author: FREEDMAN, J.

text:
    STATE OF CONNECTICUT v. ABARA ROSE
    (13394)
    Spear, Hennessy and Freedman, Js.

      Argued January 16
    officially released June 18, 1996

      William Andrew Lichtenfels, special public defender, with whom, on the brief, was Sandra Crowell, certified legal intern, for the appellant (defendant).

      Christopher T. Godialis, deputy assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Vicki Melchiorre, assistant state’s attorney, for the appellee (state).
   FREEDMAN, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of unlawful restraint in the first degree in violation of General Statutes § 53U-95, threatening in violation of General Statutes § 53a-62 (a) (2), reckless burning in violation of General Statutes § 53a-114 (a), and risk of injury to a child in violation of General Statutes § 53-21. On appeal, the defendant claims that he is entitled to a new trial because (1) the state impermissibly cross-examined him about his postarrest silence in violation of the federal and state constitutions, and (2) he was deprived of his constitutional right to an adequately instructed jury because the trial court did not relate the facts of the case to the law in the jury instructions. We affirm the judgment of the trial court.

The defendant was initially charged, in two separate informations, with six counts. In the first information, based on an incident that occurred on November 1, 1992, the defendant was charged with reckless burning and risk of injury to children. 6In the second information, based on an incident that occurred on August 4, 1993, the defendant was charged with attempted assault in the first degree, unlawful restraint in the first degree, reckless endangerment in the first degree and threatening.

Regarding the first incident, the jury could have reasonably found the following facts. On November 1,1992, Lugine Kemp, her three children and the defendant were living together in a rented apartment. On that evening, Kemp and the defendant had an argument. The defendant went downstairs and Kemp stayed upstairs and went to bed. Kemp’s six year old daughter later awoke her and said that the house was on fire. As she exited her bedroom, Kemp saw flames between the bedroom and the bathroom. She noticed that the items burning were a piece of paper on top of a T-shirt and a piece of plywood. Kemp left the house with her children. Once outside, she did not see the defendant. Kemp then went to a neighbor’s house to call the police, who called the fire department. The firefighters did not find fire in the house. Kemp spent the night at her mother’s house.

Detective Thomas Goodrow of the arson unit of the Hartford police department was called to the scene that evening. Outside, he found and obtained as evidence “what appeared to be the remnants of at least two T-shirts on top of a piece of lauan boarding.” When he went inside the apartment, Goodrow noticed a strong smell of smoke and a haze. On the basis of Goodrow’s investigation, all natural and accidental causes for the fire were ruled out, and it was concluded that the fire “was unquestionably incendiary in nature, a deliberate act of arson, human” that created “a significant danger” to the building and its occupants.

Regarding the second incident, the jury could have reasonably found the following facts. On August 4,1993, Lawunna Smith left work at approximately 4:40 p.m. and proceeded to walk home across a vacant lot when she was approached by the defendant, who was a friend of hers. The defendant came up to Smith, moving as if he were going to put his arm around her, and poured what smelled like gasoline on Smith from a green soda bottle that he had in his hand. The gasoline fell onto Smith’s chest and neck area, and she was afraid. As he poured the gasoline on Smith, the defendant asked her whether she had ever been burned or had ever seen a person get burned. Smith tried to get away but the defendant pulled and hit her and punched her in the stomach. He then produced a book of matches from his pants pocket and “took a single strike from the book of matches.” Smith was frightened and crying, believing that the defendant was going to strike the match and throw it on her. She again tried to get away, but was unable to because “every step [she] would take he was right there.” Smith tried to talk to the defendant, asking the reason for his behavior. The defendant then put away the matches and pulled out a paring knife, which he held to Smith’s neck while he threatened to kill her. The defendant eventually put the knife away and Smith ran to her aunt’s house nearby.

Smith stayed at her aunt’s house until she felt sure that the defendant was not around. On her way home, Smith stopped at the home of her friend, Michael Tig-gett. Smith was shaking when she arrived at Tiggett’s house, and she told Tiggett what had occurred. At this point, the defendant was sitting across the street in front of Tiggett’s house. Tiggett went outside and spoke to the defendant, who then left, but said he would be back.

Smith eventually went back to her aunt’s house and called the police. Officer Michael Gaffney of the Hartford police department responded to the call and found Smith to be “covered with what appeared to be gasoline.” Gaffney telephoned Goodrow of the arson unit and obtained Smith’s clothing as evidence. Gaffney then went to pick up the defendant at his apartment. Goodrow accompanied Smith to the area where her encounter with the defendant had taken place. He found a green soda bottle on the ground that he collected as evidence. The result of the lab test on the bottle indicated evaporated gasoline.

I

The defendant first claims that he is entitled to a new trial because the state impermissibly cross-examined him about his postarrest silence in violation of the fourteenth amendment to the federal constitution and article first, § 8, of the Connecticut constitution. Specifically, the defendant claims that his right to due process was violated under Doyle v. Ohio, 426 U.S. 610, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976), when the prosecuting attorney questioned him about his postar-rest silence and when the state presented testimony in its case-in-chief that referred to the defendant’s post-arrest silence. At trial, the defendant did not object to the introduction of this evidence and thus brings this claim under State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973), and State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).

“Under Golding, a defendant can prevail on an unpreserved claim of constitutional error ‘only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.’ . . . The first two conditions are determinations of whether a defendant’s claim will be reviewed, and the third condition involves a review of the claim itself.” (Citation omitted.) State v. Crosby, 34 Conn. App. 261, 264, 641 A.2d 406, cert. denied, 230 Conn. 903, 644 A.2d 916 (1994). “In harmony with the objective of Golding, the defendant’s claim may be disposed of ‘by focusing on whichever condition is most relevant in the particular circumstances.’ ” State v. Cooper, 227 Conn. 417, 440, 630 A.2d 1043 (1993).

Regarding the August 4, 1993 incident, the state, as part of its case-in-chief, presented the testimony of Goodrow. According to Goodrow, after the defendant had been brought to the police station by Gaffney, Goodrow spoke with him in an interview room. After advising the defendant of his rights, the defendant refused to sign a waiver form. Prior to Smith’s coming in to identify the defendant, Goodrow went over the charges against the defendant, at which point the defendant stated that he “was there but . . . didn’t throw the gasoline.”

During the cross-examination of the defendant, the state elicited information from the defendant regarding his statements to Goodrow. The defendant testified regarding his statement that Smith was his girlfriend, that Goodrow had advised him of his rights, and that the defendant never told Goodrow that the fight he and Smith had was about money. The testimony then turned to whether Goodrow had allowed the defendant to make a statement after he was advised of his rights and the defendant’s claim that he was not given an opportunity to tell his side of the story. Following a lunch recess, the court pointed out that “[although [defense counsel] did not interpose any objections, during the luncheon recess the court pointed out to both counsel that the state’s inquiries . . . into his things he didn’t say to the police would not be viewed with favor.”

“The state’s use for impeachment purposes of a defendant’s silence following receipt of Miranda warnings violates due process. . . . Silence following Miranda warnings is ‘insolubly ambiguous’ because it may be nothing more than a defendant’s exercise of his or her Miranda rights. . . . Once the government assures a defendant through the issuance of Miranda warnings that his silence will not be used against him, it is fundamentally unfair for the state to break that promise by using his silence against him at trial. . . . Comments by the state on a defendant’s silence following Miranda warnings are not only constitutionally impermissible, but also inadmissible under the principles of evidence.” (Citations omitted.) State v. Crosby, supra, 34 Conn. App. 266-67. It is permissible, however, for the state to present such evidence to “show the investigative effort made by the police and the sequence of events as they unfolded.” (Internal quotation marks omitted.) State v. Casey, 201 Conn. 174, 183-84, 513 A.2d 1183 (1986).

“The principles of Doyle do not apply where the record fails to indicate ‘that the silence of a defendant has been preceded by a Miranda warning . . . .’ State v. Leecan, [198 Conn. 517, 524, 504 A.2d 480, cert. denied, 476 U.S. 1184, 106 S. Ct. 2922, 91 L. Ed. 2d 550 (1986)] . . . .” (Citation omitted.) State v. Crosby, supra, 34 Conn. App. 267. The state argues that as to Goodrow’s testimony, the record is inadequate to review this claim because the record does not adequately reflect that the defendant was ever asked to sign a waiver form. We disagree. Goodrow testified that he advised the defendant of his rights and the defendant refused to sign anything. Moreover, as correctly pointed out by the defendant, the state, in questioning the defendant on cross-examination, specifically referred to Goodrow’s having advised the defendant of his rights.

“The first two conditions of Golding are met here. An adequate record for review exists because the record indicates that the defendant received [Miranda] warnings regarding the right to remain silent, and the defendant’s claim is constitutional in nature because it alleges a violation of due process under Doyle. We must, therefore, consider the merits of the defendant’s claim.” State v. Crosby, supra, 34 Conn. App. 269. We conclude, however, that under the facts of this case, an alleged constitutional violation does not clearly exist and the defendant was not deprived of a fair trial.

With respect to Goodrow’s testimony that the defendant “didn’t want to sign anything,” we conclude that this does not constitute improper evidence of silence. Rather, such testimony was elicited, not for the purpose of impermissibly commenting on the defendant’s exercise of his rights pursuant to Miranda, but rather to show “the investigative effort made by the police and the sequence of events as they unfolded . . . .” (Internal quotation marks omitted.) State v. Casey, supra, 201 Corm. 183. As such, this testimony was permissible.

With respect to the cross-examination of the defendant, we agree with the state that because the defendant did not remain silent in reliance on Miranda warnings, the questioning was proper. “ ‘[T]he Doyle . . . rule has no application unless the defendant has remained silent and could be considered to have done so in reliance on the implied assurances of the Miranda warnings.’ United States v. Crowder, 719 F.2d 166, 172 (6th Cir. 1983), cert. denied, 466 U.S. 974, 104 S. Ct. 2352, 80 L. Ed. 2d 825 (1984).” State v. Joly, 219 Conn. 234, 256-57 n.15, 593 A.2d 96 (1991). Regarding the state’s inquiry of the defendant as to the fact that he never told Goodrow that he had fought with Smith about money, this question concerned the defendant’s prior admission that he and Smith had argued. When asked why he did not give this information to Goodrow, he responded that he was not asked to and that he never got a chance to. The defendant repeatedly indicated that Goodrow would not listen to him when he attempted to speak. Because silence and gestures that are not the product of reliance on Miranda are not protected; State v. Joly, supra, 257; State v. Taft, 25 Conn. App. 149, 593 A.2d 973, cert. denied, 220 Conn. 918, 597 A.2d 343 (1991); we conclude that the defendant has not shown that a constitutional violation clearly existed that deprived him of a fair trial.

II

The defendant next claims that he is entitled to a new trial because he was deprived of an adequately instructed jury. Specifically, the defendant argues that the trial court failed to relate the facts of the case to the law in its charge to the jury. The defendant concedes that this claim was not properly preserved in the trial court, but claims that it is nonetheless reviewable under the doctrine of State v. Golding, supra, 213 Conn. 233.

“In reviewing a constitutional challenge to the trial court’s instructions, we must consider the jury charge as a whole to determine whether it is reasonably possible that the instruction misled the jury. . . . The test is whether the charge as a whole presents the case to the jury so that no injustice will result. . . . We will reverse a conviction only if, in the context of the whole, there is a reasonable possibility that the jury was misled in reaching its verdict.” (Citations omitted; internal quotation marks omitted.) State v. Lemoine, 233 Conn. 502, 509, 659 A.2d 1194 (1995). “In assessing whether a jury reasonably could have been misled by the court’s instructions ... it is always proper to consider whether the issues in the case are complicated.” Id., 514-15.

In State v. Lemoine, supra, 233 Conn. 512, the Supreme Court concluded that “review of or comment on the evidence is not constitutionally mandated where the trial court, in the exercise of its sound discretion, determines that such commentary is not necessary and that the jury would be properly instructed and not misled in its absence.” In so holding, the Supreme Court noted that “[i]t has long been established that [i]n properly instructing the jury it may or may not be necessary for the court to recall the attention of the jury to the evidence and to the facts which the State and the accused respectively claim to have established, or to comment upon the evidence or express an opinion as to its weight, or as to what verdict would be proper if the jury should find certain facts to have been proved. The charge should be so framed that the jury may clearly understand the matters which are submitted to them. : . . It is within the province, and may be within the duty, of the trial judge to not only call attention to the evidence adduced, but to state to the jury in the charge his own opinion of the nature, bearing and force of such evidence. . . . It is not necessarily error to omit all comment upon the bearing and weight of evidence; and generally the extent to which the court should discuss the evidence in submitting a case to the jury is, so long as in criminal cases the jury [is] not directed how to find [its] verdict, within the discretion of the trial judge. . . . State v. Long, 72 Conn. 39, 43, 43 A. 493 (1899).” (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Lemoine, supra, 233 Conn. 510-11.

As in Lemoine, the trial court in the present case, after the close of the evidence and final arguments of counsel, instructed the jury as to the law applicable to all of the charges against the defendant. The court then instructed the juiy as to the elements the state must prove as to each crime charged in the two informations in order to convict the defendant. The court specified in its instructions the victims to which the various charges against the defendant applied, and the juiy had the informations during deliberations.

In Lemoine, although the defendant was charged with nine separate counts in the information, the Supreme Court noted that the evidence related to those charges was not complicated and the charges arose out of three separate and distinct incidents. State v. Lemoine, supra, 233 Conn. 515. In the present case, the defendant was charged, in one information, with reckless burning and risk of injury to children based on the allegation that the defendant started a fire in an apartment on November 1, 1992. In the other information, the defendant was charged with attempt to commit assault in the first degree, unlawful restraint in the first degree, reckless endangerment in the first degree and threatening, all based on the defendant’s encounter with Smith on August 4, 1993. The two incidents were not similar. Moreover, as in Lemoine, the final arguments of counsel thoroughly reviewed the testimony elicited by the witnesses. We conclude, on the basis of the foregoing, that it was not reasonably possible that the jury was misled by the trial court’s instructions and no injustice to the defendant resulted by reason of the court’s instructions. See id., 516; see also State v. Glover, 40 Conn. App. 387, 393-94, 671 A.2d 384, cert. denied, 236 Conn. 918, 673 A.2d 1145 (1996).

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-95 (a) provides: “A person is guilty of unlawful restraint in the first degree when he restrains another person under circumstances which expose such other person to a substantial risk of physical injury.”

       General Statutes § 53a-62 (a) provides in pertinent part: “A person is guilty of threatening when ... (2) he threatens to commit any crime of violence with the intent to terrorize another, to cause evacuation of a building, place of assembly, or facility of public transportation, or otherwise to cause serious public inconvenience . . . .”

       General Statutes § 53a-114 (a) provides: “A person is guilty of reckless burning when he intentionally starts a fire or causes an explosion, whether on his own property or another’s, and thereby recklessly places a building, as defined in section 53a-100, of another in danger of destruction or damage. ”

       General Statutes § 53-21 provides: “Any person who wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that its life or limb is endangered, or its health is likely to be injured, or its morals likely to be impaired, or does any act likely to impair the health or morals of any such child, shall be fined not more than five hundred dollars or imprisoned not more than ten years or both.”

       An additional charge in this information was nolled by the state during the trial.

       Kemp did not see the defendant until one week later, at which time the defendant apologized to Kemp and told her that he would never try to hurt her and the children.

       Goodrow described lauan boarding as very low grade, thin paneling.

       The clothing was put in a sealed can and transported by Goodrow to the state forensics lab in Meriden for analysis. The results came back “indicative of a by product of gasoline.”

       Although the defendant claimed at oral argument that the claimed Doyle violation applies to both the November X, 1992 incident and the August 4, 1993 incident, we agree with the state that this claim is limited to the information that charged offenses on August 4, 1993, against the victim Smith.

       The transcript reveals the following:
      “Q. Okay, prior to trying to talk to the accused, did you advise him of his rights?
      “A. Oh yeah, yeah, with the standard form.
      “Q. Okay, what are those rights that he is advised oí?
      "A. Well, the way I normally do it, it’s policy for the department and it’s my procedure, it works very well with me, I explain to the individual that he’s been charged with some very serious crimes and right now he’s under arrest, there is no discussion about that. He’s under arrest and in fact I’d like to give him an opportunity to explain what happened. But before I hear his side of the story he has to fill out a waiver of his right, he has to know he doesn’t have to say anything to me and right down the line.
      “Q. So did you read him his rights?
      “A. I paraphrased the rights and then I put the form in front of him and said let’s go over them one by one and I want you to initial and at that point he says I’m not signing anything.
      “Q. All right, so you read him his rights and you showed him a form? Is this some kind of standard police form?
      “A. Standard police form.
      ”Q. And you attempted to go through the rights, what individually you said?
      “A. Yes.
      “Q. And his response was he what?
      “A. He didn’t want to sign anything. And at that point I realized that we weren’t going to go anywhere with the interview.”

       The transcript reveals the following:
      “Q. Before bringing the victim in . . . did you talk to the defendant?
      “A. Yeah, I told him I says you know you don’t have to talk to me, but I says you know here’s what you’re going to be charged with. And I went right down the charges and I says you know, how could you throw gasoline at the woman? My gosh, don’t you know what’s gonna happen? And at that point he came up with I was there but I didn’t throw the gasoline.”

       The transcript reveals the following:
      “Q. Now when you got to the police station they asked [Smith] to identify you as the one who did this to her, didn’t they?
      “A. Yeah.
      “Q. And she did, didn’t she?
      “A. Yeah.
      “Q. And you identified [Smith] as your girlfriend, didn’t you, to the detectives?
      “A. Yeah.
      “Q. But now you just told us that you had broken off the relationship with her a couple of weeks prior to this, why did you identify her to Detective Goodrow as your girlfriend?
      “A. Detective come and ask me this woman is who to you? After he ask me who this woman I say this is my girlfriend.
      * ** *
      “Q. [A]nd so you gave him an incorrect answer. If you’re in fact telling us that you broke off this relationship a couple of weeks prior to the August 4 incident?
      “A. Yeah.
      “Q. You’re misleading the detective, you’re telling him that she’s your girlfriend?
      “A. Yeah.
      * * *
      “Q. And after she made the statements about how she didn’t want anything to do with you and you weren’t her boyfriend and all this, what was your response?
      “A. I have no response at the locked door.
      “Q. You hung your head, didn’t you?
      “A. I hang no head. The—
      “Q. You hung your head, didn’t you?
      “A. No.”

       The transcript reveals the following:
      “Q. And so when you went down there and Detective Goodrow talked to you, do you remember him advising you of your rights?
      “A. He asked me, read me the rights, when they carry me down to the station and put me in the room.”

       The transcript reveals the following:
      “Q. And you never told the detective that the fight you two had was about money, as you claim now? Is that correct?
      “A. No I never tell — he ain’t ask me that. He just — when afterwards the thing done happen he done gone speak with the girl whatever.”

       The transcript reveals the following:
      “Q. Now when the detective testified that he asked you if you want — after he read you your rights and he asked you if you wanted to make a statement he testified you said no you didn’t want to make a written statement. . . . And then he asked you if you'wanted to tell him your side of the story, did he not?
      “A. He ask me, when I explain, tell him what goin’ on he ain’t want to listen. He, instead I tell what goin’ on he tellin’ me what was said. Like when I talk to you so like similar something like what you saying, too. Like I go and say something you like put the words into my mouth for said something. Something like that he doin’.
      “Q. So he didn’t give you a chance to talk, is that what you’re telling me?
      “A. No every time I talk he tellin’ me what happen, is what he doin’, he tellin’ me.
      “Q. Well did you think he was trying to tell you what Lawunna Smith was claiming happened in the park? Did you think he was trying to make you aware of what she said and that these were serious charges?
      “A. The kind of way we talkin’ what he was saying to me I saying she said this, she said that. When I go for explain to he keep bringing what she said. He ain’t ready to hear my side or nothing, or what I got for said.”

       The transcript reveals the following:
      “Q. Okay and did you deny that you did these things?
      “A. I tell you I did not do it.
      ■‘Q. Okay and did you tell him that the reason you had met her in the park was because she owed you money?

        “A. He ain’t wait for explain all and tell, he just—
      “Q. Oh, he never gave you a chance to give that explanation, is that what you’re telling us?
      “A. That’s right.
      “Q. [W]ere you trying to tell him what happened? Your version of what happened?
      “A. He wait for I know what happened.
      “Q. He never wait for it, he never gave you a chance to tell his side?
      “A. Nope.
      “Q. And so after they took [Smith] out of the room?
      “A. This long before, this long before ....
      “Q. Just took, that’s it just locked you up?
      “A. This long before they took [Smith] and come back.
      “Q. And there wasn’t any time gap in there after they took [Smith] out when she was not talking and the detective was not talking when you had a chance to get your version of what happened in there?
      “A. Well I ain’t have no chance talk — how I’m gone talk to me self in one big room? I can’t talk to me self, both of them gone.
      “Q. Everybody just left you alone in the room?
      “A. That’s right.
      “Q. So you had no other chance?
      “A. I who I gone talk to, the wall?
      “Q. So you never got a chance to tell anyone else that night that you wanted to tell them what happened, you wanted to make a statement?
      “A. No.
      “Q. [S]o you were arrested on August 4, is that correct?
      “A. Yeah.
      “Q. And today is . . . November 1?
      “A. First, yeah.
      “Q. During that time you had no opportunity to tell anybody your side of the story, is that correct?
      “A. Only person I tell side story is my attorney.
      “Q. To your attorney? And you never had another chance to tell anyone down at the police station your story?
      “A. No.
      “Q. Did you ever try to tell anyone down there your story?
      “A. Nobody even watch me.”

        Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

       See footnote 10.

       The state asked the following question of the defendant: “Now when the detective testified that he asked you if you want — after he read you

        your rights and he asked you if you wanted to make a statement he testified you said no you didn’t want to make a written statement. . . . And then he asked you if you wanted to tell him your side of the story, did he not?” (Emphasis added.)


source: Caselaw Access Project

author: HENNESSY, J.

license: Public Domain

text:
    PATRICIA BURNS v. ROGER J. BURNS
    (13490)
    SchaUer, Spear and Hennessy, Js.
    Submitted on briefs December 14, 1995
    officially released June 18, 1996

      William H. Narwold, C. Ian McLachlan and Charles D. Ray filed a brief for the appellant (defendant).

      Kathleen A. Hogan and Arnold H. Rutkin filed a brief for the appellee (plaintiff).
   HENNESSY, J.

The defendant, Roger J. Bums, appeals from the trial court’s financial orders in this dissolution action. The defendant claims that the trial court abused its discretion in entering financial orders that (1) “are so excessive as to be punitive,” and (2) “preclude or limit modification in the future without consideration of then existing circumstances.” We affirm the judgment of the trial court.

The trial court found the following facts. The plaintiff, Patricia Bums, and the defendant were married in 1966. During the marriage, the defendant attended the Wharton School of Business. He then pursued a demanding career that often required that he be away from home. In 1993, at the time of trial, the defendant’s salary was $232,080 per year. He has received bonuses in addition to his salary, and in 1992 he received a bonus of $82,500. The plaintiff devoted her time to raising their two children and to maintaining the home; she also entertained socially as her husband’s career required. For the three years before trial, the plaintiff worked as a decorator in an architectural firm where she earned $29,500 per year.

During the six years prior to the initiation of this action, the plaintiff learned that the defendant was involved in several extramarital affairs, resulting in a series of separations and reconciliations between the parties. One year prior to the initiation of this action, the defendant purchased a house in Connecticut. The plaintiff discovered that the defendant’s infidelities continued after the purchase of that house and she filed for divorce in January, 1992.

With respect to the parties’ property, the trial court found the following. The plaintiff resides in a New York City apartment that the parties purchased for $440,000 with a $300,000 mortgage. The value of the property at the time of trial was $345,000. The Connecticut house, where the defendant resides, was purchased for $690,000 and has a mortgage of over $500,000. The value of that property at the time of trial was $665,000.

During the marriage, the parties borrowed funds to purchase real estate and stock, and during the last years of the marriage the defendant borrowed money to pay for his living expenses. During the last eight years of the marriage, the defendant spent money on gifts for his women friends. He also purchased a country club membership with $25,000 of marital funds with no intention of allowing the plaintiff to share in its benefits. His 1992 financial affidavit showed expenditures of over $500,000, more than $300,000 of which was used for personal expenses. The defendant also used marital assets to assist his parents without consulting the plaintiff. In 1990, the defendant purchased his parents’ home for $265,000 — valued at $190,000 at the time of trial — and took out two mortgages on the property totaling $280,000. The second mortgage was to his parents and a bank held the first mortgage. The defendant pays his mother $1140 per month on the mortgage as well as an additional $1300 per month for her support.

The trial court also found that while both parties share the responsibility for the breakdown of the relationship, “it was the defendant’s Janus-faced handling of the marital relationship, the separations and reconciliations, that was the catalyst which caused the breakdown of the marriage. He did not merely he to the plaintiff but led her to believe that there was hope for their relationship while humiliating her and professing his continued love and regard for her.”

On December 29, 1993, the parties stipulated to the dissolution of the marriage, and the trial court dissolved the marriage. On March 22, 1994, the court rendered financial orders after stating that it “carefully considered the criteria set forth in General Statutes §§ 46b-56, 46b-62, 46b-81, 46b-82, 46b-84 and 46b-86 (b).” The trial court also stated that it weighed this court’s holding in O’Neill v. O’Neill, 13 Conn. App. 300, 311, 536 A.2d 978, cert. denied, 207 Conn. 806, 540 A.2d 374 (1988), in which this court stated that “[a] property division ought to accord value to those nonmonetary contributions of one spouse which enable the other spouse to devote substantial effort to paid employment which, in turn, enables the family to acquire tangible marital assets. The investment of human capital in homemaking has worth and should be evaluated in a property division incident to a dissolution of marriage.”

The trial court entered the following pertinent financial orders: (1) the defendant shall pay periodic alimony of $5666.67 per month until the death of either party, which shall not terminate on the plaintiffs remarriage or cohabitation or the defendant’s retirement, but may be modified on any of these grounds based on a substantial change of circumstances; (2) the defendant shall pay alimony in the amount of 20 percent of the defendant’s earned income from all sources of employment including, but not limited to, bonuses from stock options; (3) the defendant shall receive the Connecticut property; (4) the plaintiff shall receive the New York City apartment; (5) the defendant shall receive the former home of the his parents in New Jersey; (6) the plaintiff shall retain her Smith Barney account, her Chemical Bank checking account, her interest in the Seaview trust, her IRA and Keough accounts and her automobile; (7) the defendant shall retain the country club membership, his antique car, his bank accounts and stock options as shown on his financial affidavit; (8) the defendant shall transfer and assign to the plaintiff his 401k plan and 90 percent of the value of the marketable securities, as those values existed on December 29, 1993, and pay collateral loans to Fleet and Princeton Banks; (9) the plaintiff shall receive 62 percent of the defendant’s pension plans; (10) the defendant shall maintain life insurance in the amount of $400,000 for the benefit of the plaintiff; and (11) the defendant shall pay $15,000 toward the plaintiffs counsel fees.

I

The defendant first claims that the trial court abused its discretion by entering financial orders that are so excessive as to be punitive. The defendant claims that the trial court awarded the plaintiff 90 percent of the parties’ net worth, leaving only the remaining 10 percent for him. He claims that the trial court failed to justify the award properly and, absent that justification, the one-sided nature of the award indicates that the trial court sought to punish him. We conclude that the trial court did not abuse its discretion.

“In order to 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.” Sweet v. Sweet, 190 Conn. 657, 664, 462 A.2d 1031 (1983). “An award of a larger percentage of the total marital assets to one party is not a per se abuse of discretion.” Siracusa v. Siracusa, 30 Conn. App. 560, 567, 621 A.2d 309 (1993); Damon v. Damon, 23 Conn. App. 111, 113, 579 A.2d 124 (1990).

“General Statutes § 46b-81 (c) sets forth numerous factors that a trial court must consider in assigning the property of the parties whose marriage is to be dissolved by the court. That section mandates that the court consider not only the contribution of each party toward acquisition of the property, but the length of the marriage, the cause of the dissolution and ‘the age, health, station, occupation, amount and sources of income, vocational skill, 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). The court must consider all of the statutory criteria in determining how to divide the parties’ property in a dissolution action. Leo v. Leo, 197 Conn. 1, 5, 495 A.2d 704 (1985). ‘A trial court, however, need not give each factor equal weight; Kane v. Parry, [24 Conn. App. 307, 313-14, 588 A.2d 227 (1991)]; or recite the statutory criteria that it considered in making its decision or make express findings as to each statutory factor.’ Savage v. Savage, 25 Conn. App. 693, 701, 596 A.2d 23 (1991). . . . We point out that in determining the ‘contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates’ . . . the trial court must ‘accord value to those nonmonetary contributions of one spouse which enable the other spouse to devote substantial effort to paid employment which, in turn, enables the family to acquire tangible marital assets.’ O’Neill v. O’Neill, 13 Conn. App. 300, 311, 536 A.2d 978, cert. denied, 207 Conn. 806, 540 A.2d 374 (1988).” (Citations omitted; emphasis in original.) Siracusa v. Siracusa, supra, 30 Conn. App. 566-67. “A fundamental principle in dissolution actions is that a trial court may exercise broad discretion ... as long as it considers all relevant statutory criteria. . . . On appeal, the defendant bears the burden of proving to this court that the trial court did not consider the proper criteria . . . .” (Citation omitted; internal quotation marks omitted.) Id., 567-68.

In distributing the marital assets pursuant to the statutory criteria, the trial court must consider the value of the assets, but need not assign them specific values. Puris v. Puris, 30 Conn. App. 443, 450, 620 A.2d 829 (1993). In this case, the trial court did not set forth the value of any of the marital property except the real property. Therefore, we are unable to scrutinize the claimed disproportionate award of assets because the record lacks the findings necessary to determine the exact proportion of the estate that each party received. “If the defendant was uncertain as to the method by which the trial court valued and distributed the property, he should have filed a motion for articulation and provided us with an adequate record for review.” Id.; see Practice Book §§ 4051 and 4061. The trial court’s memorandum of decision clearly states that it considered all of the relevant criteria in making its decision. The defendant has failed to demonstrate that it did not, and we, therefore, cannot conclude that the trial court abused its discretion.

The defendant next contends that the “trial court’s application of the relevant statutory factors leads to only one conclusion — its award was based on its desire to punish [him] for his behavior during the later stages of the marriage while ignoring [the plaintiffs] contributions or lack thereof to the breakdown of the marriage.” The trial court clearly found that while both parties share the responsibility for the breakdown of the relationship, “it was the defendant’s Janus-faced handling of the marital relationship, the separations and reconciliations, that was the catalyst which caused the breakdown of the marriage.” Section 46b-81 (c) clearly provides that the trial court may consider the cause for the dissolution of the marriage in making its financial awards. We conclude, on the basis of the record, that the trial court could reasonably conclude as it did.

The defendant also claims that the financial orders must be reversed because they are internally and mathematically inconsistent. Although the defendant failed to raise this claim in his statement of issues, as required by Practice Book §§ 4013 (a) (1) and 4065 (a), we will address it because it has been fully briefed. See Whisper Wind Development Corp. v. Planning & Zoning Commission, 32 Conn. App. 515, 524, 630 A.2d 108 (1993), aff'd, 229 Conn. 176, 640 A.2d 100 (1994). The defendant asserts essentially that he has insufficient funds to satisfy the trial court’s order which requires him to transfer 90 percent of the value of his marketable securities and pay off the loans for which the securities are pledged. The defendant relies on the case of Ehrenkranz v. Ehrenkranz, 2 Conn. App. 416, 423, 479 A.2d 826 (1984). The Ehrenkranz court held that the trial court’s award was mathematically inconsistent and, therefore, plainly erroneous because it awarded the wife the entire interest in the marital home in addition to one half of the husband’s net worth without first subtracting the interest in the marital home that it had already awarded the wife. Id., 423. The defendant argues that the award in this case is similarly inconsistent because it awards the plaintiff more liquid assets than he has.

The defendant’s argument is not persuasive. First, the argument in Ehrenkranz was framed in the context of the defendant’s net worth, not merely the defendant’s liquid assets. Additionally, the Ehrenkranz court noted that in this type of claim, the award must be considered in light of the other facts of the case. Id., 421-22. In this case, we note the court’s finding that the defendant had an annual salary of $232,000 in 1993 and had received a bonus of $82,000 in the previous year. We also note the trial court’s findings that during the last years of the marriage the defendant borrowed money for living expenses while spending money on gifts and travel expenses for his women friends. In light of these findings, we conclude that the trial court’s award is proper.

II

The defendant next claims that the trial court improperly “preclude[d] or limitjed] modification [of alimony] in the future without consideration of then existing circumstances.” The trial court awarded the following alimony: “The defendant shall pay to the plaintiff the sum of $5666.67 per month as periodic alimony. Said alimony shall be paid during the lifetime of the plaintiff until the defendant’s death. Cohabitation pursuant to the statute, the plaintiffs remarriage and the defendant’s retirement shall not be grounds for terminating the alimony but may be grounds for its modification based on a substantial change of circumstances.”

The defendant argues that the order precluding the termination of periodic alimony after remarriage or cohabitation ignores the “inference that [upon remarriage a spouse] has elected to obtain her support from her second husband and has thereby abandoned the provision made for her support by the court in its award of alimony.” Cary v. Cary, 112 Conn. 256, 261-62, 152 A. 302 (1930); General Statutes § 46b-86 (b) (allows modification in event of remarriage or cohabitation). Furthermore, the defendant contends, relying on Vandal v. Vandal, 31 Conn. App. 561, 626 A.2d 784 (1993), that the order lacks sufficient factual basis. We disagree.

“ ‘General Statutes § 46b-86 (a) clearly permits the trial court to make periodic awards of alimony nonmodifiable. Provisions for nonmodification are generally not favored, but to be upheld they must be clear and unambiguous. Calorossi v. Calorossi, 4 Conn. App. 165, 168, 493 A.2d 259 (1985); Bronson v. Bronson, 1 Conn. App. 337, 339, 471 A.2d 977 (1984). “If the decree is meant to be nonmodifiable, it must contain language to that effect. Cummock v. Cummock, 180 Conn. 218, 222-23, 429 A.2d 474 (1980); Lilley v. Lilley, 6 Conn. App. 253, 256, 504 A.2d 563 (1986).” Neal v. Neal, 7 Conn. App. 624, 625, 510 A.2d 210 (1986).’ Lawler v. Lawler, 16 Conn. App. 193, 203, 547 A.2d 89 (1988), appeal dismissed, 212 Conn. 117, 561 A.2d 128 (1989).” Vandal v. Vandal, supra, 31 Conn. App. 563-64. “ ‘ “In family matters, the court exercises its equitable powers. The balancing of equities is a matter which falls within the discretion of the court. Kakalik v. Bernardo, 184 Conn. 386, 395, 439 A.2d 1016 (1981). For that reason, equitable remedies are not bound by formula but are modeled to the needs of justice. Hebrew University Assn. v. Nye, 26 Conn. Sup. 342, 348-49, 223 A.2d 397 (1966).” Oneglia v. Oneglia, 14 Conn. App. 267, 271-72, 540 A.2d 713 (1988).’ Lawler v. Lawler, supra, 204.” Vandal v. Vandal, supra, 565.

In Vandal v. Vandal, supra, 31 Conn. App. 565, this court expressly addressed the issue of whether alimony that does not terminate with remarriage or cohabitation is improper as a matter of law. The Vandal court held that “[s]ince the [trial] court has the statutory right to award nonmodifiable alimony and the equitable power to meet the ends of justice — in this case, by ordering that alimony not be modifiable even if the plaintiff remarries or cohabits — we cannot hold this order to be improper as a matter of law.” Id., 565.

Our case law is clear that the trial court, as a part of its right to award nonmodifiable alimony and its equitable powers, has the legal authority to order alimony that does not terminate even in the event of remarriage or cohabitation. In addition, the court’s order is clear and unambiguous. The order is not improper as a matter of law.

The defendant further contests the nontermination provision in this case because he asserts it lacks sufficient justification. In Vandal v. Vandal, supra, 31 Conn. App. 561, this court set forth the specific finding on which the trial court relied to make the award nonmodi-fiable. The defendant claims that because the trial court failed to do the same in this case, the nontermination provision must fail.

“Our review ‘of a trial court’s exercise of its broad discretion in domestic relations cases is limited to whether that court correctly applied the law and whether it could reasonably conclude as it did. Leo v. Leo, 197 Conn. 1, 4, 495 A.2d 704 (1985).’ Louney v. Louney, 13 Conn. App. 270, 273, 535 A.2d 1318 (1988). The trial court must consider all relevant statutory criteria in a marital dissolution action but it does not have to make express findings as to the applicability of each criteria. Weiman v. Weiman, 188 Conn. 232, 234, 449 A.2d 151 (1982). The trial court may place varying degrees of importance on each criterion according to the factual circumstances of each case. Carpenter v. Carpenter, 188 Conn. 736, 740-41, 453 A.2d 1151 (1982).” Ippolito v. Ippolito, 28 Conn. App. 745, 751, 612 A.2d 131, cert. denied, 224 Conn. 905, 615 A.2d 1047 (1992).

With respect to other provisions that condition alimony awards, this court has stated that “[t]he trial court does not have to make a detailed finding justifying its award . . . .” Id., 751. “Although a specific finding . . . is not required, the record must indicate the basis for the trial court’s award.” Id. Sufficient evidence must exist to support the award, and the award may not stand if it is logically inconsistent with the facts found or the evidence. Id., 751-52. In analyzing the provision, the reviewing court may look to the policy or purpose furthered by the award, and whether the trial court’s award furthers that policy or fulfills that purpose. Id., 752-53. For example, in Vandal v. Vandal, supra, 31 Conn. App. 564-65, this court upheld a twenty year alimony schedule that would continue even if the recipient remarried, on the basis that the payor was not immediately able to pay a sufficient amount and the full term of payments was required to pay the recipient that to which she was entitled.

The goal of an award that does not terminate, but may be modified upon remarriage, cohabitation or retirement, is evident. This type of award recognizes that the need for support does not automatically terminate with remarriage, cohabitation or retirement. While the award may not terminate, the decree in this case allows for modification upon any of these events. Therefore, it is possible that a trial court hearing a motion for modification could reduce the award to $1 per year on the occurrence of remarriage, cohabitation or retirement if warranted. The effect of the nontermination provision gives a trial court the flexibility to reduce the award to a minimal amount while preserving the plaintiffs right to seek support through alimony in the future should circumstances change.

In this case, the parties had been married for twenty-seven year’s; the defendant’s salary at the time of trial was $232,080 and he received a bonus in the previous year of $82,000, while the plaintiffs salary at the time of trial was $29,500. During the twenty-seven year marriage, the plaintiff had devoted her time to raising the children and maintaining the home. The plaintiff entertained as her husband’s career required, and, while both parties were responsible for the deterioration of their relationship, it was the defendant’s actions that prevented a reconciliation and caused the breakdown of the marriage. These facts provide a sufficient basis to support the trial court’s award of nonterminable alimony, and we therefore conclude that the award is a valid exercise of the trial court’s equitable powers.

The defendant also contends that the court failed to state any justification for awarding 20 percent of the defendant’s earned income above his salary base. Although the defendant did not raise this claim in his statement of issues as required by Practice Book §§ 4013 (a) (1) and 4065 (a), we will address it because it has been fully briefed. See Whisper Wind Development Corp. v. Planning & Zoning Commission, supra, 32 Conn. App. 524. In Lawler v. Lawler, supra, 16 Conn. App. 196-97, this court held that a “trial court may include in a periodic alimony award a future share in the spouse’s earned income” and noted that alimony may be contingent on some future event. We conclude that in this case it was within the trial court’s equitable powers to fashion an award of alimony that tracks the defendant’s future salary.

The judgment is affirmed.

In this opinion the other judges concurred.


text:
    SHERRILL WERBLOOD v. LAWRENCE BIRNBACH
    (13820)
    Heiman, Spear and Hennessy Js.
    Argued January 11
    officially released June 18, 1996

      Michael A. Meyers, with whom, on the brief, was Patricia C. Reath, for the appellant (defendant).

      Gina A. Pasquini, for the appellee (plaintiff).
   HENNESSY, J.

The defendant, Lawrence Bimbach, appeals from the judgment of the trial court in this dissolution matter claiming that the trial court (1) improperly found that the defendant’s earning capacity is equal to that of the plaintiff. He also claims that the trial court abused its discretion (2) in permitting the plaintiff to remain in the marital residence for four years, (3) in ordering the defendant to pay $600 per month to the plaintiff as a contribution to the payment of the joint mortgage debt, and (4) in its distribution of the marital assets. We affirm the judgment.

The trial court found the following facts. The parties, parents of one minor child, were married in 1981. Both parties have doctoral degrees in child psychology and each has developed a private practice in that field. The plaintiff, Sherrill Werblood, earned twice as much money as the defendant because she worked twice as many hours as he. The defendant devoted more of his time trying to obtain patents for his inventions and pursuing unsuccessful investments. The court found neither party at fault for the breakdown of the marriage.

The trial court entered the following orders pertinent to this appeal. Neither party was awarded alimony, but the defendant was ordered to pay a $1500 arrearage in temporary alimony payments. The trial court ordered joint legal custody of the minor child with the child’s primary residence to be with the plaintiff. The defendant was ordered to pay $1000 per month in child support and $600 per month toward the joint mortgage debt on the house until its sale or transfer to the plaintiff. When the house is sold or transferred, the defendant would receive a credit for one half of the total payments he had made toward the joint mortgage debt. The house was ordered listed for sale on July 1, 1998, but the plaintiff was allowed to purchase it earlier. The parties were to share equally in the proceeds of the sale. The trial court also ordered the division of the parties’ personal property, the details of which we will address and set forth as necessary to resolve the issues on appeal.

I

The defendant first claims that the trial court improperly found that “the defendant’s earning capacity is equal to the plaintiffs.” The defendant argues that the record does not support a finding that an increase in his work hours would result in increased income or that he was spending any time on “personal pleasures and investments.”

“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. . . . It is within the province of the trial court to find facts and draw proper inferences from the evidence presented. Solomon v. Aberman, 196 Conn. 359, 378, 493 A.2d 193 (1985).” (Citation omitted; internal quotation marks omitted.) Karen v. Parciak-Karen, 40 Conn. App. 697, 703, 673 A.2d 581 (1996). “The trial court is accorded wide discretion in determining the proper allocation of the assets of the parties. . . . [G]reat weight is given to the judgment of the trial court because of its opportunity to observe the parties and the evidence. . . . [WJhere the factual basis of the court’s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, these facts are clearly erroneous.” (Internal quotation marks omitted.) Id. “This court cannot retry the facts or pass upon the credibility of the witnesses. ... 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. . . . Rosick v. Equipment Maintenance & Service, Inc., 33 Conn. App. 25, 40-41, 623 A.2d 1134 (1993).” (Internal quotation marks omitted.) Schult v. Schult, 40 Conn. App. 675, 682, 672 A.2d 959 (1996).

The trial court found that the plaintiffs net annual income was $88,000, and that the defendant’s net annual income was $50,000. The trial court further found that the defendant had the ability to earn as much money as the plaintiff by increasing his work hours and spending less time on personal pleasures and investments. The defendant relies on Yates v. Yates, 155 Conn. 544, 549-50, 235 A.2d 656 (1967), in which our Supreme Court concluded that the findings of fact in that case did not support the trial court’s conclusion that the defendant could earn more money.

The record contains evidence to support the trial court’s determination that the defendant’s earning capacity is equal to that of the plaintiff. Both parties have doctoral degrees and are clinical psychologists in private practice. The defendant has completed seven years of postdoctoral work, whereas the plaintiff has completed only one. Instead of pursuing his profession, the defendant chose to spend time trying to obtain patents and to involve himself in unsuccessful investments. The defendant made less money in his profession than most people with comparable levels of experience. On the basis of this evidence, the trial court could have reasonably concluded that the defendant’s earning capacity is equal to that of the plaintiff.

II

The defendant next contends that the trial court abused its discretion by permitting the plaintiff to remain in the marital residence for four years. The defendant claims that this order was based on the trial court’s clearly erroneous finding that the child could attend the same elementary school until she entered high school. The defendant further contends that the expenses of maintaining the home are so high that they could not be met through the plaintiffs income and the court-ordered payments from the defendant. “In order to 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.” Sweet v. Sweet, 190 Conn. 657, 664, 462 A.2d 1031 (1983).

The trial court found that “it is in [the child’s] best interest to remain in the marital home for the next four years. By doing so, she may continue to attend the same elementary school until she enters high school. By going to the same elementary school for the next four years, her present friendships there will grow. These are formative years for [the child], and she needs stability and structure over the next four years considering the emotional problems this divorce is causing her at present. It is her best interest to stay in this home for several other reasons. The mother now has her office in the home and will be there when [the child] returns from school each day; therefore the mother will be able to spend more time with her than when she rented her office outside the home. Having lived in the marital home since 1990, the child is familiar with the surroundings.” School attendance was only one of the factors that the trial court considered. In reviewing all of those factors, we cannot say that the trial court abused its discretion.

With respect to whether the plaintiff can afford to live in the home, the court found that “[d]uring the past year, the wife has paid over $40,000 from her Franklin Fund to maintain the home and for renovating the office space. She is willing to continue invading this Fund over the next four years in order for [her and the child] to remain in this home.” The defendant argues that the trial court improperly found that the child would be able to attend the same elementary school for the next four years. It is clear from the record that while the child will have to change schools during the next four years, she will remain in the same school district. Although the trial court misspoke in making this finding, the trial court also considered the facts that the child is familiar with the surroundings and that the plaintiffs office is in the home, thus allowing the plaintiff to spend more time with the child. On the basis of these findings, we conclude that the trial court could reasonably have found as it did.

Ill

The defendant contends that the trial court abused its discretion by awarding the defendant “hidden alimony” when it ordered him to pay $600 per month to the plaintiff as a contribution to the payment of the joint mortgage debt. Again, “[i]n order to 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.” Id. We also recognize that “because every family situation is unique, the trial court drafting a dissolution decree has discretion to make suitable orders to fit the circumstances.” Passa-mano v. Passamano, 228 Conn. 85, 91, 634 A.2d 891 (1993).

This issue is controlled by our Supreme Court’s decision in Passamano v. Passamano, supra, 228 Conn. 85. In Passamano, our Supreme Court addressed the issue of “whether ... an order that the former spouse pay [the] mortgage and real estate taxes on the marital home, which home is to be sold when the youngest child reaches eighteen and the proceeds divided between the parties, constitutes a judicially modifiable order of alimony rather than an assignment of property.” Id., 86. The court stated that in determining the nature of an award, the characterization by the trial court is controlling. Id., 90. Our Supreme Court concluded that because the plaintiff had unmistakably waived alimony and because both the stipulation and decree were devoid of an alimony award, the payments could not be characterized as alimony. Id.

In this case, the trial court clearly chose not to award alimony to either party because “each party is self-supporting and able to continue to [be] so in the future.” As in Passamano, the trial court clearly did not intend to characterize the $600 per month payment as alimony. In fact, in its memorandum of decision in response to the defendant’s motion to open, reargue and clarify, the trial court expressly stated that the payment was not hidden alimony. Therefore, we conclude, on the basis of Passamano, that the $600 per month payment is an assignment of property and not alimony.

IV

Finally, the defendant claims that the trial court abused its discretion by ordering a distribution of the marital estate in which the plaintiff is to receive a disproportionate amount of the assets. He contends that the court ignored the defendant’s monetary and non-monetary contributions to the acquisition of these assets, and, as a result, left him with no means of meeting his outstanding obligations. As stated previously, “[i]n order to 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.” Sweet v. Sweet, supra, 190 Conn. 664.

“[T]he purpose of property division is to unscramble the ownership of property, giving to each spouse what is equitably his.” Weiman v. Weiman, 188 Conn. 232, 234, 449 A.2d 151 (1982). “General Statutes § 46b-81 (c) sets forth numerous factors that a trial court must consider in assigning the property of the parties whose marriage is to be dissolved by the court. That section mandates that the court consider not only the contribution of each party toward acquisition of the property, but the length of the marriage, the cause of the dissolution and ‘the age, health, station, occupation, amount and sources of income, vocational skill, employability, estate, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income.’ . . . The court must consider all of the statutory criteria in determining how to divide the parties’ property in a dissolution action. Leo v. Leo, 197 Conn. 1, 5, 495 A.2d 704 (1985). ‘A trial court, however, need not give each factor equal weight; Kane v. Parry, [24 Conn. App. 307, 313-14, 588 A.2d 227 (1991)]; or recite the statutory criteria that it considered in making its decision or make express findings as to each statutory factor.’ Savage v. Savage, 25 Conn. App. 693, 701, 596 A.2d 23 (1991). . . . We point out that in determining the ‘contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates’ . . . the trial court must ‘accord value to those nonmonetary contributions of one spouse which enable the other spouse to devote substantial effort to paid employment which, in turn, enables the family to acquire tangible marital assets.’ O’Neill v. O’Neill, 13 Conn. App. 300, 311, 536 A.2d 978, cert. denied, 207 Conn. 806, 540 A.2d 374 (1988).” (Citations omitted; emphasis in original.) Siracusa v. Siracusa, 30 Conn. App. 560, 566-67, 621 A.2d 309 (1993).

The defendant first argues that the plaintiff received a disproportionate amount of the assets. “An award of a larger percent of the total marital assets to one party is not a per se abuse of discretion.” Id., 567; Damon v. Damon, 23 Conn. App. 111, 113, 579 A.2d 124 (1990). Furthermore, we note that the trial court stated in its memorandum of decision that it had considered the criteria set forth in General Statutes § 46b-81. We fail to see how a bare assertion that the plaintiff received more assets than the defendant constitutes an abuse of discretion in light of the fact that the trial court clearly stated that it had considered the statutory factors.

The defendant next argues that the trial court failed to consider the defendant’s monetary and nonmonetary contributions to the acquisition of the assets, specifically the extent of his household and child rearing responsibilities. See O’Neill v. O’Neill, supra, 13 Conn. App. 311. The trial court did not find that one party assumed more household and child-rearing responsibilities than the other or that the assumption of such responsibilities by one party enabled the other party to devote substantial effort to paid employment. The defendant claims to have presented uncontroverted evidence that his nonmonetary contributions to the family enabled the plaintiff to devote substantial effort to paid employment. Evidence was presented at trial, however, that the parties shared the responsibility of raising the child. We cannot conclude, on the basis of this evidence, that the trial court failed to consider the defendant’s monetary and nonmonetary contributions to the marriage.

Finally, the defendant claims that the trial court abused its discretion by leaving the defendant with no means of meeting his outstanding obligations. In light of the trial court’s finding that the defendant had a higher earning potential than he claimed, we cannot conclude that the trial court abused its discretion. Additionally, the trial court properly considered the criteria set forth in § 46b-81.

The judgment is affirmed.

In this opinion the other judges concurred.


author: DUPONT, C. J.

text:
    BURKE CONSTRUCTION, INC. v. DONN E. SMITH ET AL.
    (14160)
    Dupont, C. X, and Spear and Ilennessy, Js.
    Submitted on briefs February 13
    officially released June 18, 1996

      Harvey J. Rothberg filed a brief for the appellants (defendants).

      Theodore L. Freedman filed a brief for the appel-lee (plaintiff).
   DUPONT, C. J.

The defendants appeal from the denial of their motion to discharge a mechanic’s lien and lis pendens. The plaintiff asserts in his supplemental brief that this court lacks subject matter jurisdiction over the appeal because it was filed after the expiration of the seven day appeal period specified by General Statutes §§ 49-35c and 52-325c. We agree and, therefore, dismiss the defendants’ appeal.

The record contains procedural facts necessary for our conclusion. On July 20, 1994, the defendants filed a motion for discharge of a mechanic’s hen and lis pendens. On October 6,1994, the trial court denied that motion. On October 12, 1994, the defendants filed a “motion to reconsider and to clarify order denying defendants’ motion to discharge mechanic’s hen and lis pendens.” On November 2,1994, the trial court rendered an order granting that motion, but denying the relief requested therein. On November 8, 1994, the defendants filed this appeal from (1) the trial court’s order denying the defendants’ motion for discharge of mechanic’s lien and lis pendens, and (2) the trial court’s order granting the defendants’ motion to reargue, but denying the relief requested therein.

The statutes governing the timeliness of the defendants’ appeal are §§ 49-35c and 52-325c. An examination of these two statutes reveals that their language, from subsection (a) through subsection (c), is virtually identical. Pursuant to subsection (a), orders on motions to discharge or reduce mechanic’s liens are deemed to be final judgments for the purpose of appeal. Subsection (b) provides that no appeal shall be taken from such order except within seven days thereof. Subsection (c) authorizes the court to set a bond with surety in order to stay the order.

Our Supreme Court considered the effect of statutory appeal periods on an appellate court’s subject matter jurisdiction in Ambroise v. William Raveis Real Estate, Inc., 226 Conn. 757, 628 A.2d 1303 (1993). The disposi-tive issue in Ambroise was whether an appeal from the denial of a prejudgment remedy may be taken after the expiration of the seven day appeal period specified by General Statutes § 52-278L The court concluded that “the proper analysis of a statutory time limitation on the right to appeal devolves into a question of statutory construction: did the legislature, in imposing the time limitation, intend to impose a subject matter jurisdictional requirement on the right to appeal?” Id., 764. The court reviewed the language, historical background and purpose of § 52-2781 and concluded that the legislature did so intend. Id., 765-67. Because the appeal was not taken within the time allowed by statute, the court dismissed the appeal for lack of subject matter jurisdiction. Id., 767.

Informed by the Ambroise analysis, this court has previously concluded that the seven day appeal period embodied in § 52-325c is mandatoiy and that a failure to appeal within that appeal peiiod deprives this court of subject matter jurisdiction. Srager v. Koenig, 36 Conn. App. 469, 651 A.2d 752 (1994). “The purpose of a notice of lis pendens . . . supports a conclusion that the legislature intended to make the seven day appeal period jurisdictional. That purpose is to ensure ‘that the plaintiffs’ claim cannot be defeated by a prejudgment transfer of the property.’ Williams v. Bartlett, 189 Conn. 471, 479, 457 A.2d 290, appeal dismissed, 464 U.S. 801, 104 S. Ct. 46, 78 L. Ed. 2d 67 (1983). ... The manifest purpose of the seven day appeal period following the discharge of a notice of lis pendens is to inform the parties within a very brief period of time whether that order is final or will be challenged.” (Citations omitted; internal quotation marks omitted.) Srager v. Koenig, supra, 472.

“In Ambroise, the court also stated that [t]he literal reading of § 52-2781 (b) is buttressed, moreover, by reference to § 52-2781 (c), which reverses the ordinary rules regarding automatic stays on appeal by mandating that the order is not stayed by an appeal unless the party appealing posts a sufficient surety bond. . . . Likewise, a literal reading of the seven day appeal period in § 52-325c (b) is buttressed by the stay provisions set forth in that statute. Subsections (b) and (c) of § 52-325c require the appellant to post a bond if a stay is granted beyond the seven day appeal period.” (Citation omitted; internal quotation marks omitted.) Id., 471, quoting Ambroise v. William Raveis Real Estate, Inc., supra, 226 Conn. 765-66.

Because the language that establishes the seven day appeal period in § 49-35c (b) is clear and virtually the same as the language of § 52-325c (b), we conclude that its seven day appeal period is also mandatory and that a failure to appeal within that period likewise strips this court of subject matter jurisdiction. Our literal reading of the seven day appeal period set forth in § 49-35c (b) is also buttressed by reference to the stay provisions set forth in that statute because subsections (b) and (c) of § 49-35c likewise require the appellant to post a bond if a stay is granted beyond the seven day period. Furthermore, the plain language of § 49-35c (a) and (b) manifests the legislative intent that the seven day limit apply to orders entered pursuant to General Statutes § 49-35b. See New England Savings Bank v. Meadow Lakes Realty Co., 235 Conn. 663, 668, 668 A.2d 712 (1996).

In the present case, the defendants did not file an appeal within seven days of the October 6, 1994 order denying their motion for discharge of a mechanic’s lien and lis pendens. The defendants argue, however, that as a result of the trial court’s granting of their motion to reargue,* *** the order of October 6, 1994, was nullified. The defendants contend, therefore, that the November 2, 1994 order granting the motion to reargue, but denying the relief requested therein, reinstated the October 6, 1994 order and that the seven day appeal period commences November 2, 1994. We disagree.

Pursuant to Practice Book § 4009, if a party files a motion that would render the judgment or decision ineffective, then the period of time for filing an appeal shall commence from the issuance of notice of the decision or judgment on that motion. Practice Book § 4009, however, does not confer jurisdiction on the appellate courts of this state. Ambroise v. William Raveis Real Estate, Inc., supra, 226 Conn. 761. The jurisdiction of appellate courts is defined by statute. Id., 760-61. Because it is the statute that controls jurisdiction, which cannot be waived; see Serrani v. Board of Ethics, 225 Conn. 305, 308, 622 A.2d 1009 (1993); we conclude that compliance with the clear and emphatic language of §§ 49-35c (b) and 52-325c (b) is a requisite for us to entertain this appeal. The defendants’ failure to take an appeal within seven days of the October 6, 1994 order deprives this court of subject matter jurisdiction.

The defendants argue that because they filed this appeal within seven days of the November 2,1994 order granting their motion to reargue, but denying the relief requested therein, this court has subject matter jurisdiction over the appeal, even if Practice Book § 4009 does not govern. This argument, however, must fail because the original order of October 6, 1994, was not nullified by the trial court’s subsequent denial of relief requested in the defendants’ motion to reargue. The original order was not augmented, diminished, altered or vitiated in any way and remained as the appealable event.

Our Supreme Court’s decision in Upjohn Co. v. Zoning Board of Appeals, 224 Conn. 106, 616 A.2d 798 (1992), supports our reasoning in reaching this conclusion. In that case, the plaintiff appealed from a judgment of the trial court dismissing its zoning appeal from a decision of the defendant zoning board of appeals. The trial court initially rendered a judgment, accompanied by a memorandum of decision, dismissing the plaintiffs appeal. Id., 109. Thereafter, we granted the plaintiffs petition for certification to appeal, and the Supreme Court transferred the case to its docket. The trial court subsequently opened its judgment of dismissal sua sponte and, by a corrected memorandum of decision, rendered a new judgment sustaining the plaintiffs appeal. Despite the fact that the judgment from which the plaintiff filed its appeal had been opened and a new judgment favorable to the plaintiff had been substituted in its place, the plaintiff did not withdraw its appeal from the first opened judgment. Id., 110. In deciding that appeal, our Supreme Court concluded that the first opened judgment was moot because the second memorandum of decision and the judgment rendered in accordance therewith, completely displaced the first memorandum of decision and judgment and, therefore, dismissed that appeal. Id.

In the present case, the situation is reversed; the trial court’s order granting the defendants’ motion to reargue, but denying the relief requested therein, did nothing to displace the trial court’s original October 6, 1994 order. There is nothing in the record here that supports the defendants’ assertion that the trial court nullified its original order.

Furthermore, the defendants’ claims on appeal all relate to the merits of the underlying order of October 6, 1994, rather than to whether the trial court abused its discretion in denying the relief sought by the defendants in the motion to reargue. See Tiber Holding Corp. v. Greenberg, 36 Conn. App. 670, 672, 652 A.2d 1063 (1995). The time for complaining about the merits had expired by legislative fiat. If the legislature had wanted to grant appellate jurisdiction beyond seven days from the date of a denial of a motion to discharge a mechanic’s lien or a lis pendens, it would have provided a legislative extension such as that provided by Practice Book § 4009.

The defendants’ remaining assertion that the plaintiff waived any claim it may have regarding subject matter jurisdiction is equally unavailing because “[s]ubject matter jurisdiction, unlike jurisdiction of the person, cannot be created through consent or waiver.” Castro v. Viera, 207 Conn. 420, 429-30, 541 A.2d 1216 (1988).

The appeal is dismissed.

In this opinion the other judges concurred.

       The defendants in this appeal are Dorm E. Smith and Maiy Ellen Quirk, joint owners of the property on which the work forming the basis of the lien was performed.

       We, suasponte, raised the issue of subject matter jurisdiction and ordered the parties to file simultaneous supplemental briefs addressing the following issue: “Whether there is subject matter jurisdiction over the appeal where the statutory time period for filing the appeal prescribed by General Statutes §§ 49-35c (b) and 52-325c (b) had run by the time the appeal was taken, but where a motion to ‘reconsider and to clarify order denying defendants’ motion to discharge mechanic’s lien and lis pendens’ was filed before the appeal period had run.” See General Statutes §§ 49-35c and 52-325c; Practice Book § 4009; Ambroise v. William Raveis Real Estate, Inc., 226 Conn. 757, 628 A.2d 1303 (1993); Housing Authority v. Bond, 30 Conn. Sup. 580, 311 A.2d 559 (1973).

       The trial court conducted a hearing on the defendants’ “motion to reconsider and to clarify order denying defendants’ motion to discharge mechanic’s lien and lis pendens.” The transcript of that hearing reveals that the defendants’ motion was actually a motion to reargue. Therefore, we shall hereafter refer to this motion as a motion to reargue.

       The trial court rendered the following order on the defendants’ motion to reargue: “The motion to reargue is granted, but the relief requested therein is denied. The court stands by its previous rulings.”

       General Statutes § 49-35c, which relates to mechanic’s liens, provides: “Appeal, (a) Any order entered as provided in subsection (b) of section 49-35b shall be deemed a final judgment for purpose of appeal.
      “(b) No appeal may be taken from the order except within seven days thereof. The effect of the order shall be automatically stayed for the seven-day period. If an appeal is taken within the seven-day period, the party taking the appeal may, within that period, file an application with the clerk of the court in which the order was issued, requesting a stay of the effect of the order pending the appeal, which application shall set forth the reasons for the request. A copy of the application shall be sent to each other party by the applicant. Upon the filing of the application, the effect of the order shall be further stayed until a decision is rendered thereon. A hearing on the application shall be held promptly. The order shall be stayed if the party talcing the appeal posts a bond, as provided in subsection (c) of this section.
      “(c) Upon the hearing on the application, the court shall: (1) Upon motion of the party talcing the appeal, set a bond with surety for the stay of the order as provided in subsection (b) of this section, in an amount which the court deems sufficient to indemnify the adverse party for any damages which may result from the stay. If the party taking the appeal gives that bond the order shall be stayed; or (2) grant the stay; or (3) deny the stay; or (4) condition the granting of the stay upon the giving of such a bond.
      “(d) Any order of discharge or reduction or any order of any such stay shall take effect upon recording of a certified copy thereof in the office of the town clerk in which such lien was originally recorded. The clerk of the court in which any such order is issued shall not deliver any certified copies thereof until the time for taking an appeal has elapsed or, if an appeal is taken and an application for a stay of the order is filed, until such time as a decision granting or denying the stay has been rendered.”

       General Statutes § 52-325c, which relates to lis pendens, provides in pertinent part: “Appeal, (a) Any order entered as provided in subsection (b) of section 52-325b shall be deemed a final judgment for purpose of appeal.
      “(b) No appeal shall be taken from such order except within seven days thereof. The effect of such order shall be automatically stayed for such seven-day period. If an appeal is taken within such seven-day period, the party taking such appeal may, within such period, file an application with the clerk of the court in which such order was issued, requesting a stay of the effect of such order pending such appeal, which application shall set forth the reasons for such request. A copy of such application shall be sent

        to the adverse party by the applicant. Upon the filing of such application, the effect of such order shall be further stayed until a decision is rendered thereon. A hearing on such application shall be held promptly. Such order shall be stayed if the party taking such appeal posts a bond, as provided in subsection (c) of this section.
      “(c) Upon the hearing on such application, the court shall: (1) Upon motion of the party taking the appeal set an amount of bond with surety for the stay of such order as provided in subsection (b) of this section, which amount shall be as the court deems sufficient to indemnify the adverse party for any damages which may result from the stay. If the party taking the appeal gives such bond the order shall be stayed; or (2) grant the stay; or (3) deny the stay; or (4) condition the granting of the stay upon the giving of such a bond.
      “(d) Any order of discharge or any order of any stay shall take effect upon recording of a certified copy thereof in the office of the town clerk in which such notice of lis pendens was recorded. The clerk of the court in which any such order is issued shall not deliver any certified copies thereof until the time for taking an appeal has elapsed or, if an appeal is taken and an application for a stay of such order is filed, until such time as a decision granting or denying such stay has been rendered. . . .”

       General Statutes § 49-35b provides: “Burden of proof at hearing. Authority of court, (a) Upon the hearing held on the application or motion set forth in section 49-35a, the lienor shall first be required to establish that there is probable cause to sustain the validity of his lien. Any person entitled to notice under section 49-35a may appear, be heard and prove by clear and convincing evidence that the validity of the lien should not be sustained or the amount of the lien claimed is excessive and should be reduced.
      “(b) Upon consideration of the facts before it, the court or judge may: (1) Deny the application or motion if probable cause to sustain the validily of the lien is established; or (2) order the lien discharged if (A) probable cause to sustain its validity is not established, or (B) by clear and convincing evidence its invalidity is established; or (3) reduce the amount of the hen if the amount is found to be excessive by clear and convincing evidence; or (4) order the lien discharged or reduce the amount of the lien conditioned upon the posting of a bond, with surety, in a sum deemed sufficient by the judge to indemnify the lienor for any damage which may occur by the discharge or the reduction of amount.”

       A motion to reargue or reconsider is proper even if no provision for reargument is provided in the rules of practice. Steele v. Stonington, 225 Conn. 217, 219 n.4, 622 A.2d 551 (1993); see also 1 Connecticut Practice, W. Moller & W. Horton, Practice Book Annotated (Sup. 1996) § 196, comment.

       Practice Book § 4009 provides in relevant part: “Time to Appeal
      “The party appealing shall, within twenty days, except where a different period is provided by statute, from the issuance of notice of the rendition of the judgment or decision from which the appeal is taken file an appeal in the manner prescribed by Sec. 4012; but if within the appeal period any motion is filed which, if granted, would render the judgment or decision ineffective, as, for example, a motion to open the judgment or to set aside the verdict or for judgment, notwithstanding the verdict, the period of time for filing an appeal shall commence from tire issuance of notice of the decision upon the motion or the expiration of the time within which a remittitur is ordered filed. . . .”

       There are two companion appeals that do not dilute our conclusion. See Upjohn Co. v. Planning & Zoning Commission, 224 Conn. 82, 616 A.2d 786 (1992), and Upjohn Co. v. Zoning Board of Appeals, 224 Conn. 96, 616 A.2d 793 (1992).


author: PER CURIAM.

text:
    STATE OF CONNECTICUT v. HENRY W. LEKOSKY
    (14676)
    Dupont, C. X, and SchaUer and Spallone, Js.
    Argued April 29
    officially released June 18, 1996

      Michael R. Hasse, with whom, on the brief, was Richard T. Miller, for the appellant (defendant).

      Lisa Herskowitz, deputy assistant state’s attorney, with whom, on the brief, were Kevin Kane, state’s attorney, and Geoffrey Marion, assistant state’s attorney, for the appellee (state).
   PER CURIAM.

The defendant, Henry W. Lekosky, appeals from his conviction, after a jury trial, of the crime of possession of narcotics in violation of General Statutes § 21a-279 (a). The defendant asserts that the evidence was insufficient to support his conviction. We disagree.

The jury heard testimony from two police officers both of whom stated that while they had the defendant under surveillance they saw him throw what they believed to be, and subsequently proved to be, an object containing crack cocaine into a planter, one of many lining the street on which the defendant and his friend were walking. The defendant’s friend, who on three prior occasions had been convicted of possession of cocaine, testified to the contrary.

“In reviewing the sufficiency [of the evidence] claim, we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether, upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Sivri, 231 Conn. 115, 126, 646 A.2d 169 (1994).

In the present case, the jury, in the exercise of its fact-finding function, believed the police officers and discredited the defendant’s companion. This court will not reweigh the evidence or resolve questions of credibility in determining whether the evidence was sufficient. State v. Ogrinc, 29 Conn. App. 694, 697, 617 A.2d 924 (1992).

The judgment is affirmed.


text:
    SOUTHPORT MANOR CONVALESCENT CENTER, INC. v. MICHAEL R. KUNDRATH ET AL.
    (14211)
    Foti, Lavery and Spear, Js.
    Argued April 30
    officially released June 18, 1996

      Michael T. Bologna, for the appellant-appellee (named defendant).

      Dorit S. Heimer, with whom, on the brief, was Marc J. Kurzman, for the appellee-appellant (plaintiff).
   PER CURIAM.

The defendant, Michael R. Kundrath, appeals from the judgment in favor of the plaintiff rendered after a court trial. The plaintiff has filed a cross appeal. This action for breach of contract was commenced against Michael Kundrath and his mother, Theresa Kundrath, a resident of the plaintiff Southport Manor Convalescent Center, Inc. No judgment was rendered as to the defendant Theresa Kundrath. As a preliminary matter, we must determine whether there is an appealable final judgment.

In determining what is a final judgment for purposes of appellate review, we rely on the standard articulated in State v. Curcio, 191 Conn. 27, 463 A.2d 566 (1983). In re Elizabeth H., 40 Conn. App. 216, 218, 669 A.2d 1246 (1996). The partial judgment rendered neither terminated a separate and distinct proceeding nor so concluded the rights of the parties that further proceedings could not affect them. State v. Curcio, supra, 31. We conclude that no final judgment was rendered because a judgment against Theresa Kundrath could impact the nature and the amount of the liability of the defendant Michael Kundrath. See T. P. Brewer Construction Co. v. F & G Associates, 34 Conn. App. 714, 643 A.2d 308 (1994).

The lack of final judgment is a threshold question that implicates the subject matter jurisdiction of this court. Schick v. Windsor Airmotive Division/Barnes Group, 31 Conn. App. 819, 822, 627 A.2d 478 (1993). If there is no final judgment, we cannot reach the merits of the appeal. General Statutes §§ 51-197a and 52-263; Practice Book § 4000; Harrall-Michaelowski Associ ates, Inc. v. Shippee, 40 Conn. App. 613, 615, 672 A.2d 539 (1996).

The appeal and the cross appeal are dismissed.

       The parties were advised to be prepared to argue the issue of whether there is an appealable final judgment because of the lack of a disposition of count two of the complaint as to Theresa Kundrath.


text:
    WILLIAM J. MILARDO v. COMMISSIONER OF CORRECTION
    (14409)
    Foti, Lavery and Spear, Js.
    Argued April 30
    officially released June 18, 1996

      Denise Ansell, special public defender, for the appellant (petitioner).

      Marjorie Allen Dauster, assistant state’s attorney, with whom, on the brief, were John T. Redway, state’s attorney, Bernadette Conway, assistant state’s attorney, and Kimberly Graham, former assistant state’s attorney, for the appellee (respondent).
   PER CURIAM.

After a review of the record and briefs, and after hearing from the parties at oral argument, we conclude that the petitioner has failed to make a substantial showing that he has been denied a state or federal constitutional right and, further, has failed to sustain his burden of persuasion that the denial of certification to appeal was a clear abuse of discretion or that an injustice has been done. See Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994); Simms v. Warden, 229 Conn. 178, 179, 640 A.2d 601 (1994); Walker v. Commissioner of Correction, 38 Conn. App. 99, 99-100, 659 A.2d 195 (1995); see also Lozada v. Deeds, 498 U.S. 430, 431-32, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991).

The judgment is affirmed.


text:
    BERNARD LAPUK v. ROBERT SIMONS ET AL.
    (14371)
    O’Connell, Spear and Hennessy, Js.
    Argued May 3
    officially released June 18, 1996

      Lester Katz, for the appellant (plaintiff).

      Daniel P. Scapellati, with whom, on the brief, were Erin M. Kallaugher and Mark Seiger, for the appel-lees (defendants).
   PER CURIAM.

This is the plaintiffs appeal from a denial of his application for a prejudgment remedy pursuant to General Statutes § 52-278d (a). The role of the Appellate Court in prejudgment remedy appeals is extremely limited. Haxhi v. Moss, 25 Conn. App. 16, 19, 591 A.2d 1275 (1991). We do not duplicate the role of the trial court in weighing the evidence, but determine only whether the trial court’s conclusion was reasonable. “In the absence of clear error [we] should not overrule the thoughtful decision of the trial court, which has had an opportunity to assess the legal issues which may be raised and to weigh the credibility of . . . the witnesses.” Augeri v. C. F. Wooding Co., 173 Conn. 426, 429, 378 A.2d 538 (1977). Thus, the trial court’s determination on an application for a prejudgment remedy should not be disturbed unless it is clearly erroneous. Id., 429.

In the present case, we find that the conclusion of the trial court had a reasonable basis and was not clearly erroneous. Clark v. Damiani, 12 Conn. App. 805, 531 A.2d 1202 (1987).

The judgment is affirmed.


author: SPALLONE, J.

text:
    STATE OF CONNECTICUT v. VALERIE DUERR
    (14871)
    Dupont, C. J., and Schaller and Spallone, Js.
    Argued April 29
    officially released June 18, 1996

      Raymond T. Trebisacci filed a brief for the appellant (defendant).

      Mary Lesser, assistant state’s attorney, with whom, on the brief, were Kevin T. Kane, state’s attorney, and
      Paul Narducci, deputy assistant state’s attorney, for the appellee (state).
   SPALLONE, J.

The defendant appeals from the trial court’s denial of her motion to dismiss the charge of attempted larceny in the third degree in violation of General Statutes §§ 53a-49 and 53a-124. The defendant filed a motion to dismiss on the ground that the criminal prosecution would violate her right not to be twice put in jeopardy under the fifth and fourteenth amendments to the United States constitution and article first, §§ 8 and 9, of the Connecticut constitution.

At the hearing on the defendant’s motion to dismiss, defense counsel agreed that the defendant had been fired from her job with the city of Groton. By notice dated November 8,1994, the administrator of the Unemployment Compensation Act communicated to the defendant as follows: “You were discharged by Groton Municipal employees on June 20, 1994, for actions against your employer’s interest. Your conduct constituted larceny of property or services whose value exceeded fifty dollars. You are, therefore, ineligible for unemployment benefits from June 19, 1994, until you have earned at least ten times your weekly benefit rate and are otherwise eligible.” The defendant was found not eligible because of her own misconduct and, therefore, she did not qualify for unemployment compensation. See General Statutes § 31-236 (a) (2) (B).

The defendant argues that the denial of benefits was punitive, and that the state, having subjected her to an administrative hearing and having punished her for the theft, could not criminally prosecute her for larceny without violating her double jeopardy rights. The state argues that the denial was not a punishment, but, rather, it was remedial pursuant to the Unemployment Compensation Act, General Statutes § 31-222 et seq. We agree with the state.

The Unemployment Compensation Act was not meant to be punitive, but was intended to serve the public policy of providing compensation to those who are eligible and who meet the requirements for benefits as outlined in the statutes; the act was intended to be remedial. United Parcel Service, Inc. v. Administrator, 209 Conn. 381, 388, 551 A.2d 724 (1988); Robinson v. Unemployment Security Board of Review, 181 Conn. 1, 24, 434 A.2d 293 (1980). Moreover, we find the defendant’s contention that she was punished by being deprived of benefits in an amount exceeding $6000 to be untenable. As a matter of logic, one cannot be deprived of a benefit for which one never qualified, particularly when the lack of eligibility was based on a party’s own misconduct. We hold that the trial court, in ruling that the Unemployment Compensation Act was remedial and not punitive, was a rational, logical and proper determination under applicable law. See United Parcel Service, Inc. v. Administrator, supra, 388.

Finally, the imposition of an administrative sanction does not bar criminal prosecution. A civil or administrative sanction that is rationally related to a legitimate remedial purpose does not give rise to a double jeopardy violation. State v. Hickam, 235 Conn. 614, 623, 668 A.2d 1321 (1995). We, therefore, hold that the imposition on the defendant of the administrative sanction of denial of unemployment benefits does not bar the state from prosecuting her on the charge of attempted larceny in violation of §§ 53a-49 and 53a-124.

The judgment is affirmed.

In this opinion the other judges concurred.