author: FLYNN, J.

text:
    DEIRDRE ANN KINIRY v. ANTHONY J. KINIRY

    (AC 21175)
    Spear, Flynn and Daly, Js.
    Argued March 27 —
    officially released August 20, 2002

      Gary I. Cohen, for the appellant (defendant).

      Mary Ellen Wynn, for the appellee (plaintiff).

       On February 19, 2003, the defendant’s motion for reconsideration was granted. This decision was subsequently affirmed. See Kiniry v. Kiniry, 79 Conn. App. 378, 830 A.2d 364 (2003).

   Opinion

FLYNN, J.

The defendant, Anthony J. Kiniry, appeals from the judgment of the trial court dissolving his marriage to the plaintiff, Deirdre Ann Kiniry. On appeal, the defendant claims that the court improperly (1) ordered him to pay alimony and child support out of an asset that was awarded to him as part of the court’s equitable distribution of the marital property, (2) awarded to the plaintiff a portion of the nonvested stock that the defendant had earned as compensation for employment that did not commence until after the separation of the parties and the filing of the dissolution action, and (3) calculated the percentages and dollar amounts of the assets to be allocated to each of the parties. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of this appeal. The parties married on May 16, 1981. There were four minor children bom of the marriage. Their ages at the time of trial were seventeen, fifteen, twelve and ten. Each party was forty-two years old and in good health at the time of trial.

Both parties received their undergraduate degrees from the University of Connecticut. Thereafter, the plaintiff was employed at an executive search firm in New York City. The defendant began his career on Wall Street as an over-the-counter clerk. Both parties realized great success in their respective fields in a relatively short period of time. The plaintiff became a co-owner of the executive search firm where she had been working and was earning approximately $250,000 to $300,000 per year from the mid-1980s until 1990, when she ceased working after giving birth to the parties’ fourth child. The defendant earned approximately $1 million per year in 1992 and 1993, $445,000 in 1994, and between $700,000 and $1.5 million per year thereafter. The defendant’s earnings generally consisted of a base salary and a substantial year-end bonus, which bonus was paid to him at the beginning of the following year.

From the very beginning of the marriage, the parties adopted an affluent style of living, regularly spending more than the substantial amount of money that they earned. They financed this lifestyle by short-term borrowing and running up credit card debt, which they later paid down after receiving the defendant’s year-end bonus at the start of the following year. In 1987, the couple moved from New Jersey to Connecticut and purchased a home in New Canaan. It was at about that time that problems had begun to develop in the marital relationship, for which the trial court found that each party bore some responsibility.

In 1996, the defendant entered into a two year employment agreement with Deutsche Bank, which provided him with compensation of $1.2 million per year. On February 20, 1998, the plaintiff brought this action against the defendant for a dissolution of their marriage on the ground of irretrievable breakdown. In October, 1998, the defendant lost his job at Deutsche Bank and in November of that year, he moved out of the family home. On January 3, 1999, the defendant began working with the First Boston division of Credit Suisse Bank, where he was to earn a base salary of $150,000 per year, plus a guaranteed bonus of $850,000 for the first year of employment. The defendant’s actual earnings for 1999 totaled $1,482,126. Those earnings were comprised of the defendant’s base salary of $142,212, his year-end performance bonus, which included $929,283 in cash, and $328,505 in vested and nonvested stock awards, and a longevity bonus of $82,126. Although the defendant earned all of this compensation during 1999, he did not receive his bonus until sometime in February, 2000. His after-tax cash bonus was deposited in a U.S. Trust savings account. According to the defendant’s March 8, 2000 financial affidavit, the balance in that account totaled $470,000. Further, in July, 1999, the parties sold the marital home and placed the net proceeds of the sale into an escrow account.

After finding both parties responsible for the marital breakdown, the court noted that after the plaintiff had filed for dissolution, the defendant made a series of expenditures, including vacations and clothing purchases, $30,000 of which the court found was unreasonable and excessive. It further noted that although the plaintiff has significant earning capacity, her earning capacity is limited at the present time because of the time she dedicates to raising the four minor children of the marriage. It also noted that the plaintiff presently works part time and earns approximately $5000 per month but that in about five years, when her youngest child attains high school age, she should be able to return to a full work schedule with earnings equal to or greater than her prior earnings. Although the parties were awarded joint legal custody of the four minor children, the plaintiff was designated the primary residential parent.

The court “carefully considered the criteria set forth in General Statutes §§ 46b-81, 46b-82, 46b-84, and the applicable case law,” and ordered the defendant to pay the plaintiff, as unallocated alimony and child support, the sum of $40,000 per month for the five year period commencing August 15, 2000, the date of the court’s decision, through August 15, 2005. *The court also divided the marital assets at that time. The court’s division of the following three assets are relevant to the defendant’s claims in this appeal: (1) the proceeds from the sale of the marital home, which were being held in an escrow account, were divided “43.5 percent ($209,398) to the plaintiff and 46.5 percent ($271,976) to the defendant”;(2) the $470,000 balance in the U.S. Trust savings account was divided “41.486 percent ($194,983) to the plaintiff and the balance of 58.514 percent to the defendant”; and (3) the defendant’s vested and nonvested Credit Suisse Bank stock awards, including any longevity award, were divided “60 percent to the plaintiff and 40 percent to the defendant if, as, and when received by the defendant.” Additional facts will be set forth as necessary.

We now turn to the claims raised by the defendant in this appeal. The defendant first claims that the court improperly ordered him to pay alimony and child support out of an asset that it had awarded to him as part of its equitable distribution of the marital property. The defendant makes two claims in support of this argument. First, he claims that the court improperly ordered him to pay alimony and child support from his equitable share of the funds contained in the U.S. Trust savings account. The plaintiff points out, however, that the court’s memorandum of decision does not require the defendant to pay the $40,000 unallocated order out of his share of the U.S. Trust account. She states in her brief that “the decision does not compel any particular solution for his cash flow problem.” We agree with the plaintiff.

At the outset, we note our standard of review. “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.” (Internal quotation marks omitted.) Wendt v. Wendt, 59 Conn. App. 656, 660, 757 A.2d 1225, cert. denied, 255 Conn. 918, 763 A.2d 1044 (2000).

The following additional facts are relevant to our resolution of this claim. The defendant presently earns a gross base salary of $165,000 per year, or $13,750 per month. It is not until February of the following year that the defendant receives the lion’s share of his earnings, which is the guaranteed bonus that he has earned in the previous year. He claims that in ordering him to make alimony and child support payments of $40,000 per month beginning August 15,2000, despite its knowledge that his gross monthly income would remain at $13,750 per month until he received his bonus in February, 2001, the court was requiring him to meet alimony and child support payments by depleting an asset that it had awarded to him as part of the equitable property distribution. He contends that the court was effectively ordering him to deplete his share of the funds in the U.S. Trust account because it knew that this was the only way he could meet his alimony and child support obligations.

We disagree with the defendant’s characterization of the court’s order. A careful reading of the court’s memorandum of decision supports the plaintiffs argument that the court did not compel the defendant to pay the unallocated alimony and child support order from the U.S. Trust account or from any other asset. In addition, the record is devoid of any finding by the court that the only way that the defendant could comply with the order was to deplete the assets that he had been awarded in the marital property distribution. To the contrary, the record reveals that the court was cognizant of how and when the defendant was to receive his earnings. The court specifically noted, however, that the defendant had significant borrowing power and that the parties had routinely borrowed substantial sums of money in the past as a means of financing their lifestyle. There was no indication that the defendant could not continue to employ that method of meeting expenses if he chose to do so. On the basis of the record, we conclude that the court did not order the defendant to meet his alimony and child support obligations by depleting his share of the funds in the U.S. Trust account or by using any other asset.

Second, the defendant claims that the court’s decision was improper because it had the effect of requiring him to deplete an asset to pay alimony and child support and is, therefore, contrary to this court’s holding in Schorsch v. Schorsch, 53 Conn. App. 378, 731 A.2d 330 (1999). Specifically, the defendant argues that the court’s decision is contrary to Schorsch because it effectively treats the defendant’s share of cash contained in the U.S. Trust account as both an asset and income. He claims that although the court awarded him a portion of that pool of cash as an asset, it then required him to pay over that same asset to the plaintiff in the form of alimony and child support payments as if it were part of his year 2000 income. We disagree.

An analysis of our decision in Schorsch leads us to conclude that the holding in that case is inapplicable here. In Schorsch, the defendant was seeking a postdis-solution modification of his alimony payments. The issue before the court in that case was whether cash, which was realized as a result of the sale of real property awarded to the defendant in the dissolution decree, later should be treated as income for purposes of determining whether there were changed circumstances sufficient to justify a modification decreasing alimony to the other spouse. We held that the trial court improperly included as income the cash generated from the sale because “[t]he mere exchange of an asset awarded as property in a dissolution decree, for cash, the liquid form of the asset, does not transform the property into income.” (Internal quotation marks omitted.) Id., 385.

The present case does not involve a postdissolution modification as did Schorsch. Further, the defendant’s share of the cash in the U.S. Trust account was not treated as both an asset and as income. It was treated solely as an asset, albeit one that represented the residue of the defendant’s 1999 earnings. It is not, as contended by the defendant, being transformed by the court into a part of the defendant’s year 2000 income simply because he may have felt compelled to use some, or all, of his share of the cash in that account during the 2000 calendar year to pay alimony and child support.

Further, although it is true, as the defendant points out, that he presently receives only $13,750 as his gross base monthly income, the fact remains that the defendant’s actual income far exceeds his base salary. Pursuant to §§ 46b-82 and 46b-84, the statutory provisions governing alimony and child support, respectively, the court cannot ignore the fact that the defendant receives a substantial year-end bonus simply because it is not received until the following year. In determining whether alimony shall be awarded, and the duration and amount of the award, and the amount of child support to be awarded, the court must consider all of the criteria set forth in §§ 46b-82 and 46b-84, including the “amount and sources of income” of each party. We note that those statutory provisions do not, however, require the court to structure the payment of alimony and child support to accommodate the payor’s compensation schedule.

The record reveals that the court took into consideration all of the statutory criteria set forth in §§ 46b-82 and 46b-84. The record also reveals that the court did not order the defendant to pay alimony and child support out of an asset that was awarded to him as part of the court’s equitable distribution of the marital property and did not simultaneously treat the defendant’s share of funds in the U.S. Trust account as both an asset and as income. We therefore conclude that the court did not abuse its discretion because it properly applied the law and reasonably rendered its orders on the basis of the facts.

Having addressed the defendant’s first claim, we now turn to his second claim. The defendant next claims that the court improperly distributed to the plaintiff a 60 percent share of the nonvested stock awards. Specifically, he maintains that the court “committed plain error in awarding [to the plaintiff] any share of the nonvested incentive stock awards earned by [the defendant] in a job that he did not even have until” after the parties had separated and the dissolution action was commenced.

The defendant cites our Supreme Court’s decision in Bornemann v. Bornemann, 245 Conn. 508, 752 A.2d 978 (1998), and this court’s decision in Hopfer v. Hopfer, 59 Conn. App. 452, 757 A.2d 673 (2000), in support of his argument that the court improperly awarded any share of the nonvested stock awards to the plaintiff because they were earned after the parties had separated and after the dissolution action was begun. At the outset, we note that it is unclear from the defendant’s brief whether he contends that the court’s distribution of the nonvested stock awards was improper because they were not marital property or whether he contends, instead, that the distribution was improper because the nonvested stock awards, although marital property, were the product of the defendant’s efforts alone and, therefore, the plaintiff was not entitled to share the fruits of those efforts. We, nonetheless, conclude that the cases that the defendant has cited do not support either argument and, therefore, both claims fail.

We reiterate the applicable standard of review. “The standard of review in family matters is that this court will not disturb the trial court’s orders unless it has abused its legal discretion or its findings have no reasonable basis in fact. . . . [T]he factual findings of a trial 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.” (Citations 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).

The defendant first seems to contend that the non-vested stock options were not properly distributable under § 46b-81 (a) because they were not marital assets. He cites to our Supreme Court’s decision in Bornemann v. Bornemann, supra, 245 Conn. 508, and this court’s decision in Hopfer v. Hopfer, supra, 59 Conn. App. 452, in support of this argument. We conclude that neither case supports the defendant’s argument.

In Bornemann, our Supreme Court held that non-vested stock options could properly be considered marital property. Bornemann v. Bornemann, supra, 245 Conn. 518-20. It explained that to be considered marital property, however, the court must first determine whether the stock options were earned during the marriage. Id., 521-22. That determination is made by considering the purpose of the award, that is, whether the options constitute compensation for past or future services. Id. On the one hand, stock options that are awarded prior to the date of dissolution and awarded solely for past services are considered to be earned during the marriage and are, therefore, considered marital property subject to equitable distribution under § 46b-81. See id., 522-29. On the other hand, stock options that are earned prior to the date of dissolution, but that constitute compensation for future services, are not considered to be earned during the marriage and, therefore, are not subject to distribution as marital property under § 46b-81. Id.; see also Hopfer v. Hopfer, supra, 59 Conn. App. 457-58.

In the present case, the defendant does not claim that the nonvested stock awards constituted compensation for future services and were, therefore, an after-acquired asset, one that was not earned during the marriage. He claims, instead, that the nonvested stock awards are nonmarital property simply because they were earned after the date of separation. Bomemann does not support that conclusion. In Bomemann, our Supreme Court explained that although “the date of separation may be of significance in determining what is equitable at the time of distribution,” “§ 46b-81 indicates that it is the date of dissolution, rather than the date of separation, on which the [parties’] marital assets are to be determined.” Bornemann v. Bornemann, supra, 245 Conn. 536-37. Accordingly, we conclude that the date of the parties’ separation was relevant only to how the marital assets were to be apportioned between the parties; it was not relevant to determining whether or not the nonvested stock awards were marital property.

Like the trial court in Bomemann, the court in the present case did not expressly state that it determined the nonvested stock awards to be marital property subject to distribution under § 46b-81. “Implicit in its decision to distribute the [nonvested stock awards] without identifying any portion of them as after-acquired property, however, is its conclusion that the [nonvested stock awards] were marital property in their entirety. Because we have already concluded that the [awards] would constitute marital property if they were earned during the marriage, we review whether the trial court properly could have concluded that the [nonvested stock awards] were earned entirely during the marriage.” Id., 526-27. In doing so, our review is guided by the well established principle that “[t]he resolution of conflicting factual claims falls within the province of the trial court . . . [and] [t]he trial court’s findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole.” (Internal quotation marks omitted.) Id., 527.

We conclude that, in the present case, the court properly could have determined that the nonvested stock awards were earned during the marriage. There was evidence before the court to indicate that the nonvested stock awards were awarded for the defendant’s past services only. Documentation from the defendant’s employer, Credit Suisse Bank, expressly stated that both the vested and nonvested stock awards were to be considered a part of the defendant’s total compensation package for the year 1999. Our review of the record reveals no evidence to the contrary.

On the basis of this evidence, we cannot conclude that the court abused its discretion in determining that the nonvested stock awards constituted marital property and were, therefore, properly distributable under § 46b-81 (a).

The defendant also cites Hopfer v. Hopfer, supra, 59 Conn. App. 452, claiming that our holding in that case supports the proposition that it was improper for the court in the present case to distribute any of the non-vested incentive stock to the plaintiff because it was earned by the defendant after the parties had separated and after the plaintiff commenced the dissolution action. We disagree that our holding in Hopfer supports that proposition. In Hopfer, the stock options were earned by the defendant in a job that he did not begin until more than one year after the plaintiff had filed the dissolution action. Id., 455. We held that the trial court did not abuse its discretion in determining that the nonvested stock options at issue were not marital property. Id., 456-58. Our holding in Hopfer, however, turned on the fact that the trial court had found that the stock options were rendered entirely as incentive for future services-, id., 458; and therefore were not marital property, and not, as the defendant contends, on the fact that the options were earned after the plaintiff had filed her complaint seeking a dissolution.

The defendant also seems to contend that even if the nonvested stock awards constituted marital property subject to distribution under § 46b-81, the court, nonetheless, abused its discretion in awarding any share of those awards to the plaintiff. Specifically, he argues that, in awarding a 60 percent share of the nonvested stock awards to the plaintiff, despite the fact that the parties were separated before the nonvested stock awards were earned, the court failed to consider the respective contribution of the parties to the acquisition of that asset.

Section 46b-81 (c) sets out the factors that the trial court must take into account in assigning property to either of the parties to the dissolution. It provides in relevant part that the court “shall consider the length of the marriage, the causes for the . . . dissolution of the marriage . . . the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income. ...” General Statutes § 46b-81 (c).

In addition to those factors, that subsection also provides that “[t]he court shall also consider the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates.” General Statutes § 46b-81 (c). Thus, “[w]hile the court has discretion to allow or to disallow one spouse to share in the assets acquired by the other after separation ... a court is not prohibited from awarding one spouse a share in the other’s assets no matter when acquired, even if the acquisition occurs after a separation. This is so for two reasons. First, the non-monetary contributions of one spouse, such as the primary care of children and the upkeep of the family home, may have enabled the other spouse to acquire or to retain assets . . . and such contribution can continue after the parties’ separation. Second, assets are valued as of the date of dissolution, rather than as of the date of an earlier separation.” (Citations omitted.) Roach v. Roach, 20 Conn. App. 500, 508, 568 A.2d 1037 (1990).

“Whether the parties made a contribution in the acquisition and preservation of property is a question of fact. . . . Accordingly, this court can reverse the trial court’s finding that the parties contributed equally to the accumulation and growth of the assets held by the parties as of the date of the dissolution only if it is found to be without any reasonable basis in the evidence.” (Citations omitted.) Rolla v. Rolla, supra, 48 Conn. App. 738.

Our review of the record in the present case indicates that the court properly considered the criteria set forth in § 46b-81 (c). The court expressly stated in its memorandum of decision that it carefully considered all of applicable statutory criteria. Further, the court’s memorandum indicates that it considered the age and health of the parties, their station, occupation and employability, the causes of the dissolution, the amount and sources of each party’s income and the opportunity for each to acquire capital assets and income in the future. The court also seemed to give considerable weight to the fact that the plaintiff ceased working after the birth of the couple’s youngest child and, although she possessed substantial earning capacity, has had limited earnings since that time due to the fact that she has chosen to dedicate the majority of her time to raising the couple’s four children. The court noted on the record that “[tjhere is a lot of credit to be given to raising four children, several of whom are teenagers.” Further, the record shows that the plaintiff was the primary caregiver for the couple’s four children in 1999, the time period in which the defendant earned the vested and nonvested stock awards.

On the basis of this evidence, we conclude that it was reasonable for the court to award a portion of the nonvested stock awards to the plaintiff. Accordingly, we cannot conclude that the court abused its discretion in determining that the plaintiff was entitled to 60 percent of the nonvested stock awards “if, as and when received by the defendant.”

Finally, the defendant claims that the court improperly calculated the percentages and dollar amounts of the assets to be awarded to each of the parties. He further claims that where the trial court has based its equitable distribution on erroneous calculations, this court must reverse the judgment and remand the case to the trial court for a new trial. We disagree.

Specifically, the defendant finds fault with the court’s calculations regarding the division of the marital assets set forth in subsections (b) and (d) of paragraph five of the court’s memorandum of decision. First, the defendant contends that paragraph 5 (b), which provides that “[t]he proceeds of the closing of the . . . house, presently being held in escrow, shall be divided . . . 43.5 percent ($209,398) to the plaintiff and 46.5 percent ($271,976) to the defendant”; contains a computation error because although “[t]he court awarded each party both a specific dollar amount and a precise percentage . . . the percentages add up to only 90 percent of the account.” The defendant does not contend that the dollar amounts set forth by the court, which also represent each party’s share of the funds in the account, do not represent the total amount of funds in that account. In other words, he does not contend that the total of the funds in the account was something other than $481,374, the total of $209,398 and $271,976, the plaintiffs and defendant’s dollar shares, respectively.

Although we agree with the defendant that the percentages expressed by the court total only 90 percent, we conclude that the court’s error amounts to a clerical error only. “A trial court possesses the power to modify substantively its own judgment within four months succeeding the date on which it was rendered or passed. ... A court may correct a clerical error at any time, even after the expiration of the four month period.” (Internal quotation marks omitted.) Cusano v. Burgundy Chevrolet, Inc., 55 Conn. App. 655, 659, 740 A.2d 447 (1999), cert. denied, 252 Conn. 942, 747 A.2d 519 (2000). In the present case, the court corrected its clerical error in a memorandum of decision dated August 3, 2001, in which it stated that the escrow account should have been apportioned 56.5 percent to the defendant and not 46.5 percent as previously stated. Furthermore, the apportionment of the funds in the account was not rendered ambiguous by the erroneous percentages originally set forth by the court because the dollar amounts expressed by the court have at all times been correct. The change in the percentage of the escrow account apportioned to the defendant now reconciles with the dollar amount apportioned to him. Accordingly, we conclude that the court did not base its distribution of the funds in the escrow account on an improper calculation.

Second, the defendant claims that paragraph 5 (d) of the memorandum of decision apportions the balance in the U.S. Trust account to each of the parties by assigning each of them both a specific dollar amount and a precise percentage. He contends, however, that the dollar amounts and percentages cannot be reconciled with the court’s own findings, set forth in a footnote to its memorandum of decision, that the money in that account was being used for support of the family during the period from the close of trial to the rendition of the judgment, March 30, 2000, through August 15, 2000. He again argues that when a trial court has made such an erroneous calculation the basis for its equitable distribution award, a new trial is mandated because the error necessarily disrupts the “carefully crafted mosaic” created by the trial court. We disagree that the court made any such finding.

Paragraph 5 (d) states: “The $470,000 balance in the U.S. Trust account shall be divided 41.486 percent ($194,983) to the plaintiff and the balance of 58.514 percent to the defendant . . . .” In its memorandum of decision, the trial court footnoted paragraph 5, entitled “Division of Assets.” In that paragraph, the court divided each of the marital assets of the parties by subsection. In the footnote, inserted after the title of the paragraph rather than after any particular subsection, the court explained that in dividing the marital assets as it did, it charged the defendant with $30,000 for his excessive spending and credited him $88,250, which he had thus far paid to the plaintiff as pendente lite alimony and child support at the rate of $17,650 per month. The court also noted that it credited the defendant with an additional $60,000 for ordinary and reasonable living expenses for himself and his children.

We conclude that the court did not, as contended by the defendant, make a finding in that footnote that those debits and credits were to be charged against the funds in the U.S. Trust account. On the basis of our reading of the memorandum of decision, we conclude that the explanation set forth in the footnote does not refer solely to paragraph 5 (d) containing the court’s distribution of the funds in the U.S. Trust account but, rather, to the entire “Division of Assets” section setting forth the equitable distribution of all of the parties’ assets. Accordingly, we conclude that the court considered those debits and credits in the context of apportioning the marital property as a whole. It did not find that they were to be charged against the $470,000 in funds contained in the U.S. Trust account.

In the present case, we conclude that the trial court did not abuse its discretion in awarding unallocated alimony and child support or in its equitable distribution of the parties’ assets because, in so doing, it properly applied the relevant statutory and case law and reasonably rendered its orders on the basis of the facts.

The judgment is affirmed.

In this opinion the other judges concurred.

       Before the time of trial, the defendant’s base salary was increased to $165,000 per year.

       The stock awards vested as follows: 25 percent immediately; 25 percent on January 15, 2001; 25 percent on January 15, 2002; and 25 percent on January 15, 2003.

       The longevity bonus was to vest 100 percent on January 15, 2003.

       The order further provided that beginning August 15, 2005, through August 14, 2010, the defendant must pay to the plaintiff as unallocated alimony and child support, $20,000 per month plus an additional monthly amount calculated as follows: for each year, August 15,2005, through August 14, 2010, the defendant shall pay on earned income above $500,000 for each prior calendar year from salary, commission and bonus, 25 percent of said income between $500,000 and $750,000, and 15 percent of earned income in excess of $750,000.

       We note that 43.5 percent and 46.5 percent do not total 100 percent. This typographical error is addressed in part III of this opinion.

       The court had before it the defendant’s financial affidavits, which reflected his substantial income. The court inferred from those documents and the fact that the defendant frequently had borrowed in the past that he had significant borrowing power. We conclude that the court was entitled to draw this inference because it was reasonable and founded on the facts in evidence. See 1 B. Holden & J. Daly, Connecticut Evidence (2d Ed. 1988) § 64b, p. 417.

       We note that the defendant did not request an articulation as to whether the court had considered the nonvested stock awards marital property subject to distribution under General Statutes § 46b-81. “It is the burden of the appellant, utilizing the rules of practice, to present us with a proper record on the basis of which we can, in fairness to all (he parties, determine the appeal.” 1 B. Holden & J. Daly, Connecticut Evidence (2d Ed. 1988) § 60i, p. 386. We, nonetheless, review the defendant’s claim because we conclude that the memorandum of decision, in copjunction with the trial transcripts and exhibits, provides us with an adequate record for review.

       That memorandum was issued after the defendant filed his brief in this appeal.


source: Caselaw Access Project

author: LAVERY, C. J.

license: Public Domain

text:
    COTTMAN TRANSMISSION SYSTEMS, INC. v. HOCAP CORPORATION
    (AC 22054)
    Lavery, C. J., and Mihalakos and West, Js.
    Argued May 29 —
    officially released August 20, 2002

      Kenneth A. Votre, with whom were Charlene A. Lyn-lon and, on the brief, John-Henry M. Steele, for the appellant (plaintiff).

      Salvatore C. DePiano, with whom was Jonathan J. Klein, for the appellee (defendant).
   Opinion

LAVERY, C. J.

The plaintiff, Cottman Transmission Systems, Inc., appeals from the trial court’s judgment rendered in favor of the defendant, Hocap Corporation, after the court granted the defendant’s motion to dismiss for lack of subject matter jurisdiction. On appeal, the plaintiff claims that the court improperly granted the defendant’s motion on the basis of the court’s conclusion that the plaintiff lacked standing to bring the breach of contract action that is at issue in this appeal. We agree with the plaintiff and conclude that because the plaintiff had standing, the court improperly granted the motion to dismiss for lack of subject matter jurisdiction. Accordingly, we reverse the judgment of the trial court and remand the case for further proceedings.

The following facts are relevant to the plaintiffs appeal. The plaintiff franchises transmission repair centers by giving licenses to use Cottman trademarks and systems. On or about June 15,1990, J.J. Russco Corporation (Russco) entered into a license agreement with the plaintiff, which permitted Russco to operate a Cottman Transmission Center on premises at 301, 309-323 North Avenue and 191 Front Street in Bridgeport (premises) that it had leased from Albert Waiksnis. Russco, as lessee, entered into a ten year lease agreement with Waiksnis, as lessor, on or about June 15, 1990. The plaintiff was not a party to the lease. The same day, Russco, Waiksnis and the plaintiff executed a rider to the lease. The lease rider gave the plaintiff a conditional assignment of the lease and provided that the lessor would give the plaintiff “twenty (20) days prior written notice of its intention to re-enter and [repossess] the premises and to cancel the Lease on account of LESSEE’S default of any of the terms, conditions or provisions thereof.” The plaintiff then would have the twenty day notice period to “cure such default or otherwise exercise its rights” under the conditional assignment. The lease rider provided that to perfect its conditional assignment, the plaintiff was required to terminate its license agreement with Russco and to exercise its option to assume the lease within twenty days thereafter. Russco’s consent to the plaintiffs assumption of the lease was subject to certain conditions precedent, including the payment of any rental arrearages, the curing of any other default or breach and the payment of an additional one month’s rent as added security.

In July or October of 1996, Waiksnis sold to the defendant the property that was the subject of the lease. The defendant purchased the property subject to the terms of the lease and lease rider, and, thereby, became the lessor of the property. On November 5,1996, the defendant, pursuant to the terms of the lease and rider, sent notice to the plaintiff of its intention to reenter and repossess the premises due to Russco’s default. Both parties agree that as a result of the notice, the plaintiff had twenty days, or until November 27,1996, to perfect its conditional assignment by curing Russco’s defaults and satisiying the other conditions necessary to perfect the assignment.

The plaintiff alleges that the defendant, during the twenty day option period, entered onto and repossessed the premises and changed the locks. The plaintiff further asserts that it intended to accept the conditional assignment and take possession of the premises with one of its franchisees, Joe Josko, as the new owner-operator, but that by the time it was able to get Josko into the premises to inspect them on November 25, 1996, the defendant had gutted the building by removing all of the lessee’s equipment and inventory and making modifications to the building, including removing walls and eliminating offices and bathrooms. The plaintiff contends that the defendant’s actions, during the plaintiffs twenty day option period, rendered the leased premises unfit for use as a transmission repair center and constituted an anticipatory breach of its contract rights under the lease and rider.

Upon learning of the defendant’s extensive modifications to the leased premises, the plaintiff did not perfect its assignment of the lease, but instead filed a wrongful entry and detainer action, pursuant to General Statutes § 47a-43 et seq. That case was tried to the court, Stevens, J., which rendered a decision on June 6, 1997. Judge Stevens found that although the plaintiff had the legal right to assume Russco’s responsibilities and acquire possession of the property, the plaintiff did not obtain actual physical possession of the property. Because relief under Connecticut’s forcible entry and detainer statute is available only to plaintiffs in actual physical possession of property, the court concluded that the plaintiff could not obtain relief on a claim of forcible entry and detainer. Judge Stevens also concluded that the plaintiff had other remedies available to it for any claims that the defendant had breached the lease agreement or unlawfully held possession of the property.

In March, 1998, the plaintiff brought this action against the defendant on a single count of breach of contract. Shortly before the case was to be tried, the defendant filed a motion to dismiss for lack of subject matter jurisdiction. The defendant argued that because the plaintiff never acquired assignee status by fulfilling the conditions necessary to exercise its option, the plaintiff lacked standing to bring the present action. The court found that the plaintiff did not perfect its rights under the conditional assignment of the lease and granted the defendant’s motion to dismiss. This appeal followed.

On appeal, the plaintiff argues that the court improperly granted the defendant’s motion on the basis of the court’s conclusion that the plaintiff lacked standing to bring the case. We agree.

“A determination regarding a trial court’s subject matter jurisdiction is a question of law. When . . . the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record. . . . Subject matter jurisdiction involves the authority of a court to adjudicate the type of controversy presented by the action before it. . . . Once it is determined that a tribunal has authority or competence to decide the class of cases to which the action belongs, the issue of subject matter jurisdiction is resolved in favor of entertaining the action. ... It is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged.” (Citation omitted; internal quotation marks omitted.) Stepney Pond Estates, Ltd. v. Monroe, 260 Conn. 406, 417, 797 A.2d 494 (2002).

“It is well established that [i]n ruling upon whether a complaint survives a motion to dismiss, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader.” (Internal quotation marks omitted.) Lawrence Brunoli, Inc. v. Branford, 247 Conn. 407, 410-11, 722 A.2d 271 (1999). “A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.” (Internal quotation marks omitted.) Commission on Human Rights & Opportunities v. Human Rights Referee, 66 Conn. App. 196, 199, 783 A.2d 1214 (2001). Thus, “[w]here a plaintiff lacks standing to sue, the court is without subject matter jurisdiction.” (Internal quotation marks omitted.) Dime Savings Bank of Wallingford v. Arpaia, 55 Conn. App. 180, 183, 738 A.2d 715 (1999).

“Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless [one] has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy.” (Internal quotation marks omitted.) Tomlinson v. Board of Education, 226 Conn. 704, 717, 629 A.2d 333 (1993). “[Standing does not hinge on whether the plaintiff will ultimately be entitled to obtain relief on the merits of an action, but on whether he is entitled to seek the relief.” (Internal quotation marks omitted.) Pinchbeck v. Dept. of Public Health, 65 Conn. App. 201, 205, 782 A.2d 242, cert. denied, 258 Conn. 928, 783 A.2d 1029 (2001).

“Standing is established by showing that the party claiming it is authorized by statute to bring suit or is classically aggrieved. . . . The fundamental test for determining aggrievement encompasses a well-settled twofold determination: first, the party claiming aggrievement must successfully demonstrate a specific, personal and legal interest in [the subject matter of the challenged action] .... Second, the party claiming aggrievement must successfully establish that this specific personal and legal interest has been specially and injuriously affected by the [challenged action] .... Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest . . . has been adversely affected.” (Citation omitted; internal quotation marks omitted.) AvalonBay Communities, Inc. v. Orange, 256 Conn. 557, 568, 775 A.2d 284 (2001).

In the present case, the defendant argues that the plaintiff lacks standing because the plaintiff never succeeded to the rights of the lessee by making the conditional assignment effective. The plaintiff, however, is not claiming that it has standing to sue as the lessee under the lease. Rather, the plaintiffs position is that under the lease and rider, it had a contractual right, once it received the defendant’s notice of intent to reenter the premises, to a twenty day period in which to exercise its option to make the conditional assignment effective. The plaintiff argues that the defendant’s action of altering the premises so as to make them unfit for the purpose of operating a transmission repair center destroyed the object of the agreement between the parties and constituted an anticipatory breach of contract.

“An anticipatory breach of contract occurs when the breaching party repudiates his duty before the time for performance has arrived. ... Its effect is to allow the nonbreaching party to discharge his remaining duties of performance, and to initiate an action without having to await the time for performance. . . . The manifestation of intent not to render the agreed upon performance may be either verbal or nonverbal . . . and is largely a factual determination in each instance.” (Citations omitted; internal quotation marks omitted.) Pullman, Comley, Bradley & Reeves v. Tuck-It-Away, Bridgeport, Inc., 28 Conn. App. 460, 465, 611 A.2d 435, cert. denied, 223 Conn. 926, 614 A.2d 825 (1992). “Repudiation can occur either by a statement that the promisor will not perform or by a voluntary, affirmative act that indicates inability, or apparent inability, substantially to perform.” Gilman v. Pedersen, 182 Conn. 582, 584, 438 A.2d 780 (1981).

The plaintiff has pleaded facts sufficient to allege a cause of action for anticipatory breach of contract. “When standing is put in issue, the question is whether the person whose standing is challenged is a proper party to request an adjudication of the issue and not whether the controversy is otherwise justiciable, or whether, on the merits, the plaintiff has a legally protected interest that the defendant’s action has invaded.” (Internal quotation marks omitted.) Berlin v. Santagu-ida, 181 Conn. 421, 423-24, 435 A.2d 980 (1980). It is axiomatic that “an action upon a contract or for breach of a contract can be brought and maintained by one who is a party to the contract sued upon . . . .”59 Am. Jur. 2d, Parties § 28 (1987); see also Baxter v. Camp, 71 Conn. 245, 248, 41 A. 803 (1898). In this case, the plaintiff was a party to the lease rider and alleges a contractual right, pursuant to the lease and rider, to a twenty day option period in which to make the conditional assignment effective. That is sufficient to establish standing for a breach of contract action.

More specifically, applying the test for classical aggrievement, the first prong is met because the plaintiff alleges a specific, personal and legal interest in its contractual right to perfect its conditional assignment of the lease within the twenty day notice period. See Ava-lonBay Communities, Inc. v. Orange, supra, 256 Conn. 568. The second prong of the classical aggrievement test is met because, according to the plaintiffs allegations, it has been specially and injuriously affected by the defendant’s premature entry into and alteration of the premises so as to make them unfit for the plaintiffs purpose, the operation of a transmission repair center. See id.

We conclude that the plaintiff has standing to maintain this action. The plaintiff alleged that by contract, it had a right to an option period in which to perfect its conditional assignment of the lease. The plaintiff further alleged that the defendant, by its conduct, repudiated its associated duty under the contract by altering the leased premises so as to make them unfit for the plaintiffs purposes. Thus, the plaintiff has alleged a legal interest and harm to that interest. Because the plaintiff has standing to maintain the present action, the court improperly granted the defendant’s motion to dismiss for lack of subject matter jurisdiction.

The judgment is reversed and the case is remanded for further proceedings in accordance with law.

In this opinion the other judges concurred.

       The lease and lease rider are both dated June 15, 1990. The lease recites that the lessor and lessee will execute and become parties to the lease rider simultaneously with the lease.

       The plaintiff alleges that it was delayed in getting Josko into the premises to inspect them because the defendant had repossessed the premises and changed the locks. The plaintiff also asserts that it had notified the defendant, prior to the expiration of its twenty day option period, of its intention to assume the lease.

       In Ms memorandum of decision, Judge Stevens stated: “[The defendant] has failed to explain satisfactorily why these actions took place before November 27,1997, without the permission of either Russco or the plaintiff, especially when the plaintiff unquestionably retained the right to cure the default and assume the lease until that time. Although there were days when the business was not operating at the site, it is clear that the plaintiff, as well as Russco, desired and intended to continue their possession of the premises and fully resume the business activities, either through Russco’s efforts or through some other operator. They neither abandoned nor intended to abandon the property. [The defendant] cannot fault [the plaintiff] for failing to cure the defaults and assume the lease obligations in the face of [the defendant’s] own anticipatory breach, wMch destroyed the object of the agreement itself.”


author: FOTI, J.

text:
    STATE OF CONNECTICUT v. TANAKA DAVIS
    (AC 21738)
    Foti, Spear and Hennessy, Js.
    Argued April 24 —
    officially released August 20, 2002

      Lisa J. Steele, special public defender, for the appellant (defendant).

      Carolyn K. Longslreth, senior assistant state’s attorney, with whom were Richard Rubina, deputy assistant state’s attorney, and, on the brief, James E. Thomas, state’s attorney, for the appellee (state).
   Opinion

FOTI, J.

The defendant, Tanaka Davis, appeals from the judgment of conviction, rendered after a jmy trial, of burglary in the third degree in violation of General Statutes § 53a-103. The defendant claims that the court improperly admitted into evidence his written, uncorroborated statement containing confessions of uncharged misconduct that resulted in unfair prejudice to him. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The defendant and the victim, Carl Neal, were acquainted with one another; Neal had caused some damage to the defendant’s automobile prior to the events leading to the defendant’s arrest and subsequent conviction. On February 15, 2000, Neal visited a friend, Beatrice Smith. He parked his 1986 Subaru across the street from her residence at 165 Westland Street in Hartford. While Neal was at Smith’s second floor residence, the defendant broke the passenger side window of Neal’s automobile and entered it on that side. Someone observed the defendant’s actions and notified Mary Belcher, a first floor resident in Smith’s building, that the defendant was in Neal’s autombile. Belcher looked toward Neal’s automobile and saw the defendant sitting in the passenger seat. In response, she went up to Smith’s residence and reported to Neal what she had seen. Neal exited Smith’s residence and descended to Belcher’s residence so that he could view his automobile from her window. Neal then observed a man resembling the defendant sitting in the passenger seat of his automobile and saw that the window on the passenger side had been broken.

The defendant exited the vehicle and noticed a passerby and acquaintance, Frank Woods, whom he asked for a ride. Woods agreed and drove the defendant to Clark Street, where he exited Woods’ vehicle. Woods later returned to Westland Street, after stopping at a liquor store, and noticed that Hartford police officers were at the scene; they had responded to a report of a man with a shotgun in the area. Officer Nathaniai Ortiz questioned Woods. Woods told Ortiz that he had given the defendant a ride to Clark Street earlier that day and that he had noticed the defendant carrying something that he thought was a gun wrapped in a jacket.

Ortiz contacted the defendant the next day, and he agreed to meet with Ortiz at the police station. When the defendant arrived, Ortiz read him his Miranda rights. The defendant voluntarily waived those rights and provided Ortiz with a written statement.

The defendant related that he had threatened to “blast” Neal if he continued to refuse to pay him money for damaging his vehicle and that he had entered Neal’s car with the intent to rob him. He also explained how he had put the “word out on the street” that he was robbing certain victims with a makeshift replica of a shotgun that he had constructed from “a pipe, a piece of wood, a beeper, and electric tape [with] a towel wrapped around the end . . . .” This “contraption,” as the defendant called it, looked like a sawed-off shotgun. The defendant further explained that, subsequent to breaking into Neal’s automobile, Woods had given him a ride to Clark Street because he told Woods that he saw two Puerto Rican men there whom he wanted to rob. The robbery failed because after he pointed his makeshift replica of the shotgun at them and demanded that they give him their money, one of the men handed the defendant a dollar bill and challenged him to a gunfight. The defendant ran off while disassembling the contraption and scattering its component parts “so they could not be found.”

Subsequently, the defendant was arrested for breaking into Neal’s automobile and charged with one count of burglary in the third degree in violation of § 53a-103 (a) and one count of criminal attempt to commit robbery in the second degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-135 (a) (2). A jury convicted him of the burglary charge, but acquitted him of the robbery charge. The court sentenced the defendant to five years of incarceration followed by three years of probation. This appeal followed.

The defendant claims that the court improperly admitted into evidence his written statement containing confessions to uncharged crimes. Specifically, the defendant contends that the court’s admission of the statement into evidence, which was to be considered only in regard to the robbery charge, was improper because it lacked any probative value and was uncorroborated by any other evidence, as is required by the corpus delicti rule. Further, the defendant argues that the jury, regardless of the court’s curative instruction that it should not consider such evidence in determining his guilt on the burglary charge, could not have divorced the evidence between the two charges because of its highly prejudicial nature.

Before setting forth the legal principles that govern our review of this appeal, we point out that the defendant’s claim regarding the admission of evidence in violation of the corpus delicti rule concerns a charge of which the defendant was acquitted. Because the jury acquitted the defendant on the charge of attempt to commit robbery in the second degree, we review only whether the court improperly admitted otherwise relevant and material evidence to that charge resulting in a prejudicial spillover effect on the jury’s determination of the defendant’s guilt regarding the burglary charge.

Our standard of review is well established. “The admission of evidence of prior uncharged misconduct is a decision properly within the discretion of the trial court. . . . [E]very reasonable presumption should be given in favor of the trial court’s ruling. . . . [T]he trial court’s decision will be reversed only where abuse of discretion is manifest or where an injustice appears to have been done. . . . The problem is . . . one of balancing the actual relevancy of the other crimes evidence in light of the issues and the other evidence available to the prosecution against the degree to which the jury will probably be roused by the evidence.” (Internal quotation marks omitted.) State v. Greene, 69 Conn. App. 463, 467-68, 794 A.2d 1092, cert. denied, 260 Conn. 934, 802 A.2d 89 (2002).

“Relevant evidence may be excluded if its probative value is outweighed by the danger of unfair prejudice . . . .” Conn. Code Evid. § 4-3. “The task of striking this balance is relegated to the court’s discretion.” Id., commentary; see also State v. Booth, 250 Conn. 611, 645, 737 A.2d 404 (1999) (trial court has broad discretion in ruling on admissibility and relevancy of evidence), cert. denied sub nom. Brown v. Connecticut, 529 U.S. 1060, 120 S. Ct. 1568, 146 L. Ed. 2d 471 (2000). “For exclusion . . . the prejudice must be unfair in the sense that it unduly arouse [s] the jury’s emotions of prejudice, hostility or sympathy ... or tends to have some adverse effect upon [the party against whom the evidence is offered] beyond tending to prove the fact or issue that justified its admission into evidence. . . . Conn. Code Evid. § 4-3 commentary.” (Internal quotation marks omitted.) State v. Trotter, 69 Conn. App. 1, 15, 793 A.2d 1172, cert. denied, 260 Conn. 932, 799 A.2d 297 (2002).

The defendant essentially claims that by admitting his written statement confessing to uncharged misconduct as evidence to support the robbery charge, the court abused its discretion because of the spillover effect that such evidence had on the jury in considering the defendant’s guilt on the burglary charge. We are not persuaded.

The following additional facts are relevant to our resolution of the defendant’s claim. Before admitting the evidence of uncharged misconduct, the court heard argument from both counsel outside the presence of the jury and engaged in a careful and deliberative process in evaluating the admissibility of the defendant’s statement. Subsequently, the court redacted certain portions of the statement, but concluded that other portions of it were “extremely probative” as to the robbeiy charge. The court admitted those portions into evidence for the limited purpose of showing the defendant’s intent and common scheme of criminal activity as to that charge. In determining whether the admitted portions of the defendant’s statement were more prejudicial than probative, the court stated that “while [the evidence] is relevant, it is also very probative and, of course, is prejudicial.” The court further stated that admitting the evidence “with a specific and cautionary instruction . . . [to] be considered only for . . . limited purposes [would reduce its prejudicial effect]. And we have no reason to believe that jurors cannot follow the court’s instructions, namely, that the evidence is admitted not to show any bad character, not to show a propensity for committing crime, not to show that he committed a crime and should be punished for a crime or convicted of a crime for which he was not charged. With the limiting instruction, it would seem to me that the prejudice is substantially minimized.”

The court gave detailed instructions to the jury on two separate occasions: Once before the statement was read into evidence and again during its charge to the jury before deliberation. Before the statement was read into evidence, the court commented: “[W]ith reference to the other events of uncharged misconduct, I am now going to give you a limiting or a cautionary instruction regarding the very limited purpose for which you can consider that other information, the other events or the uncharged events. And, again, the first part of the hmiting instruction, which I will repeat, is that that evidence is admitted solely with reference to . . . the attempted robbery count and is to be considered by you only with respect to [that count].” The court continued to give the jurors a detailed and thorough instruction regarding the limited purposes of the evidence before the statement was read to them.

During its charge to the jury, the court reiterated its cautionary charge and stated that “with reference to evidence of uncharged misconduct of the defendant, the evidence offered by the state of uncharged acts of misconduct of the defendant was . . . not admitted to prove or suggest any bad character of the defendant or any tendency or propensity to commit criminal acts. It was not admitted for that purpose. Rather, as you will recall from my cautionary instruction at the time of the admission of that evidence, it was admitted solely with respect to . . . the attempted robbery count and is to be considered by you only with respect to that count of the information. You will recall my limiting and cautionary instructions. ... I emphasize that when evidence is admitted only for a limited purpose, you are duty bound by your juror’s oath not to consider that evidence for any other purpose.”

We conclude that the record clearly indicates that the court thoroughly balanced the probative value of the challenged evidence against its prejudicial effect before it was admitted. The court’s precise and detailed hmiting instructions safeguarded against the jury’s potential misuse of the evidence and significantly minimized its prejudicial impact. See State v. Kulmac, 230 Conn. 43, 63, 644 A.2d 887 (1994). Moreover, the jury obviously discounted the prejudicial nature of the evidence because it acquitted the defendant of the robbery charge. There is no reason to believe that the jury was persuaded by the evidence to convict the defendant on a count to which that evidence did not apply, i.e., burglary, but was not persuaded by the evidence to convict him on a count to which it did apply, i.e., robbery.

Here, the court’s admission of the defendant’s statement did not “unduly [arouse] the jury’s emotions of prejudice, hostility or sympathy ... or [tend] to have some adverse effect upon [the defendant] beyond tending to prove the fact or issue that justified its admission into evidence.” (Internal quotation marks omitted.) State v. Trotter, supra, 69 Conn. App. 15. The court carefully and thoughtfully balanced the competing interests involved before admitting the evidence and, therefore, we cannot say that as a matter of law the trial court’s decision to admit the evidence was an abuse of judicial discretion. See State v. Braman, 191 Conn. 670, 682, 469 A.2d 760 (1983). Accordingly, we conclude that the evidence was not unfairly prejudicial to the defendant regarding his conviction for burglary, and, therefore, his claim that the jury did not follow the court’s limiting instructions must fail.

The judgment is affirmed.

In this opinion the other judges concurred.

        Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). The defendant does not claim that his confessions were involuntary, and he does not challenge the statement itself in any manner.

       The defendant explained that he was robbing drug dealers because they were unlikely to call the police. He gave some detail as to the robberies he already had committed. For instance, a week before his arrest, the defendant explained how he had robbed an “easy” victim named Cotton, and that four days before breaking into Neal’s automobile, he had robbed Charles Carter, Jr., and his girlfriend of “two bundles of dope.” He also described that on the same day that the charged offenses had occurred, he robbed Shaun Towns of “dummy bundles” of dope that he later left in Neal’s car.

       The rule states that “a naked extrajudicial confession of guilt by one accused of crime is not sufficient to sustain a conviction when unsupported by any corroborative evidence. . . . The confession cannot stand alone but must be accompanied by sufficient evidence of the corpus delicti.” (Citation omitted; emphasis in original; internal quotation marks omitted.) State v. Arnold, 201 Conn. 276, 286, 514 A.2d 330 (1986). The rule “protects] accused persons against conviction of offenses that have not in fact occurred . . . .” (Internal quotation marks omitted.) State v. Hafford, 252 Conn. 274, 316, 746 A.2d 150, cert. denied, 531 U.S. 855, 121 S. Ct. 136, 148 L. Ed. 2d 89 (2000).

       Uncharged misconduct is generally inadmissible unless it falls within an exception to the general rale. See Conn. Code Evid. § 4-5. The court determined that the various parts of the challenged evidence properly fell within either one of two exceptions to the general rule: Intent or system of criminal activity. Further, as stated in his brief, the defendant “concede[d] that the trial court could have found that [the incidents of uncharged misconduct] were relevant to the robbery charge.”
      We note that the defendant’s assertion that evidence of uncharged misconduct must satisfy the corpus delicti rule is misplaced because that rule applies to charged misconduct, not uncharged misconduct. See State v. Hafford, 252 Conn. 274, 315-16, 746 A.2d 150, cert. denied, 531 U.S. 855, 121 S. Ct. 136, 148 L. Ed. 2d 89 (2000); Opper v. United States, 348 U.S. 84, 93, 75 S. Ct. 158, 99 L. Ed. 101 (1954); State v. Harris, 215 Conn. 189, 193, 575 A.2d 223 (1990); State v. Tillman, 152 Conn. 15, 20, 202 A.2d 494 (1964); State v. Doucette, 147 Conn. 95, 99, 157 A.2d 487 (1959); State v. LaLouche, 116 Conn. 691, 694, 166 A. 252 (1933).
      We note further that proof of an essential element of a crime may take many forms “such as proof of prior acts of misconduct. Such uncharged misconduct, even if a crime, need not be proved by the criminal standard. Any proof that is relevant, that is to say, any proof that has any tendency to make a finding of [an essential fact in the proof of guilt] more or less probable, is admissible.” C. Tait, Connecticut Evidence (3d Ed. 2001) § 4.19.3, p. 234.

       The defendant did not file a motion in limine, but rather orally objected to the admission of his statement. The court treated the defendant’s oral objection as a motion in limine and stated that a written transcript of its comments on the record, which the court would sign pursuant to the Practice Book § 64-1, would comprise the memorandum of decision in case of a conviction and appeal.

       “Unless there is a clear indication to the contrary, a jury is presumed to follow the court’s instructions.” (Internal quotation marks omitted.) State v. Dudley, 68 Conn. App. 405, 412, 791 A.2d 661, cert. denied, 260 Conn. 916, 797 A.2d 515 (2002). No such indication exists in the record of this case that the jury did not adhere to the court’s instructions.


text:
    DELORES YAREMICH v. KEI LAM
    (AC 21488)
    Foti, Bishop and West, Js.
    Argued April 30 —
    officially released August 20, 2002

      James E. Butler, for the appellant (plaintiff).

      Andrew H. Sharp, for the appellee (defendant).
   Opinion

FOTI, J.

The plaintiff in this negligence action, Delores Yaremich, appeals, challenging the trial court’s denial of her motion to vacate the judgment rendered in favor of the defendant, Kei Lam. The plaintiff claims that the court abused its discretion by denying her motion to vacate the judgment rendered on the findings of a court-mandated arbitrator. We affirm the judgment of the trial court.

The relevant facts and procedural history are as follows. The plaintiff and the defendant were involved in an automobile accident, which occurred on February 11, 1995, in Waterbury. The plaintiff allegedly suffered personal injuries as a result of the accident. The plaintiff commenced a negligence action against the defendant by complaint dated January 22, 1997. Pursuant to General Statutes § 52-549u and Practice Book § 23-61, the court referred the matter to the court-mandated arbitration program. Attorney John P. Santucci arbitrated the case on May 19, 2000. On May 26, 2000, Santucci, having found in favor of the defendant, filed his decision with the court. On the same day, the court mailed copies of that decision to both parties. On the basis of Santucci’s findings, the court rendered judgment in the defendant’s favor on July 6, 2000, and sent notice to both parties that same day.

The plaintiff filed a claim for a trial de novo on July 14,2000. She claimed that her attorney had not received notice of Santucci’s May 26, 2000 decision because the court mailed the decision to her attorney’s former address. The plaintiff further claimed that she had no knowledge from any source that Santucci had reached a decision until she received the court’s July 6, 2000 notice that it had rendered judgment in accordance with that decision. The record does not reflect that the court ruled on the plaintiff’s claim for a trial de novo.

On July 24, 2000, the plaintiff filed a motion to vacate the court’s judgment. She again argued that she was entitled to a trial de novo and that she should not be prejudiced in making such a claim by the fact that her attorney did not receive a copy of the arbitrator’s finding, thereby preventing her from challenging that finding within the time period set forth in the rules of practice. On August 15, 2000, the court denied the plaintiffs motion to vacate the judgment, noting: “[The former address] is the address of record of the attorney appearing for the plaintiff, no notice of new address appears in the court file. See Practice Book § 3-12.”

On September 14, 2000, the plaintiff filed both a motion to reargue and a request for articulation, seeking clarification of the court’s decision. On November 27, 2000, the court denied the motion to reargue; however, in response to the request for articulation, the court issued a new order restating its position that proper notice had been sent to the counsel’s address of record and, therefore, no grounds existed for opening the judgment.

The plaintiff now appeals challenging the court’s refusal to vacate the judgment rendered on the arbitrator’s decision. She argues that because she never received notice of the arbitrator’s findings, she was unable to comply with the timing requirements of Practice Book § 23-66 (c). Therefore, she posits, the court abused its discretion by not vacating the judgment and considering her claim for a trial de novo.

“The authority to open and vacate a judgment is within the inherent power of the trial courts. ... A motion to open and vacate should be granted when the court, acting reasonably, finds good cause to do so.” (Citation omitted.) Paddock v. Paddock, 22 Conn. App. 367, 372, 577 A.2d 1087 (1990). “Once the trial court has refused to open a judgment, the action of the court will not be disturbed on appeal unless it has acted unreasonably and in clear abuse of its discretion.” (Internal quotation marks omitted.) Steve Viglione Sheet Metal Co. v. Sakonchick, 190 Conn. 707, 711, 462 A.2d 1037 (1983). Therefore, “[ajppellate review of the denial of a motion to vacate a judgment or for a new trial is limited to a determination of whether the trial court abused its discretion.” State v. Rothenberg, 195 Conn. 253, 264, 487 A.2d 545 (1985). “In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court’s ruling.” (Internal quotation marks omitted.) Rivera v. St. Francis Hospital & Medical Center, 55 Conn. App. 460, 463-64, 738 A.2d 1151 (1999).

The plaintiff does not dispute that her claim for a trial de novo was untimely. The arbitrator filed his decision with the court on May 26, 2000. The plaintiff filed her request for a trial de novo on July 14, 2000, clearly beyond the twenty days mandated by Practice Book § 23-66 (c). Further, judgment on the decision already had been rendered by the time the plaintiff filed her claim. The plaintiff claims, however, that her late filing was justified due to her lack of notice, and the court should have found that this lack of notice constituted good cause to vacate the judgment and considered her claim for a trial de novo.

In her motion to vacate the judgment, the plaintiff argued that, because notice of the arbitrator’s decision was sent to her attorney’s former address, she was unaware that time had begun to run in which to file a request for a trial de novo. She further asserted that she had no other knowledge of the arbitrator’s decision until the court notified her that judgment had been rendered. Therefore, the plaintiff contended that due to her lack of notice, she was unfairly deprived of an opportunity to request a trial de novo and the court should therefore exercise its discretionary power and vacate the judgment.

In denying the motion to vacate the judgment, however, the court noted that it had sent notice of Santucci’s decision to the address of record on file and that the clerk had not received notice of a change of address. The court cited Practice Book § 3-12, which, together with Practice Book § 2-26, contains the relevant rules of practice governing changes of address.

Nonetheless, in none of her motions or supporting affidavits did the plaintiff or her counsel represent to the court that they had filed notice of a change of address in this case or had in fact complied with either Practice Book §§ 3-12 or 2-26. Likewise, the plaintiff did not explain why the fact that the court sent notice to her counsel’s former address was not wholly the fault of the plaintiff or her counsel. She had ample opportunity to raise such defenses in both her motion to reargue and her request for articulation. Only now, on appeal, does the plaintiff argue that her attorney’s firm had in fact complied with Practice Book § 3-12 by changing its address with the judicial information system on May 1, 1998. Despite the plaintiff’s belief that this action should have been sufficient to change counsel’s address in the present case, the plaintiff did not raise this argument to the trial court. “Our assessment of the reasonableness of the trial court’s exercise of discretion is limited to a consideration of those factors on the record known to the court at the time it rendered a decision.” (Internal quotation marks omitted.) State v. Wegman, 70 Conn. App. 171, 175, 798 A.2d 454 (2002).

Thus, reviewing only the facts and arguments before the court, we conclude that the court reasonably could have found that the plaintiff was responsible for her lack of notice and subsequent failure to make a timely request for a trial de novo. The failure of the plaintiffs counsel to comply with a rule of practice would certainly not provide a cognizable ground for the opening of a judgment. The court stated that notice had been sent to the plaintiffs attorney’s address of record and this was “all that is required.” No notice of an address change appeared in the court’s file. The court’s underlying rationale for its decision, namely, that it was the plaintiff s duty to change the address of record, was reasonable.

We need not decide whether the plaintiffs counsel had actually complied with Practice Book § 3-12 or whether compliance with § 3-12 alone was enough to ensure that his appearance in the underlying case would reflect his address change. Absent any argument before the trial court that the plaintiffs counsel had complied with Practice Book §§ 3-12 or 2-26, the court reasonably exercised its discretion in refusing to vacate the judgment. On the basis of the record, we cannot say that the trial court abused its discretion by denying the plaintiffs motion to vacate the judgment rendered pursuant to the court-mandated arbitrator’s findings.

The judgment is affirmed.

In this opinion the other judges concurred.

       The order, dated November 27, 2000, stated: “The court has explained the reasons for finding that there are no cognizable grounds to vacate the judgment entered by Judge Holzberg after the expiration of the time to claim a trial de novo following the decision of the arbitrator. The proffered reason of failure to receive the arbitrator’s ruling because counsel had moved to a new address cannot be a reason to open a judgment where counsel failed to supply the court with his new address as required by Practice Book § 3-12. Notice to the last known address of counsel of record is all that is required. The movant identified no cognizable grounds for excusing her from the deadline imposed by Practice Book § 23-66.”

       Practice Book § 23-66 provides: “Claim for Trial De Novo in Arbitration; Judgment
      “(a) A decision of the arbitrator shall become a judgment of the court if no claim for a trial de novo is filed in accordance with subsection (c).
      “(b) A decision of the arbitrator shall become null and void if a claim for a trial de novo is filed in accordance with subsection (c).
      “(c) A claim for a trial de novo must be filed with the court clerk within twenty days of the filing of the arbitrator’s decision. Thirty days after the filing of a timely claim for a trial de novo the court may, in its discretion, schedule the matter for a trial within thirty days thereafter. Only a party who appeared at the arbitration hearing may file a claim for a trial de novo. The decision of the arbitrator shall not be admissible in any proceeding resulting after a claim for a trial de novo pursuant to this section or from a setting aside of an award pursuant to General Statutes § 52-549aa.”

       Practice Book § 3-12 (a) provides: “Whenever the appearance of a firm or professional corporation (hereinafter collectively referred to as “unit”) has been entered upon the record of the court and there is a change in the name, composition or membership of such unit, it shall be the duty of such unit forthwith to notify, in writing, the director of court operations of the judicial branch, giving the name, mailing address and telephone number of the successor firm, professional corporation or individual who will continue the major portion of such unit’s business. In court locations having access to the automated roll of attorneys, upon receipt of such notice the appearance of such successor will be automatically entered in lieu of the appearance of the former unit in all pending cases. In other court locations, unless such successor unit files a notice to the clerks pursuant to Section 2-26 or withdraws its appearance under the provisions of Section 3-10, the former unit’s original appearance shall remain on file in each case in which it had been entered and the clerk may rely on the information contained therein for the purpose of giving notice to such unit regarding court activities involving the cases in which the unit remains active.”
      Practice Book § 2-26 provides: “An attorney shall send prompt written notice of a change in mailing and street address to the statewide grievance committee on a registration form approved by the statewide bar counsel and to the clerics of the courts where the attorney has entered an appearance.”