property of the parties. The trial court denied that motion and the plaintiff filed an amended appeal claiming that the denial of the motion to open was improper.

       The plaintiff was represented by an attorney at the time of the dissolution trial.

       The trial court denied the plaintiffs request to further articulate the basis for its conclusion as to the earning capacities of the parties. We granted the plaintiffs motion for review of that denial but denied the requested relief.

       To the extent that merely citing Ehrenkranz could conceivably be viewed as a claim that the trial court’s erroneous fact-finding disturbed the delicate mosaic of the financial orders and requires reversal and a new hearing, such a claim is without merit. The trial court pointed to evidence submitted by the plaintiff as part of its basis for finding that the defendant had an earning capacity of $515,000 per year. As the trial court also found that the delay between the execution of the separation agreement and the filing of the dissolution action was solely the plaintiffs fault and further found that the plaintiff did not contribute to the defendant’s assets after tire separation, the court did not abuse its discretion in relying, at least in part, on the defendant’s 1995 income. The plaintiffs main contention is that the trial court failed to consider properly the stock distribution plan of the defendant’s employer. The trial court considered the plan and noted that through June, 1996, $292,283 of the defendant’s total compensation of $485,000 was due to the plan. There also was evidence that the plaintiff took away her brokerage account from the defendant and influenced a friend, whose account totaled twelve million to fifteen million dollars, to do likewise. The court was not required to find that the defendant’s high level of earnings would have continued for the rest of 1996, especially where there was evidence that indicated the contrary. As to the claim that the trial court did not specify an earning capacity for the plaintiff, the trial court found that her earning capacity at the time that she decided to stop practicing law was well established. Even if the trial court had found that the plaintiffs annual earning capacity in the horse business was twenty thousand to twenty-five thousand dollars, as the plaintiff claims, there is no claim that she was entitled to more alimony. This is especially telling in view of 1he trial court’s observation that, in 1995, the plaintiff listed her monthly income from capital gains at $45,700. On a yearly basis that would amount to $548,400.

       General Statutes § 46b-66 provides in relevant part: “In any case . . . where the parties have submitted to the court an agreement concerning . . . the disposition of property, the court shall inquire . . . whether the agreement ... is fair and equitable under all the circumstances. . . .”

       The trial took place on diverse days between August 8 and September 13, 1996. The testimony of Donovan was offered by way of a deposition that was taken on September 9, 1996.

       Practice Book § 13-4 (4), formerly § 220 (D), provides in relevant part: “[A]ny plaintiff expecting to call an expert witness at trial shall disclose the name of that expert, the subject matter on which the expert is expected to testify, the substance of the facts and opinions to which the expert is expected to testify, and a summary of the grounds for each opinion, to all other parties within a reasonable time prior to trial. ... If disclosure of the name of any expert expected to testify at trial is not made in accordance with this subsection . . . such expert shall not testify if, upon motion to preclude such testimony, the judicial authority determines that the late disclosure (A) will cause undue prejudice to the moving party; or (B) will cause undue interference with the orderly progress of trial in the case; or (C) involved bad faith delay of disclosure by the disclosing party. . . .”

       In the trial court, the plaintiff asserted that, even if Donovan’s testimony were to be considered expert opinion evidence, there had been a timely and proper disclosure. The plaintiff makes no such claim here.

       The defendant correctly points out that the plaintiff failed to include verbatim statements of the questions, objections and claims as required by then Practice Book § 4064 (d) (3), now § 67-4 (d) (3). Although we do not condone this failure to adhere to the rules of practice, the subject questions and rulings were sufficiently delineated for us to review the plaintiff s claim.

       The two questions and the court’s rulings are as follows:
      “[Plaintiffs Counsel]: And then I see an allowance of $44?
      “[Witness]: Uh-huh.
      “[Plaintiffs Counsel]: What does that indicate?
      “[Defendant’s Counsel]: Objection, Your Honor. It calls for an interpretation.
      “[Plaintiff's Counsel]: I think that's a factual statement. You can read it right from the bill.
      “The Court: I don’t know what the allowance is for. It doesn’t say from the bill so it has to be interpreted. The objection is sustained.
      “[Plaintiffs Counsel]: Was it occasionally the practice of the hotel to provide free parking along with the overnight room rate?

        “[Defendant’s Counsel]: Objection, Your Honor.
      “[Plaintiffs Counsel]: I believe that is factual as to what the policy was.
      “The Court: Practices and policies are not facts. The objection is sustained.”

       The court also found that the adultery of each party, the renovations to the marital home and the lack of common interests were factors that contributed to the breakdown of the marriage.

       Practice Book § 17-4 (a) provides: “Unless otherwise provided by law and except in such cases m which the court has continuing jurisdiction, any civil judgment or decree rendered in the superior court may not be opened or set aside unless a motion to open or set aside is filed within four months succeeding the date on which notice was sent. The parties may waive the provisions of this subsection or otherwise submit to the jurisdiction of the court.”


author: SCHALLER, J.

text:
    DONNA M. MCCARTHY v. VINCENT P. MCCARTHY
    (AC 18932)
    Lavery, Schaller and Hennessy, Js.

      Submitted on briefs June 9
    officially released October 19, 1999

      Kevin J. Hecht filed a brief for the appellant (plaintiff).

      Ann-Louise Lohr filed a brief for the appellee (defendant).
   Opinion

SCHALLER, J.

The plaintiff in this action for the dissolution of a marriage appeals from the judgment of the trial court vacating its order granting appellate counsel fees to the plaintiff. The dispositive issue is whether the trial court improperly vacated its order on the ground that an earlier decision on a similar motion was the law of the case. We reverse the judgment of the trial court.

The following facts and procedural history are necessary for a proper resolution of this appeal. The parties’ marriage was dissolved on September 11, 1995. On October 17, 1995, the plaintiff, Donna M. McCarthy, acting pro se, filed a motion for appellate counsel fees. She claimed that she could not afford counsel and, without representation, would be at a disadvantage to the defendant, Vincent P. McCarthy, who was a practicing attorney. The plaintiff certified service to the defendant, who represented himself in the action. The trial court, Driscoll, J., which had rendered the judgment of dissolution, denied the motion on October 18, 1995. The record does not reflect whether the court conducted a hearing on October 17 or 18,1995. The plaintiff subsequently retained counsel and, nearly nine months later on July 8, 1996, through counsel, filed another motion for appellate counsel fees. In the meantime, the appeal from the judgment of dissolution remained pending in this court. The plaintiff alleged in the second motion that she was without funds to defend the appeal. The defendant filed a brief in opposition and argued that General Statutes § 46b-62 required the court to hold a hearing before awarding fees. The court, Kocay, J., then held a hearing on the plaintiffs motion on July 29, 1996. Neither party informed the court that the plaintiff previously had filed a similar motion and that it had been denied. At no point during the hearing did the defendant claim that he did not have notice of the plaintiffs earlier motion or of Judge Driscoll’s decision on the motion.

Both parties appeared at the hearing, the plaintiff with counsel and the defendant pro se. The court heard evidence and, on September 16, 1996, filed a memorandum of decision ordering the defendant to pay counsel fees in the amount of $1800 to the plaintiff within six months. The court, having considered “all the elements and criteria set forth in General Statutes § 46b-82, the respective financial affidavits of the parties, the fact that there is a bankruptcy proceeding for the plaintiff, the arguments of counsel and all relevant facts brought to the court’s attention,” found that “the financial position reflected in the parties’ financial affidavits discloses the ability of the defendant to contribute to the expenses of the appeal.”

On September 20, 1996, the defendant filed a motion to reconsider the decision. The defendant alleged the discovery of financial information that contradicted the plaintiffs assertions about her ability to defend the appeal. The plaintiff filed a motion opposing reconsideration. On January 31, 1997, the trial court held a hearing on the motion at which both parties testified. At no point did the defendant inform the court about the earlier motion or raise its denial as a ground for reconsideration. The plaintiff did not refer to the earlier motion. On May 30,1997, the trial court issued its memorandum of decision on the motion for rehearing. The trial court found, “after consideration of all the elements of § 46b-82 and comparison of the affidavits and arguments of counsel,” that it was “not persuaded that the sum of $1800 is unreasonable in light of the total financial positions of the parties.” The trial court modified its decision, however, to give the defendant until December 31, 1997, to pay the $1800.

After a January 31, 1997 hearing on another motion to reargue, the defendant filed a supplemental memorandum on February 21, 1997, informing the court of the prior decision by Judge Driscoll.

Judge Kocay’s May 30,1997 memorandum of decision was silent on the issue of the prior motion. On June 17,1997, the defendant filed another motion for rehearing and reconsideration of the decision of May 30,1997. In this motion, the defendant again raised the matter of the earlier decision by Judge Driscoll. The plaintiff filed an objection and argued that the defendant had waived the right to raise this issue by reason of his failure to raise it earlier before Judge Kocay and due to his failure to amend his appeal to include the issue.

On July 30,1997, the defendant served on the plaintiff another motion for reconsideration of the May 30,1997 decision. Neither the June nor the July, 1997 motion was heard or decided by the trial court. The defendant subsequently filed still another motion for rehearing, stating that “[t]he defendant, upon the request of Judge Kocay . . . hereby respectfully moves for a rehearing of his Motion for Reconsideration and to Vacate dated July 30, 1997.” 6The plaintiff filed an objection. Judge Kocay heard the motion and objection on April 15,1998, nearly one year after our decision affirming the judgment of dissolution and approximately eleven months after its decision on the defendant’s previous motion for rehearing. At the hearing, the court stated that it had been unaware of Judge Driscoll’s decision on the prior motion when it initially had heard and decided the plaintiff’s July, 1996 motion for counsel fees. The court requested briefs from the parties and, on August 21, 1998, filed a memorandum of decision vacating its earlier order granting counsel fees. The court reasoned that it had not been aware of Judge Driscoll’s 1995 decision and that, although it had held an evidentiary hearing on the matter of appellate counsel fees some eleven months alter Judge Driscoll’s decision, Judge Driscoll’s ruling should be adhered to as the law of the case because she had heard the dissolution case.

The trial court noted that the plaintiff had failed to apprise the court of the prior denial of a motion for appellate counsel fees but acknowledged that the present motion was a new motion. The basis for Judge Kocay’s August 21, 1998 decision, however, was that “pleadings intended to raise a question of law on a matter which has already been presented on the record and determined adversely to the pleader are not to be favored. ... A judge should hesitate to change his own ruling in a case and be even more reluctant to overrule those of another. . . . Judge Driscoll had previously heard the entire case . . . [and] was much more familiar with all the financial circumstances of the parties, having rendered judgment in the case-in-chief. Her decision on the file must be considered the law of the case.” The court then noted that it “affirms the decision of Judge Driscoll denying counsel fees as the law of the case.”

“The law of the case is not written in stone but is a flexible principle of many facets adaptable to the exigencies of the different situations in which it may be invoked. See 18 Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction § 4478. Rosenblit v. Danaher, 206 Conn. 125, 132, 537 A.2d 145 (1988). Our Supreme Court has recognized that the law of the case doctrine is not one of unbending rigor .... A judge is not bound to follow the decisions of another judge made at an earlier stage of the proceedings, and if the same point is again raised he has the same right to reconsider the question as if he had himself made the original decision. Santoro v. Kleinberger, 115 Conn. 631, 638, 163 A. 107 (1932). . . . Rosenblit v. Danaher, supra, 132-33; see also State v. Mariano, 152 Conn. 85, 91, 203 A.2d 305 (1964), cert. denied, 380 U.S. 943, 85 S. Ct. 1025, 13 L. Ed. 2d 962 (1965). In essence [the law of the case] expresses the practice of judges generally to refuse to reopen what has been decided and is not a limitation on their power. Messenger v. Anderson, 225 U.S. 436, 444, 32 S. Ct. 739, 56 L. Ed. 1152 (1912). S.M.S. Textile Mills, Inc. v. Brown, Jacobson, Tillinghast, Lahan & King, P.C., 32 Conn. App. 786, 798, 631 A.2d 340, cert. denied, 228 Conn. 903, 634 A.2d 296 (1993). Where a matter has previously been ruled upon interlocutorily, the court in a subsequent proceeding in the case may treat that decision as the law of the case, if it is of the opinion that the issue was correctly decided, in the absence of some new or overriding circumstance. State v. Hoffler, 174 Conn. 452, 462-63, 389 A.2d 1257 (1978); State v. Mariano, [supra, 91-92], . . . Breen v. Phelps, 186 Conn. 86, 99, 439 A.2d 1066 (1982).” (Emphasis in original; internal quotation marks omitted.) Stevens v. Hartford Accident & Indemnity Co., 39 Conn. App. 429, 437-38, 664 A.2d 826 (1995). “Because the law of the case does not limit a trial court’s powers, we review the trial court’s decision to change a prior decision as we would any other ruling.” State v. Arena, 235 Conn. 67, 80, 663 A.2d 972 (1995).

We are not persuaded that the doctrine of the law of the case was properly invoked by the trial court in this case. No statute, rule of practice or appellate decision precludes a party from filing more than one motion for appellate counsel fees. In the present case, the first motion for counsel fees was filed pro se by the plaintiff less than one month after the appeal had been taken by the defendant. The second motion for counsel fees was filed by the plaintiffs counsel approximately nine months after the denial of the first motion. At that point, the appeal had progressed and the plaintiff had retained counsel. Judge Kocay properly held an evidentiary hearing before awarding counsel fees. While it would have been appropriate for the plaintiff to advise the court of Judge Driscoll’s prior decision, it is clear that the defendant, an attorney, also failed to notify the court, which did not have the court file in its possession at any point during the proceedings. The issue of appellate counsel fees was not an issue requiring a legal ruling but rather a motion for the trial court’s exercise of discretion. Cordone v. Cordone, 51 Conn. App. 530, 537, 752 A.2d 1082 (1999). The doctrine of the law of the case did not apply under these circumstances. See 18 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure (1981) § 4478, p. 794 (“wide degree of freedom is often appropriate when the same question is presented to different judges of a single district court”).

Our Supreme Court in Breen v. Phelps, supra, 186 Com. 99, held that “[n]ew pleadings intended to raise again a question of law which has been already presented on the record and determined adversely to the pleader are not to be favored. . . . Where a matter has previously been ruled upon interlocutorily, the court in a subsequent proceeding in the case may treat that decision as the law of the case, if it is of the opinion that the issue was correctly decided, in the absence of some new or overriding circumstance.” (Citation omitted; emphasis added; internal quotation marks omitted.) As in Breen, the plaintiffs motion in this case did not raise a question of law that already had been presented on the record. There was no basis for the court to vacate its well reasoned decision, which was based on an evi-dentiary hearing, especially because the court’s findings indicate that the parties’ circumstances had changed significantly during the course of the defendant’s appeal. See Mac’s Car City, Inc. v. American National Bank, 205 Com. 255, 258, 532 A.2d 1302 (1987) (trial court did not improperly grant renewed motion for summary judgment where original motion denied by different judge because it did not contain sufficient supporting facts). The court improperly invoked the doctrine of law of the case in vacating its earlier award of counsel fees.

The plaintiff, as an alternate argument, appears to claim that the defendant’s motions for reargument were mtimely and, therefore, improperly considered. Because the first claim is dispositive of this appeal, we need not address the plaintiffs procedural claim.

The defendant claims that the plaintiff should not prevail because she appeared before Judge Kocay with unclean hands. We are not persuaded and find the defendant’s claim without merit.

Our Supreme Court has stated: “[F]or a complainant to show that he is entitled to the benefit of equity he must establish that he comes into court with ‘clean hands.’ . . . The clean hands doctrine is applied not for the protection of the parties but for the protection of the court. ... It is applied not by way of punishment but on considerations that make for the advancement of right and justice.” (Citations omitted.) Pappas v. Pappas, 164 Conn. 242, 246, 320 A.2d 809 (1973). The defendant claims that the plaintiff, by filing her second motion for appellate counsel fees, was engaged in “wrongful conduct.” On the basis of our review of the record, we can find no evidence of “wrongful conduct” on the part of the plaintiff. As we stated previously, no statute or rule of practice prohibits a party from filing more than one timely motion for counsel fees and given the ongoing appeal in this situation, it was appropriate to do so.

The defendant argues that the “[ajppcllant willfully withheld the information [regarding the previous ruling] when filing the second motion . . . .” The court’s August 21, 1998 memorandum of decision, however, makes no reference to any such alleged misconduct on the part of the plaintiff. This is a factual issue, and we will not introduce facts not found by the trial court into the case at this stage of the proceedings as the defendant would have us do. We conclude that there is no merit to the defendant’s claim that the plaintiffs appeal is tainted, and therefore barred by a lack of clean hands. Judge Kocay properly considered and decided the matter of appellate counsel fees in its September 16,1996 order and exceeded its discretion when it vacated that order on the basis of the law of the case doctrine, which is inapplicable to this situation.

The judgment vacating the May 30, 1997 order granting the plaintiffs motion for appellate counsel fees is reversed and the case is remanded with direction to reinstate its order granting the plaintiff $1800 in appellate counsel fees.

In this opinion the other judges concurred.

       The defendant appealed, and we affirmed the judgment in a per curiam decision on April 22, 1997. See McCarthy v. McCarthy, 44 Conn. App. 930, 692 A.2d 869, cert. denied, 241 Conn. 916, 696 A.2d 986 (1997).

       General Statutes § 46b-62 requires a hearing on motions for counsel fees. Castro v. Castro, 31 Conn. App. 761, 770-71, 627 A.2d 452 (1993); see footnote 3. In her brief to the court, Kocay, J., dated February 25, 1997, the plaintiff stated: “At the time of Judge Driscoll’s order, the plaintiff was not represented by counsel. Upon information and belief, Judge Driscoll did not afford the parties a full hearing on the issue, but rather heard some argument.”

       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 ... 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. . . .”
      General Statutes § 46b-82 provides in relevant part: “In determining . . . the duration and amount of the award, the court shall hear witnesses, if any, of each party . . . .” (Emphasis added.)

       In that memorandum, the defendant asserted: “In reviewing the court’s file, [the] defendant realized that [the] plaintiff previously made a motion for counsel fees on appeal in this matter, which was denied by Judge Driscoll on October 14, 1995.”

       On July 30, 1997, the defendant wrote Judge Driscoll, indicating that “Judge Kocay . . . has asked his clerk to ask me to obtain a response from you to the following question regarding the above matter: Did you in fact deny a motion for counsel fees on appeal made by the plaintiff in this matter on October 14, 1995, and was it your intention to deny that motion for counsel fees?”

         The plaintiffs attorney made the following argument before Judge Kocay on April 15, 1998: “Quite simply, on October 14, 1995, when Judge Driscoll heard this matter, there were other motions on the calendar that day. [The plaintiff] was unrepresent ed. She appeared pro se and apparently the motion was denied. . . . [The defendant], being a practicing attorney, was present in the court at that time. Subsequently, there were hearings before Your Honor on two occasions. He did not either bring that to the court’s attention or make himself aware of that situation.” That representation was not disputed by counsel for the defendant. We note that, in his brief, the defendant argues that “[w]hen the second motion was filed, defendant-appellee did not realize that Judge' Driscoll had previously ruled on the same motion and did not discover the fact until after Judge Kocay had ruled on the ‘new’ motion.” (Emphasis added.)

       In its memorandum of decision dated August 21, 1998, the trial court revealed that its hearings were held at the courthouse in Bantam while the court file remained in Waterbury.

       While we do not believe that either party acted improperly, we do feel that the excessive number of motions filed in this matter has led to a delay in a final resolution of this conflict.


author: LANDAU, J.

text:
    IN RE JAMES L.

    (AC 17869)
    (AC 18155)
    O’Connell, C. J., and Landau and Sullivan, Js.

      Argued June 2
    officially released October 19, 1999

      Jennifer E. Davis, with whom, on the brief, were Debra Cohen and Robert D. Zaslow, for the appellants (respondents).

      Susan T. Pearlman, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Gregory DAuria, Benjamin Zivyon and Joseph Rubin, assistant attorneys general, for the appel-lee (petitioner).

      Eugene P. Falco, for the minor child.

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79-3, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Opinion

LANDAU, J.

The respondents appeal from the judgment of the trial court terminating their parental rights with respect to their son, James L., rendered on a coterminous petition filed by the commissioner of children and families (commissioner). On appeal, the respondents claim that the trial court improperly (1) denied the respondent mother’s motion to dismiss the first and second counts of the petition made at the close of the commissioner’s case, (2) denied the respondent mother’s motion to remove documents attached to the petition, (3) denied the respondents’ motions for a new trial and for reconsideration, (4) denied the respondent father’s motion seeking disclosure of certain records in the possession of the department of children and families (department) and (5) relied on the respondents’ choice to exercise their constitutional right to abort previous pregnancies as a collateral basis for finding that they had abandoned James L. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to these appeals. James L. was bom on July 11, 1996, to the respondent parents and lived with them in Torrington. On August 21, 1996, at approximately 7:20 p.m., the respondent mother placed a 911 call to the Torrington police department to report that someone had walked into her apartment and kidnapped her son. The following day, the police found the minor child in a car owned by Carol Brooks. On August 30, 1996, the trial court granted a request by the commissioner for an order of temporary custody, and the commissioner thereafter filed a coterminous petition alleging that James L. was an abandoned child and seeking termination of parental rights.

The trial court found, by clear and convincing evidence, that the respondents had abandoned the minor child in violation of General Statutes (Rev. to 1995) § 46b-120 (i), as amended by Public Acts 1995, No. 95-225, § 9, and General Statutes (Rev. to 1995) § 17a-112 (b) (1), and engaged in specific acts of parental omission and commission in violation of § 17a-112 (b) (3). The court found that “placing the child in commerce and delivering the child to Carol Brooks constituted the act of abandoning the child, an act of commission.” It concluded that “[t]he callousness and the circumstances surrounding his sale [in exchange] for rent ensure that [James L.] will face [additional] painful awareness of the meaning of being an ‘unwanted’ and ‘abandoned’ child.” The court found that these grounds for termination did not exist for more than one year preceding the filing of the petition but nevertheless waived the one year statutory requirement to promote the best interests of the child. The court, finding that it was in the best interests of the minor child to do so, granted the petition and terminated the respondents’ parental rights. From that judgment, the present appeal ensued. Additional facts and procedural history will be discussed where relevant to issues in this appeal.

I

Initially, the respondent mother claims that the trial court improperly failed to grant her motion to dismiss. We disagree.

Following the commissioner’s presentation of her case-in-chief, the respondent mother asked the court to dismiss the first and second counts of the petition, which alleged abandonment and acts of omission or commission, respectively, on the ground that the commissioner had failed to make out a prima facie case. After the court denied the motion, the respondents presented their case, and, “[a]y, there’s the rub.”

In her brief and at oral argument, the commissioner relied on the “waiver rule.” “Under this rule, when a trial court denies a defendant’s motion for a directed verdict at the close of the plaintiffs case, the defendant, by opting to introduce evidence in his or her own behalf, waives the right to appeal the trial court’s ruling. See Dindo v. Grand Union Co., 331 F.2d 138, 141 (2d Cir. 1964); State v. Rutan, 194 Conn. 438, 440, 479 A.2d 1209 (1984). The rationale for this rule is that, by introducing evidence, the defendant undertakes a risk that the testimony of defense witnesses will fill an evidentiary gap in the [plaintiffs] case. State v. Rutan, supra, 440. On appeal in such cases, the question becomes whether . . . there is evidence in the entire record to justify submitting the matter to a trier of fact. . . . Warner v. Kewanee Machinery & Conveyor Co., 411 F.2d 1060, 1063 (6th Cir. 1969), cert. denied, 398 U.S. 906, 90 S. Ct. 1685, 26 L. Ed. 2d 65 (1970); see also 9 J. Wigmore, Evidence (4th Ed. 1981) § 2496, pp. 402-403. Although we have questioned the continuing viability of the waiver rule in the criminal context; see State v. Rutan, supra, 441; we have never questioned its applicability in the civil context. Id.” (Emphasis in original; internal quotation marks omitted.) Sears, Roebuck & Co. v. Board of Tax Review, 241 Conn. 749, 756-57, 699 A.2d 81 (1997).

The respondents have articulated no persuasive reason why the rationale underlying the waiver rule should not operate in this case. We conclude, therefore, that the waiver rule precludes our review of the respondents’ first claim.

II

In their second claim, the respondents assert that the trial court improperly denied the respondent mother’s motion to remove documents attached to the petition. We disagree.

Further review of the trial court’s factual findings and the procedural posture of this case is necessary for our analysis of this claim. The respondents argued to the trial court that attached to the petition were eleven police reports, four documents claiming to be certified voluntary statements and an unidentified and unsigned typed copy of a letter allegedly written by the respondent mother to the respondent father. The respondents claim that the inclusion of those documents “could impair the trial court’s impartiality,” “could taint future motions and proceedings” and “impeded the respondents’ rights to cross-examine upon and challenge the documents when submitted at trial.”

Further, the respondents argue that the inclusion of the documents violated Practice Book § 10-1, formerly § 108, § 32-1, formerly § 1040.1 (1) and (2), and § 32-2, formerly § 1040.1 (3) and (4). Specifically, the respondents argue that § 10-1 “excludes the attachment of supporting evidence from pleadings,” and that §§ 32-1 and 32-2 limit attachments to a petition to “statutory references reflecting the specific conditions which resulted in the subject of the petition, a summary of facts and a summons.” This claim, however, lacks merit. While there is no quarrel that § 10-1 states that the recitation of evidence is not appropriate in a pleading, it clearly does not exclude the attachment of exhibits. In fact, Practice Book § 10-29 (a), formerly § 141, provides in relevant part that “[a]ny plaintiff desiring to make a copy of any document a part of the complaint may, without reciting it or annexing it, refer to it as Exhibit A, B, C, etc., as fully as if it had been set out at length; but in such case the plaintiff shall . . . file the original or a copy of such exhibit ... in court . . . .” If the respondents’ assertion is correct, it would make a nullity of § 10-29 (a).

Our conclusion finds support in those rules of practice governing procedure in juvenile matters in the family division of the Superior Court. Practice Book § 32-6, formerly § 1041.1 (1), requires the commissioner to provide supporting documents when seeking orders of temporary custody. See Pamela B. v. Ment, 244 Conn. 296, 302-303, 709 A.2d 1089 (1998). Moreover, General Statutes § 46b-129 (b) requires that the commissioner file, in addition to the petition, verified affirmations of facts when seeking an order of temporary custody. Most of the challenged documents here were notarized, and the record demonstrates that the commissioner filed these documents to support an order of temporary custody.

The respondents’ further argue that “the [rules of practice do] not authorize attachment of numerous police reports with hearsay statements, alleged witness statements and other miscellaneous documents to petitions for the initiation of the judicial process in juvenile matters.” This contention, however, is further undermined by the fact that many of the challenged documents were admitted at trial. Moreover, virtually all the information in the documents was contained in the department’s social study and addendum to the social study, both of which were admitted as exhibits at trial.

The respondents have advanced absolutely no evidence to justify their contention that the trial court was “no longer impartial” as a result of having in its possession the challenged documents. It is axiomatic that the trial court is able to hear the testimony and to rely on only competent evidence in reaching its determination. Accordingly, we are satisfied, from our review of the record, that the trial court properly denied the motion to remove the documents from the petition.

Ill

In their third claim, as part of their amended appeal, the respondents maintain that the trial court improperly denied their motion for a new trial and their motion to reconsider that denial. We disagree.

Nine months after the trial court’s ruling terminating the respondents’ parental rights, they asserted that newly discovered evidence necessitated a new trial. Specifically, the respondents claim that because during the criminal trial Brooks recanted the testimony that she gave in the termination proceeding, her testimony could not be relied on and, therefore, the case against the respondents in the termination case was suspect at best. Accordingly, the respondents claim that a new trial is warranted.

“[O]ur standard of review of the trial court’s denial of a motion for a new trial is limited to a determination of whether, by such denial, the court abused its discretion. State v. Rothenberg, 195 Conn. 253, 264, 487 A.2d 545 (1985). State v. Leavitt, 8 Conn. App. 517, 524, 513 A.2d 744, cert. denied, 201 Conn. 810, 516 A.2d 886 (1986). As a reviewing court considering the trial court’s decision granting or denying a motion for a new trial, we must be mindful of the trial judge’s superior opportunity to assess the proceedings over which he or she has personally presided.” (Internal quotation marks omitted.) Munson v. United Technologies Corp., 28 Conn. App. 184, 194-95, 609 A.2d 1066 (1992).

Moreover, “[a] party is entitled to a new trial on the ground of newly discovered evidence if such evidence is, in fact, newly discovered, will be material to the issue on a new trial, could not have been discovered and produced, on the trial which was had, by the exercise of due diligence, is not merely cumulative and is likely to produce a different result. . . . New trials are not granted upon newly discovered evidence which discredits a witness unless the evidence is so vital to the issues and so strong and convincing that a new trial would probably produce a different result. . . . The basic question which the trial court has to decide is whether upon all the evidence an injustice had been done. In deciding this question, the court has the exercise of a sound legal discretion, and its action cannot be disturbed unless this discretion has been abused.” (Citations omitted.) Turner v. Scanlon, 146 Conn. 149, 163, 148 A.2d 334 (1959).

The respondents postulate that Brooks’ admission at the criminal trial of the misstatements that she had made before the juvenile court in the termination hearing demonstrated new evidence that they could not have discovered as a result of due diligence. The respondents’ argument, however, is somewhat disingenuous in that Brooks’ admission was the result of the vigorous investigation and cross-examination of her by the respondents’ own defense counsel. This alleged new evidence could have been discovered before the trial by the same means and by the same diligence as it was discovered after the trial. The failure to discover the evidence before trial constitutes a lack of due diligence. See Malaspina v. Itts, 3 Conn. Cir. Ct. 651, 655, 223 A.2d 54 (1966); see also Hartford-Connecticut Trust Co. v. Putnam Phalanx, 138 Conn. 695, 699, 88 A.2d 393 (1952); Williams v. Commissioner of Correction, 41 Conn. App. 515, 528-29, 677 A.2d 1 (1996), appeal dismissed, 240 Conn. 547, 692 A.2d 1231 (1997).

The information that Brooks, in the criminal trial, admitted perjury, standing alone does not support a conclusion that it would produce a different result in a new termination proceeding. Moreover, the respondents did not offer any evidence that Brooks’ testimony before the juvenile trial court was falsified. The court found: “The respondents have failed to demonstrate anything by a preponderance of the evidence since they offered no evidence whatsoever. For that reason alone, their motions should be denied.” The court further found that, “Carol Brooks did not appear in [this court] flying under false colors. The trial court was aware that [Brooks] had pending criminal charges against her .... She had a history of drug addiction, of obtaining controlled substances by fraud, that her own child had been removed from her by the [department] and that she had given several different stories to the police . . . that were at extreme variance to her testimony in court. She was not presented to the court as a tabernacle of virtue and veracity. Indeed, she was presented as a person with a great deal of personal emotional baggage. Nonetheless, this court found her testimony plausible, consistent and supported by the independent testimony of numerous other witnesses and, other documentary evidence. The respondents’ account of how their child was taken from them while the two of them huddled for five minutes in the bathroom for a cigarette break is so implausible as to invite disbelief.” (Emphasis added.) “When you have excluded the impossible, whatever remains, however improbable, must be the truth.”

Here, the respondents offered no evidence and made little effort to obtain the alleged newly discovered evidence. While the newly discovered evidence does tend to discredit Brooks’ testimony, we are persuaded that the trial court properly concluded that the alleged new evidence would not have led to a different result. We conclude, therefore, that the respondents have failed to meet their burden to show that the trial court abused its discretion.

IV

The respondent father next claims that the trial court improperly denied him access to records concerning Brooks that were in the department’s possession. Specifically, he claims that the department introduced Brooks’ “propensity for child abuse and/or child neglect” into the case in the first count .of the revised petition, which states that “[t]he parents surrendered their son to a woman who is a convicted felon and substance abuse addict without any regard for the child’s safety. . . . Brooks’ biological child had previously been removed from her care and custody because of her inability [safely to parent the child].”

At the time the motion for disclosure of records was considered, the respondent father claimed that “this case is all about Brooks’ lack of credibility,” and that there was a “concern as to credibility and reliability, particularly [Brooks’] ability to comprehend, know and correctly relate the truth of the [facts] that she asserts.” In his motion, the respondent father argued that by virtue of rights accorded him under the federal and state constitutions, he should be given the records to enable him to prepare properly his defense and “confront his [accuser].” Finally, he stated that information that demonstrates an accuser’s inability to perceive and relate information correctly is exculpatory. On appeal, he claims that inasmuch as the revised petition appears to rely on information contained in these confidential records, any privilege, whether it is asserted on behalf of Brooks or on the department’s own behalf, must fall.

It is axiomatic that a party cannot submit a case to the trial court on one theory and then seek a reversal in the reviewing court on another. A party is not entitled to raise issues on appeal that have not been raised in the trial court. “[B]ecause our review is limited to matters in the record, we will not address issues not decided by the trial court. Practice Book § 4185 [now § 60-5] (‘court on appeal shall not be bound to consider a claim unless it was distinctly raised at the trial’); Crest Pontiac Cadillac, Inc. v. Hadley, 239 Conn. 437, 444 n.10, 685 A.2d 670 (1996) (claims ‘neither addressed nor decided’ by court below are not properly before appellate tribunal); State v. Miller, 186 Conn. 654, 658, 443 A.2d 906 (1982) (‘[o]nly in the most exceptional circumstances will this court consider even a constitutional claim not properly raised and decided in the trial court’).” Willow Springs Condominium Assn., Inc. v. Seventh BRT Development Corp., 245 Conn. 1, 52, 717 A.2d 77 (1998). We decline, therefore, to review this issue.

V

Finally, the respondents claim that the trial court improperly considered their choice to exercise their constitutional right to abort previous pregnancies as a collateral basis for finding abandonment. This claim, however, is proffered for the first time on appeal. Nowhere in the transcript of any proceeding or in any pleading do we find any indication, even remotely, that the court’s alleged consideration of the respondents’ prior family planning decisions implicated the respondent mother’s right under Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973).

Appellate courts “shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. . . .” Practice Book § 60-5; see Willow Springs Condominium Assn., Inc. v. Seventh BRT Development Corp., supra, 245 Conn. 52. Although the respondents have a fundamental constitutional right to retain their parent-child relationship, and this right can be severed only in strict compliance with statutory standards; In re Baby Girl B., 224 Conn. 263, 279-81, 618 A.2d 1 (1992); appellate courts have regularly observed that § 60-5 “applies to constitutional claims.” (Internal quotation marks omitted.) In re Romance M., 229 Conn. 345, 352, 641 A.2d 378 (1994). Only in the most exceptional circumstances will an appellate court consider such a claim. Berry v. Loiseau, 223 Conn. 786, 828-29, 614 A.2d 414 (1992); see In re Michael A., 47 Conn. App. 105, 110-11, 703 A.2d 1146 (1997). The respondents have pointed to no such exceptional circumstances in the present case. Accordingly, we decline to review the merits of this claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       The respondent father (AC 17869) and the respondent mother (AC 18155) appealed separately from the judgment of the trial court. The appeals have been consolidated.

       Specifically, the respondents’ account of the events that transpired that evening indicates that at approximately 7 p.m. they went into the bathroom of their apartment to smoke cigarettes, since neither respondent smoked in the presence of the minor child. Before doing so, the respondent mother placed the baby on a bed. After approximately five minutes, the respondents returned from the bathroom and found that the minor child was missing.

       Brooks was intimately involved with Jerry Petrovits, the respondents’ landlord to whom they owed eighteen months of rent, and was indebted to him for bonding her out of jail. At trial, she admitted to conspiring with Petrovits to sell the minor child. Contrary to the respondents’ account of the events that transpired that day, Brooks testified that the respondent father, with the acquiescence of the respondent mother, delivered the minor child to Brooks to watch for a short period while Petrovits effectuated a sale of the minor child.

       During the trial, the court dismissed a third allegation against the respondent father of no ongoing parent-child relationship.

       In 294, the Roman Emperor Diocletian stated that “it was ‘an evident principle of law’ that parents could not sell, pawn, or give away their own offspring, nor could children be forced into servitude to pay their parents’ debts.” J. Boswell, The Kindness of Strangers: The Abandonment of Children in Western Europe From Late Antiquity to the Renaissance (1988), p. 67. The selling of a freeborn child by the father—mothers probably never had the right to enslave their children—was not a change of guardianship, but of personhood. Id.

       William Shakespeare, Hamlet, act 3, sc. ii, line 59.

       We note, moreover, that counsel for the respondents conceded at oral argument before this court that the waiver rule applied because she offered evidence at trial.

       Practice Book § 10-1, formerly § 108, provides: “Each pleading shall contain a plain and concise statement of the material facts on which the pleader relies, but not of the evidence by which they are to be proved, such statement to be divided into paragraphs numbered consecutively, each containing as nearly as may be a separate allegation. If any such pleading does not fully disclose the ground of claim or defense, the judicial authority may order a fuller and more particular statement; and, if in the opinion of the judicial authority the pleadings do not sufficiently define the issues in dispute, it may direct the parties to prepare other issues, and such issues shall, if the parties differ, be settled by the judicial authority.”

       At the hearing on the order of 1 emporary custody, the respondents never objected 1o the documents attached to the petition. Even if the documents had been improperly attached to the petition, they were properly attached to the application for temporary custody and would have been available to the court. Moreover, even if we were to assume impropriety, without so finding, the respondents have failed to point to any harm or prejudice. State v. Berger, 249 Conn. 218, 230, 733 A.2d 156 (1999) (evidentiary rulings will be overturned on appeal only where trial court abused its discretion and substantial prejudice, or injustice is shown).
      The respondent, mother acknowledges that she has the burden to point to a specific harm under In re Soncheray H., 42 Conn. App. 664, 666, 680 A.2d 1363, cert. denied, 239 Conn. 940, 684 A.2d 712 (1996). In their brief, however, the respondents state that the “[respondent mother] does not challenge a specific evidentiary ruling by the trial court.” At oral argument before this court, counsel stated that they “[could not] point to a specific harm” and that there is no way to determine the harm.

       The respondents filed a pleading titled “Respondent-Parents’ Petition for a New Trial.” We note that a petition for a new trial is not the equivalent of a motion for a new trial. State v. Goodwin, 3 Conn. Cir. Ct. 386, 388, 215 A.2d 913, cert. denied, 153 Conn. 725, 213 A.2d 525 (1965). A petition for a new trial, under General Statutes § 52-270, although ancillary to the original trial, is a new proceeding terminating in a judgment from which an appeal may be taken. State v. Myers, 242 Conn. 125, 135, 698 A.2d 823 (1997). A motion for a new trial, pursuant to Practice Book § 16-35, is made within the confines of the docketed matter. See Cadle Co. v. Ginsburg, 51 Conn. App. 392, 408-409 n.5, 721 A.2d 1246 (1998), cert. denied, 247 Conn. 963, 724 A.2d 1125 (1999).
      Initially, we must determine whether the document at issue is a motion or a petition for a new trial. The respondents filed a petition for a new trial, dated August 28, 1998, on September 21, 1998, and an identical motion for a new trial, also dated August 28, 1998, on August 31, 1998. The trial court’s memorandum of decision stated that the respondents filed the petition on August 28, 1998, and thereafter made reference to it as a “motion.” The respondents, in their brief to this court, state that they “petitioned the trial court for a new trial,” but proceed to cite to the motion for a new trial. Moreover, a review of the transcripts reveals that all parties considered the filing as a motion for a new trial, and the trial court heard the matter as a motion for a new trial. We will do likewise. See Doe v. Marselle, 38 Conn. App. 360, 363-64, 660 A.2d 871 (1995), rev’d on other grounds, 236 Conn. 845, 675 A.2d 835 (1996); Crozier v. Zaboori, 14 Conn. App. 457, 463, 541 A.2d 531 (1988).

       On or about August 23, 1996, the state charged the respondent father with risk of injury to a child in violation of General Statutes § 53-21 (1), conspiracy to commit risk of ipjury to a child in violation of General Statutes a §§ 53a-48 (a) and 53-21 (1), intentionally making a false statement in violation of General Statutes § 53a-157b (a), falsely reporting an incident in violation of General Statutes § 53a-180 (a) and abandonment of a child under the age of six years in violation of General Statutes § 53-23. The respondent mother was charged with conspiracy to commit risk of injury to a child and falsely reporting an incident. They were acquitted on those charges.

       The respondents also claim that they were frustrated in their efforts because they were denied access to the department’s records. See part IV of this opinion. There is no indication that these records were made available to the respondents’ criminal defense counsel, which leads one to conclude that their criminal defense counsel was able to uncover information that led to Brooks’ impeachment without the department’s records.

       A. Doyle, The Adventure of the Beryl Coronet, in Complete Adventures and Memoirs of Sherlock Holmes (Bramhall House 1975), p. 154.

       Even if we were to review this claim, we would conclude that it lacks merit. General Statutes § 17a-28 permits court-ordered disclosure only when a parent, child or legal representative of either has been denied access to personal records. While such confidentiality may not be unconditional; State v. Kulmac, 230 Conn. 43, 57, 644 A.2d 887 (1994); even a defendant in a criminal case is not entitled to absolute access to department files, but can request access only if the court, after an in-camera review, determines that the file contains exculpatory data. See id., 58-59; State v. Storlazzi, 191 Conn. 453, 459, 464 A.2d 829 (1983); see also Pennsylvania v. Ritchie, 480 U.S. 39, 60, 107 S. Ct. 989, 94 L. Ed. 2d 40 (1987). We have recognized the state’s compelling interest, as well as statutory basis, for maintaining both mental health and substance abuse records. See State v. Storlazzi, supra, 458; General Statutes §§ 52446c, 52-146d; see also 42 U.S.C. § 290dd-2; 42 C.F.R. § 2.1 et seq.


text:
    ROBERTA BENEDETTO v. SILVIO BENEDETTO
    (AC 17575)
    Schaller, Spear and Daly, Js.

      Argued April 22
    officially released October 19, 1999

      James H. Lee, for the appellant (defendant).

      Richard L. Albrecht, with whom, on the brief, was Jocelyn B. Hurwitz, for the appellee (plaintiff).
   Opinion

SPEAR, J.

The defendant, Silvio Benedetto, appeals from the judgment of the trial court dissolving his marriage to the plaintiff, Roberta Benedetto, and ordering certain financial awards. The defendant claims that the court improperly (1) modified certain nonmodifiable property orders postjudgment, (2) assigned marital assets to nonparties, (3) deviated from the child support guidelines, (4) ordered the defendant to procure dental insurance without evidence of its cost or availability, (5) failed to set the appropriate effective date for the division of the plaintiffs securities, (6) disposed of certain income from a sublease (BMW lease) as a property settlement when it was really alimony and (7) terminated the appellate stay. We affirm the judgment of the trial court.

The trial court found the following facts. The parties were married on February 11, 1978, in Greenwich and had two minor children at the time of the dissolution. The defendant is a self-employed real estate broker, specializing in commercial property, and the parties enjoyed a high standard of living during the marriage based on the defendant’s earnings and the appreciation of the plaintiffs assets. The court made certain financial awards with respect to the parties’ assets. Those orders are the subject of this appeal. Further facts will be presented in the context of the respective issues.

“The well settled standard of review in domestic relations cases is that this court will not disturb trial court orders unless the trial court has abused its legal discretion or its findings have no reasonable basis in the facts. ... In determining whether there has been an abuse of discretion, the ultimate issue is whether the court could reasonably conclude as it did.” (Citations omitted; internal quotation marks omitted.) Hayward v. Hayward, 53 Conn. App. 1, 7-8, 752 A.2d 1087 (1999).

I

The defendant claims that the trial court, pursuant to the plaintiffs motion to open, clarify or correct the judgment, improperly modified property orders that it had rendered in an earlier decision. We disagree.

Certain additional facts are necessary for the resolution of this claim. The court rendered its judgment of dissolution on May 23, 1997. The plaintiff filed her motion on June 9, 1997. The defendant filed a motion for reargument on June 11, 1997. After hearing the parties on both motions, the trial court rendered what it termed a “Clarification, Articulation and Correction” on August 15, 1997 (second memorandum).

A division of property generally is nonmodifiable after the dissolution decree is rendered. See Passa-mano v. Passamano, 228 Conn. 85, 88 n.4, 634 A.2d 891 (1993). The defendant claims that the court improperly modified property orders in three respects. First, the defendant claims that, in its initial decision, the court awarded him $60,000 from a certain savings account. In the second memorandum, the trial court determined that the savings account actually belonged to the children of the parties and was not part of the marital estate. Second, the court in its original decision ordered that each party was entitled to receive one half of the BMW lease payments. In the second memorandum, the court stated that it was not impressed with the defendant’s claims with respect to expenses in connection with that lease and stated that whatever deductions for expenses the defendant wanted to claim, “he can attribute them to his brokerage business” or against his share of the lease payment. Third, with respect to the mortgage payments, the original decision ordered the defendant to be responsible for the “mortgage and taxes for November, 1996, December, 1996, February, March, April and May, 1997.” In the second memorandum of decision the court stated that the defendant was responsible for late charges and expenses resulting from late payment of the mortgage arrearage. The defendant’s claims are without merit.

With respect to the savings account, the court, in its second memorandum of decision, recognized that it had awarded property that was not part of the marital estate. Because the court had no power to make the award of $60,000 to the defendant, that order was null and void, and the second memorandum of decision simply recognized, on the basis of the evidence, that the bank accounts belonged to the children. Moreover, the defendant did not request any portion of those accounts in his claim for relief and, in fact, requested that the court order the plaintiff to retain the accounts. The defendant’s contrary claim notwithstanding, this is not a case of the court’s awarding him property and then taking it away; rather, this is a case where there never was marital property to be awarded in the first place.

With respect to the BMW lease, the trial court clarified, but did not modify its original order. The original order was that each party receive 50 percent of the lease income. The defendant, by way of his motion to reargue, sought to set off claimed expenses against the gross lease income. In rejecting the defendant’s claims, the court clarified that each party was to get one half of the gross lease income.

With respect to the mortgage arrearage, the defendant had been ordered to pay the mortgage for the months listed by the court as part of a pendente lite order and cannot now be heard to complain that he should not be responsible for the attendant expenses caused by his failure to obey those orders. There would be no logic in penalizing the plaintiff by ordering her to pay the late charges and related expenses due to the failure of the defendant to obey the court’s earlier order.

II

The defendant’s second claim is that the trial court improperly assigned marital assets to nonparties when it assigned the savings account to the children. We disagree.

The savings account was actually a group of miscellaneous savings accounts that the court found consisted of gifts to the parties’ children. The defendant cites Fleet Bank Connecticut, N.A. v. Carillo, 240 Conn. 343, 691 A.2d 1068 (1997), for the proposition that these accounts became marital property because the plaintiff held them as a trustee for the children.

In Fleet Bank Connecticut, N.A., our Supreme Court held that a survivorship bank account exposed the entire account to levy by a judgment creditor of one of the owners. Id., 352. Fleet Bank Connecticut, N.A., is inapposite because, in the present case, the trial court had to resolve the question, as between the parties, of whether these accounts were part of the marital estate. No third party creditor’s rights are involved, as was the case in Fleet Bank Connecticut, N.A. Therefore, the defendant’s claim is without merit.

III

The defendant next claims that the trial court improperly ordered child support without any reference to the child support guidelines. This claim is without merit. The court found that the defendant’s income exceeded the maximum level in the guidelines and, therefore, the guidelines did not apply. The court’s decision is consistent with our Supreme Court’s decision in Bat-tersby v. Battersby, 218 Conn. 467, 469-72, 590 A.2d 427 (1991).

IV

The defendant claims that the trial court improperly ordered him to procure dental insurance for the minor children where there was no evidence that such insurance was in force at the time of the dissolution decree. The defendant relies on Lake v. Lake, 49 Conn. App. 89, 91, 712 A.2d 989, cert. denied, 246 Conn. 902, 719 A.2d 1166 (1998), for the proposition that it is improper for a trial court to order such insurance that is not already in existence without evidence of the cost or availability of such insurance.

The plaintiff asserts that there was sufficient evidence that such insurance for the children was in force at the time of the dissolution because the defendant listed on his financial affidavit an expense for medical and dental insurance. This was a sufficient indication that such insurance was in force for the court to order that it be provided. To the extent that the defendant challenges the implicit factual conclusion of the court that such insurance was in force, the defendant did not move for an articulation and the court made no specific express finding as to dental insurance. We presume, in the absence of any indication to the contrary, that the court’s decision was correct. Bank of Boston Connecticut v. Avon Meadow Associates, 40 Conn. App. 536, 543, 671 A.2d 1310, cert. denied, 237 Conn. 905, 674 A.2d 1329 (1996).

V

The defendant notes that the trial court’s original order required the plaintiff to “transfer to the defendant from her marketable securities account the sum of $190,264.” He claims that the second memorandum, in which the court stated that it intended to order a transfer of securities with a value of $190,264 on the date of transfer, was an improper change that effectively valued property at a date other than the date of dissolution. “In a dissolution action, marital property is valued as of the date of dissolution, not the date of separation.” Zern v. Zern, 15 Conn. App. 292, 296, 544 A.2d 244 (1988). “[This] requirement is simply part of the broader principle that the financial awards in a marital dissolution case should be based on the parties’ current financial circumstances to the extent reasonably possible.” Cuneo v. Cuneo, 12 Conn. App. 702, 709, 533 A.2d 1226 (1987).

We conclude that the trial court did not change the value of the property to be transferred to the defendant. The court clarified the ambiguity in its first memorandum by explaining that, as of the date of the dissolution, the defendant was entitled to securities worth $190,264. Moreover, the defendant does not claim that he is entitled to more by virtue of the original order than by way of the clarified order. He also fails to demonstrate how he is harmed by the second order. His claim that the plaintiff may put off the transfer indefinitely is pure speculation and ignores the remedy of contempt that would be available to him if the plaintiff failed to obey the court’s order.

VI

The defendant asserts that by ordering that the income from the BMW lease be shared equally, the court is, in essence, ordering the payment of alimony rather than the division of property. The defendant’s reliance on Simmons v. Simmons, 244 Conn. 158, 181-86, 708 A.2d 949 (1998), is misplaced.

In Simmons, our Supreme Court determined that a spouse’s medical degree was not marital property subject to distribution pursuant to General Statutes § 46b-81. Id., 173. In reversing the trial court’s failure to award alimony to the defendant, the court stated that alimony, which is modifiable, is the proper way to handle the circumstance of a marriage between a working spouse and a student spouse in which the student spouse eventually obtains a professional degree. Id., 182. Because the working spouse is entitled to some benefit of that degree, alimony, because it is modifiable, is the appropriate way to do it, rather than considering the professional degree as property to be divided. Id., 184.

We conclude that the division of the lease proceeds was indeed part of a property settlement and was not alimony. Even if we were to consider the payments of alimony, the defendant points to no reason why it would be inappropriate under the circumstances here, where the trial court considered all of the relevant statutory factors enumerated in General Statutes § 46b-82.

VII

The defendant’s final claim is that the trial court improperly entered an order terminating the appellate stay as part of its second memorandum of decision. The plaintiff appropriately points out that the remedy for any claimed improper termination of an appellate stay is solely by motion for review pursuant to Practice Book § 61-14. The defendant filed a motion for permission to file a late motion for review that was denied by this court. He cannot now raise this issue by way of appeal.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff and the defendant had a 50 percent interest in the lease. The other 50 percent interest belonged to another party.

       In his reply brief, the defendant raises a new claim that his actual income was below the guideline amount. A new claim cannot be raised in a reply brief. Knapp v. New London, 44 Conn. App. 465, 469, 691 A.2d 11 (1997). We therefore decline to consider it.

       General Statutes § 46b-82 provides: “At the time of entering the decree, the Superior Court may order either of the parties to pay alimony to the other, in addition to or in lieu of an award pursuant to section 46b-81. The order may direct that security be given therefor on such terms as the court may deem desirable, including an order to either party to contract with a third party for periodic payments or payments contingent on a life to the other party. In determining whether alimony shall be awarded, and the duration and amount of the award, the court shall hear the witnesses, if any, of each party, except as provided in subsection (a) of section 46b-51, shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties and the award, if any, which the court may make pursuant to section 46b-81, and, in the case of a parent to whom the custody of minor children has been awarded, the desirability of such parent’s securing employment.”

       Practice Book § 61-14, formerly § 4049, provides in relevant part: “The sole remedy of any party desiring the court to review an order concerning a stay of execution shall be by motion for review under Section 66-6. . . .”