author: ROBINSON, J.

text:
    SEAN ADAMS v. COMMISSIONER OF CORRECTION
    (AC 31388)
    DiPentima, C. J., and Robinson and Borden, Js.

      Argued November 17, 2010 —
    officially released May 3, 2011

      Damon A. R. Kirschbaum, special public defender, for the appellant (petitioner).

      Robert J. Scheinblum, senior assistant state’s attorney, with whom, on the brief, were Michael Dearington,
      state’s attorney, and Linda N. Howe, former senior assistant state’s attorney, for the appellee (respondent).
   Opinion

ROBINSON, J.

The petitioner, Sean Adams, appeals from the judgment of the habeas court denying his amended petition for a writ of habeas corpus. On appeal, the petitioner claims that the court improperly concluded that he failed to prove that the state withheld impeachment evidence in violation of Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). In addition, he asserts that he was deprived of a fair trial by the state’s knowing use of false testimony. We reverse the judgment of the habeas court.

The facts surrounding the petitioner’s underlying conviction were set forth by this court in State v. Henry, 72 Conn. App. 640, 805 A.2d 823, cert. denied, 262 Conn. 917, 811 A.2d 1293 (2002), a companion case to the petitioner’s direct appeal. “At approximately 2 a.m. on December 14, 1996, [Darcus Henry] and three fellow members of a street gang, [the petitioner], Carlos Ashe and Johnny Johnson, went to a housing project in New Haven and fired with automatic or semiautomatic weapons at three unarmed members of a rival street gang. During the attack, [Henry] and his companions killed Jason Smith and seriously injured Marvin Ogman and Andre Clark. The motive for the attack was to avenge the murder of a former member of the [petitioner’s] gang, Tyrese Jenkins, by members of the rival gang, one of whom was Clark’s cousin.” Id., 643.

The petitioner, Henry, Ashe and Johnson were arrested and charged in separate four count substitute informations with murder in violation of General Statutes §§ 53a-54a (a) and 53a-8 (a), conspiracy to commit murder in violation of General Statutes §§ 53a-48 (a) and 53a-54a (a), and two counts of assault in the first degree in violation of General Statutes §§ 53a-59 (a) (5) and 53a-8 (a). The four individual cases subsequently were consolidated and tried jointly before a jury. Clark testified at the criminal trial, and he identified the petitioner as one of the individuals who had been involved in the shooting. The jury found the petitioner guilty of all four counts, and the trial court thereafter sentenced him to a total effective term of 100 years imprisonment. In the petitioner’s direct appeal, this court affirmed the judgment. State v. Adams, 72 Conn. App. 734, 735-36, 806 A.2d 111 (2002). Our Supreme Court denied the petitioner’s request for certification to appeal from that decision. State v. Adams, 262 Conn. 916, 811 A.2d 1292 (2002).

The following additional facts are relevant to our resolution of the present appeal. On December 16,1998, Roger Dobris, an assistant state’s attorney, filed two substitute informations, charging Clark with one count of carrying a pistol without a permit in violation of General Statutes § 29-35 and two counts of possession of narcotics with intent to sell in violation of General Statutes § 21a-277. On that same date, Clark pleaded guilty under the Alford doctrine to all three charges. During the plea canvass, the trial court explained that if Clark were to receive the maximum sentence for all three charges, he would face up to thirty-five years imprisonment and $101,000 in fines. The court went on to explain, however, that the sentence would “be a cap of four years with a right to argue for less” and that “[t]he cap situation dependfed] to a large extent on [Clark’s] cooperation with the state.” Neither the court nor Dobris indicated what had induced Clark to plead guilty. The court postponed the sentencing hearing until a later date.

Approximately eleven months after Clark had entered his guilty plea, James Clark, a senior assistant state’s attorney, called Clark as a witness at the petitioner’s criminal trial. During his testimony, Clark was cross-examined regarding his pending criminal charges. When asked whether the state had extended any offers of consideration to him in exchange for his testimony, Clark testified in the negative. Clark claimed that he had agreed to testify simply out of a desire for justice. When asked if he expected to receive the full sentence on his pending criminal charges, Clark testified that “you do the crime, you got to do the time, if they give me [the full sentence], they give me [the full sentence] . . . .” Neither Attorney Clark nor Clark disclosed to the petitioner, or to the trial court, that Clark had entered a guilty plea on the pending criminal charges. Moreover, Attorney Clark failed to disclose that the court had indicated that it would impose a sentence cap of four years, conditioned on Clark’s cooperation with the state.

On September 14, 2001, approximately twenty-two months after Clark had testified at the petitioner’s criminal trial, Clark’s sentencing hearing was held. At the hearing, following the request of Dobris, the court vacated Clark’s guilty plea with respect to the count of carrying a pistol without a permit and one count of possession of narcotics with intent to sell. The state entered a nolle prosequi on both charges. As to the one remaining charge of possession of narcotics with intent to sell, Dobris recommended that the court impose an unconditional discharge. After Dobris made a brief statement in support of his recommendation, the court imposed an unconditional discharge as to the remaining charge.

On March 14, 2008, the petitioner filed an amended petition for a writ of habeas corpus, alleging that the state had withheld impeachment evidence by failing to disclose to the petitioner that it had agreed to favorably resolve pending criminal charges against Clark in exchange for his testimony against the petitioner. The petitioner further alleged that, as a result of this undisclosed agreement, he had been deprived of a fair trial because the state had failed to correct Clark’s testimony on cross-examination, in which he denied that he had received consideration in exchange for his testimony.

On April 15, 2008, the habeas court conducted an evidentiary hearing on the amended petition. Attorney Clark testified that, at the time of the petitioner’s criminal trial, he was aware that criminal charges were pending against Clark and that Dobris was the state’s attorney responsible for handling those charges. He maintained, however, that he had “intentionally set [himself] apart” from Clark’s criminal case by telling Dobris that he “did not want to know what was going on,” including whether Clark had made any agreements with the state. Dobris testified that he and Attorney Clark had constructed a “firewall” between one another, whereby neither one shared information regarding Clark or his involvement in the petitioner’s case. Dobris admitted, however, that he had been present during some of Clark’s testimony concerning the December 14, 1996 shooting.

On July 23, 2009, the court denied the amended petition. In its memorandum of decision, the court concluded that “even if it were presumed that the petitioner met the first two prongs of the Brady analysis, [his claim] must ultimately fail because the state’s nondisclosure cannot be deemed material in the constitutional sense.” The court granted the petitioner’s petition for certification to appeal, and this appeal followed.

On appeal, the petitioner claims that the court improperly concluded that he failed to prove that the state withheld impeachment evidence in violation of Brady v. Maryland, supra, 373 U.S. 87. Specifically, he argues that the court improperly concluded that the agreement between the state and Clark was not material evidence. In addition, the petitioner claims that he was deprived of a fair trial because Clark testified falsely on cross-examination that he had not been offered, nor was he expecting, any consideration in exchange for his testimony, and the state failed to contradict this false testimony. The petitioner argues that the state’s failure to contradict this portion of Clark’s testimony resulted in a violation of his constitutional rights under Giglio v. United States, 405 U.S. 150, 92 S. Ct. 763, 31 L. Ed. 2d 104 (1972) and Napue v. Illinois, 360 U.S. 264, 79 S. Ct. 1173, 3 L. Ed. 2d 1217 (1959).

The respondent, the commissioner of correction, counters by arguing that the record is inadequate to permit review of the petitioner’s two claims because the habeas court did not make a specific factual finding regarding whether the state and Clark had an agreement, a necessary prerequisite for the petitioner’s claims. Notwithstanding this argument, the respondent concedes that by failing to disclose that the trial court had indicated that it would impose a four year cap on Clark’s sentence, the state allowed the jury to be presented with false and misleading testimony. Furthermore, the respondent admits that, even in the absence of an agreement, the state had an obligation to correct Clark’s testimony. The respondent argues, however, that there is not a reasonable likelihood that the state’s failure to correct the testimony could have affected the verdict of the jury.

We begin by setting forth the standard of review. “The conclusions reached by the trial court in its decision to dismiss [a] habeas petition are matters of law, subject to plenary review. . . . [When] the legal conclusions of the court are challenged, [the reviewing court] must determine whether they are legally and logically correct . . . and whether they find support in the facts that appear in the record. ... To the extent that factual findings are challenged, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous . . . .” (Internal quotation marks omitted.) Grant v. Commissioner of Correction, 121 Conn. App. 295, 298, 995 A.2d 641, cert. denied, 297 Conn. 920, 996 A.2d 1192 (2010).

The respondent’s concessions present us with a potential claim of error, which, if resolved in the petitioner’s favor, will make it unnecessary to address the merits of the specific claims raised by the petitioner. Accordingly, we consider this claim first.

In Brady v. Maryland, supra, 373 U.S. 87, the United States Supreme Court held that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” “The . . . Court further explained and refined the rule set forth in Brady ... in the case of United States v. Agurs, 427 U.S. 97, 96 S. Ct. 2392, 49 L. Ed. 2d 342 (1976). There the [C]ourt identified three distinct situations to which the Brady rule might apply: (1) those cases in which the undisclosed evidence demonstrates that the prosecution’s case includes perjured testimony and that the prosecution knew, or should have known, of the perjury ... (2) those cases, like Brady itself, in which the defendant has made a pretrial request for specific evidence . . . and (3) those cases in which the defendant has made no request for disclosure or has made only a general request for all exculpatory information. . . .

“Both Brady and Agurs unequivocally command that evidence that is favorable to the accused and that is material to the issue of guilt or punishment must be disclosed by the prosecution. The principal distinction among the paradigms set out in Agurs is the standard that is used to determine whether the undisclosed evidence is material in each instance. Where the prosecution employs perjured testimony (the first paradigm) the conviction must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury.” (Citations omitted; emphasis added; internal quotation marks omitted.) State v. Cohane, 193 Conn. 474, 496, 479 A.2d 763, cert. denied, 469 U.S. 990, 105 S. Ct. 397, 83 L. Ed. 2d 331 (1984); see also Merrill v. Warden, 177 Conn. 427, 431, 418 A.2d 74 (1979) (“[a] new trial is required if the false testimony could in any reasonable likelihood have influenced the jury”). “The references in Agurs to ‘perjured’ testimony must be taken to include testimony known to the state’s attorney to be false or misleading even if the witness may not have such an awareness.” (Emphasis added.) State v. Cohane, supra, 498.

In the present case, the testimony at issue is Clark’s statement regarding the sentence he expected to receive for his pending criminal charges. The respondent does not contest that the testimony was misleading and does not contend that the state, through both Attorney Clark and Dobris, was unaware, or could not have known, of its misleading nature. Therefore, we are left to determine whether there is any reasonable likelihood that the testimony could have affected the judgment of the jury. We conclude that there is.

To determine the affect that the misleading testimony may have had on the jury, we must consider it in connection with certain other testimony provided by Clark. At the petitioner’s criminal trial, Clark testified that he had told the police shortly after the shooting had occurred that he could not identify the individuals who had shot him. He explained that he eventually decided to identify the individuals who had been involved in the shooting because he did not want his family to have to suffer anymore and he wanted revenge. During cross-examination, Clark admitted that the first time he discussed the details of the shooting with the police and indentified the individuals who had been involved occurred on March 3,1999, approximately three months after he had entered the guilty plea. When the timing of Clark’s identification to the police is considered along with the court’s statement that the sentence cap “depend[ed] to a large extent on [Clark’s] cooperation with the state,” it reveals that Clark may well have had another reason for discussing the shooting with the police and for identifying the petitioner as one of the individuals involved.

Furthermore, Clark testified that his primary motivation for testifying at the petitioner’s criminal trial was to seek justice. At the time of the trial, however, sentencing on his guilty plea was still pending before the court. Because his sentence depended on his cooperation with the state, Clark had another possible motivation for testifying against the petitioner and for identifying him as a shooter, other than the one he provided. Therefore, we conclude that, because the information regarding Clark’s sentencing related to his credibility, there is a reasonable likelihood that the jury would have found that there was a reasonable doubt that the petitioner was involved in the December 14, 1996 shooting. Accordingly, because the jury was not provided with this information, we conclude that there is a reasonable likelihood that Clark’s misleading testimony could have affected the judgment of the jury. See Merrill v. Warden, supra, 177 Conn. 431 (concluding that information tending to establish that witness was “testifying under false colors” was “knowledge [that] could have affected the result”).

The judgment is reversed and the case is remanded with direction to render judgment granting the amended petition for a writ of habeas corpus and for further proceedings in accordance with law.

In this opinion the other judges concurred.

       See North Carolina v. Alford, 400 U.S. 25, 37, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).

       For purposes of clarity, we refer to James Clark as Attorney Clark and Andre Clark as Clark.

       Dobris’ statement was as follows: “I should point out that Mr. Clark has testified [at] three trials that I know of in which he was a gunshot victim and also an eyewitness. He’s being shown consideration for his truthful cooperation and testimony. In addition to that, the fact that he is on parole in the State of New York on an unrelated matter .... The New York authorities will be supervising him. It would be redundancy to have him supervised here in Connecticut and a waste of the [taxpayers’] money. In addition, he is working and seems to be — he’s gotten married recently to a young woman who has shown him a great deal of emotional and other support during the time that these cases were pending. I think I can honestly say this, that we won’t be seeing him back here and I know I probably sound as though I were his defense lawyer but that’s honestly and truly how I feel and how other members of my office feel about [Clark], He’s been enormously cooperative.”

       In his amended petition for a writ of habeas corpus, the petitioner also alleged claims of actual conflict of interest on the part of his trial counsel and ineffective assistance of his trial and appellate counsel. On April 24, 2009, the petitioner withdrew these additional claims.

       The respondent, commissioner of correction, conceded at oral argument before this court that “there shouldn’t have been a [firewall] that was setup. That was wrong.”

       We commend the respondent for adhering to the duty of candor to this court. See Rules of Professional Conduct 3.3.

       Generally, this court has declined to consider whether the decision of the habeas court should be reversed when the alleged claim of error was raised by the petitioner• for the first time on appeal. See, e.g., Mercado v. Commissioner of Correction, 85 Conn. App. 869, 871, 860 A.2d 270 (2004), cert. denied, 273 Conn. 908, 870 A.2d 1079 (2005). In the present case, however, the respondent has called our attention to the potential claim of error. Therefore, because of these unusual circumstances, we will consider the claim. Cf. Reid v. Commissioner of Correction, 93 Conn. App. 95, 101 n.9, 887 A.2d 937 (“[i]t is well established that this court, absent unusual circumstances, declines to review claims not raised at trial”), cert. denied, 278 Conn. 921, 901 A.2d 1221 (2006).


source: Caselaw Access Project

author: PETERS, J.

license: Public Domain

text:
    TOWN OF WINDSOR LOCKS v. INTERNATIONAL BROTHERHOOD OF POLICE OFFICERS, LOCAL 523
    (AC 32257)
    Lavine, Alvord and Peters, Js.

      Argued March 10 —
    officially released May 3, 2011

      Kevin M. Deneen, for the Appellant (plaintiff).

      Scott C. Jelescheff with whom was Stephanie Czap, for the appellee (defendant).
   Opinion

PETERS, J.

This appeal arises out of two arbitral awards in unrestricted submissions in which the arbitrators rendered facially inconsistent decisions. In Stratford v. International Assn. of Firefighters, AFL-CIO, Local 998, 248 Conn. 108, 728 A.2d 1063 (1999), our Supreme Court held that the doctrine of collateral estoppel does not require an arbitrator to adhere to an earlier arbitral inteipretation of the same provision of a contract between the same parties. Id., 109. In the present case, the town maintains that Stratford's holding is inapplicable when two arbitral panels have reached inconsistent results in grievances arising out of an on-going dispute between the same parties. We are not persuaded by this argument or by the other reasons advanced by the town in support of its contention that the trial court improperly confirmed an arbitral award in favor of the union. The judgment of the trial court is affirmed.

On November 2, 2009, the plaintiff, the town of Windsor Locks (town), filed an application, pursuant to General Statutes § 52-418, to vacate an arbitration award in favor of the defendant, the International Brotherhood of Police Officers, Local 523 (union). In response, on November 9, 2009, the union filed a cross application to confirm the arbitration award. The trial court denied the town’s application and granted the union’s application. The town has appealed.

The memorandum of decision filed by the trial court recites the relevant facts. This case arises out of two arbitration awards by the Connecticut state board of mediation and arbitration involving Windsor Locks police officer Michael S. Bracken, Jr., who was returning to duty after he had been on an extended sick leave. The town questioned Bracken’s fitness to return to duty even though two physicians had found him physically fit.

In the first award, the unrestricted submission was: “[d]id the town violate the contract when it ordered Officer Michael S. Bracken to undergo a psychological examination? If so, what shall be the remedy?” A board panel found that the management rights provision in the collective bargaining agreement authorized the town, acting through its police chief, to refer Bracken for testing by Stephen Sarfaty, a psychologist. The trial court denied the union’s application to vacate that award and granted the town’s application to confirm the award. The union did not appeal from that judgment.

In the second award, which is at issue in this appeal, the unrestricted submission was: “[d]id the town of Windsor Locks violate the collective bargaining agreement when it placed the grievant, Officer Michael Bracken, on unpaid administrative leave? If so, what shall be the remedy?” A partially different arbitral panel rejected the town’s contention that Bracken’s leave without pay was justified by the results of his psychological examination by Sarfaty, who had found him unfit to return to duty. There was a facial inconsistency between this finding and the union’s uncontested representation that Bracken had been cleared for duty both by his own physician and by a physician of the town’s choosing. The panel concluded that, under other provisions of the collective bargaining agreement, a grievant could be placed on administrative leave without pay only if the disqualifying opinion was that of a certified physician. Because the town had not established that Sarfaty was a physician, the panel ruled in favor of the union.

Over the town’s objection, the court confirmed the second award despite its facial inconsistency with the first award. The court held that, as in the earlier case, the submission was unrestricted and the award conformed to the submission. It noted that the panel had relied on a provision in the collective bargaining agreement that was different from the provision that was at issue in the first award. More generally, it rejected the town’s argument that this panel was bound by the award made by the earlier panel.

The town’s appeal from the court’s judgment raises two issues. Although the town does not contest the court’s finding that the submission of the parties’ dispute to the arbitrators was unrestricted, it maintains that (1) under the law of the case, the second arbitral award was required to conform to the first arbitral award and (2) the contradiction between the two arbitral awards deprives the second award of the finality that is a prerequisite to the enforceability of an award. We are not persuaded by either claim.

Our case law consistently has established the principle that courts play only a limited role in the review of arbitral awards. “When the scope of the submission is unrestricted, the resulting award is not subject to de novo review even for errors of law so long as the award conforms to the submission. . . . Because we favor arbitration as a means of settling private disputes, we undertake judicial review of arbitration awards in a manner designed to minimize interference with an efficient and economical system of alternative dispute resolution.” (Citations omitted.) Garrity v. McCaskey, 223 Conn. 1, 4-5, 612 A.2d 742 (1992); see also Stratford v. International Assn. of Firefighters, AFL-CIO, Local 998, supra, 248 Conn. 115.

As a legal matter, the town argues that, because both arbitrations raised questions about whether Bracken is fit to return to duty, they are parts of the same controversy and must be resolved consistently. Its appellate brief cites no authority in support of this argument and we know of none. Indeed, as the union notes, Stratford is controlling, and it is directly to the contrary.

The town’s argument is further flawed because it is premised on the proposition that the awards in the two cases are, in fact and in law, inconsistent. We agree with the union that this premise is, at best, questionable. As a factual matter, the first arbitral panel was not confronted with facially inconsistent appraisals of Bracken’s fitness for duty. As a legal matter, the first arbitral panel addressed the town’s contractual authority to require Bracken to undergo psychological testing, while the second panel addressed the town’s contractual authority to defer payment of Bracken’s wages. Because these are not the same questions, their answers need not be consistent.

The town’s failure to establish an inconsistency between the two arbitral awards is also fatal to its alternate argument that the court improperly confirmed the present arbitration award because it was not “mutual, final and definite.” The town bases this argument on its contention that this award directly contradicted a prior award involving the same parties and the same contractual provisions. Because we have concluded that the town is mistaken in its characterization of the relationship between the two awards, this argument cannot be sustained.

The judgment is affirmed.

In this opinion the other judges concurred.


author: GRUENDEL, J.

text:
    JONATHAN M. TANZMAN v. MARGARET E. MEURER
    (AC 30723) (AC 30973)
    DiPentima, C. J., and Gruendel and West, Js.

      Argued March 17 —
    officially released May 3, 2011

      Samuel V. Schoonmaker IV, with whom was Wendy Dunne DiChristina, for the appellant (plaintiff).

      Gaetano Ferro, with whom was Sarah E. Murray, for the appellee (defendant).
   Opinion

GRUENDEL, J.

The plaintiff, Jonathan M. Tanzman, appeals from the judgment of the trial court denying his postjudgment motion to modify his unallocated alimony and child support obligations to the defendant, Margaret E. Meurer. The dispositive issue raised by the plaintiff in this appeal is whether the court improperly denied his motion for modification given an allegedly substantial change in his financial circumstances. We affirm the judgment of the trial court.

The record reveals the following relevant facts and procedural history. On November 6, 2006, the parties divorced after approximately eleven years of marriage. At the time of the divorce, the court ordered, inter alia, that the plaintiff make monthly payments of unallocated alimony and child support to the defendant in the amount of $16,000 for fourteen years. This order was premised on the court’s evaluation of the plaintiffs average historical income as a day trader and the earning capacities of both parties. Importantly, however, the court assigned no specific monetary value to either parties’ earning capacity or earned incomes at the time of the divorce. Instead, the court noted that the plaintiff had “an earning capacity far beyond his current [earned income] earnings,” which, based on the plaintiffs financial affidavit, consisted of a weekly loss of $224, but a total yearly net income of $789,266. As the court explained, “[although . . . changes in the market . . . have proven a challenge to [the plaintiffs] continued financial success, the court does not believe that [the plaintiff] has made satisfactory efforts toward gaining new employment. ” Thus, despite the plaintiffs argument that, at the time of the parties’ divorce, his decreased earning capacity should mitigate any alimony and child support obligation, the court concluded that no such mitigation was justified.

On January 9, 2008, the plaintiff filed a postjudgment motion for a downward modification to his unallocated alimony and child support obligations. In support thereof, the plaintiff alleged that a substantial change in his financial circumstances had occurred, specifically as it concerned his then present actual earnings, as compared to the earning capacity attributed to him previously by the court at the time of the divorce. In fact, the allegedly substantial change in circumstances was the plaintiffs acquisition of new employment with an annual earned income of $100,000. Nevertheless, during a hearing on his motion for modification, the plaintiff conceded that his total “taxable income” in 2008 would be in excess of $800,000. On October 7, 2008, the court denied the plaintiffs motion for modification, concluding that the “[p]laintiff ha[d] failed to establish the threshold predicate required to entertain [the] motion” — namely, a substantial change in the plaintiffs financial circumstances. As the court emphasized, the plaintiffs income “ha[d] not been reduced from the income disclosed at the time of [the divorce]. . . . [To the contrary], the plaintiffs income was almost identical to what he disclosed at the time of [the divorce].” Moreover, notwithstanding the change in the pla.intifFs earned income, the court reiterated its conclusion that its order was based on the plaintiffs earning capacity, which remained unchanged, although unspecified monetarily, from the time of the parties’ divorce. This appeal followed.

The plaintiff now claims that the court improperly denied his postjudgment motion for modification. Specifically, he argues that the court incorrectly determined that obtaining postjudgment employment with an annual earned income of $100,000 did not constitute a substantial change in circumstances from those that existed at the time the court entered its alimony and child support order. Additionally, the plaintiff argues that by not attributing a specific monetary value to his earning capacity, the court could not possibly make a legitimate determination as to whether a substantial change in the plaintiffs postjudgment financial circumstances had occurred.

Before addressing the merits of the plaintiffs claim, we begin with the applicable legal principles and standard of review governing our analysis. “The well settled standard of review in domestic relations cases is that this court will not disturb trial court orders unless the trial court has abused its legal discretion or its findings have no reasonable basis in the facts. ... As has often been explained, the foundation for this standard is that the trial court is in a clearly advantageous position to assess the personal factors significant to a domestic relations case . . . .” (Internal quotation marks omitted.) Schade v. Schade, 110 Conn. App. 57, 62, 954 A.2d 846, cert. denied, 289 Conn. 945, 959 A.2d 1009 (2008).

“Trial courts have broad discretion in deciding motions for modification. . . . Modification of [an unallocated award] of alimony [and child support], after the date of a dissolution judgment, is governed by General Statutes § 46b-86. . . . When . . . the disputed issue is [an unallocated] alimony [and child support award], the applicable provision of the statute is § 46b-86 (a), which provides that a final order for [unallocated] alimony [and child support] may be modified by the trial court upon a showing of a substantial change in the circumstances of either party. . . . The party seeking modification bears the burden of showing the existence of a substantial change in the circumstances. . . . The change may be in the circumstances of either party. . . . The date of the most recent prior proceeding in which an alimony order was entered is the appropriate date to use in determining whether a significant change in circumstances warrants a modification of an [unallocated] alimony [and child support] award.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Crowley v. Crowley, 46 Conn. App. 87, 91-92, 699 A.2d 1029 (1997).

We previously have “explained the specific method by which a trial court should proceed with a motion brought pursuant to § 46b-86 (a). When presented with a motion for modification, a court must first determine whether there has been a substantial change in the financial circumstances of one or both of the parties. . . . Second, if the court finds a substantial change in circumstances, it may properly consider the motion and, on the basis of the [General Statutes] [£]# 46b-82 [and] [46b-84 (d)] criteria, make an order for modification. . . . The court has the authority to issue a modification only if it conforms the order to the distinct and definite changes in the circumstances of the parties.” (Emphasis in original; internal quotation marks omitted.) Gervais v. Gervais, 91 Conn. App. 840, 850-51, 882 A.2d 731, cert. denied, 276 Conn. 919, 888 A.2d 88 (2005). “Simply put, before the court may modify an [unallocated] alimony [and child support] award pursuant to § 46b-86, it must make a threshold finding of a substantial change in circumstances with respect to one of the parties.” Schade v. Schade, supra, 110 Conn. App. 63.

In the present case, the plaintiff sought a downward modification to his unallocated alimony and child support obligations on the basis that his postjudgment acquisition of new employment with an annual earned income of $100,000, constituted a substantial change in the financial circumstances that existed at the time the award was entered. He argues that the ongoing deterioration of the value of his earning capacity, coupled with his newly acquired postjudgment earned income, justified a downward modification to the court’s award. We conclude, however, that the plaintiffs reliance on an allegedly substantial change between the monetary value of his postjudgment earned income and the unspecified monetary value of his earning capacity at the time the court entered its award is misplaced and disingenuous. Although the plaintiffs financial affidavit submitted at the time of the parties’ divorce disclosed earned income at a weekly loss of $224, the court never specifically adopted this finding, nor did the court rely on the plaintiffs earned income in determining the unallocated alimony and child support award. See Gervais v. Gervais, supra, 91 Conn. App. 851 (“[t]he court has the authority to issue a modification only if it conforms the order to the distinct and definite changes in the circumstances of the parties” [internal quotation marks omitted]). Rather, the court relied explicitly on the plaintiffs earning capacity, both in setting the award and, subsequently, denying the plaintiffs motion for a modification thereto.

In emphasizing the near identical monetary values of the plaintiffs total income at the time of the parties’ divorce and at the time when the plaintiff sought a modification to his alimony and child support obligations, the court articulated adequately its threshold finding that no substantial postjudgment change had occurred with respect to the plaintiffs financial circumstances, specifically as they related to his earning capacity. We find it telling that the court’s evaluation of the plaintiffs earning capacity, as a foundation for its award and denial of the plaintiffs motion for modification, remained unchanged throughout the underlying proceedings. Indeed, the fact that the plaintiffs earning capacity had deteriorated was as readily apparent at the time of the parties’ divorce as it was at the time that the court denied the plaintiffs motion for modification. Finally, despite his arguments to the contrary, the plaintiff has failed to provide us with any statute, case law or rule of practice that requires the trial court to specify an exact earning capacity when calculating an alimony and child support award. See Chyung v. Chyung, 86 Conn. App. 665, 675-76, 862 A.2d 374 (2004), cert. denied, 273 Conn. 904, 868 A.2d 744 (2005). In contrast to the plaintiffs position, our review of the case law suggests that earning capacity, as a standard by which the court determines alimony and child support obligations, is meant to be a flexible concept, particularly suited to cases where the designation of a precise monetary value of earned income is inappropriate. See Weinstein v. Weinstein, 87 Conn. App. 699, 710, 867 A.2d 111 (2005) (“Generally, one’s earning capacity is not synonymous with actual earned income. Our Supreme Court has stated that earning capacity is not an amount which a person can theoretically earn, nor is it confined to actual income, but rather it is an amount which a person can realistically be expected to earn considering such things as his vocational skills, employ-ability, age and health.” [Internal quotation marks omitted.]), rev’d on other grounds, 280 Conn. 764, 911 A.2d 1077, after remand, 104 Conn. App. 482, 934 A.2d 306 (2007), cert. denied, 285 Conn. 911, 943 A.2d 472 (2008); see also Hart v. Hart, 19 Conn. App. 91, 95, 561 A.2d 151 (“[i]t is particularly appropriate to base a financial award on earning capacity where there is evidence that the payor has voluntarily quit or avoided obtaining employment in his field”), cert. denied, 212 Conn. 813, 565 A.2d 535 (1989).

In sum, we conclude that the court did not abuse its discretion in determining that the plaintiffs postjudgment attainment of employment with an annual earned income of $100,000 did not constitute a substantial change in the plaintiffs financial circumstances as they existed at the time of the parties’ divorce. It is undisputed that the plaintiffs unallocated alimony and child support obligations were based not on earned income, but on earning capacity, which the court properly deemed as unchanged at the time the plaintiff sought a downward modification to his obligations. Accordingly, the plaintiffs claim fails.

The judgment is affirmed.

In this opinion the other judges concurred.

       Although the plaintiff also appealed from various postjudgment orders awarding attorney’s fees in favor of the defendant, the plaintiff abandoned these claims during oral argument in this court. Accordingly, we confine our analysis to the issues raised by the trial court’s denial of the postjudgment motion for modification of alimony and child support.

       Because we conclude that this claim is dispositive, we need not address the plaintiffs additional claims that the trial court improperly (1) altered the rationale for its decision after this court’s orders of articulation and (2) misapplied the law by designating as income, taxable litigation proceeds awarded to the plaintiff as an equitable division.

       At the time of their divorce, the parties had three minor children.

       We note that in both its November 6, 2006 and October 7, 2008 memoranda of decision, the court relied on earning capacity, rather than actual earned income, in setting the plaintiffs alimony and child support obligations and denying his motion for modification, respectively. On appeal, the plaintiff does not challenge the court’s application of earning capacity for purposes of determining his alimony and child support obligations.

       Additionally, the plaintiffs September 25, 2006 financial affidavit discloses approximately $2.3 million in assets.

       Prior to the parties’ divorce, the plaintiff had “epjoyed considerable success as a day trader . . . [hjowever, due to changes in the industry, he ha[d] been unsuccessful at trading and claim[ed] that he [was] unable to find another job in the field.” Evidence presented at the time of the divorce indicated, however, that the plaintiffs inability to obtain employment also may have been the result of his desire to enjoy “a more relaxed lifestyle.”

       The plaintiffs revised financial affidavit, dated August 4, 2008, discloses approximately $1.7 million in assets.

       See General Statutes § 46b-86 (a).

       To clarify, the court’s reference to the plaintiffs “income,” is to the “total” income disclosed by the plaintiff at the time of the divorce, 2006, and the time the plaintiff sought the postjudgment downward modification to his alimony and child support obligations, 2008. Semantics aside, however, it is clear from the record that both the initial order of support and subsequent denial of the plaintiffs motion for modification, were based on the court’s consideration of the plaintiffs earning capacity, not on a specific monetary amount of earned income.

       The plaintiff does not dispute the fact that the court never assigned a specific monetary value to the plaintiffs earning capacity, either at the time of the parties’ divorce, or at the time the plaintiff sought the postjudgment modification to the court’s order.


text:
    JOHN M. HERASIMOVICH ET AL. v. TOWN OF WALLINGFORD ET AL.
    (AC 31704)
    DiPentima, C. J., and Robinson and Bear, Js.

      Argued February 10 —
    officially released May 3, 2011

      Vincent T. McManus, Jr., for the appellants (plaintiffs).

      Thomas R. Gerarde, with whom, on the brief, was Jay T. DonFrancisco, for the appellee (defendant town of Wallingford).

      Michael F. O’Connor, for the appellee (defendant Greene-Woronick, Inc.).

      Charlene M. Russo, for the appellee (defendant Ward Street Church of Christ).
   Opinion

ROBINSON, J.

The plaintiffs, John M. Herasimovich, Martin P. Herasimovich and Rosemary A. Herasimovich, appeal from the judgment of the trial court rendered in favor of the defendants, the town of Wallingford (town), Greene-Woronick, Inc. (Greene-Woronick) and the Ward Street Church of Christ (church), in an action for declaratory and injunctive relief regarding the use of a drainage easement. On appeal, the plaintiffs claim that the court improperly (1) interpreted the language of a deed granting an easement and (2) concluded that the town had acquired the right to maintain a culvert by prescription. We affirm the judgment of the trial court.

The trial court’s memorandum of decision sets forth the following relevant facts. On July 5, 1954, Harry B. Bramley, the plaintiffs’ predecessor in title, conveyed an easement to the town by deed granting it “the right to drain surface water flowing from the highway known as Broad Swamp Road . . . over and upon” the plaintiffs’ property. The easement further stated that “[s]aid right of way begins at a point on the east side of said highway at the location of the present culvert under said highway . . . .” The easement also granted the town the right to install one hundred feet of drainage pipe on the property along with the right to enter the property at any time for the purpose of maintaining the pipe.

“Broad Swamp Road, now Highland Avenue, runs in a generally north/south direction. The plaintiffs’ property is on the east side of Highland Avenue. Properties to the north of the plaintiffs’ property, on both the east and west side of Highland Avenue, are generally at a higher elevation than the plaintiffs’ property.

“The Broad Swamp Road in 1954 was described as an ‘uncurbed crowned, tar road.’ Water on the west side of the crown of the roadway flowed in a ditch on the west side of the roadway to the culvert that ran under the road opposite the plaintiffs’ property. Water on the east side of the crown of the road would naturally flow down the east side of the road until it reached a low point. In 1954, there were no municipal drainage structures such as catch basins along either side of the highway.

“The plaintiffs’ parents acquired [the] property shortly after the . . . easement was granted. The . . . property consisted] of approximately thirty-five acres of land. Some portions of the property close to Highland Avenue have been used for agricultural purposes by the plaintiffs or their parents. The highest elevations on the plaintiffs’ property are adjacent to Highland Avenue. The property slopes down and away from the highway. . . .

“[Greene-Woronick’s] property is on the west side of Highland Avenue. [Greene-Woronick] subdivided the parcel to create a residential subdivision which included Shangri Lane. [Greene-Woronick] received approval for this subdivision in 2003. The subdivision has four homes. Three of the four [homes] do not drain toward the plaintiffs’ property. One house, plus a portion of Shangri Lane, drains toward Highland Avenue. All of the property now or formerly owned by [GreeneWoronick] on the west side of Highland Avenue are above the elevation of 270 feet (the elevation of the . . . easement). Upon completion of [Greene-Woronick’s] subdivision, Shangri Lane and the drainage structures within the roadway, were deeded to the [town]. These drainage structures discharge into catch basins and drainage pipes maintained along the west side of Highland Avenue by the [town].

“The . . . chinch acquired property on the west side of Highland Avenue in 2000. The parcel is undeveloped except for a gravel driveway that intersects Highland Avenue south of the . . . easement. This elevated gravel driveway . . . proceeds in a westerly direction from Highland Avenue. This property also has a frontage on Church Street or Route 68. The [church’s] predecessor in title . . . had previously subdivided the parcel and sold off a house lot. This house lot was referred to during the trial as either the parsonage or the Baker lot. The Baker lot is served by an elevated driveway proceeding in a westerly direction from Highland Avenue. The Baker lot driveway is located south of the . . . easement and north of the church driveway. The elevations on the Baker [lot] adjacent to the culvert are between 268 and 270 feet.

“The engineering evidence presented during the trial was in general consensus with regard to the watershed served by the culvert that crosses under Highland Avenue onto the plaintiffs’ property. The . . . watershed ... in 1954 was comprised of approximately seventeen acres on the west side of the Highland Avenue.

“Within the watershed were and are the parcels currently owned by the defendants. Also within the watershed are additional parcels of land. The owners of the additional parcels of land, including the Baker [lot], have not been joined as defendants in this action. One tract to the north of [Greene-Woronick’s] parcel was developed in 1984/85 as the Strathmore Farm subdivision. The Strathmore Farm subdivision includes Hayledge Court. Hayledge Court connects to Highland Avenue north of the . . . easement.

“Surface water in the . . . watershed naturally flowed toward the culvert under Highland Avenue adjacent to the plaintiffs’ property. This would include water that flowed over and through the land within the watershed or water that flowed along the surface or adjacent to Highland Avenue.

“On the east side of Highland Avenue, as previously described, the plaintiffs’ property slopes down and away from Highland Avenue. Properties that abut the plaintiffs’ parcel on the north and south are generally at higher elevations than the plaintiffs’ parcel. Surface water from such parcels would naturally flow perpendicularly to the topographic elevation lines and toward the plaintiffs’ property. As such, in 1954, and at present, the plaintiffs receive some surface and underground drainage from the abutting properties. This drainage is in addition to the flows that come onto the plaintiffs’ property from the . . . easement and the precipitation that falls directly on the plaintiffs’ property.

* * *

“In 1973, the town installed 780 feet of fifteen inch pipe and five catch basins on the westerly side of Highland Avenue. The southerly most catch basin was connected to the culvert under Highland Avenue to the . . . easement pipe.

“In 1984/85, the drainage system under Hayledge Court was connected to the 1973 municipal drainage system serving Highland Avenue. This was a gravity system. There were no pumps used to move the water within the system. In 1988 the church property was subdivided. Elevated driveways were created to enter the lots. Culverts were placed underneath these driveways, and they were connected with a catch basin that is not located in a roadway.

“In 1997 the town widened Highland Avenue and added catch basins and curbed the east side of Highland Avenue.

“In 2003, the [Greene-Woronick] subdivision, which included Shangri Lane, was completed. The subdivision included a long forty-eight inch wide pipe under the roadway that ultimately was connected to the catch basin system on Highland Avenue. This is also a gravity system. There were no pumps used to move the water within the system. According to the town’s engineering calculations, the large pipe serves as a detention basin and flow out of the pipe is ‘metered’ so that there is no increase in the rate of runoff.

“It was in late 1988 when the plaintiffs first complained about the amount of water draining on to their property through the . . . easement. The plaintiffs wrote to the town complaining about the amount of water draining through their property and the damage it was causing. In response to the plaintiffs’ complaint, the town brought to the plaintiffs’ attention the 1954 . . . easement. It was also discovered [at] about this time that the town had installed 240 feet of pipe rather than the ‘approximately 100 feet’ of pipe allowed by the easement. Shortly after the plaintiffs’ complaint, the town removed 140 feet [of] pipe.”

On September 9, 2003, the plaintiffs filed the underlying action, alleging various claims against the defendants. The plaintiffs claimed that the town had surcharged and overburdened the easement, created a nuisance and violated certain rights guaranteed by the Connecticut constitution. In addition, the plaintiffs brought nuisance and trespass claims against GreeneWoronick, alleging that the subdivision of its parcel of land on the west side of Highland Avenue had increased the amount of water flowing over and through their property. The plaintiffs also alleged that the church installed drainage structures on its land in such a way as to drain the water from its property onto the plaintiffs’ property, thus creating a continuing trespass and a nuisance. The plaintiffs sought a permanent injunction ordering the defendants to cease draining on their property all drainage not originally contemplated by the easement, an order restraining Greene-Woronick from entering onto the plaintiffs’ property or draining any water onto the plaintiffs’ property, a declaration that the town unreasonably caused the impairment, pollution and destruction of natural resources in violation of General Statutes § 22a-16, an order requiring the defendants to remove their water drainage structures and attorney’s fees pursuant to General Statutes § 22a-18 (e).

The matter was tried to the court and, on October 7, 2009, the court issued its memorandum of decision. In its decision, the court made several conclusions regarding the plaintiffs’ claims. First, the court concluded that the plaintiffs had failed to meet their burden of proof to establish their claim that the town had surcharged and overburdened the easement. In reaching this conclusion, the court first attempted to define the scope of the easement by interpreting the language of the deed. The court concluded that the parties intended the term “ ‘surface water,’ ” as used in the deed, to include not only water that naturally accumulated on the surface of Highland Avenue by way of precipitation but also water that naturally flowed off of property adjacent to Highland Avenue. After defining the scope of the easement, the court determined that the plaintiffs failed to establish that the easement had been overburdened. The court also concluded that the plaintiffs failed to meet their burdens of proof to establish their trespass and nuisance claims against Greene-Woronick and the church. Additionally, the court concluded that the town had acquired the right to maintain the culvert underneath Highland Avenue by prescription and that General Statutes § 13a-138a barred all of the plaintiffs’ claims directed against the town. This appeal followed.

On appeal, the plaintiffs claim that the court improperly (1) inteipreted the language of the deed granting the easement and (2) concluded that the town had acquired the right to maintain the culvert by prescription.

I

The plaintiffs first claim that the court improperly interpreted the language of the deed granting the easement. Specifically, the plaintiffs claim that the court improperly concluded that the parties intended the term “surface water” to include both precipitation falling on Highland Avenue and water that naturally flows off of property adjacent to Highland Avenue. The plaintiffs argue that the parties intended the meaning of the term “surface water” to be limited solely to precipitation falling on Highland Avenue. We do not agree.

“We begin by setting forth the applicable standard of review. For a determination of the character and extent of an easement created by deed we must look to the language of the deed, the situation of the property and the surrounding circumstances in order to ascertain the intention of the parties. . . . The language of the grant will be given its ordinary import in the absence of anything in the situation or surrounding circumstances which indicates a contrary intent. . . . [T]he determination of the intent behind language in a deed, considered in the light of all the surrounding circumstances, presents a question of law on which our scope of review is plenary. ... In determining the scope of an express easement, the language of the grant is paramount in discerning the parties’ intent. In order to resolve ambiguities in the language, however, the situation and circumstances existing at the time the easement was created may also be considered.” (Citations omitted; emphasis added; internal quotation marks omitted.) Leposky v. Fenton, 100 Conn. App. 774, 778, 919 A.2d 533 (2007).

With these principles in mind, we look to the language of the deed. As set out previously, the deed granted the town “the right to drain surface water flowing from the highway known as [Highland Avenue] over and upon [the plaintiffs’ property] . . . .” (Emphasis added.) Surface water has been defined as “natural water that has not penetrated much below the surface of the ground”; Webster’s Third New International Dictionary (2002); and “[w]ater lying on the surface of the earth but not forming part of a watercourse or lake.” Black’s Law Dictionary (9th Ed. 2009). “Water such as rainfall runoff is ordinarily in this category until it either seeps into the ground or runs into a confined water body. . . . Surface diffuse water is said to run in watersheds or drainage basins.” 9 R. Powell, Powell on Real Property (M. Wolf ed. 2011) § 65.02 [2] [c] [in], p. 65-26. We conclude that the natural and ordinary import of the term “surface water” is broad enough to include the water that naturally flows off of property adjacent to Highland Avenue.

The evidence that was adduced at trial regarding the situation of the property and the surrounding circumstances supports our conclusion that the term “surface water” includes the water that naturally flows off of property adjacent to Highland Avenue. The evidence revealed that, at the time that the easement was granted, surface water in the watershed naturally flowed from west to east, toward the culvert under Highland Avenue that was adjacent to the plaintiffs’ property. The town’s expert, George Cotter, testified that surface water flowed overland from the watershed to Highland Avenue, where it was collected. Specifically, Cotter testified that the surface water that reached Highland Avenue “flowed in the gutter line along Highland Avenue down ... to the culvert that was located on the west side [of the road] . . . .” Moreover, Cotter testified that “[t]he water [in the watershed] flows from the areas upland to the west, to the highway, and gets there. The fact that we changed how the water got to the highway is still the water that got to the highway. . . . [A]ll that’s been done in a minor sense is they put some of the surface water into a storm drain pipe; that’s the change. It’s still the water from the highway.” (Emphasis added.) The plaintiffs did not present any evidence that indicated that the parties intended the term “surface water” to be limited solely to precipitation falling on Highland Avenue. Accordingly, we conclude that the court properly determined that the parties intended the term “surface water” to include the water that naturally flowed off of property adjacent to Highland Avenue.

II

The plaintiffs next claim that the court improperly concluded that the town had acquired the right to maintain the culvert by prescription. Specifically, the plaintiffs claim that the record contains no evidence from which the court could have found any of the elements necessary to find an easement by prescription. We disagree.

“When the factual basis of a trial court’s decision [regarding the existence of a prescriptive easement] is challenged, our function is to determine whether, in light of the pleadings and evidence in the whole record, these findings of fact are clearly erroneous.” (Internal quotation marks omitted.) Frech v. Piontkowski, 296 Conn. 43, 54, 994 A.2d 84 (2010). “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. ... In making this determination, every reasonable presumption must be given in favor of the trial court’s ruling.” (Internal quotation marks omitted.) Taylor v. Silverstein, 104 Conn. App. 468, 477, 934 A.2d 839 (2007), cert. denied, 285 Conn. 910, 940 A.2d 809 (2008).

“To establish an easement by prescription . . . the plaintiff must prove the necessary elements by a preponderance of the evidence. ... It is well settled that before a use may develop into a prescriptive easement, it must be (1) open and visible, (2) continuous and uninterrupted for fifteen years and (3) engaged in under a claim of right.” (Citation omitted.) Hoffman Fuel Co. of Danbury v. Elliott, 68 Conn. App. 272, 277, 789 A.2d 1149, cert. denied, 260 Conn. 918, 797 A.2d 514 (2002).

In its memorandum of decision, the court concluded that “the clear and convincing evidence in this case leads the court to the conclusion that the town had maintained the culvert in that location since prior to 1954.” The court found that the culvert existed in 1954, as evidenced by the deed. The court further found that the grantor was aware of the culvert and did not object to the culvert. In addition, the court found that the town had maintained the culvert continually since at least 1954 and that it had done so in an open and obvious way for more than the required fifteen years, acting under a claim of right. After a thorough review of the record, we conclude that the evidence amply supports the court’s finding that the town acquired through prescription the right to maintain the culvert.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiffs also claim that the court improperly concluded that General Statutes § 13a-138a barred their claims against the town. Because we conclude that the plaintiffs cannot succeed on their first two claims, we need not reach their third claim.

       In 1979, the town renamed “Broad Swamp Road” “Highland Avenue.” For purposes of this appeal, Broad Swamp Road and Highland Avenue are used synonymously.

       A culvert is defined as “a transverse drain or waterway . . . .” Webster’s Third New International Dictionary 553 (2002).