author: Dupont, C. J.

text:
    State of Connecticut v. Victor Johnson
    (5502)
    Dupont, C. J., Daly and Bieluch, Js.
    Argued April 2
    decision released June 16, 1987

      Mark F. Gross, for the appellant (defendant).

      Frederick W. Fawcett, assistant state’s attorney, with whom, on the brief, was Donald A. Browne, state’s attorney, for the appellee (state).
   Dupont, C. J.

The defendant appeals from the trial court’s revocation of his probation. The defendant pleaded guilty to a violation of General Statutes § 21a-277 (b), a section of the state’s dependency producing drug laws, and to a violation of General Statutes § 29-38 which prohibits the possession of certain weapons in motor vehicles. He was sentenced on March 15, 1985, to three years incarceration for the first crime, and one year for the second crime, to be served concurrently. On November 13, 1985, his sentence was modified, by suspending the unexecuted portion of his sentence, and placing him on probation for three years. One of the conditions of his probation to which he agreed by signing his probation agreement on November 20,1985, was that he remain free of the use of illicit narcotics, and submit to a random analysis of his urine in order to verify his drug free status.

One of the defendant’s random urine analysis tests indicated the presence of cocaine metabolites, and a hearing was held by the court to determine whether the defendant had violated this condition of his probation. General Statutes § 53a-32. The court found that the defendant had violated the condition and revoked his probation, ordering him to serve the unexecuted portion of the sentence originally imposed.

At the hearing, testimony was heard from the defendant’s probation officer, the individual who tested his urine sample, and a pharmacologist. The probation officer testified that the defendant was performing well on probation. The individual who tested his urine testified about the procedure used. He stated that the defendant’s urine was tested at a laboratory and was positive for cocaine metabolites, indicating that there had been an ingestion of cocaine by the defendant. The test administered was a syva emmounoassy, with the trade name of EMIT. Since his test was positive, a second EMIT test was administered to the same sample of urine. The second test was also positive. The defendant claimed through his witness, a pharmacologist, that the percentage of error in the EMIT test was between 5 and 10 percent, although no such test is 100 percent accurate. The witness also testified that dual testing of the same urine sample by using the same test was not effective to determine if the results of the first test were erroneous. Rather, it was his opinion that the second test should have been done by a test other than EMIT, as was also recommended by EMIT’s manufacturer.

The defendant also introduced into evidence a class action habeas corpus settlement. The action was instituted in another Superior Court on behalf of persons incarcerated in this state and subject to disciplinary action if they were found guilty of intoxication by the correctional facilities disciplinary board. The settlement provided that no inmate could be disciplined for intoxication solely on the basis of an unconfirmed positive test result given by the EMIT system, and that urine samples testing positive by the EMIT system must be subject to a second test using another testing method.

Before reaching the primary issue of this appeal, we must decide whether the defendant’s appeal is moot.

During oral argument the defendant informed the court that the defendant had been recently released from custody and placed on intensive probation. Although the defendant is no longer imprisoned as a result of the earlier revocation, this matter is not moot for two reasons. The first is that if he acts in a manner inconsistent with his present probation, and the earlier finding of a probation violation is part of his record, the previous revocation of probation will impact on him adversely. The second is that the revocation order is one of the factors which was considered in subjecting the defendant to the consequences of the more stringent monitoring of his present probation, thus implicating his liberty and privacy interests.

The question of mootness is determined by examining whether there are collateral consequences which attach to the trial court’s revocation of parole, or whether the law imposes any further penalty for the revocation. Carafas v. LaVallee, 391 U.S. 234, 237-38, 88 S. Ct. 1556, 20 L. Ed. 2d 554 (1968); Ginsberg v. New York, 390 U.S. 629, 88 S. Ct. 1274, 20 L. Ed. 2d 195 (1968); St. Pierre v. United States, 319 U.S. 41, 63 S. Ct. 910, 87 L. Ed. 1199 (1943); Herbert v. Manson, 199 Conn. 143, 143-44 n.1, 506 A.2d 98 (1986). The question of mootness has previously arisen in Connecticut in connection with a conviction and subsequent sentence in the context of habeas corpus proceedings which have extended beyond the period of incarceration. Herbert v. Manson, supra; Tracy v. Johnson, 156 Conn. 630, 632, 239 A.2d 477 (1968); Whiteside v. Burlant, 153 Conn. 204, 206-208, 215 A.2d 100 (1965); see also In re Juvenile Appeal (83-EF), 190 Conn. 428, 429 n.1, 461 A.2d 957 (1983). A defendant’s claim of error on appeal in such circumstances survives his release from incarceration and period of parole. Probation, like parole, is a state of conditional freedom from incarceration.

The defendant in this case has diligently pursued his appeal and presently suffers the consequence of a more stringent probation due, in part, to the previous revocation of probation. As he has argued, the overturning of the previous revocation could serve as a basis for modification of his present conditions of probation. The revocation, if left undisturbed, stands as unimpeachable evidence that the more stringent conditions of his probation are necessary. See Fiswick v. United States, 329 U.S. 211, 221-22, 67 S. Ct. 224, 91 L. Ed. 196 (1946). The defendant now suffers infringement upon his conditional freedom by the imposition of conditions which restrict to a greater degree his liberty and privacy, just as he suffered its complete deprivation by his reincarceration. See United States ex rel. Bey v. Connecticut State Board of Parole, 443 F.2d 1079, 1086-87 (2d Cir. 1971). It is the revocation of probation which made operative, and continues to effect, his loss of liberty. Hewett v. North Carolina, 415 F.2d 1316, 1322 (4th Cir. 1969). The interjection of a period of incarceration before the imposition of later and more stringent conditions does not deprive him of his interest in his conditional freedom, or in determining the propriety of its revocation, for if he had never been temporarily reincarcerated, but instead subjected to a modification of conditions, he would still have an appealable final judgment. See State v. Cooley, 3 Conn. App. 410, 414, 488 A.2d 1283, cert. denied, 196 Conn. 805, 492 A.2d 1240 (1985). The loss of some lesser degree of his liberty and privacy than would result from continued reincarceration does not render the loss any less grievous. See Morrissey v. Brewer, 408 U.S. 471, 480-84, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972). The probation revocation is a blemish on his prison record which will affect his job opportunities and his standing in the community because it connotes wrongdoing and intractability and is “a burden analagous and in addition to his criminal stigma. See Hahn v. Burke, 430 F.2d 100, 102 (7th Cir. 1970).” United States ex rel. Bey v. Connecticut State Board of Parole, supra, 1087. Furthermore, any misconduct which might be grounds for revocation in the future will be considered in the light of this previous revocation. See In re Appeal of Bailey, 158 Conn. 439, 444, 262 A.2d 177 (1969); Whiteside v. Burlant, supra, 206; Sibron v. New York, 392 U.S. 40, 50, 88 S. St. 1889, 20 L. Ed. 2d 917 (1968). The defendant suffers severe limitations of freedom by the present conditions of his probation, and will continue to suffer such limitation if his claim that his original probation was erroneously revoked is meritorious. See Carafas v. LaVallee, supra, 239.

“ Tt is a well-settled general rule that the existence of an actual controversy is requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow.’ Reynolds v. Vroom, 130 Conn. 512, 515, 36 A.2d 22 [1944]; Harkins v. Driscoll, 165 Conn. 407, 409, 334 A.2d 901 [1973]; Roy v. Mulcahy, 161 Conn. 324, 328, 288 A.2d 64 [1971]; see Tracy v. Johnson, 156 Conn. 630, 239 A.2d 477 [1968], This statement of law leads to the question of what, if any, practical relief could follow from a determination of the plaintiff’s appeal or what actual relief could be granted by this court. . . . Where collateral legal disabilities have arisen, actual relief can be granted by way of a reinstatement of the appellant’s prior legal status. . . . The question at hand, however, is whether there would be any benefit to the plaintiff if this court were to require that the decision of the trial court be reversed.” Phaneuf v. Commissioner of Motor Vehicles, 166 Conn. 449, 452-53, 352 A.2d 291 (1974).

The benefit to the defendant in this case incident to an overturning of his revocation is both the ability to seek a modification of his present conditions of probation, and the removal of the blight from his record which would haunt him in any future proceedings. We conclude that his appeal is not moot.

The defendant claims that the trial court abused its discretion in revoking his probation. The trial court properly conducted the statutorily mandated hearing, and determined that the defendant had violated the conditions of his probation, and should be reincarcerated. On appeal, our review of the trial court’s order of revocation is limited to determining whether the trial court abused its discretion in revoking the probation and invoking the original sentence. State v. Roberson, 165 Conn. 73, 80, 327 A.2d 556 (1973); State v. Cooley, supra. In exercising its discretion the trial court must be reasonably satisfied that the terms of the probation have been violated. State v. Roberson, supra. On review then, we must examine the evidence offered at the hearing to determine whether the trial court could reasonably have been satisfied that the defendant violated his probation. “In reviewing whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the court’s ruling. State v. Brown, 169 Conn. 672, 702, 364 A.2d 186 (1975).” State v. Amarillo, 198 Conn. 285, 313-14, 503 A.2d 146 (1986). “ ‘The aggrieved party, therefore, assumes a heavy burden when seeking to reverse the exercise of judicial discretion.’ State v. Jeustiniano, 172 Conn. 275, 285, 374 A.2d 209 (1977).” State v. Tirado, 194 Conn. 89, 95, 478 A.2d 606 (1984).

In the statutory probation hearing, the trial court acts as a trier of fact in making findings as to whether the defendant has violated the terms of his probation. See State v. Roberson, supra. The findings upon which the defendant’s probation may be revoked do not have to be proven beyond a reasonable doubt, as do the elements of a criminal offense. Payne v. Robinson, 10 Conn. App. 395, 402, 523 A.2d 917 (1987), quoting Roberson v. Connecticut, 501 F.2d 305, 308 (2d Cir. 1974). The finding of fact relevant to a determination of whether the defendant has violated the condition of his probation must be based “upon consideration of the whole record and unless such violation is established by reliable and probative evidence.” General Statutes § 53a-32 (b). As the trier of fact, the court was charged with determining the credibility of the witnesses and the effect to be given the evidence. See State v. Egan, 9 Conn. App. 59, 69, 514 A.2d 493, cert. denied, 201 Conn. 811, 516 A.2d 886 (1986). If the record supports the trial court’s finding that the defendant failed to comply with the conditions of his probation, the trial court then had the discretion to order a revocation of the probation.

The testimony of the urine tester, if credited by the court, was probative of the condition imposed that the defendant remain free of the use of drugs while on probation. The testimony of the defendant’s pharmacological expert, if credited by the trier of fact, indicates that there is some degree of unreliability in the test which was used to determine whether the defendant was violating his probation. The court determined, however, that it was reasonably satisfied that the evidence of the test results established that the defendant violated his probation. The trial court was not required to accept as conclusive, on the issue of this defendant’s use of drugs, the testimony of the defendant’s expert as to the reliability of the particular test used. See State v. Putnoki, 200 Conn. 208, 221, 510 A.2d 1329 (1986); Johnson v. Fuller, 190 Conn. 552, 556, 461 A.2d 988 (1983). The defendant has not established that the court’s determination was unreasonable and an abuse of discretion.

The defendant also contends that the trial court erred in its revocation order, claiming that such order required the court to determine also that the beneficial purposes of probation were no longer being served. The trial court, in finding that the defendant violated the conditions of his probation, impliedly found that the beneficial purposes of that probation were no longer being served. State v. Roberson, supra, 80. The defendant has not demonstrated that the court could not reasonably have concluded that the beneficial purposes of his probation, that is, his rehabilitation and the protection of society, were no longer being served. Payne v. Robinson, supra, 401.

There is no error.

In this opinion the other judges concurred.

       The defendant has not raised any question concerning the relationship of this condition of probation to his rehabilitation. The validity of this condition is, therefore, not under review. See State v. Cooley, 3 Conn. App. 410, 413-15, 488 A.2d 1283, cert denied, 196 Conn. 805, 492 A.2d 1240 (1985).

       General Statutes § 53a-32 provides in pertinent part: “(a) At any time during the period of probation or conditional discharge, the court or any judge thereof may issue a warrant for the arrest of a defendant for violation of any of the conditions of probation or conditional discharge, or may issue a notice to appear to answer to a charge of such violation. ... At such hearing the defendant shall be informed of the manner in which he is alleged to have violated the conditions of his probation or conditional discharge, shall be advised by the court that he has the right to retain counsel and, if indigent, shall be entitled to the services of the public defender, and shall have the right to cross-examine witnesses and to present evidence in his own behalf, (b) If such violation is established, the court may continue or revoke the sentence of probation or conditional discharge or modify or enlarge the conditions, and, if such sentence is revoked, require the defendant to serve the sentence imposed or impose any lesser sentence. No such revocation shall be ordered, except upon consideration of the whole record and unless such violation is established by reliable and probative evidence.”

       The conditions of the defendant’s previous probation, which are part of the record, include random urinalysis and two telephone reports to his probation officer each week for a year. The conditions of his present probation, which were explained by his attorney at oral argument and were not disputed by the state, are that he must attend weekly meetings dealing with drug abuse, and that he must adhere to a 7 p.m. curfew each night, which is verified over telephone lines by means of an electronic sensor attached to his wrist.

       The defendant also contends that he was denied due process and equal protection of the law. He does not, however, cite either the federal or state constitution for these claims, and has failed to support his claims by citation to legal authority or by the formulation of any legal arguments. Therefore, we do not consider them. State v. Chauvin, 8 Conn. App. 307, 311, 512 A.2d 969 (1986). If the defendant’s claim of a denial of equal protection of the law rests upon the class action habeas corpus settlement which he introduced into evidence, he is far from substantiating that claim. That settlement affords protection to persons appearing before and subject to the disciplinary sanctions of a correctional facility disciplinary board because of alcohol abuse, and affects their good time credit while incarcerated. The protection which that settlement affords is to a class of persons of which the defendant is not a member.


source: Caselaw Access Project

author: Hull, J. Bieluch, J.,

license: Public Domain

text:
    Thomas V. Cristofaro v. Planning and Zoning Commission of the Town of Burlington
    (4725)
    Hull, Spallone and Bieluch, Js.
    Argued March 11
    decision released June 16, 1987

      Edward F. Scully, with whom, on the brief, was Kathleen B. Martin, for the appellant (plaintiff).

      Charles W. Bauer, for the appellee (defendant).
   Hull, J.

The defendant Burlington planning and zoning commission (commission) denied the plaintiffs application for a three lot subdivision of his property on the ground that the proposed lots failed to meet the requirement of its subdivision regulations that all lots proposed for subdivision measure at least one acre. The plaintiff appealed to the Superior Court, where the commission’s action was upheld and the appeal dismissed. Certification to appeal to this court was subsequently granted. The plaintiffs sole claim of error is that a planning and zoning commission, acting in its capacity as a planning commission, has no authority to enact and apply a subdivision regulation which requires a larger minimum lot size than that set by the applicable zoning regulations.

The following facts are not in dispute. The plaintiff, Thomas V. Cristofaro, is the owner of property on West Chippen Road in Burlington, Connecticut. At the time of the plaintiffs application to the commission for subdivision approval, the property was zoned “residential A.” On August 10, 1983, the commission conducted a public hearing on the plaintiffs application. At the conclusion of the public hearing, the commission disapproved the application. It referred to § 4-08B of the subdivision regulations in support of its decision. That section provides that “Regardless of the minimum area requirement of any Zoning District, in any application for Subdivision where both public water supply and public sewage systems are not available, the minimum Net Lot Area requirement, after all Natural Resource Characteristic reductions have been applied, shall not be less than one full acre.” Despite the fact that each of the proposed subdivision lots met the 30,000 square foot requirement of the zoning ordinance, the commission denied the plaintiffs application because it did not have public sewer and water and did not meet the lot area requirements of the subdivision regulations.

The commission claims that the plaintiff cannot now challenge the validity of the subdivision regulations because he earlier sought to avail himself of those very regulations. See Bierman v. Planning & Zoning Commission, 185 Conn. 135, 139, 440 A.2d 882 (1981). We agree.

In Bierman, our Supreme Court stated that “[t]he rule extant under our zoning cases is that a party who sought to avail himself of a zoning ordinance by making an application thereunder is precluded in the same proceeding from raising the question of its constitutionality.” (Citations omitted.) Id., 139. The validity or constitutionality of an ordinance or regulation should be challenged in a declaratory judgment action.

The rationale behind this rule was discussed in Bierman in the context of distinguishing between challenging an entire regulation or ordinance and challenging its application to a specific party. In Bierman, the validity of certain zoning regulations was challenged as being unconstitutional per se. In refusing to decide the merits of the plaintiffs claim after the plaintiff had attempted to avail himself of the very regulations in question, the court stated: “To permit the attack as here, and to invalidate the challenged regulations as here, could seriously affect the rights of other property owners in the community, as well as undercut local governmental zoning authority. Our rules of practice provide means by which the broad constitutional attack . . . may be undertaken and determined with sufficient safeguards to permit notice to and intervention by all interested persons. See General Statutes § 52-29; Practice Book § 388 through 394.” Id., 140.

Echo Four v. Hill, 3 Conn. App. 118, 485 A.2d 926 (1985), is also controlling in this situation. In that case, the trial court held that certain portions of the Darien zoning regulations were invalid. We reversed, stating that the trial court lacked jurisdiction to render judgment as such because reasonable notice to all interested parties had not been given. We stated: “The requirement of notice to interested parties [in a land-use case] is based upon practical considerations of fundamental fairness. In National Transportation Co. v. Toquet, 123 Conn. 468, 196 A. 344 (1937), the court stated: ‘ “To hold the [zoning] regulations invalid would necessarily create confusion in the town [and] injure property interests . . . .” ’Id., 477, quoting Coombs v. Larson, 112 Conn. 236, 246, 152 A. 297 (1930).” Echo Four v. Hill, supra, 123. Echo Four and Bierman are distinguishable from the present situation in two ways: first, the two cases concern zoning ordinances and not subdivision regulations; second, the cases discuss constitutionality of ordinances and not their validity, as is challenged here. We do not consider these distinctions to be relevant.

The general applicability that makes public notice mandatory in zoning matters is present in this case because the subdivision regulations are applied generally to the entire municipality. Further, we can discern no valid reason why the logic of Bierman and Echo Four should not apply to this situation merely because the validity of enacting the regulations, and not their constitutionality, is challenged. A determination by this court that the Burlington subdivision regulations concerning required lot size are invalid could have as serious an effect on other property owners and local land use bodies as would a determination that a zoning regulation was unconstitutional. Such challenges are properly the subject for independent declaratory proceedings. See also Aaron v. Conservation Commission, 178 Conn. 173, 178-80, 422 A.2d 290 (1979); Florentine v. Darien, 142 Conn. 415, 428-29, 115 A.2d 328 (1955); Strain v. Zoning Board of Appeals, 137 Conn. 36, 40, 74 A.2d 462 (1950). We therefore decline to address the plaintiffs claim.

There is no error.

In this opinion Spallone, J., concurred.

Bieluch, J.,

dissenting. I disagree with the declination of the majority to address the plaintiffs claim of error. Further, I find that the majority’s extension of Bierman v. Planning & Zoning Commission, 185 Conn. 135, 440 A.2d 882 (1981), to preclude consideration of nonconstitutional claims of invalidity is unwarranted.

The commission filed a motion to dismiss the zoning appeal in the trial court, claiming that the Superior Court lacked “subject matter jurisdiction” because the plaintiff was questioning the application of a particular subdivision regulation to his proposed subdivision after having made an application for approval under the subdivision regulations of which the one in question was a part. The sole basis for its motion to dismiss was Bierman. After a hearing, the commission motion was denied by the court without a memorandum of decision.

After hearing the plaintiff’s appeal, the trial court filed a memorandum of decision in which it responded to the commission’s “preliminary argument that the plaintiff should be precluded from bringing an appeal on this basis because it is in essence a challenge to the commission’s jurisdiction, citing Bierman v. Planning & Zoning Commission, [supra],” by stating: “That issue, however, as it affects the case at bar, has already been decided by this court (Byrne, J.) in denying the defendant’s earlier motion to dismiss. It is the law of the case, and the court will not disturb it.”

The defendant filed no preliminary statement of issues for the presentation of its claim on review. Practice Book § 4013 (a) (1). In a footnote, the majority opinion holds that the failure to identify an issue in a preliminary statement of issues will preclude review of the issue only if the appellant is prejudiced by the appellee’s failure to follow the appellate rules of practice. In this appeal, however, the majority found no prejudice to the appellant as he had an adequate opportunity to address the issue in his reply brief. I disagree with the majority’s conclusion that it is duty bound to consider the defendant’s claim.

Practice Book § 4013 (a) (1) (formerly § 3012) requires that an appellant file with his appeal “[a] preliminary statement of the issues intended for presentation on appeal.” Thereafter, if an appellee “wishes to present for review adverse rulings or decisions of the court which should be considered on appeal in the event the appellant is awarded a new trial ... he shall file a preliminary statement of issues . . . .” (Emphasis added.)

Practice Book § 4013 (a) (1), effective October 1,1986, amended the former § 3012 in two relevant respects: (1) the mandatory term “shall” replaced the word “may” to make clear the requirement of filing a preliminary statement of issues for review; and (2) the following paragraph was added to the rule: “Whenever the failure to identify an issue in a preliminary statement of issues prejudices an opposing party, the court may refuse to consider such issue.”

Although Practice Book § 4013 (a) (1) now allows review of issues not previously raised in a preliminary statement of issues where the opposing party is not prejudiced; see Manchester Sand & Gravel Co. v. South Windsor, 203 Conn. 267, 270 n.3, 524 A.2d 621 (1987); State v. Harris, 10 Conn. App. 217, 231-32 n.2, 522 A.2d 323 (1987); I believe that an appellate court is not required to grant review of a previously unidentified issue where the appellee, as here, declined to afford itself of the proper method of raising the issue, namely, by filing a preliminary statement of issues. See St. John v. State, 9 Conn. App. 514, 515 n.2, 520 A.2d 612 (1987). Otherwise, in the absence of prejudice, no need would exist to claim an issue in a preliminary statement of issues on an appeal by the opposing party. The appellee commission in this case should have filed a preliminary statement of issues under Practice Book § 4013 (a) (1). Furthermore, I find inherently prejudicial the commission’s complete failure in its brief to analyze Bierman within the factual circumstances presented by the plaintiff’s complaint and its failure to inform this tribunal whether the trial court articulated any basis for the denial of the motion to dismiss the appeal below.

Under the circumstances here, I believe the majority should not have considered the commission’s claim that the plaintiff lacked standing to challenge the contested subdivision regulation.

I further disagree with the majority’s extension of Bierman v. Planning & Zoning Commission, supra, to require that nonconstitutional claims of invalidity be decided in a separate declaratory judgment action.

The majority recognizes that Bierman is “distinguishable from the present situation in two ways: first, [Bierman] concern[s] zoning ordinances and not subdivision regulations; second, [Bierman] discuss[es] constitutionality of ordinances and not their validity, as is challenged here.” These distinctions, however, are not considered relevant by the majority. I believe to the contrary; the distinctions are relevant, and do not permit Bierman to control the issue before us. Bierman should be restricted to what it concludes: “The rule extant under our zoning cases is that a party who has sought to avail himself of a zoning ordinance by making an application thereunder is precluded in the same proceeding from raising the question of its constitutionality. . . . Our rules of practice provide means by which the broad constitutional attack erroneously permitted in this case may be undertaken and determined with sufficient safeguards to permit notice to and intervention by all interested persons.” Id., 139-40.

The rationale of the rule in Bierman is that one seeking relief under a statute is thereby accepting and acknowledging its validity. If the statute is held void upon his further attack, the applicant must go down with its downfall. “The two positions are entirely inconsistent, and utterly repugnant to any reasonable procedure.” Holley v. Sunderland, 110 Conn. 80, 86, 147 A. 300 (1929); see Wall v. Parrot Silver & Copper Co. 244 U.S. 407, 412, 37 S. Ct. 609, 61 L. Ed. 1229 (1917); Bierman v. Planning & Zoning Commission, supra, 140 n.8; Rindge v. Holbrook, 111 Conn. 72, 77, 149 A. 231 (1930). This rationale bears no logical connection to the plaintiffs claim before us that the commission had no authority to enact a subdivision regulation contrary to the overlying zoning regulations of the town, with which he complied in their entirety.

For these reasons, I find the majority’s refusal to consider the merits of the plaintiff’s claim of error to be without proper support. Consequently, I dissent from its opinion and would grant review of the issue presented to us by the plaintiff.

       Although two scrivener’s omissions were also mentioned in the decision, the parties do not dispute that the decision’s gravamen was the failure to meet the lot area requirement.

       On May 3,1985, the parties jointly filed a stipulation of facts with the trial court. The facts as stated herein are taken largely from that stipulation.

       Section 4.4 of the Burlington zoning regulations provides in relevant part that “every lot and building in a Residential District shall comply with the following requirements for the applicable District: . . . Minimum Lot Area, sq. ft. Residential A 30,000.00.”

       The plaintiff claims that we should not consider the commission’s argument since it was not raised in a cross appeal or in a preliminary statement of issues. Practice Book § 4013 provides that an appellee’s failure to cross appeal or identify an issue in a preliminary statement of issues will preclude review of the issue if the appellant is prejudiced by the appellee’s failure to follow the Practice Book provision. See State v. McIver, 201 Conn. 559, 568 n.3, 518 A.2d 1368 (1986); State v. Harris, 10 Conn. App. 217, 231-32 n.2, 522 A.2d 323 (1987). In the present case, we do not find that there would be prejudice to the plaintiff as he had an adequate opportunity to address the issue in his reply brief.

       The commission alleged a lack of subject matter jurisdiction both in its motion to dismiss the appeal and at trial. On appeal, the commission has changed tack and claims that the plaintiff, as an unsuccessful applicant for subdivision approval, “has no standing to challenge the regulations relied upon.” In substance, the commission has narrowed its claims to one of standing to appeal.
      The commission has not cited any authority classifying this issue as one of jurisdiction. Nor have I in my review of the authorities found any judicial holding establishing that the claim made here is jurisdictional in nature.
      Case law clearly establishes the preclusion of review of the constitutionality of a statute by an applicant who seeks relief thereunder. Seeking relief under a statute constitutes a waiver of the right to question its validity. Wall v. Parrot Silver & Copper Co., 244 U.S. 407, 411-12, 37 S. Ct. 609, 61 L. Ed. 1229 (1917); Bierman v. Planning & Zoning Commission, 185 Conn. 135, 139, 440 A.2d 882 (1981); Florentine v. Darien, 142 Conn. 415, 429, 115 A.2d 328 (1955); Coombs v. Larson, 112 Conn. 236, 245, 152 A. 297 (1930); Rindge v. Holbrook, 111 Conn. 72, 77, 149 A. 231 (1930). Such a waiver is unrelated to the jurisdictional question of standing to appeal.
      Subject matter jurisdiction may not be waived or granted by consent. United States Trust Co. v. Bohart, 197 Conn. 34, 39, 495 A.2d 1034 (1985); Rogers v. Commission on Human Rights & Opportunities, 195 Conn. 543, 552, 489 A.2d 368 (1985); Laurel Park, Inc. v. Pac, 194 Conn. 677, 678-79 n.1, 485 A.2d 1272 (1984).


text:
    Janice Goold v. Peter Goold
    (4650)
    Dupont, C. J., Borden and Daly, Js.

      Argued March 4
    decision released June 16, 1987

      Gaetano Ferre, for the appellant-appellee (defendant).

      Ellen B. Wells, for the appellee-appellant (plaintiff).
   Dupont, C. J.

The defendant husband appeals and the plaintiff wife cross appeals from the trial court’s calculation, in a contempt proceeding, of the amount of child support arrearages owed by the defendant. The trial court found that the defendant was in arrears in the amount of $27,952.46 for the years 1980 through 1983. The defendant claims that the trial court erred (1) by refusing to credit the defendant with payments made for the support of his son during the time period in which the son was in his physical custody, (2) by including the profit realized from the exercise of a stock option in its assessment of his income for 1982, (3) by failing to reduce his income in 1982 and 1983 by net rental losses realized by him in both years, and (4) in concluding that one half of a sum listed on a joint tax return as income realized from pensions and annuities was attributable to him without any direct evidence to that effect. In her cross appeal, the plaintiff alleges that the trial court erred (1) by concluding that only a portion of the distribution from an employee thrift incentive plan constituted income for purposes of calculating child support, (2) by giving the defendant credit against his arrearages for payments made for the support of a child after she reached the age of majority, and (3) in failing to award counsel fees.

The trial court found that the marriage of the parties was dissolved on December 21,1976, and that the decree incorporated by reference a separation agreement dated April 1,1976. The agreement provided that the plaintiff would have custody of the parties’ three children, Geoffrey, Jennifer, and Laura. It further provided that in the event that the plaintiff remarried, the defendant would pay to the plaintiff child support, in the amount of $416.66 per month, for the support of each child, “to commence from the date of such remarriage, until said child dies, marries, becomes wholly self-supporting, or attains the age of 21 years . . . .’’In addition, the defendant was required to pay to the plaintiff as child support for each child the sum of 10 percent of the defendant’s income that exceeded $67,500 annually.

The plaintiff remarried in 1980. During that year, Geoffrey experienced difficulties in the local public school system. After consulting with a counseling physician, both the plaintiff and the defendant agreed that Geoffrey should attend a private school in New Canaan. The parties further agreed that it would be in Geoffrey’s best interests to live with his father nearer to the private school. Geoffrey thereafter moved in with the defendant in May of 1980, and the defendant immediately ceased making any child support payments to the plaintiff for their son. In the summer of 1980, the plaintiff requested in writing that the defendant continue child support payments for Geoffrey, but the defendant refused to make such payments. Geoffrey continued to reside with the defendant for two years until he reached the age of eighteen. During that time period, the plaintiff maintained a bedroom for Geoffrey at her house, and continued to purchase clothing for her son. Because the defendant traveled frequently, Geoffrey spent a number of weekends with the plaintiff. Moreover, the plaintiff took Geoffrey on vacation with her.

On May 5,1983, the plaintiff filed a motion for contempt against the defendant. In that and various amendments to such motion, she moved the court to find the defendant in contempt of court for failure to pay her the correct amount of child support for their three children. After a hearing, the trial court did not hold the defendant in contempt, but ordered him to pay $27,052.46 to the plaintiff for unpaid child support.

I

In his first claim of error, the defendant alleges that the trial court erred in its calculation of the arrearage owed to the plaintiff for child support for their son Geoffrey during the two years that Geoffrey resided with him. The defendant claims that he is entitled to a credit for the amount expended by him for Geoffrey during that time period, and that the trial court erred in refusing to recognize such credit.

A considerable conflict exists among various courts as to whether or not any credit should be given to a parent ordered by a court to make child support payments to the other parent, for payments made on behalf of a child while that child is actually in his physical custody. See annot., 47 A.L.R.3d 1031; annot., 2 A.L.R.2d 831; 24 Am. Jur. 2d, Divorce and Separation § 1077. Some courts have recognized that a parent is not entitled as a matter of law to credit for such voluntary expenditures made in a manner other than that specified by the divorce decree. See, e.g., annot., 47 A.L.R.3d, supra, § 3. Other courts hold that situations may arise in which equitable considerations would permit a parent to credit, against past due support payments, voluntary expenditures made on behalf of the child. Id., § 4. No universal or general principle has been articulated by the latter courts. Rather, the circumstances of each individual case are considered in determining whether credit can be allowed. 2 A.L.R.2d 831, 833. In all such cases, however, courts have recognized that the decision to allow or disallow credit lies within the sound discretion of the trial court. See., e.g., Hamilton v. Phillips, 494 So. 2d 659, 661 (Ala. Civ. App. 1986).

In support for his claim that the circumstances of this case warrant the equitable allowance of credit, the defendant asserts that the actual amounts paid by him for the support of Geoffrey exceeded the amounts required by the decree to be paid to the plaintiff as child support. The defendant maintains, therefore, that by ordering the defendant to pay child support for Geoffrey, the trial court conferred a windfall upon the plaintiff. He further maintains that he is entitled to credit because by directly supporting the child, he substantially complied with the decree of dissolution. See H. Clark, Law of Domestic Relations (1968) § 15.3.

Although no Connecticut case has addressed the precise issue presented in this case, we have previously recognized that in some domestic cases unique or compelling circumstances may justify or require equitable relief. Guss v. Guss, 1 Conn. App. 356, 363, 472 A.2d 790 (1984), citing LaCroix v. LaCroix, 189 Conn. 685, 689, 457 A.2d 1076 (1983). The allowance of a credit against past due child support payments has therefore been acknowledged as being appropriate in limited circumstances. These circumstances must be limited in order to prevent hardship to support recipients and to protect “their expectations and [enable] them to rely upon the continuing [support] obligation of the paying spouse . . . .’’as provided in a final decree. Sanchione v. Sanchione, 173 Conn 397, 405-406, 378 A.2d 522 (1977). Although there is no general rule as to when circumstances require the allowance of such credit, factors which have been considered by various courts in reaching such decision include (1) whether the father brought a motion for modification of the support order; see Fowler v. Fowler, 156 Conn. 569, 573, 244 A.2d 375 (1968); Rempt v. Rempt, 5 Conn. App. 85, 496 A.2d 988 (1985); (2) whether the parties expressly provided in their separation agreement that the father may deduct or adjust support payments when the child is no longer in the mother’s custody; see Swayze v. Swayze, 176 Conn. 323, 408 A.2d 1 (1978); Sweeny v. Sweeny, 9 Conn. App. 498, 519 A.2d 1237 (1987); Guss v. Guss, supra, 362; and (3) whether the mother has in some manner consented to accept the father’s direct support of the child as an alternative method of payment of child support. See annot., 47 A.L.R.3d 1031, 1035-36; 24 Am. Jur. 2d, Divorce and Separation § 1077, p. 1062; see also Bradford v. Futrell, 225 Md. 512, 518-19, 171 A.2d 493 (1961).

We conclude that the trial court’s denial of credit in the present case was not an abuse of discretion. The trial court noted that the defendant did not ever bring a motion for modification of the support order, although that recourse was always available to him. See Bozzi v. Bozzi, 177 Conn. 232, 238, 413 A.2d 834 (1979); Fowler v. Fowler, supra, 573; Smith v. Smith, 443 So. 2d 43 (Ala. Civ. App. 1983); McDaniel v. Winter, 412 So. 2d 282 (Ala. Civ. App. 1982); Hanks v. Hanks, 334 N.W.2d 856 (S.D. 1983); Bradley v. Fowler, 30 Wash. 2d 600, 192 P.2d 969, 975 (1948).

The trial court also found that the parties had not provided for such credit to be given to the defendant in their separation agreement. Cf. Swayze v. Swayze, supra. The agreement provided that child support would terminate only when “said child dies, marries, becomes wholly self-supporting, or attains the age of 21 years.” The child’s change in residence was not intended by the parties to constitute sufficient cause for the termination of child support. Moreover, the agreement provided that the defendant would be credited in only a few circumstances relating to the educational expenses of the children. Paragraph 5.7 of the separation agreement provided that in the event that a scholarship was granted, credit was to be given to the defendant for the payment of educational expenses. Furthermore, a credit of $100 per month was to be given to the father if he paid for all of the educational expenses for any one child and the child was living away from home. Such provisions contained in the separation agreement reflect that the parties had contemplated circumstances in which credit or reductions would be permitted. The parties did not provide, however, for credit to be given to the defendant for expenditures incurred by him while Geoffrey resided with him. In fact, their agreement specifically provided that all such expenses incurred by the defendant while the children were in his care, including the costs of food and lodging, were to be borne by him, and that he would “not be entitled to any deduction from payments to the wife on account of amounts expended by him” during such time. The defendant’s unilateral reduction of the support payments was not consonant with the intent of the parties as evidenced in their separation agreement. He did not, therefore, substantially comply with the terms of the decree.

The trial court further specifically found that the defendant failed to obtain the consent of the plaintiff for such alternate method of payments. It found instead that after Geoffrey moved in with the defendant, the plaintiff demanded that child support payments for him continue. The defendant refused to comply with her request. The trial court concluded, therefore, that the mother had not consented in any manner to accept the alternate payments as partial or complete satisfaction of the husband’s obligation under the decree.

The plaintiff, having obtained legal custody of the children and having been awarded child support for their maintenance, had the right and privilege “to determine how and in what manner child maintenance funds should be spent. 27B C.J.S., Divorce § 321 (2), p. 639.” Rempt v. Rempt, supra, 89. By unilaterally reducing the amount of his child support payments without the consent of the plaintiff, the defendant diverted such maintenance funds from her, thereby reducing her ability to make such decisions. See id. To permit the defendant to receive credit for his payments under these circumstances would be to vary the terms of the decree and usurp from the plaintiff the right to control the disbursement of the support money.

Finally, the trial court found that the plaintiff continued to have expenses relating to the support of Geoffrey after he had moved in with the defendant. The facts of this case, therefore, do not warrant the application of the limited equitable remedy advanced by the defendant.

Absent an action for modification of child support by the defendant, an agreement between the parties allowing such modification, or circumstances warranting the application of a limited equitable remedy, we cannot say that the trial court erred in denying the defendant’s request for credit.

II

The defendant’s remaining claims of error challenge the trial court’s computation of the defendant’s income in 1982 and 1983 for purposes of determining the amount of child support arrearage owed for the support of Laura and Jennifer, the other children of the parties. The defendant first alleges that the trial court erred in including a $28,740 profit realized from the exercise of a stock option in its computation of his income in 1982.

The defendant received a stock option in 1972 which gave him the right to purchase 2000 shares of General Foods stock at the price of $29.57 per share. He exercised that option on December 6, 1982. He reported $28,740 in income for this transaction on his 1982 income tax return. This amount represented the difference between the market price at the time he exercised the option and the option price. The defendant alleges that this reported income constituted merely a “paper profit,” and should, therefore, not have been considered by the trial court as income for the purposes of computing child support pursuant to the separation agreement.

Paragraph 2.6 of the parties’ separation agreement defines the term “income” for purposes of determining child support “to mean income actually received by the HUSBAND and income which he has a right to receive (except as to options under any pension, profit sharing or deferred compensation plan which shall be includable only when received by the HUSBAND, and excluding any income of any subsequent Wife of the HUSBAND, or any children of the HUSBAND) in each calendar year . . . from any and all sources derived. Without limiting the generality of the foregoing, ‘income’ shall include both earned and unearned, taxable and nontaxable income and in particular, all income from . . . [the] exercise of stock options. ” (Emphasis added.) The trial court interpreted the agreement as meaning that the profit realized from the defendant’s exercise of the stock option was income for purposes of determining child support payments.

The defendant argues that the terms of the agreement are ambiguous, and that the court should have utilized an equitable and reasonable interpretation. He asserts that the trial court’s interpretation ignores the agreement’s “carefully drawn distinction between earned income and unearned income.” Moreover, he claims that because the agreement excluded options “which shall be includable only when received” from the definition of income, the trial court should have found that income was received when the option was received in 1972, and not when he exercised it in 1982.

The trial court’s construction of the separation agreement is an issue of fact subject to review under the limited standard of whether it is clearly erroneous. Sweeny v. Sweeny, 9 Conn. App. 498, 501, 519 A.2d 1237 (1987); Lavigne v. Lavigne, 3 Conn. App. 423, 427, 488 A.2d 1290 (1985). “We will not disturb the actions of the trial court unless it abused its legal discretion in making [its] determination. The unquestioned rule is that great weight is due the action of the trial court and every reasonable presumption should be given in favor of its correctness.” Sweeny v. Sweeny, supra. We find that the trial court’s conclusion was a reasonable interpretation of the agreement.

The terms of the agreement, contrary to the defendant’s claim, were clear and unambiguous. The agreement specifically provided that income realized or that the defendant would have a right to receive from the exercise of stock options would be considered “income” for purposes of calculating child support. The agreement reflects, therefore, that the parties contemplated such a transaction and expressly provided for it to be considered when assessing the income of the defendant. The trial court did not err in giving such provision effect. See Sturtevant v. Sturtevant, 146 Conn. 644, 648, 153 A.2d 828 (1959).

Moreover, the agreement specified those options which were not to be considered by the parties when determining the defendant’s income. These were “options under any pension, profit sharing or deferred compensation plan.” The trial court did not find, nor is there any evidence contained in the record which supports the contention, that the exercise of the stock option in this case fell within the realm of this limited category. In interpreting such provisions, “[t]he question is not what intention existed in the minds of the parties but what intention is expressed in the language used.” Id., 647. Thus, whatever may have been the defendant’s subjective intent with respect to the language contained in the agreement which excluded certain options from consideration when determining income, he clearly and expressly obligated himself to the inclusion of the exercise of stock options by the terms of Paragraph 2.6 of the agreement.

Ill

In his next claim of error, the defendant asserts that the trial court erred by failing to reduce his income in 1982 and 1983 by the amount of net rental losses realized in those years. He claims that his income tax returns reflected that his net rental income in 1982 was a loss in the amount of $1087, and that his net rental income in 1983 was a loss in the amount of $1020.50. He further alleges that because Paragraph 2.6 of the separation agreement provided that the term income “shall include . . . net rental income,” such rental losses should have been deducted from his total income by the trial court when it determined the amount of child support arrearages for 1982 and 1983.

The defendant’s claim, however, was not raised in the trial court. Although the plaintiff disclosed her calculations of the defendant’s income in both 1982 and 1983 in her trial court briefs in support of her motion for contempt, the defendant never alerted the court to the claim that she failed to account for his net rental losses in such calculations. Nor did the defendant ever argue to the trial court that such net rental losses should be subtracted from his total income in both years. The trial court, therefore, was not apprised of the defendant’s argument now claimed on appeal. “Since this claim was not raised in the trial court and since there is absolutely no indication in the record of the type of exceptional circumstances necessary to justify this court’s departure from the well-settled rule that claims of error not raised distinctly at the trial will not be reviewed on appeal, we decline to consider this claim of error.” MacFarlane v. MacFarlane, 178 Conn. 406, 416, 423 A.2d 109 (1979); see Practice Book § 4185.

IV

In his final claim of error, the defendant claims that the trial court erred by including $3217.42 in its computation of his income for 1983 without any evidence to support its conclusion. The trial court found that the defendant had reported $22,765 as joint income from “pensions and annuities, including rollovers” on his and his new wife’s joint tax return for 1983. It found that $16,220.17 of that sum was directly attributable to a distribution from the defendant’s thrift investment plan. The source of the remaining $6434.83 was unaccounted for. In its supplemental memorandum of decision, the trial court concluded that one-half of such amount, or $3217.42, should be attributed to the defendant’s income “in the absence of any evidence offered by him to the contrary.” The defendant claims that the trial court erred in including any of this amount in his 1983 income when there was no evidence to support such a finding. See Pandohphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980).

The record indicates that evidence was introduced which established that the defendant had filed a joint tax return with his new wife in 1983, and that $22,765 was reported as joint income received from pensions and annuities. The defendant did not offer any evidence as to the source of $6434.83 of that sum. Absent direct evidence to the contrary, the court’s determination that one half of this amount should be attributed to the defendant was an inference drawn from the facts established as evidence. As an inference of fact, it is not reversible unless the trial court could not reasonably have arrived at the conclusion that it reached. Bead Chain Mfg. Co. v. Saxton Products, Inc., 183 Conn. 266, 275, 439 A.2d 314 (1981). A judgment rendered will therefore not be reversed “ ‘ “unless a conclusion has been reached, or an inference drawn, from a fact, many facts, or the facts found, which affects the judgment rendered in material degree and is legally or logically inconsistent with that or those facts, or is so illogical or unsound, or so violative of the plain rules of reason, as to be unwarranted in law.” ’ ” Edens v. Kole Construction Co., 188 Conn. 489, 497-98, 450 A.2d 1161 (1982). We find that the trial court’s finding that one half of the $6434.83 should be attributed to the defendant’s income was a factual finding based upon an inference reasonably drawn from the evidence. On the basis of the record before us, we cannot say that the conclusion reached by the trial court was not reasonable and logical. See Leabo v Leninski, 182 Conn. 611, 615-16, 438 A.2d 1153 (1981); Dunn v. Santino, 139 Conn. 352, 355, 93 A.2d 726 (1952).

In reaching this conclusion, we note that the actual portion of that sum which was the defendant’s income was a fact which was exclusively within his ken. He could have, but did not, provide evidence which could establish what portion of the reported income was actually his, and what portion was attributable to his new wife. The record further reflects that he refused to comply with the plaintiff’s repeated requests to account for the source of such sum. The defendant, therefore, cannot now claim on appeal that there was no direct evidence contained in the record which would support the trial court’s finding.

V

In her cross appeal, the plaintiff alleges that the trial court erred in including only a portion of the 1983 thrift investment plan distribution in the defendant’s 1983 income. The trial court included as income only that portion of the distribution which represented the profit realized by the defendant. The plaintiff asserts that because Paragraph 2.6 of the separation agreement provides that the term “income” includes “all income from . . . pensions [and] annuities,” the total amount of the distribution, or $16,220.17, should have been considered income for purposes of determining child support.

The trial court’s memorandum of decision fails to disclose the reason for the court’s determination that only the profit realized from the thrift investment plan should be considered income. The burden of securing an adequate record for appellate review of an issue presented on a cross appeal rests with the cross appellant. Niles v. Niles, 9 Conn. App. 240, 249, 318 A.2d 932 (1986). The plaintiff in this case did not seek to have the trial court articulate its decision pursuant to Practice Book § 4051. See Barnes v. Barnes, 190 Conn. 491, 493, 460 A.2d 1302 (1983); Kaplan v. Kaplan, 186 Conn. 387, 388 n.1, 441 A.2d 629 (1982). “Where the factual basis of the court’s decision is unclear, proper utilization of the motion for articulation serves to dispel any such ambiguity by clarifying the factual and legal basis upon which the trial court rendered its decision, thereby sharpening the issues on appeal.” Holmes v. Holmes, 2 Conn. App. 380, 383, 478 A.2d 1046 (1984). Because the trial court did not delineate the factual basis for its conclusion in its memorandum of decision, and because the plaintiff has failed to secure an adequate record, we decline to view as clearly erroneous the trial court’s determination to allocate only a portion of the thrift incentive plan as income. See Caracansi v. Caracansi, 4 Conn. App. 645, 648-49, 496 A.2d 225, cert. denied, 197 Conn. 805, 499 A.2d 56 (1985); Holmes v. Holmes, supra.

VI

In her next claim of error, the plaintiff challenges the trial court’s treatment of the child support payments made by the defendant for the support of one of the parties’ children after that child reached the age of eighteen. The parties’ daughter, Jennifer, became eighteen years of age on August 28, 1983. The trial court found that the defendant had paid $2416.68 in child support for Jennifer during the four months following her eighteenth birthday. In computing the amount of the child support arrearage owed by the defendant in 1983, the trial court credited the defendant with this amount.

Paragraph 2.3 of the parties’ separation agreement provides that the defendant’s obligation to pay child support would continue “until said child . . . attains the age of 21 years . . . .” The trial court noted that despite this provision, support payments made for a child over the age of eighteen were not enforceable through a contempt proceeding. See Kennedy v. Kennedy, 177 Conn. 47, 411 A.2d 25 (1979). Both parties acknowledge that the separation agreement was signed in 1976, prior to the enactment of the amendment to General Statutes § 46b-66 which allows the enforcement of written agreements providing for the support of a child beyond the age of eighteen in a contempt proceeding. Hunter v. Hunter, 177 Conn. 327, 416 A.2d 1201 (1979); Lavigne v. Lavigne, 3 Conn. App. 423, 488 A.2d 1290 (1985). Because the court found that it could not enforce the postmajority support payments provided for in the agreement via the contempt proceeding, it credited the defendant for the $2416.68 paid by him and subtracted this amount from the total amount of arrearage owed. The plaintiff alleges that the trial court erred by crediting the defendant with this amount.

The plaintiff, however, has failed to brief this argument adequately, and her claim therefore evades meaningful appellate review. Counsel has not researched the issue or formulated any legal argument thereunder. See In re Juvenile Appeal (85-3), 3 Conn. App. 194, 197, 485 A.2d 1369 (1985). We therefore deem this issue to be abandoned. See McGaffin v. Roberts, 193 Conn. 393, 399 n.6, 479 A.2d 176 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1747, 84 L. Ed. 2d 813 (1985); In re Nicotina T., 9 Conn. App. 598, 600 n.3, 520 A.2d 639 (1987); In re Juvenile Appeal (85-3), supra, 197-98; New England Whalers Hockey Club v. Nair, 1 Conn. App. 680, 682 n.2, 474 A.2d 810 (1984).

VII

In her final claim of error raised in her cross appeal, the plaintiff alleges that the trial court erred in refusing to award her counsel fees. The trial court refused to order the defendant to pay the plaintiffs counsel fees because he found that she “will have sufficient funds to pay her own attorney.”

Ordinarily, the trial court must consider the statutory criteria provided in General Statutes §§ 46b-62 and 46b-82 in determining whether to award counsel fees; Turgeon v. Turgeon, 190 Conn. 269, 280-81, 460 A.2d 1260 (1983); and its discretion in awarding such fees is rarely disturbed. Id., 281. In this case, however, the parties had provided for the payment of counsel fees in their separation agreement. Paragraph 11.3 provided that “[i]n the event that it shall be determined by a court of competent jurisdiction that either party shall have breached any of the provisions of this Agreement or of any court decree incorporating by reference or otherwise this Agreement . . . the offending party shall pay to the other party reasonable attorney’s fees

The trial court, therefore, should not have based its decision to refuse to award counsel fees upon the financial ability of the plaintiff to pay for her own attorney. Rather, the court should have relied on the relevant provisions of the separation agreement. Although the court did not find that the defendant was in contempt, it did find that an arrearage was owed by the defendant for past due back support. It made no finding, however, as to whether the failure of the defendant to pay past due child support was a breach of the separation agreement. It is necessary, therefore, to remand this case to the trial court for a determination of whether there was a breach of the separation agreement, and, if so, for a determination of the amount of reasonable attorney’s fees to be awarded to the plaintiff.

There is no error on the appeal; there is error in part on the cross appeal, the judgment is set aside as to the refusal to award attorney’s fees and the case is remanded for further proceedings in accordance with this opinion.

In this opinion the other judges concurred.

       In its memorandum of decision, the trial court originally stated: “[W]e are not holding the defendant in contempt because we do not believe his failing to pay the plaintiff represented a willful flaunting of the Court’s order. He is, however, ordered to pay within sixty days $23,140.46 for Geoffrey, and $7138 for the calendar year 1982, less a credit of $1331.36 for 1983, or a total due the plaintiff of $28,955.10.”
      After the parties filed motions for articulation, however, the trial court recalculated the amount of the arrearage, stating that “[t]he net effect of these recalculations is that Mr. Goold is entitled to a credit for 1983 of $1868, and a further credit for 1980 in the amount of $468.99.” The trial court therefore calculated the total amount of arrearage owed by the defendant to the plaintiff to be $27,952.46.

       Cases holding that a father is not entitled to credit as a matter of law include: Shaddix v. Shaddix, 447 So. 2d 808 (Ala. Civ. App. 1984); Marsh v. Marsh, 426 So. 2d 847 (Ala. Civ. App. 1983); Nooner v. Nooner, 278 Ark. 360, 645 S.W.2d 671 (1983); Baker v. Baker, 667 P.2d 767 (Colo. App. 1983);
        Raybuck v. Raybuck, 451 So. 2d 540 (Fla. App. 1984); Martinez v. Martinez, 383 So. 2d 1153 (Fla. App. 1980); Davis v. Davis, 251 Ga. 391, 306 S.E.2d 247 (1983); Olson v. Olson, 445 N.E.2d 1386 (Ind. App. 1983); Peterson v. Peterson, 365 N.W.2d 315 (Minn. App. 1985); Klinge v. Klinge, 663 S.W.2d 418 (Mo. App. 1983); Hadford v. Hadford, 633 P.2d 1181 (Mont. 1981); Hildahl v. Hildahl, 601 P.2d 58 (Nev. 1979); Evans v. Craddock, 61 N.C. App. 438, 300 S.E.2d 908 (1983); Eagen v. Eagen, 292 Or. 492, 640 P.2d 1019 (1982); Bradley v. Fowler, 30 Wash. 2d 609, 192 P.2d 969 (1948).

       Cases holding that credit may be allowed where equitable circumstances dictate such result include: Headley v. Headley, 277 Ala. 464, 172 So. 2d 29 (1964); Nabors v. Nabors, 354 So. 2d 277 (Ala. Civ. App. 1978); Cole v. Cole, 101 Ariz. 382, 420 P.2d 167 (1966); Isler v. Isler, 425 N.E.2d 667 (Ind. App. 1981); Brady v. Brady, 225 Kan. 485, 592 P.2d 865 (1979); Dalton v. Dalton, 367 S.W.2d 840 (Ky. App. 1963); Stemme v. Stemme, 351 S.W.2d 823 (Mo. App. 1961); McCrady v. Mahon, 400 A.2d 1173 (N.H. 1979); Evans v. Craddock, 61 N.C. App. 438, 300 S.E.2d 908 (1983); Beverly v. Beverly, 43 N.C. App. 60, 257 S.E.2d 682 (1979); Briggs v. Briggs, 178 Or. 193, 165 P.2d 772 (1946); Schafer v. Schafer, 95 Wash. 2d 78, 621 P.2d 721 (1980).

       In his brief, the defendant alleges that he introduced testimony indicating that he had expended a total of $33,733 for the benefit of Geoffrey during the two years that Geoffrey lived with him. Although the court found that the defendant had spent “a lot of money” on Geoffrey during that time period, it refused to credit the defendant for any amount, and ordered that he pay the plaintiff $23,140 for child support for Geoffrey.
      Following the trial court’s decision, the defendant moved for an articulation requesting the trial court to make a finding of fact of the amounts expended by the defendant for Geoffrey during the two-year time period in question. The trial court denied such request, and stated that the decision made clear its opinion “that this amount is irrelevant because the defendant is not entitled to a credit for payments made for his son for the reasons explained in the decision.” The defendant thereafter filed a motion for review in this court, requesting that we compel the trial court to make the requested findings. We denied the defendant’s requested relief. In his supplemental brief, the defendant alleges that the trial court erred in its refusal to make the requested findings of fact. We do not find error in the trial court’s refusal to make such findings under the circumstances of this case.

       Article V, Paragraph 5.7, of the separation agreement provided: “Should the children be entitled to any scholarship or other educational benefits by reason of any Federal or State law, the parties shall cooperate with one another to the extent that such benefits are available, and the amount received shall be a credit to the HUSBAND’S obligation for the payment of educational expenses.”

       Article V, Paragraph 5.9 of the separation agreement provided: “If the HUSBAND is paying all of the education expenses for any one child as provided in this Article, the HUSBAND shall be entitled to a credit of $100 per month for such child to be applied to the payments to the WIFE that the HUSBAND is obligated to make for alimony and support under Article II of this Agreement during the months of September up to and including May of each school year that the child is living away from home.”

       Article III, Paragraph 3.2, of the separation agreement provided: “Without limiting the generality of the foregoing, the HUSBAND shall pay all transporation costs and expenses of the children incurred during the time when they are with the HUSBAND, including the costs of food and lodging and the HUSBAND shall not be entitled to any deduction from any payments to the WIFE on account of amounts expended by him during the exercise of his visitation rights.”

       In his brief, the defendant argues that our holding in Guss v. Guss, 1 Conn. App. 356, 472 A.2d 790 (1984), establishes that credit can be given in a case in which the wife no longer has custody of the children. That case, however, is inapposite to the present ease. In Guss, we reversed a trial court’s sua sponte modification of a child support order. In doing so, we noted that although ordinarily such a reversal of a modification of an award for support would require the obligated spouse to make payment in accordance with the decree, the unique circumstances of the case required that “we fashion an adequate remedy for any monetary burden to the plaintiff arising out of his custody of the children from the time of the trial court’s decision effectively granting him custody until the time of a definitive order of custody.” Id., 363. We therefore determined that “the question of what amount, if any, should have been deducted from the [wife’s] unallocated award of alimony and support should remain in abeyance until such time as a hearing is held on custody, and the parties, upon proper motion . . . have introduced whatever evidence is available or necessary to show what sums, if any, were warranted in reduction of the [wife’s] award during the time the [husband] has had custody of their children. ” (Emphasis added.) Id., 362-63.
      In reaching this conclusion, we noted that the husband had custody of the two children for more than three years pursuant to the trial court’s modification of the custody award. Moreover, we noted that the parties had specifically provided in their separation agreement that the monthly child support payments “ ‘shall be reduced by the sum of $350 per month or by such sums as may be allocated to child support at that time as each child . . . ceases to reside with the Wife under such circumstances where the Wife is no longer furnishing such child support . . . . ’ ” Id., 362. Because of this provision in the parties’ separation agreement, and because the husband had no opportunity to show that the monetary needs of the children may not have been equal, or that the need of either one was lesser in amount than $350, we recognized that after an appropriate hearing, a reduction of the child support award may have been appropriate under the unique circumstances of the case. Such circumstances are not presented in the present case, and we therefore find that the limited holding of Guss does not apply to this case.

       In her brief in support of her motion for contempt, the plaintiff provided that her calculations of the defendant’s total income in 1982 was $154,585, and $145,930 in 1983. The trial court subsequently found that the defendant’s income was $154,585 in 1982 and $139,339.60 in 1983.

       In declining to review the defendant’s claim of error, we note that his claim does not involve a simple calculation error that can be readily corrected by this court. Cf. Swayze v. Swayze, 176 Conn. 323, 336-37, 408 A.2d 1 (1978). Although the agreement provided for income to include “net rental income,” that term is not defined in the agreement. The agreement, therefore, did not provide that “net rental income” for purposes of computing income for child support payments would be whatever figure was designated as net rental income on the defendant’s tax return. See Sturtevant v. Sturtevant, 146 Conn. 644, 648, 153 A.2d 828 (1959). The trier of fact, if properly apprised of the defendant’s claim, would have had to determine the meaning of “net rental income” as used by the parties in the agreement.

       The defendant originally claimed that the trial court erred in including $6434.83 in its computation of his income without evidence to support such a conclusion. That sum was added to the defendant’s income in the trial court’s original memorandum of decision. In response to a motion for articulation, however, the trial court recognized that “counsel have agreed that there was no evidence as to the source of the funds, i.e., whether Mr. Goold, or his new wife, produced this income.” On this basis, the trial court modified its decision to include $3217.42, one half of the disputed amount, in the defendant’s income for 1983.

       In its memorandum of decision, the trial court stated: “In 1983, the defendant received a distribution of $16,330.17 from the General Foods Thrift Investment Plan. In 1979, Mr. Goold had contributed $5184 and his employer $4406.40 for a total of $9590.40. His profit in 1983 is the difference between the amount distributed and the contributions, or $6739.77 ($16,330.17 minus $9590.40).”

       In its supplemental decision filed in response to an order from this court, the trial court stated that $2416.68 was paid by the defendant as post-majority support for Jennifer. It added: “In order to clarify this point further, I should point out that I credited this amount, $2416.68, to Mr. Goold because it had been paid for the benefit of someone who had reached her eighteenth birthday, and was therefore not enforceable through the plaintiffs contempt motion. In other words, I determined what Mr. Goold should have paid for child support over the year in question, what he actually paid, and then ordered that he pay the balance to Mrs. Goold, but credited him also with the above amount paid on behalf of Jennifer for the four months after her eighteenth birthday.”

       General Statutes § 46b-66 was amended in 1977 to include the following: “If the agreement is in writing and provides for the care, education, maintenance or support of a child beyond the age of eighteen, it may also be incorporated or otherwise made a part of any such order and shall be enforceable to the same extent as any other provision of such order or decree

       General Statutes § 46b-62 provides in pertinent 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 pertinent part: “In determining whether alimony shall be awarded . . . the court . . . 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.”


text:
    Michael J. Gibbs et al. v. I. Anthony Mase
    (4699)
    Dupont, C. J., Hull and Daly, Js.
    Submitted on briefs February 10
    decision released May 29, 1987

      Daniel V. Presnick filed a brief for the appellants (plaintiffs).

      Edward P. McCreery III filed a brief for the appellee (defendant).
   Dupont, C. J.

The plaintiffs, a husband and wife, appeal from the order of the trial court which reduced the sum of a prejudgment remedy of attachment of the defendant’s property. This court previously decided that the appeal was untimely and therefore dismissed the appeal. Gibbs v. Mase, 10 Conn. App. 144, 523 A.2d 506 (1987). After reconsideration, we find that the untimely filing of the appeal was not a jurisdictional defect because of our Supreme Court’s holding in Giordano Construction Co. v. Ross, 182 Conn. 577, 438 A.2d 772 (1980), and that the plaintiff’s appeal was properly before this court. This opinion, therefore, supersedes our previous opinion.

The plaintiffs purchased a home which was built and sold by the defendant. After subsequently discovering defects in the home, the plaintiffs brought a five count complaint against the defendant, claiming unworkmanlike construction, breach of warranty, and a breach of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. On May 29,1985, the plaintiff obtained an ex parte attachment of the defendant’s property in the amount of $23,232, pursuant to General Statutes § 52-278e.

On August 21,1985, the defendant brought a motion to dissolve or modify the ex parte prejudgment attachment. A probable cause hearing was held on November 6, 1985, in which the parties introduced expert testimony as to damages. The trial court concluded that the plaintiffs did not establish that they would prevail on their CUTPA claim. Moreover, the trial court found that the reasonable cost of correction, with interest and costs, was $2500. The trial court therefore granted the defendant’s motion, and reduced the amount of the attachment to the sum of $2500.

The sole claim of error raised by the plaintiffs on appeal is that the trial court erred in holding that they did not establish probable cause that the defendant had violated the provisions of CUTPA.

I

Before we reach the substance of the plaintiffs claim, we must determine if the trial court’s action was an appealable final judgment. City National Bank v. Davis, 181 Conn. 42, 44, 434 A.2d 310 (1980); Babiarz v. Hartford Special, Inc., 2 Conn. App. 388, 390, 480 A.2d 561 (1984). Not all orders which grant or deny a motion to modify a prejudgment remedy are final judgments. A defendant may bring a motion for the modification of a prejudgment remedy pursuant to either of two statutes: General Statutes § 52-278e, or General Statutes § 52-278k. Section 52-278e provides that a defendant “may move to dissolve or modify the prejudgment remedy ... in which event the court shall proceed to hear and determine such motion expeditiously.” An order modifying a prejudgment remedy pursuant to § 52-278e is an appealable final judgment. General Statutes § 52-2781. Section 52-278k, on the other hand, provides that “[t]he court may . . . upon motion and after hearing, at any time modify or vacate any prejudgment remedy heretofore granted upon the presentation of evidence . . . . ” An order modifying a prejudgment remedy pursuant to a motion brought under § 52-278k is a nonappealable interlocutory order “because it is not within those orders listed as ‘final judgments] for purposes of appeal’ under General Statutes § 52-2781 (a).” Babiarz v. Hartford Special, Inc., supra, 390, citing City National Bank v. Davis, supra, 45-46.

In the present case, the trial court’s order which reduced the amount of the attachment of the defendant’s property was issued when it granted the defendant’s motion. That motion, however, does not indicate which section the defendant relied upon. In order to determine whether the trial court’s action was an appealable final judgment, therefore, we must first determine which section applies to the defendant’s motion.

In City National Bank v. Davis, supra, 46, our Supreme Court distinguished the two sections by stating that orders under § 52-278e “operate in a different time frame than do orders under § 52-278k.” Section 52-278k permits a motion for the modification of a prejudgment remedy to be brought at any time. Section 52-278e, on the other hand, does not contain any time period within which a defendant is directed to bring a motion to dissolve or modify the prejudgment remedy. The court noted that motions brought under § 52-278e should be “prompt” because “[i]t is entirely appropriate to allow prompt appeal from promptly contested prejudgment orders but not to afford the same priority to the unsuccessful belated reopening of such claims.” Id. (Emphasis added.) The court did not provide, however, the test by which to determine a “promptly contested prejudgment order.” In City National Bank, prejudgment remedies of attachment and garnishment were ordered after a probable cause hearing in 1976. The defendants moved, pursuant to General Statutes § 52-278k, to vacate the previously ordered prejudgment remedies two years later in 1978. The defendants thereafter appealed from the trial court’s denial of their motion.

The defendant in the present case filed his motion to dissolve or modify the prejudgment order less than three months after the trial court’s original prejudgment order. We find that this prejudgment order was promptly contested, and that the defendant’s motion was brought pursuant to § 52-278e. The trial court’s order which reduced the attachment, therefore, was an appealable final judgment, and the plaintiffs’ claim is properly before this court.

II

The plaintiffs’ principal argument is that, by proving that the defendant had signed a contract in which he had made statements that certain work would be performed on his property which was subsequently not performed, they clearly established probable cause that the defendant had violated the provisions of CUTPA. That statute provides that “no person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.” General Statutes § 42-110b. The plaintiffs claim that the trial court erred when it held that there was probable cause on the breach of contract counts of the complaint, but not on the CUTPA count of the complaint.

In deciding prejudgment remedy motions, the trial court “must evaluate the arguments and evidence produced by both parties.” Augeri v. C. F. Wooding Co., 173 Conn. 426, 429, 378 A.2d 538 (1977). The trial court, however, need not make a full and final decision on the factually and legally complex issues as were raised by the plaintiffs’ CUTPA claim, as the probable cause hearing “is not intended to be a full-scale trial on the merits.” Id. Rather, the trial court, in ruling upon the defendant’s motion, need only weigh the evidence presented and “determine probable success by weighing probabilities.” Three S. Development Co. v. Santore, 193 Conn. 174, 176, 474 A.2d 795 (1984). The trial court necessarily has broad discretion in reaching this determination, and is not to be overruled in the absence of clear error. Id.; Augeri v. C. F. Wooding Co., supra.

Our role in reviewing the decision of the trial court is even more circumscribed than that of the trial court. Babiarz v. Hartford Special, Inc., supra, 393. As such, we are not to duplicate the trial court’s weighing process. Instead, our review is limited to determining whether the trial court’s conclusion was reasonable. Id. “In the absence of clear error, this court should not overrule the thoughtful decision of the trial court, which has had an opportunity to assess the legal issues which may be raised and to weigh the credibility of at least some of the witnesses.” Augeri v. C. F. Wooding Co., supra.

Our Supreme Court has recognized that in determining whether a practice violates CUTPA, the trial court must determine: “ ‘ “(1) [W]hether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise—whether, in other words, it is within at least the penumbra of some common law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers [(competitors or other businessmen)].” ’ ” Sportsmen’s Boating Corporation v. Hensley, supra, 756, quoting McLaughlin Ford, Inc. v. Ford Motor Co., 192 Conn. 558, 568, 473 A.2d 1185 (1984).

The fact that the trial court found that the plaintiffs had established probable cause that they would prevail on the breach of warranty counts of their complaint does not imply or necessitate an automatic finding by the trial court of a violation of CUTPA. The plaintiffs must also establish that the breach of warranty offended public policy, was immoral or unscrupulous, or had an injurious effect on the consumer. In its memorandum of decision, the trial court noted that after hearing the witnesses, it attributed very little weight to the testimony of the plaintiffs’ witnesses. The reasonable cost of correction resulting from the defendant’s breach of warranty was assessed to be only $1750. The trial court could reasonably have concluded, therefore, that the defendant’s breach of the contract was not offensive to public policy. We find, therefore, that the trial court’s conclusion that the plaintiffs would not prevail in their CUTPA claim was reasonable.

There is no error.

In this opinion the other judges concurred.

       Although we are bound to follow the precedent established by our Supreme Court in Giordano Construction Co. v. Ross, 182 Conn. 577, 438 A.2d 772 (1980), it is our opinion that it might be appropriate for the Supreme Court to reconsider the per curiam holding of that case. In Giordano, the court held that an “untimely filing of an appeal is merely an irregularity and not a jurisdictional defect.” Id., 579. In reaching the conclusion that “[t]he fact that the appeal statute specifies a time period in which to take an appeal does not mean that an appeal taken beyond the specified time is void”; id.; the court cited as authority LaReau v. Reincke, 158 Conn. 486, 493, 264 A.2d 576 (1969). That case, however, involved an appeal brought beyond the twenty-day time period prescribed by our rules of practice. Time limitations set forth in our rules of practice are not legislatively created conditions precedent to the jurisdiction of this court. Id., 492. In our opinion, however, if a statute, such as General Statutes § 52-2781, establishes appellate jurisdiction and provides for an unambiguous and specific time period within which to bring an appeal, the existence and extent of such appellate jurisdiction should be strictly limited to that time period. See Basilicato v. Department of Public Utility Control, 197 Conn. 320, 322, 497 A.2d 48 (1985); LaReau v. Reincke, supra, 492; Johnson v. Carlson, 4 Conn. L. Trib. No. 52, p. 14 (Appellate Session of the Superior Court at Hartford, No. 349) (1978). In our opinion, such requirement cannot be waived.
      The granting or denial of a prejudgment remedy is an order issued prior to final judgment. Appeals from such orders presently exist under the statutory authority of General Statutes § 52-2782. Cf. E. J. Hansen Elevator, Inc., v. Stoll, 167 Conn. 623, 630, 356 A.2d 893 (1975). That statute specifically provides that “[n]o such appeal shall be taken except within seven days of the rendering of the order from which the appeal is to be taken.” Our legislature, while permitting appeals from such interlocutory orders, has clearly mandated that such appeals be brought within seven days of the rendering of the trial court’s order. The nature of a prejudgment remedy warrants the prompt resolution by appellate process of disputes arising from the granting or denying of such a remedy. Section 52-2782, therefore, permits the immediate appeal from orders relating to a prejudgment remedy. City National Bank v. Davis, 181 Conn. 42, 46, 434 A.2d 310 (1980). To hold that an appeal brought beyond this particular statutorytime limitation is not a jurisdictional defect is, in our opinion, to ignore and disregard a legislative directive. Because the right of appeal is purely statutory, it should be accorded only “if the conditions fixed by statute . . . are met.” DeTeves v. DeTeves, 202 Conn. 292, 295, 520 A.2d 608 (1987), citing Prevedini v. Mobil Oil Corporation, 164 Conn. 287, 293, 320 A.2d 797 (1973); see also Viola v. Dial Tone Lounge, Inc., 4 Conn. L. Trib. No. 28, p. 9 (Appellate Session of the Superior Court at Hartford, No. 503) (1978). It is our view that the legislative mandate provided in § 52-2782 should be followed.

       In the first count of his revised complaint, the plaintiff alleged negligence and unworkmanlike construction. In the second count of the complaint, the plaintiff alleged that the defendant breached an express warranty in violation of General Statutes § 47-117 (a) (1), and in the third and fourth counts, the plaintiff claimed that the defendant breached an implied warranty in violation of General Statutes § 47-118 (a) and (c). In the fifth count, the plaintiff alleged that the actions of the defendant constituted unfair or deceptive acts in violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq.

       General Statutes § 52-278e provides in pertinent part: “(a) The court or a judge of the court may allow the prejudgment remedy to be issed by an attorney without hearing as provided in sections 52-278c and 52-278d upon verification by oath of the plaintiff or of some competent affiant, that there is probable cause to sustain the validity of the plaintiffs claim and (1) that the prejudgment remedy requested is for an attachment of real property . . . . ”

       In reducing the amount of the attachment to $2500, the court found the reasonable cost of correction to be $1750, and thereafter added a reasonable allowance for interest and costs.

       Although a defendant in an action is able to bring a motion for modification of a prejudgment remedy pursuant to either General Statutes §§ 52-278e or 52-278k, a plaintiff is able to bring such a motion only pursuant to § 52-278k, because § 52-278e "contemplates only a motion to modify filed by a defendant.” Barbiarz v. Hartford Special, Inc., 2 Conn. App. 388, 390 n.3, 480 A.2d 561 (1984), citing Common Condominium Assns., Inc. v. Common Associates, 192 Conn. 150, 152-53, 470 A.2d 699 (1984).

       The defendant’s motion is entitled “Motion to Dissolve or Modify a Prejudgment Attachment Granted Without Hearing.” The motion does not, however, indicate which section it was brought under.