author: LAVINE, J.

text:
    WILLIAM H. HESCOCK ET AL. v. ZONING BOARD OF APPEALS OF THE TOWN OF STONINGTON ET AL.
    (AC 29316)
    Lavine, Beach and Mihalakos, Js.

      Argued October 16, 2008
    officially released January 20, 2009

      William H. Hescock, with whom, on the brief, was Mark R. Kepple, for the appellants (plaintiffs).

      Jeffrey T. Londregan, for the appellee (named defendant).

      Eric Knapp filed a brief for the appellees (defendant Thompson Wyper et al.).
   Opinion

LAVINE, J.

The plaintiffs, William H. Hescock and Regina C. Hescock, appeal from the judgment of the trial court dismissing their appeal from the decision by the defendant zoning board of appeals of the town of Stonington (board) granting an application for a variance submitted by the defendants Carol Holt and Thompson Wyper. The plaintiffs claim that the court improperly (1) concluded that the approval of the defendants’ coastal site plan review application was supported by substantial evidence in the record, (2) concluded that the board complied with local flood zone regulations and (3) upheld the variance without substantial evidence of unusual hardship. We affirm the judgment of the trial court.

The following undisputed facts are relevant to the resolution of the plaintiffs’ appeal. The defendants own real property at 57 Boulder Avenue in Stonington. The plaintiffs own property contiguous to or within 100 feet from the defendants’ property. Due to its position, the defendants’ property is subject to the portions of Ston-ington zoning regulations (regulations), entitled coastal area management overlay district (coastal zone) and flood hazard overlay district (flood zone). The coastal zone section of the regulations implements the Coastal Management Act (act); General Statutes §§ 22a-90 through 22a-112; and the flood zone section implements Federal Emergency Management Agency (FEMA) regulations.

On May 2, 2006, the defendants, who wanted to raze the house that occupied their property and to construct a new one, filed an application with the board, seeking a variance from § 7.7.8.3.1 of the regulations, which requires that “[a]ll new construction or substantial improvement shall be located 100 feet landward of the reach of the mean high tide.” The defendants, whose existing house is located forty-four feet from the mean high tide, wanted to locate the new house forty-seven feet from the mean high tide. In a portion of the application requiring an explanation of hardship, the defendants wrote that “[t]he proposal will replace an existing home below the base flood elevation with new construction that will meet all flood regulations with the exception of regulation 7.7.8.3.1. [Seventy-six percent] of the lot is within 100 [feet] of mean high tide [and] 57 Boulder Avenue qualifies for a variance under [§] 7.7.9.1.2. It is a .20 acre lot that is surrounded by homes constructed below the base flood level.” Along with the variance application and on the same day, the defendants submitted an application for a municipal coastal site plan review, which, pursuant to § 7.3.1.4 of the regulations and General Statutes § 22a-105 (b) (4), must accompany variance applications for projects within, or partly within, the coastal boundary.

A public hearing on the applications was held on June 13, 2006. The board approved both the variance and the coastal site plan review applications, issuing two separate records of decision. On August 1, 2006, the plaintiffs appealed from the board’s decision granting the variance. On June 13, 2007, the court dismissed the plaintiffs’ appeal. The plaintiffs filed a motion to reargue and to reconsider judgment, which the court denied. On November 5, 2007, the plaintiffs filed the present appeal from the court’s judgment dismissing their appeal. Further facts will be set forth as necessary.

We first set forth our standard of review. “It is well established that an appellate court will not retry the facts. Our review is to determine whether the judgment of the trial court was clearly erroneous or contrary to the law. . . . When . . . the trial court draws conclusions of law, [the scope of our appellate] review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record.” (Internal quotation marks omitted.) Pinchbeck v. Planning & Zoning Commission, 69 Conn. App. 796, 801, 796 A.2d 1208, cert. denied, 261 Conn. 928, 806 A.2d 1065 (2002). Because the plaintiffs’ appeal to the trial court is based solely on the record, the scope of the trial court’s review of the board’s decision and the scope of our review of that decision are the same. See Quarry Knoll II Corp. v. Planning & Zoning Commission, 256 Conn. 674, 726 n.29, 780 A.2d 1 (2001). When the resolution of an issue requires us to review and to analyze the relevant town zoning regulations, “the interpretation of the regulations presents a question of law [and] our review is plenary.” (Internal quotation marks omitted.) Field Point Park Assn., Inc. v. Planning & Zoning Commission, 103 Conn. App. 437, 440, 930 A.2d 45 (2007).

I

The plaintiffs first claim that the court improperly concluded that the board’s approval of the defendants’ application for coastal site plan review was reasonably supported by substantial evidence in the record. We disagree.

The following additional facts are relevant to our analysis of the plaintiffs’ claim. Section II of the defendants’ application for coastal site plan review, submitted along with the application for a variance, indicates that it was accompanied by plans showing project location, existing and proposed conditions, soil erosion and sediment controls, storm water treatment practices and reference datum. The application shows that the defendants did not submit plans showing coastal resources on or contiguous to the site, the high tide line or mean high water mark elevation. In part IIA of the application, the defendants described the proposed project and stated that the coverage of impervious surfaces would decrease by 7 percent. In part II B of the application, the defendants described proposed storm water management practices. In part III, they identified ten types of coastal resources, listed in General Statutes § 22a-93 (7) and § 7.3.3 of the regulations as on-site, within the influence of or adjacent to the project. In parts IV and V, the defendants identified applicable coastal resource policies and standards and, in part VI, stated that their project is consistent with those policies and standards. In parts VII through IX, the defendants indicated that there are no potential adverse impacts on coastal resources or opportunities for water dependent uses.

At the public hearing, the board heard from interested parties, including William Hescock, Wyper and Mark Comeau, an architect retained by the defendants. The board read into evidence a letter from an environmental analyst at the department of environmental protection, Carol Szymanski, submitted to the board on June 5, 2006. Szymanski concluded that the application was incomplete for the purposes of determining whether the requested variance was consistent with the goals, policies and standards of the act. She stated that the following information was needed to determine compliance with the act: a site plan outlining existing conditions, location of the high tide line, delineation of the coastal flood hazard zone, location of the 100 foot distance from mean high tide, building elevations and location of the driveway. The transcript of the hearing indicates that, however, Comeau apparently while discussing maps and records, pointed out the mean high tide line and the 100 foot distance to the board members. Comeau also discussed existing and proposed building elevations. The transcript and the record also indicate that additional documents, including a map outlining existing conditions recommended by Szymanski, were submitted to the board on the day of the hearing. Com-eau also addressed some of the concerns raised in Szy-manski’s letter, such as building elevations, and specifically disputed the need for more information on the extent of the encroachment on the coastal resources. William Hescock, the only speaker at the hearing opposed to the variance, did not introduce any evidence related to the coastal site plan review.

The portion of the transcript documenting the board’s decision-making process indicates that the board discussed Szymanski’s letter. The board approved the defendants’ application for coastal site plan review on June 13,2006, but left blank the area provided for stipulations or reasons on the record of decision. The board approved the defendants’ application for a variance on the same date and included the following reason on that record of decision: “as presented—will diminish existing non-conformity and will address and improve flood zone issues.” The court, in its memorandum of decision, provided no separate analysis of whether the board’s approval of the defendants’ application for coastal site plan review reasonably was supported by the record. The court did conclude, however, that the new construction would conform to the coastal zone regulations.

Our review of the board’s approval of the defendants’ application for the coastal site plan review is guided by DeBeradinis v. Zoning Commission, 228 Conn. 187, 635 A.2d 1220 (1994). In that case, our Supreme Court held that “[c]onclusions reached by the commission must be upheld by the trial court if they are reasonably supported by the record. . . . The question is not whether the trial court would have reached the same conclusion, but whether the record before the agency supports the decision reached. . . . The action of the commission should be sustained if even one of the stated reasons is sufficient to support it. . . . The evidence, however, to support any such reason must be substantial .... This so-called substantial evidence rule is similar to the sufficiency of the evidence standard applied injudicial review of jury verdicts, and evidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred.” (Citations omitted; internal quotation marks omitted.) Id., 198-201; see also Pinchbeck v. Planning & Zoning Commission, supra, 69 Conn. App. 800 (proper standard of trial court review of coastal site plan is whether decision supported by substantial evidence). When the zoning body fails to state reasons for its decision on the record, the reviewing court has a duty to search the entire record before it to find a basis for the board’s decision. Gagnon v. Inland Wetlands & Watercourses Commission, 213 Conn. 604, 608, 569 A.2d 1094 (1990).

We conclude that the board’s approval of the defendants’ application for coastal site plan review is supported by substantial evidence in the record. First, we agree with the plaintiffs that the board was required to submit its findings on the application for coastal site plan review in writing. General Statutes § 22a-106 (e) provides in relevant part that “[i]n approving any activity proposed in a coastal site plan, the municipal board or commission shall make a written finding that the proposed activity ... (1) [i]s consistent with all applicable goals and policies in section 22a-92; [and] (2) incorporates as conditions or modifications all reasonable measures which would mitigate the adverse impacts of the proposed activity on both coastal resources and future water-dependent development activities.” The board’s failure to state its reasons in writing is not fatal, however, because, when the board fails to make written findings, the reviewing court must search the record for sufficiency of evidence supporting the board’s decision. See Bishop v. Zoning Board of Appeals, 92 Conn. App. 600, 606-607, 886 A.2d 470 (2005), cert. denied, 277 Conn. 906, 894 A.2d 986 (2006).

Our search of the record reveals substantial support for the board’s approval of the coastal site plan review application. The board was required to evaluate the coastal site plan application and to determine the extent and acceptability of any adverse impact. See Stonington Zoning Regs., § 7.3.4; General Statutes § 22a-106 (e). The plaintiffs argue that the board failed to do this because Szymanski’s letter concluded that the application was incomplete and because the defendants did not submit a “coastal site plan” map as required by General Statutes § 22a-105 (c). We find that the record before the board contained sufficient information for it to evaluate the application and determine the extent and acceptability of potential adverse impacts, and, notwithstanding the sparse record on this issue, we see no reason to conclude that it failed to perform its duty. The transcript of the hearing indicates that the board reviewed the defendants’ application and accompanying materials, as well as Szymanski’s letter. The defendants’ application evaluated land and water resources, stated that there were no adverse impacts on those resources and even proposed mitigating measures, such as the decreased coverage of impervious surfaces and best storm water management practices. See Stonington Zoning Regs., § 7.3.3 (information required in applications for coastal site plan review). No evidence was submitted at the hearing, by the plaintiffs or anyone else, contradicting the information contained in the defendants’ application or suggesting that there were potential adverse impacts on coastal resources or opportunities for water dependent uses associated with the defendants’ project. The only other evidence in the record, besides the defendants’ application, was Szymanski’s letter, which concluded that the application was incomplete for the purposes of determining the project’s consistency with the act.

It is important to note that General Statutes § 22a-109 (d) provides that a zoning board must consider the recommendations or comments submitted by the commissioner of environmental protection, but there is no indication in the act or elsewhere that such recommendations or comments are binding on the board. It is undisputed that the board considered Szymanski’s letter because it read it in its entirety at the hearing and discussed it during the deliberations. We cannot substitute our judgment for that of the board as to the weight of the evidence before it. Vine v. Zoning Board of Appeals, 281 Conn. 553, 560, 916 A.2d 5 (2007). The transcript of the hearing indicates that much of the missing information mentioned in Szymanski’s letter was provided by the defendants and Comeau on the day of the hearing. Comeau showed the board members the location of the mean high tide line and the 100 foot distance from it and discussed the building elevations. A site plan outlining existing conditions was included in the record that was before the board. In light of the record that was before the board, we conclude that its approval of the application for coastal site plan review was supported by substantial evidence.

We therefore conclude that the court properly determined that the board’s approval of the defendants’ application for a coastal site plan review was supported by substantial evidence in the record.

II

The plaintiffs next claim that the court failed to address their argument that the board did not comply with the requirements under § 7.7.9.3 of the zoning regulations and that the conclusion that the board complied with those requirements was unsupported by the record. We do not agree.

The following facts are relevant to our consideration of the plaintiffs’ claim. The board approved the defendants’ application for a variance and provided the following reasons for its approval: “as presented—will diminish existing non-conformity and will address and improve flood zone issues.” The court’s memorandum of decision primarily focuses on the requirement of unusual hardship, which we will address in part III. The court did conclude, however, that there was substantial evidence in the record that flood zone issues will be improved by granting the requested variance. The court stated that “[d]uring the deliberations . . . one of the members expressed the importance of compliance with the flood hazard regulations .... Considering the applicable law and the evidence in the record, it must be found that the reasons stated by the [board] for the granting of the variance are pertinent to the considerations which it was required to apply, and such reasons are amply supported by substantial evidence in the record. The plaintiffs have failed to prove that in granting the variance, action of the [board] was illegal, arbitrary or in abuse of discretion.” The transcript of the hearing indicates that the defendants discussed the acceptability of alternative locations, compatibility with the existing development, potential flood damage and the overall increased compliance with flood district regulations. The defendants also stated that the new house would be as far from the water as possible and introduced evidence that more than 70 percent of their property lies within the 100 foot setback zone. The board, during its deliberations, noted that the new construction would be the only house standing when the next hurricane hits the area. Additionally, Comeau presented testimony that the existing house was damaged in a hurricane and that it does not comply with various building and habitability codes and requirements.

We do not agree with the plaintiffs’ claim that the court failed to address the issue of whether the board complied with the requirements set forth in § 7.7.9.3 of the regulations. We conclude that the court specifically found that the board complied with these regulations when it stated that the approval of the variance application was supported by evidence that flood zone issues will be improved.

We next turn to the plaintiffs’ argument that the court improperly concluded that the board’s approval of the variance application complied with the requirements set forth in §§ 7.7.9.3, 7.7.9.5 and 8.10.3 of the regulations. Section 7.7.9.3 provides that the board, in considering applications for a variance, must consider all technical evaluations, relevant factors, standards specified in other sections, a showing of good and sufficient cause, a determination that failure to grant a variance would result in exceptional hardship, as well as eleven specific factors that include danger that materials might be swept onto other lands to the injuiy of others, danger to life and property due to flooding or erosion damage, the susceptibility of the proposed facility and its contents to flood damage, the compatibility with existing and anticipated development and effects of wave action and flood waters at the site. Stonington Zoning Regs., § 7.7.9.3. Section 7.7.9.5 provides that variances should be issued upon a determination that the variance is the minimum necessary; id.; while § 8.10.3 requires a finding that the strict interpretation of the regulations is unreasonably limited for any and all permitted uses. Id., § 8.10.3. The gist of the plaintiffs’ argument is that the board acted arbitrarily when it approved the application without finding that the requested variance is the minimum necessary and that the existing house unreasonably limits the defendants’ use of the property. See id., §§ 7.7.9.5 and 8.10.3.

We note that when a zoning authority has stated the reasons for its action, a reviewing court may determine only if the reasons given are reasonably supported by the record and are pertinent to the considerations that the authority was required to apply. Goldberg v. Zoning Commission, 173 Conn. 23, 25-26, 376 A.2d 385 (1977). The decision of a zoning authority will be disturbed only if it is shown that it was arbitrary, illegal or an abuse of discretion. Beit Havurah v. Zoning Board of Appeals, 177 Conn. 440, 444, 418 A.2d 82 (1979). Furthermore, we have held that a “zoning board is comprised of laymen whose responsibility is to protect the interest of the individual property owner by granting a variance when the zoning regulations impose a hardship on the property owner of the nature described by the General Statutes. ... In searching the record, the trial court may rely on any reason culled from the record which demonstrates a real or reasonable relationship with the general welfare of the community in concluding that the board’s decision should be upheld.” (Citation omitted.) Stankiewicz v. Zoning Board of Appeals, 15 Conn. App. 729, 732-33, 546 A.2d 919 (1988), aff'd, 211 Conn. 76, 556 A.2d 1024 (1989).

Our role therefore is to determine whether the board acted arbitrarily, illegally or in abuse of its discretion and not to indulge in a hypertechnical examination of whether the board complied with all the minute requirements of its regulations. “[C]ourts must be scrupulous not to hamper the legitimate activities of civic administrative boards by indulging in a microscopic search for technical infirmities in their action.” (Internal quotation marks omitted.) Frito-Lay, Inc. v. Planning & Zoning Commission, 206 Conn. 554, 573, 538 A.2d 1039 (1988). We conclude that the board’s conclusion that the new construction will address and improve flood zone issues is not arbitrary, illegal or an abuse of discretion. The record indicates that the requirements under § 7.7.9.3 were carefully considered. The board heard the defendants’ arguments regarding the acceptability of alternative locations, compatibility with the existing development, potential flood damage and the overall increased compliance with flood district regulations. The record also shows that the board considered danger from hurricanes and flooding because it concluded in its deliberations that the new construction would be the only one standing when the next hurricane hits the area. Next, the board also fulfilled the requirement under § 7.7.9.5 that the granted variance be minimal when it considered the defendants’ argument that the new house would be as far from the water as possible and the evidence that more than 70 percent of the defendants’ property lies within the 100 foot setback zone. Finally, the board clearly evaluated whether the strict interpretation of the regulations unreasonably would limit the use of the defendants’ property for all permitted uses, an inquiry required by § 8.10.3, when it heard Comeau’s extensive testimony about the noncompliance of the existing house with various building and habitability codes and regulations. The board’s failure to specifically state, orally or in writing, that it had made these findings does not amount to an exercise of discretion that is arbitrary, illegal or an abuse of discretion. See Vaszauskas v. Zoning Board of Appeals, 215 Conn. 58, 63-65, 574 A.2d 212 (1990) (zoning board of appeals abused discretion when it acted beyond its authority by granting variance subject to satisfaction of condition impossible to satisfy); Frito-Lay, Inc. v. Planning & Zoning Commission, supra, 568-74 (zoning commission abused discretion by holding public hearings after mandated time period); Farrior v. Zoning Board of Appeals, 70 Conn. App. 86, 95, 796 A.2d 1262 (2002) (zoning board abused discretion when it interpreted applicable regulatory language arbitrarily and unreasonably).

We therefore conclude that the court properly concluded that the board complied with the requirements under the flood zone regulations.

Ill

The plaintiffs’ final claim is that the court improperly concluded that the board approved the defendants’ application for a variance without the finding of legal hardship. The plaintiffs argue that the board inaccurately estimated the extent of the diminishing noncon-formities and that the court improperly concluded that the elimination of nonconformities was an independent basis for granting the variance in the present case. We disagree.

The following additional facts are relevant to our consideration of the plaintiffs’ claim. In its memorandum of decision, the court concluded that the board did not abuse its discretion in granting the requested variance without having determined that the defendants had demonstrated unusual hardship. The court concluded that the elimination of nonconformities served as an independent basis for granting a variance; see Vine v. Zoning Board of Appeals, supra, 281 Conn. 559; Adolphson v. Zoning Board of Appeals, 205 Conn. 703, 708-10, 535 A.2d 799 (1988); Stancuna v. Zoning Board of Appeals, 66 Conn. App. 565, 572, 785 A.2d 601 (2001); and that compliance with flood zone regulations and increased compliance with the 100 foot setback requirement justified the granting of the variance in the absence of unusual hardship. The defendants submitted that the new house would comply with all flood zone regulations except the setback requirement. They presented evidence that the existing house did not comply with applicable building and habitability codes. The defendants also presented evidence that the new construction would be farther away from the water than any other house on that street. During the board’s deliberations, a board member stated that the “FEMA improvements are far more important than anything, and I also believe that given time the entire neighborhood is going to be conforming to [regulations], so [they are] just on the cutting edge of what’s [going to] happen in the years to come.” The court emphasized the board’s findings that the new structure, unlike the existing one, would be in conformance with flood district standards specified in § 7.7.8.2 and more compliant with the 100 foot setback requirement in § 7.7.8.3.1 than the existing one.

We set forth the standard governing our review of grants or denials of variances. General Statutes § 8-6 provides zoning boards with power to grant variances from local zoning regulations. “One who seeks a variance must show that, because of some unusual characteristic of his property, a literal enforcement of the zoning regulations would result in unusual hardship to him. . . . The hardship complained of must arise directly out of the application of the ordinance to circumstances or conditions beyond the control of the party involved. . . . Where the condition which results in the hardship is due to one’s own voluntary act, the zoning board is without power to grant a variance. . . . Where . . . the hardship arises as the result of a voluntary act by one other than the one whom the variance will benefit, the board may, in the sound exercise of its liberal discretion, grant the variance. . . . Disadvantage in property value or income, or both, to a single owner of property, resulting from application of zoning restrictions, does not, ordinarily, warrant relaxation in his favor on the ground of . . . unnecessary hardship. . . . Financial considerations are relevant only in those exceptional situations where a board could reasonably find that the application of the regulations to the property greatly decreases or practically destroys its value for any of the uses to which it could reasonably be put and where the regulations, as applied, bear so little relationship to the purposes of zoning that, as to particular premises, the regulations have a confiscatory or arbitrary effect. . . . Zoning regulations have such an effect in the extreme situation where the application of the regulations renders the property in question practically worthless.” (Citations omitted; internal quotation marks omitted.) Vine v. Zoning Board of Appeals, supra, 281 Conn. 561-62.

“In cases in which an extreme hardship has not been established, [however], the reduction of a nonconforming use to a less offensive prohibited use may constitute an independent ground for granting a variance.” Id., 562. Consequently, our Supreme Court in Vine held that this court improperly reversed the trial court’s judgment upholding the granting of a variance from the town’s zoning regulation that required a minimum square footage on all lots. Id., 556, 572. The court concluded that granting the variance would result in a development that more nearly conformed to the technical requirements of the town’s zoning regulations and would not result in a more offensive use of the property. Id., 570-71. The court stated that “it would elevate form over substance to insist on [the showing of exceptional hardship] when there is no claim or evidence that granting the variance could result in even minimal harm to the neighborhood or undermine in any way the overarching zoning scheme, especially when there is substantial evidence to support a conclusion that it would result in a more conforming use.” Id., 571.

The court in Vine relied on two other cases. In Adolphson v. Zoning Board of Appeals, supra, 205 Conn. 703, our Supreme Court affirmed the judgment of the trial court upholding the granting of a variance from a regulation prohibiting the operation of an automobile repair shop. Id., 705-707. The defendants wanted to operate the repair shop instead of a nonconforming aluminum casting foundry. Id., 705. The court recognized that “nonconforming uses should be abolished or reduced to conformity as quickly as the fair interest of the parties will permit .... [Wjhile the alien use is permitted to continue until some change is made or contemplated, thereupon, so far as is expedient, advantage is taken of this fact to compel a lessening or suppression of the nonconformity.” (Citations omitted; internal quotation marks omitted.) Id., 710. The Supreme Court also emphasized the finding of the trial court that the proposed use would be far less offensive to the neighborhood and surrounding residents than a foundry. Id. In Stancuna v. Zoning Board of Appeals, supra, 66 Conn. App. 565, this court affirmed the judgment of the trial court upholding the granting of a variance from regulations requiring certain side yard setback. Id., 566. The court concluded that the variance would eliminate a nonconforming residential use of the property and allow a commercial use in a commercial zone. Id., 572. The court also noted that the variance was in keeping with the town’s comprehensive plan and that the changes appurtenant to the variance would conserve the public health, safety and welfare of the neighborhood. Id.

First, we dispose of the plaintiffs’ arguments disputing the board’s factual findings, such as the distance of the new construction from the mean high tide, or challenging the accuracy of the defendants’ and Com-eau’s statements. There is no indication that the plaintiffs disputed those factual findings before the board or the trial court; see Celentano v. Oaks Condominium Assn., 265 Conn. 579, 589 n.9, 830 A.2d 164 (2003); Practice Book § 60-5; and the credibility of the witnesses and the determination of issues of fact are matters solely within the province of the board. Rural Water Co. v. Zoning Board of Appeals, 287 Conn. 282, 294, 947 A.2d 944 (2008). The board’s conclusion that the new construction would diminish nonconformities is furthermore substantially supported by the evidence presented at the hearing. The record reveals that the new construction will be set farther from the mean high tide than the existing one, thereby reducing the nonconformity with § 7.7.8.3.1 of the regulations. The record also reveals that the new construction will conform to all the other flood zone regulations, such as the specific standards in § 7.7.8.2 concerning base flood elevation levels and location of utility connections. Compare Horace v. Zoning Board of Appeals, 85 Conn. App. 162, 170-72, 855 A.2d 1044 (2004) (board’s decision to grant variance on ground that less nonconforming use would result not supported by any evidence, including application, and therefore was improper).

Second, we conclude that the court in the present case properly concluded that the law developed in Vine, Adolphson and Stancuna was fully applicable to the present circumstances. The plaintiffs’ key argument is that the increased conformance with flood zone regulations is not significant enough to justify the grant of a variance in the present case. We do not see any basis on which to distinguish the present case from Vine, Adolphson ox Stancuna. The board found that the grant of a fifty-three foot variance is justified by a decrease in noncompliance with the 100 foot setback requirement set forth in § 7.7.8.3.1 and the elimination of noncompliance with all the remaining flood zone regulations. Compare Vine v. Zoning Board of Appeals, supra, 281 Conn. 570-72 (variance from square footage requirement justifies granting variance where it reduced nonconformity and did not cause even minimal harm to neighborhood); Adolphson v. Zoning Board of Appeals, supra, 205 Conn. 708-10 (nonconforming use of property to operate automobile repair shop justified because it is less offensive to neighborhood than nonconforming use to operate foundry); Stancuna v. Zoning Board of Appeals, supra, 66 Conn. App. 572 (variance from setback requirement justified where it eliminated nonconforming use, was consistent with town’s comprehensive development plan and did not undermine health, safety and welfare of surrounding neighborhood). In the present case, there was substantial evidence that the new construction would reduce and eliminate existing nonconformities and present less of a hazard in case of a flood, and there was no evidence that replacing the existing house would result in even minimal harm to the neighborhood. It is important to also note that the board concluded that with time, all of the houses in the neighborhood would conform to the flood zone requirements and that the defendants were on the cutting edge of new development. Adolphson v. Zoning Board of Appeals, supra, 710 (“[t]he accepted method of accomplishing the ultimate object is that, while the alien use is permitted to continue until some change is made or contemplated, thereupon, so far as is expedient, advantage is taken of this fact to compel a lessening or suppression of a nonconformity”).

We conclude that the court properly upheld the board’s conclusion that the elimination and reduction of nonconformances in the present case presented an independent basis for granting a variance. We affirm the court’s dismissal of the plaintiffs’ appeal.

The judgment is affirmed.

In this opinion the other judges concurred.

       In this opinion, we refer to Holt and Wyper as the defendants.

       The plaintiffs therefore have standing as aggrieved persons under General Statutes § 8-8 (b).

       See Stonington Zoning Regs., §§ 7.3 and 7.7.

       The application defines hardship, or a reason for requesting a variance, as a “peculiar or unique feature of aparticular piece of property that prevents the landowner from making a reasonable use of the property in conformance with the existing zoning regulations. A hardship has nothing to do with the personal circumstances of the landowner. The fact that the owner might be able to make a more profitable use of the land if it were not for the zoning regulations does not equate to hardship. Proof of a true hardship is a legal requirement for a [z]oning [b]oard of [a]ppeals to issue a variance.”

       Section 7.7.9.1.2 of the Stonington zoning regulations provides that “[vjariances may be issued ... for new construction . . . on a lot of one-half acre or less in size contiguous to and surrounded by lots with existing structures constructed below the base flood level . . . .”

       The plaintiffs also claim that the court improperly concluded that it lacked jurisdiction to review the board’s approval of the defendants’ coastal site plan application because the court misread Fort Trumbull Conservancy, LLC v. Planning & Zoning Commission, 266 Conn. 338, 832 A.2d 611 (2003), and failed to distinguish the procedural circumstances of the present case. In its memorandum of decision, the court stated that “[b]y statute and regulation, [coastal site plan] review has been made another component of the zoning process. [It] does not result in an appealable decision separate from the variance approved. . . . The court has no jurisdiction to consider the [coastal site plan] review as a separate appealable decision.”
      Later in the memorandum, the court, however, concluded that “the new construction allowed by the variance will permit the erection of a building which is in conformance with the [coastal zone] requirements as set forth in the zoning regulations.” The plaintiffs argue that the court’s statement that it lacked jurisdiction to review the board’s approval of the application for coastal site plan review means that it did not review it, despite the fact that the court subsequently seemed to have concluded that the board properly approved the coastal site plan application.
      “It is a well established principle of appellate procedure that the appellant has the duly of providing this court with a record adequate to afford review. . . . Where the factual or legal basis of the trial court’s ruling is unclear, the appellant should seek articulation pursuant to Practice Book § [66-5]. . . . Accordingly, [w]hen the decision of the trial court does not make the factual predicates of its findings clear, we will, in the absence of a motion for articulation, assume that the trial court acted properly.” (Internal quotation marks omitted.) Berglass v. Berglass, 71 Conn. App. 771, 789, 804 A.2d 889 (2002). We therefore construe the court’s memorandum of decision to indicate that it reviewed the board’s approval of the application for a coastal site plan review and upheld it without providing analysis. We consequently do not address the plaintiffs’ claim that the court failed to review the approval of the coastal site plan application because it improperly concluded that it lacked jurisdiction.

       The defendants identified the following coastal resources: general resources, beaches and dunes, bluffs and escarpments, coastal hazard area, coastal waters, estuarine embayments, near shore waters, offshore waters, developed shorefront, rocky shorefront, shellfish concentration areas, shore lands and tidal wetlands. See General Statutes § 22a-93 (7).

       The following coastal use and activity policies and standards outlined in General Statutes § 22a-92 (a) and (b) were identified by the defendants as applicable to their project: “(a) ... (1) [t]o insure that the development, preservation or use of the land and water resources of the coastal area proceeds in a manner consistent with the capability of the land and water resources to support development, preservation or use without significantly disrupting either the natural environment or sound economic growth; (2) [t]o preserve and enhance coastal resources in accordance with the policies established by chapters 439, 440, 446i, 446k, 447, 474 and 477; (3) [t]o give high priority and preference to uses and facilities which are dependent upon proximity to the water or the shorelands immediately adjacent to marine and tidal waters ... (9) [t]o coordinate planning and regulatory activities of public agencies at all levels of government to insure maximum protection of coastal resources while minimizing conflicts and disruption of economic development . . . (b) . . . [t]o manage uses in the coastal boundary through existing municipal planning, zoning and other local regulatory authorities and through existing state structures, dredging, wetlands, and other state siting and regulatory authorities, giving highest priority and preference to water-dependent uses and facilities in shorefront areas.” General Statutes § 22a-92 (a) (1), (2), (3) and (9), and 22a-92 (b) (1) (A).

       General Statutes §22a-93 (15) defines potential adverse impacts as including but not limited to “(A) [degrading water quality . . . (B) degrading existing circulation patterns of coastal waters . . . (C) degrading natural erosion patterns . . . (D) degrading natural or existing drainage patterns . . . (E) increasing the hazard of coastal flooding ...(F) degrading visual quality through significant alteration of the natural features of vistas and view points; (G) degrading or destroying essential wildlife, finfish or shellfish habitat . . . and (H) degrading tidal wetlands, beaches and dunes, rocky shorefronts, and bluffs and escarpments through significant alteration of their natural characteristics or function.”

       “Water-dependent uses” are defined in General Statutes § 22a-93 (16).

         We note here that our Supreme Court recently held in Fort Trumbull Conservancy, LLC v. Planning & Zoning Commission, supra, 266 Conn. 351, that the act “strongly suggests that a coastal site plan review was intended to be part and parcel of the planning or zoning application or referral that triggers the coastal site plan review . . . The court in Fort Trumbull Conservancy, LLC, also stated, however, that its decision was consistent with DeBeradinis v. Zoning Commission, supra, 228 Conn. 187; see Fort Trumbull Conservancy, LLC v. Planning & Zoning Commission, supra, 358-59; and did not provide any new guidance concerning the judicial review of coastal site plans. We conclude that DeBeradinis provides a proper standard of review of a coastal site plan approval and provides a separate analysis of whether there is substantial evidence in the record to support the board’s approval of the application for a coastal site plan review. See DeBeradinis v. Zoning Commission, supra, 198.

       Section 7.7.9.3 outlines considerations for granting of variances from the regulations contained in § 7.7. See Stonington Zoning Regs., § 7.7.9.3. Section 7.7 applies “special regulations to the use of the land in the flood plains of . . . bodies of water . . . which have or tend to have flooded or overflowed their banks.” Id., § 7.7. The 100 foot setback requirement is a part of § 7.7. See id., § 7.7.8.3.1. The board was therefore required to consider the standards set forth in § 7.7.9.3 when it reviewed the defendants’ application for a variance from the 100 foot setback requirement.

       It should be noted here that the strict enforcement of § 7.7.8.3.1 appears to mandate that the defendants must continue residing in the existing house until it is destroyed or demolished or be confined to building on only 24 percent of their property.

       General Statutes § 8-6 (a) provides in relevant part that “[t]he zoning board of appeals shall have the following powers and duties ... (3) to determine and vary the application of the zoning bylaws, ordinances or regulations in harmony with their general purpose and intent and with due consideration for conserving the public health, safety, convenience, welfare and property values solely with respect to a parcel of land where, owing to conditions especially affecting such parcel but not affecting generally the district in which it is situated, a literal enforcement of such bylaws, ordinances or regulations would result in exceptional difficulty or unusual hardship so that substantial justice will be done and the public safety and welfare secured, provided that the zoning regulations may specify the extent to which uses shall not be permitted by variance in districts in which such uses are not otherwise allowed. . .


source: Caselaw Access Project

author: HARPER, J.

license: Public Domain

text:
    NICHOLAS J. BYRNE, JR. v. MARTIN B. BURKE ET AL.
    (AC 29237)
    DiPentima, Harper and Berdon, Js.

      Argued September 25, 2008
    officially released January 20, 2009

      Nicholas J. Byrne, Jr., pro se, the appellant (plaintiff).

      Dawn E. Alderucci, with whom, on the brief, were Kerry R. Callahan, David R. Makarewicz and Daniel B. Fitzgerald, for the appellee (named defendant).

      David P. Atkins, with whom, on the brief, was Marcy Tench Stovall, for the appellee (defendant Mark R. Spurling).
   Opinion

HARPER, J.

The plaintiff, Nicholas J. Byrne, Jr., appeals from the summary judgment rendered by the trial court in favor of the defendants Martin B. Burke and Mark R. Spurling. On appeal, the plaintiff claims that the court improperly concluded, as a matter of law, (1) on the civil conspiracy count against Burke, that the plaintiffs cause of action was time barred; (2) on the breach of fiduciary duty count, that the plaintiff did not establish that Burke owed him a fiduciary duty; (3) on the civil conspiracy count against Burke, that Burke’s deposition testimony in a probate hearing and testimony during a court hearing were not inconsistent; (4) on the vexatious litigation count, that the Probate Court’s ruling, in favor of Spurling’s client, is conclusive evidence of probable cause to initiate probate proceedings; (5) on the vexatious litigation count, that the plaintiff did not prove a claim for vexatious litigation; and (6) on the civil conspiracy count against Spurling, that the plaintiffs conspiracy count was based on the same facts that the court relied on to dismiss the vexatious litigation count. We disagree with the plaintiff and, accordingly, affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the plaintiffs claims. The court found the following facts to be undisputed. “In April, 1997, Burke, who is an attorney, prepared a will for the plaintiffs father, Nicholas Byrne, Sr., which the plaintiffs father signed in Burke’s office on April 7,1997 [1997 will]. The 1997 will left the testator’s residence in equal shares to his two sons and left his residuary estate in equal shares to his daughters. The 1997 will specifically excluded one of the testator’s daughters, Monica Banta. The will appointed the plaintiff executor and was witnessed by a paralegal employed by Burke and an employee of another tenant of the building where Burke’s law office was located.

“On October 1,2000, the testator died, and on November 10, 2000, the plaintiff initiated the probate process by submitting the 1997 will and a prior 1978 will of his parents to the Ellington district Probate Court. . . . Banta challenged the 1997 will on the grounds that her father lacked testamentary capacity when he executed the 1997 will and was under the undue influence of the plaintiff. She retained . . . Spurling to represent her. Spurling and Burke both had offices at 130 Union Street in Vernon. While the plaintiff alleges that Spurling and Burke had a ‘de facto partnership,’ Burke has submitted an affidavit in which he states that while he and Spurling share office space at 130 Union Street, Spurling has his own separate law practice, and they have never been associates or partners in their legal practices. . . .

“On May 4, 2001, Burke was deposed in the probate proceeding, and his deposition was used in lieu of his live testimony at a May 9, 2001 hearing before probate Judge James Purnell III. After the hearing, [in an oral ruling] Judge Purnell rejected the 1997 will as the product of undue influence. Judge Purnell issued a written decision on June 25, 2001, holding that the 1997 will did not revoke any prior wills or codicils. On January 16, 2002, Judge Purnell issued another written decision in which he approved and admitted to probate a September 24, 1996 handwritten will in which the testator appointed . . . Banta [executrix] and directed that his estate be divided equally among all his children. The plaintiff appealed [from] the Probate Court decisions to the Superior Court, where a de novo trial was conducted by Hon. Lawrence C. Klaczak, judge trial referee. [Burke submitted live testimony to the Superior Court on November 12, 2003, at which he disclosed a January, 1997 letter that Burke addressed to the testator reflecting the testator’s contemplation to exclude Banta from his will.] In a . . . memorandum of decision filed November 20,2003, Judge Klaczak reversed the Probate Court decree, finding [that] the September 24,1996 will was invalid and [that] the . . . 1997 will was valid.” (Citation omitted.)

In the present appeal, the plaintiff, appearing pro se, filed a four count complaint directed against Burke and Spurling. The complaint, dated November 16, 2006, concerned the defendants’ actions while the plaintiff was defending the 1997 will before the Probate Court. In his amended complaint, filed on December 26, 2006, the plaintiff alleged in count one, a claim of vexatious litigation against Spurling, in count two, a claim of conspiracy against both Spurling and Burke, and in counts three and four, a claim of breach of fiduciary duty and intentional infliction of emotional distress, respectively, against Burke.

Thereafter, each defendant filed a motion for summary judgment. Spurling argued that he was entitled to summary judgment on counts one and two on the ground that the probate proceeding he initiated was decided in favor of his client and established probable cause. Burke argued that he was entitled to summary judgment on all counts directed against him on the ground that the tort claims were time barred by General Statutes § 52-577.

In his objection to Spurling’s motion for summary judgment, the plaintiff argued that questions of material fact existed, such as whether Spurling had probable cause to initiate a probate proceeding and whether Spurling conspired with Burke to have the Probate Court reject the 1997 will on the basis of Burke’s allegedly false deposition testimony. In his objection to Burke’s motion for summary judgment, the plaintiff argued that questions of material fact existed, such as whether Burke fraudulently concealed a January, 1997 letter that, the plaintiff posits, subsequently, aided the Superior Court in the probate appeal in determining that the 1997 will was valid. The plaintiff further argued that Burke’s concealment resulted in fraud that tolled, under General Statutes § 52-595, the statute of limitations.

On July 7, 2007, the court heard oral arguments and, by memorandum of decision filed September 4, 2007, granted both defendants’ motions for summary judgment and thereafter rendered judgment in the defendants’ favor. This appeal followed. Additional facts will be set forth as necessary.

Before considering the plaintiffs claims on appeal, we first note our well established standard of review. “Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law.” (Internal quotation marks omitted.) Viola v. O’Dell, 108 Conn. App. 760, 763-64, 950 A.2d 539 (2008).

“A material fact is a fact that will make a difference in the outcome of the case. . . . Once the moving party has presented evidence in support of the motion for summary judgment, the opposing party must present evidence that demonstrates the existence of some disputed factual issue .... It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court . . . .” Campbell v. Plymouth, 74 Conn. App. 67, 80-81, 811 A.2d 243 (2002).

“[I]ssue-finding, rather than issue-determination, is the key to the procedure. . . . [T]he trial court does not sit as the trier of fact when ruling on a motion for summary judgment. . . . [Its] function is not to decide issues of material fact, but rather to determine whether any such issues exist.” (Internal quotation marks omitted.) Precision Mechanical Services, Inc. v. T.J. Pfund Associates, Inc., 109 Conn. App. 560, 564, 952 A.2d 818, cert. denied, 289 Conn. 940, 959 A.2d 1007 (2008). “The test is whether a party would be entitled to a directed verdict on the same facts. ... A motion for summary judgment is properly granted if it raises at least one legally sufficient defense that would bar the plaintiffs claim and involves no triable issue of fact.” (Emphasis added; internal quotation marks omitted.) Weiner v. Clinton, 106 Conn. App. 379, 383, 942 A.2d 469 (2008).

“On appeal, [w]e must decide whether the trial court erred in determining that there was no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. . . . Because the trial court rendered judgment for the defendants as a matter of law, our review is plenary and we must decide whether the trial court’s conclusions are legally and logically correct and find support in the facts that appear in the record.” (Citation omitted; internal quotation marks omitted.) Alexander v. Vernon, 101 Conn. App. 477, 482-83, 923 A.2d 748 (2007).

I

On all counts directed against Burke, the court concluded that the plaintiffs causes of action were time barred. Although the plaintiffs claims can be viewed as distinct and separate, our consideration of the first claim regarding the statute of limitations necessarily implicates the second and third claims, and consequently, we will address the plaintiffs first three claims together. The plaintiff contends that his causes of action are not time barred because the statute of limitations was tolled by fraud. We disagree.

As previously stated, our review is plenary, and we must determine whether the court’s conclusions are legally and logically correct in that they find support in the record. The plaintiff, in counts two, three and four of the complaint, alleged a tort cause of action against Burke. In response, Burke raised a statute of limitations defense under § 52-577. The plaintiff, in turn, claimed that the statute of limitations was tolled, under § 52-595, for fraudulent concealment. The plaintiff argued that the statute of limitations was tolled because Burke fraudulently concealed a January, 1997 letter, which Burke addressed to the testator, that evidenced the testator’s contemplation to remove his daughter, Banta, from the 1997 will. He further ar gued that the testator’s intent, as expressed in the letter, countered Banta’s argument that the testator was unduly influenced. The plaintiff argued that Burke’s concealment of the January, 1997 letter caused the Probate Court to rule in favor of Banta, and, during the probate appeal, when Burke later revealed the January, 1997 letter during his testimony, the Superior Court reversed the Probate Court’s decree and ruled in the plaintiffs favor.

During oral argument on Burke’s motion for summary judgment, Burke argued that the plaintiffs counts were barred by the statute of limitations because the alleged failure by Burke to reveal the January, 1997 letter, occurred on May 4, 2001, during his deposition for the probate hearing or, in the alternative, on May 9, 2001, when the object of the alleged conspiracy between Spurling and Burke was achieved by the Probate Court’s oral ruling invalidating the 1997 will. Burke pointed out that both of these events occurred more than five years prior to the plaintiffs service of the complaint. Therefore, because the complaint was served on Burke on November 13, 2006, the plaintiffs causes of action were time barred.

The court concluded that “[a]ll of the alleged conduct by the defendants in the plaintiffs amended complaint occurred more than three years prior to service and filing of the plaintiffs action.” The court stated that “[rjegardless of whether the plaintiff has sufficiently pleaded fraudulent concealment ... no genuine issuefs] of material fact exist .... [T]he plaintiff has not provided any evidence that supports his claim that a genuine issue of material fact remains .... Burke was not asked by the plaintiffs former counsel if he had any letters in his file. . . . The plaintiff has also not pointed out any evidence that would indicate that Burke failed to disclose the existence of the letter for the purpose of obtaining a delay in the filing of the complaint by the plaintiff. The plaintiff has not submitted any evidence showing the significance of Burke’s January 9,1997 letter in relation to the plaintiffs claims in his amended complaint and how the failure to disclose this letter affected the plaintiffs ability to bring his claims. . . . Accordingly, Burke’s motion for summary judgment is granted as to all counts against him on the ground that the plaintiffs claims against him are barred by the statute of limitations.”

“The question of whether a party’s claim is barred by the statute of limitations is a question of law, which this court reviews de novo.” (Internal quotation marks omitted.) Smulewicz-Zucker v. Zucker, 98 Conn. App. 419, 423, 909 A.2d 76 (2006), cert. denied, 281 Conn. 905, 916 A.2d 45 (2007). In the present case, it is undisputed that the complaint was served on the defendants on November 13, 2006, and that the applicable limitations period is three years under § 52-577. Therefore, the issue to be resolved is whether the court properly found that the causes of action accrued prior to November 13, 2003, which resulted in their being time barred.

We first set forth the relevant legal principles. “[S]ection 52-577 is a statute of repose in that it sets a fixed limit after which the tortfeasor will not be held liable and in some cases will serve to bar an action before it accrues. . . . [Section] 52-577 provides: No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of. This court has determined that [§] 52-577 is an occurrence statute, meaning that the time period within which a plaintiff must commence an action begins to run at the moment the act or omission complained of occurs. . . . The three year limitation period of § 52-577, therefore, begins with the date of the act or omission complained of, not the date when the plaintiff first discovers an injury.” (Citations omitted; emphasis added; internal quotation marks omitted.) Valentine v. LaBow, 95 Conn. App. 436, 444-45, 897 A.2d 624, cert. denied, 280 Conn. 933, 909 A.2d 963 (2006).

The date the plaintiff first discovers an injury, however, becomes relevant if the plaintiff can show that the statute of limitations is tolled by the defendant’s fraudulent concealment under § 52-595. General Statutes § 52-595 provides: “If any person, hable to an action by another, fraudulently conceals from him the existence of the cause of such action, such cause of action shall be deemed to accrue against such person so liable therefor at the time when the person entitled to sue thereon first discovers its existence.” Our Supreme Court has stated that “[t]o establish that the [defendant] had fraudulently concealed the existence of [her] cause of action and so had tolled the statute of limitations, the [plaintiff] had the burden of proving that the [defendant was] aware of the facts necessary to establish this cause of action . . . and that [it] had intentionally concealed those facts from the [plaintiff]. . . . The [defendant’s] actions must have been directed to the very point of obtaining the delay [in filing the action] of which [it] afterward [seeks] to take advantage by pleading the statute. ... To meet this burden, it was not sufficient for the [plaintiff] to prove merely that it was more likely than not that the [defendant] had concealed the cause of action. Instead, the [plaintiff] had to prove fraudulent concealment by the more exacting standard of clear, precise and unequivocal evidence . . . .” (Citations omitted; internal quotation marks omitted.) Krondes v. Norwalk Savings Society, 53 Conn. App. 102, 113-14, 728 A.2d 1103 (1999).

In its memorandum of decision on Burke’s motion for summary judgment, the court referenced the following undisputed events: (1) Burke’s deposition was held on May 4, 2001, (2) Burke’s testimony during the probate appeal in the Superior Court was on November 12,2003, (3) the complaint was served on November 13, 2006, and (4) the complaint was filed in court on November 16, 2006. Based on these dates, we conclude that regardless if we review the plaintiffs first three claims under § 52-577 or § 52-595, the commencement of the action occurred beyond the applicable statutory period. Even if we assume that the tort and fraudulent concealment occurred on the same date, the tolling period ended on November 12, 2003. On that date, the plaintiff learned of the letter through Burke’s testimony during the probate appeal. The action was commenced when the defendants were served with the complaint on November 13, 2006, more than three years later. Therefore, the court properly granted Burke’s motion for summary judgment on the ground that the plaintiffs causes of action directed against Burke were time barred.

II

Next, the plaintiff claims that the court improperly concluded that the Probate Court’s ruling in favor of Spurling’s client was conclusive evidence of probable cause for Spurling to initiate probate proceedings and that the plaintiff did not prove a claim for vexatious litigation on the basis of the Superior Court’s subsequent reversal of the Probate Court’s ruling. We disagree.

The following additional facts are relevant to our review. In granting Spurling’s motion for summary judgment, the court stated that the “probate proceedings were resolved in favor of Spurling’s client, Banta. Even though the Superior Court later reversed the decree of the Probate Court, the resolution of the initial probate proceedings in favor of Spurling’s client conclusively shows that he had probable cause to initiate those proceedings.” Therefore, the court concluded that the plaintiff failed to prove his claim for vexatious litigation.

As previously stated, our review is plenary, and we must determine whether the court’s conclusions are legally and logically correct by finding support for those conclusions in the record. Having set forth the standard of review, we now turn to the elements of an action for vexatious litigation. It is well established that an element of a vexatious litigation action relates to probable cause. See Falls Church Group, Ltd. v. Tyler, Cooper & Alcorn, LLP, 281 Conn. 84, 94, 912 A.2d 1019 (2007). “[T]he legal idea of probable cause is a bona fide belief in the existence of the facts essential under the law for the action and such as would warrant a person of ordinary caution, prudence and judgment, under the circumstances, in entertaining it. . . . Probable cause is the knowledge of facts, actual or apparent, strong enough to justify a reasonable man in the belief that he has lawful grounds for prosecuting the defendant in the manner complained of. . . . Thus, in the context of a vexatious suit action, the defendant lacks probable cause if he lacks a reasonable, good faith belief in the facts alleged and the validity of the claim asserted.” (Internal quotation marks omitted.) Id., 94-95. “[T]he existence of probable cause is an absolute protection against an action for [vexatious litigation], and what facts, and whether particular facts, constitute probable cause is always a question of law.” (Internal quotation marks omitted.) Id., 94.

“Our Supreme Court recently had the opportunity to consider whether a higher legal standard of probable cause should be applied to attorneys and law firms sued for vexatious litigation. . . . After considering the statute and the competing policy interests, the court concluded that a higher standard should not apply. . . . Instead, in assessing probable cause, the court phrased the critical question as whether on the basis of the facts known by the law firm, a reasonable attorney familiar with Connecticut law would believe he or she had probable cause to bring the lawsuit. ... As is implied by its phrasing, the standard is an objective one that is necessarily dependent on what the attorney knew when he or she initiated the lawsuit. . . . Further, the court warned that [p]robable cause may be present even where a suit lacks merit. [Although] [f]avorable termination of the suit often establishes lack of merit . . . the plaintiff in [vexatious litigation] must separately show lack of probable cause.” (Citations omitted; internal quotation marks omitted.) Embalmers’ Supply Co. v. Giannitti, 103 Conn. App. 20, 34-35, 929 A.2d 729, cert. denied, 284 Conn. 931, 934 A.2d 246 (2007).

“[I]f it appears in the action for . . . a vexatious suit, that the prosecution properly ended in a judgment of conviction, or that in the civil suit judgment was properly rendered against the defendant therein, such outstanding judgment is, as a general rule, conclusive evidence of the existence of probable cause for instituting the prosecution, or the suit.” Frisbie v. Morris, 75 Conn. 637, 639-40, 55 A. 9 (1903). “[I]f the trial court determines that the prior action was objectively reasonable, the plaintiff has failed to meet the threshold requirement of demonstrating an absence of probable cause and the defendant is entitled to prevail.” (Internal quotation marks omitted.) Falls Church Group, Ltd. v. Tyler, Cooper & Alcorn, LLP, supra, 281 Conn. 99. “This is true although it is reversed upon appeal and finally terminated in favor of the person against whom the proceedings were brought. . . . Likewise, a termination of civil proceedings ... by a competent tribunal adverse to the person initiating them is not evidence that they were brought without probable cause.” 3 Restatement (Second), Torts § 675, comment (b) (1977).

We conclude that the Probate Court’s ruling in favor of Spurling’s client was conclusive evidence of probable cause. Although the Probate Court’s ruling was later reversed on appeal in the plaintiffs favor, the ruling was a valid judgment in favor of Spurling’s client, and both sides had an opportunity to defend and to argue a position. The Probate Court’s ruling, regardless of its subsequent reversal, served as an absolute protection against an action for vexatious litigation.

As to the plaintiffs claim that the court improperly concluded that he did not prove a claim for vexatious litigation on the basis of the Superior Court’s subsequent reversal of the Probate Court’s ruling, because we have determined that probable cause existed for Spurling to initiate probate proceedings, the plaintiffs purported failure to prove a claim for vexatious litigation, on the basis of the probate proceedings, is irrelevant.

Ill

Last, the plaintiff claims that the court improperly concluded that the counts for conspiracy and vexatious litigation rested on the same facts and rendered summary judgment on the conspiracy count on this ground. We disagree.

As previously stated, our review is plenary, and we must determine whether the court’s conclusions are legally and logically correct in that they find support in the record. The following additional facts are pertinent to our resolution of the plaintiffs claim. The plaintiffs complaint alleged that Spurling and Burke conspired to have the 1997 will rejected at the Probate Court. In its decision to grant Spurling’s motion for summary judgment, the court noted the elements of a claim for civil conspiracy. The most relevant element, as emphasized by the court, is that the alleged conspirators combined to “do a criminal or unlawful act by criminal or unlawful means . . . .” (Emphasis added; internal quotation marks omitted.) Chapman Lumber, Inc. v. Taper, 288 Conn. 69, 100 n.34, 952 A.2d 1 (2008). The court concluded that “because the plaintiff cannot as a matter of law prove that Spurling lacked probable cause to assert his client’s claims [which were to reject the 1997 will] at the probate level, the plaintiff cannot show that Spurling’s conduct was unlawful or [constituted] a lawful act done by unlawful means.” Therefore, on the basis of its determination that Spurling had probable cause to initiate a probate claim, the court concluded that “[t]he plaintiffs civil conspiracy count based upon [the] same facts [as the vexatious litigation count] must . . . fail.”

On appeal, the plaintiff argues that Spurling and Burke conspired to have the 1997 will rejected by having Burke provide false testimony under oath, during his deposition in the probate proceeding, which concealed the January, 1997 letter. Specifically, he asserts that the vexatious litigation count was based on Spurling’s actions when he initiated the probate proceedings and that the civil conspiracy count was based on the actions by Spurling and Burke after the probate proceedings were commenced. As a result, the plaintiff argues that his counts are distinct and not predicated on the same facts. We find this argument unpersuasive.

The civil conspiracy count against Spurling was of the same character as the vexatious litigation count because the allegations on both counts hinge on Spur-ling’s intent unlawfully, without probable cause, to have the 1997 will rejected by the Probate Court. As we concluded in part II, Spurling had probable cause to bring a probate claim, on behalf of his client, to reject the 1997 will. Accordingly, it would be legally inconsistent to conclude that Spurling lawfully initiated probate proceedings to reject the 1997 will but conspired to reject the 1997 will unlawfully. See, e.g., Heussner v. Day, Berry & Howard, LLP, 94 Conn. App. 569, 579 n.4, 893 A.2d 486 (court barred negligent infliction of emotional distress count because count was predicated on facts identical to malicious prosecution count, which was barred by collateral estoppel), cert. denied, 278 Conn. 912, 899 A.2d 38 (2006). Therefore, the court properly concluded that the counts for conspiracy and vexatious litigation rested on the same facts.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff also named 130 Union Street Associates, LLC, as a defendant, but it is not a party to this appeal, which concerns only the court’s judgment as to Burke’s and Spurling’s motions for summary judgment. All references to the defendants in this opinion axe to Burke and Spurling.

       None of the counts in the plaintiffs complaint was directed against the third named defendant, 130 Union Street Associates, LLC. See footnote 1.

       General Statutes § 52-577 provides: “No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of.”

       General Statutes § 52-595 provides: “If any person, liable to an action by another, fraudulently conceals from him the existence of the cause of such action, such cause of action shall be deemed to accrue against such person so liable therefor at the time when the person entitled to sue thereon first discovers its existence.”

       For the reasons we will set forth, we conclude that we need not consider the merits of the plaintiffs second and third claims because the court properly determined that the plaintiffs causes of action against Burke were barred by the statute of limitations.

       See footnote 3.

       See footnote 4.

       Although the plaintiff failed to plead fraudulent concealment in his reply to Burke’s special defense; see Willow Springs Condominium Assn., Inc. v. Seventh BRT Development Corp., 245 Conn. 1, 32-34, 717 A.2d 77 (1998); and, during oral arguments on the motions for summary judgment, Burke notified the court 1hat the plaintiff improperly pleaded that the statute of limitations was tolled, this is not an issue briefed on appeal.

       The plaintiffs argument applies to all three claims against Burke because Burke’s alleged failure to disclose the January, 1997 letter was the factual gravamen of all three claims against Burke.

       See footnote 9. Furthermore, on this appeal, Burke argues that even if the plaintiff can prove that the statute of limitations should be tolled, the commencement of the action falls outside the statute period because the plaintiff acknowledges that he discovered the January, 1997 letter, three years and one day prior to service of the complaint, on November 12, 2003. Therefore, because Burke was served on November 13, 2006, the plaintiffs causes of action were one day late.

       The date the action was commenced is the date of service of process, which is when the writ of summons and complaint were served on the defendants. See Rocco v. Garrison, 268 Conn. 541, 553, 848 A.2d 352 (2004).

       In oral argument before this court, the plaintiff argued that he did not become aware of his causes of action until November 20, 2003, when the Superior Court’s decision was released. That decision validated the 1997 will in the plaintiffs favor and referenced the January, 1997 letter that was withheld by Burke during his May, 2001 deposition. This argument, however, was not raised before the court when it reviewed Burke’s motion for summary judgment, and, as a result, we are limited to the plaintiffs argument as raised in his memorandum of law supporting his objection to Burke’s motion for summary judgment, in which he relied on the November 12, 2003 date in his argument to assert when the tolling of the statute of limitations commenced.

       Although the plaintiffs claims can be viewed as distinct and separate, our consideration of one necessarily implicates the other, and, consequently, we will discuss the plaintiffs fourth and fifth claims together.

       See, e.g., Heussner v. Day, Berry & Howard, LLP, 94 Conn. App. 569, 893 A.2d 486 (probate decision establishing issue of material fact establishes probable cause for defendant to initiate suit, thus barring plaintiff’s claim for malicious prosecution by collateral estoppel), cert. denied, 278 Conn. 912, 899 A.2d 38 (2006); Frisbie v. Morris, supra, 75 Conn. 639-40 (probate application against plaintiff, claiming appointment of conservator over plaintiff, that terminated in valid judgment is conclusive probable cause to withstand vexatious suit).

       Although we concluded previously that the claim of conspiracy against Burke was time barred, Spurling never raised a statute of limitations defense on the claims directed against him. Accordingly, we will review the merits of this claim.


author: BISHOP, J.

text:
    HEATHER P. BOYNE v. PAUL A. BOYNE
    (AC 28996)
    Bishop, Harper and Beach, Js.

      Argued November 13, 2008
    officially released January 20, 2009

      Louis Kiefer, for the appellant (defendant).

      Jennifer L. Owens, for the appellee (plaintiff).
   Opinion

BISHOP, J.

The defendant, Paul A. Boyne, appeals from the judgment of the trial court dissolving his marriage to the plaintiff, Heather P. Boyne. On appeal, the defendant claims that the court improperly (1) determined his earning capacity, (2) required him to obtain life insurance in the absence of any evidence as to its cost or availability, (3) ordered him obtain a bond to secure the payment of his child support and alimony obligations, (4) allocated tax exemptions, (5) determined his obligation of unreimbursed medical expenses and day care expenses, (6) declared that all of the financial orders in the judgment were in the nature of support and not dischargeable in bankruptcy and (7) ordered him to transfer custodianship of the children’s educational accounts to the plaintiff. We affirm in part and reverse in part the judgment of the trial court.

By way of a memorandum of decision, the court dissolved the parties’ sixteen year marriage on June 25, 2007. At the time of dissolution, the parties had four minor children. The court found that the marriage had broken down irretrievably and attributed the primary fault for the breakdown of the marriage to the defendant. In addition to custody and visitation orders, the court entered various financial orders. The court found, inter alia, that the defendant has an earning capacity of $100,000 per year and, throughout the marriage, had many employment changes. The court stated that it considered, inter alia, “all of the factors in . . . General Statutes §§ 46b-81, 46b-82 and 46b-62 and other pertinent statutes, earnings and earning capacity differentials, causes for the breakdown of the marriage and the consequences of the financial awards set forth [in the memorandum of decision].”

Relevant to the defendant’s appeal, the court ordered that the defendant pay to the plaintiff alimony and child support. The court also ordered the defendant to pay 59 percent of all unreimbursed medical expenses and reasonable and necessary day care expenses; that each party would be entitled to claim two of the four minor children for tax exemptions commencing in 2006; that the defendant maintain life insurance in the amount of $500,000, naming the plaintiff as primary irrevocable beneficiary for her benefit and for the benefit of the children until all orders for child support, alimony and payment of other certain debt had been paid in full; that the defendant transfer to the plaintiff custodianship of certain accounts for the children’s education; and that the defendant obtain a bond to support the payment of alimony and child support for a period of one year. The court declared that the financial orders are all in the nature of support and, accordingly, shall not be dischargeable in bankruptcy by either party.

At the outset, we set forth the applicable standard of review. “An appellate court will not disturb a trial court’s orders in domestic relations cases unless the court has abused its discretion or it is found that it could not reasonably conclude as it did, based on the facts presented. ... In determining whether a trial court has abused its broad discretion in domestic relations matters, we allow every reasonable presumption in favor of the correctness of its action. . . . Appellate review of a trial court’s findings of fact is governed by the clearly erroneous standard of review. The trial court’s findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. ... 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. . . .

“A fundamental principle in dissolution actions is that a trial court may exercise broad discretion in awarding alimony and dividing property as long as it considers all relevant statutory criteria.” (Internal quotation marks omitted.) Cleary v. Cleary, 103 Conn. App. 798, 800-801, 930 A.2d 811 (2007).

I

The defendant first claims that the court improperly imputed to him an earning capacity of $100,000 per year. The defendant claims that because he was unemployed at the time of the dissolution, and his average income for the prior three years was approximately $41,000, the court’s finding that he has an earning capacity of $100,000 is baseless. We are unpersuaded.

“[T]he court may base financial awards on earning capacity rather than actual earned income of the parties. . . . While there is no fixed standard for the determination of an individual’s earning capacity ... it is well settled that earning capacity is not an amount which a person can theoretically earn, nor is it confined to actual income, but rather it is an amount which a person can realistically be expected to earn considering such things as his vocational skills, employability, age and health. . . . [T]he court may consider earning capacity from employment when the evidence shows that the reported amount of earnings is unreasonable. Thus, for example, when a person is, by education and experience, capable of realizing substantially greater earnings simply by applying himself or herself, the court has demonstrated a willingness to frame its orders on capacity rather than actual earnings.” (Citation omitted; internal quotation marks omitted.) Gentile v. Carneiro, 107 Conn. App. 630, 638, 946 A.2d 871 (2008). It is appropriate to consider a party’s earning capacity where there is evidence of that party’s previous earnings. Paddock v. Paddock, 22 Conn. App. 367, 371, 577 A.2d 1087 (1990).

The defendant is a licensed electrical engineer. At the time the parties were married, the defendant was in the United States Navy. Subsequently, throughout the marriage, the defendant held several different jobs, some temporary in nature. As noted, at the time of the dissolution trial, the defendant was unemployed. According to the evidence presented, the defendant was employed from November, 2005, until May, 2006, when his employment was terminated. His annual salary for that position was $100,000. The plaintiff testified that the defendant’s typical annual salary was $100,000. The defendant testified that he earned $127,000 in 2001. The evidence presented disclosed that the defendant’s longest period of unemployment, prior to that commencing in 2006, was a nine month period in 2003. During his periods of unemployment, the family bills were paid by unemployment insurance in the amount of $2000 per month. The defendant also testified that he worked for a couple of different firms at an hourly rate ranging between $36 and $50 per hour.

In support of his claim, the defendant presented his tax returns for 2003, 2004 and 2005, which indicate an average annual salary for those years of approximately $41,000. Although the court did not find that the defendant wilfully diminished his earnings, and, in fact, the defendant indicated that he has sent out more than 100 resumes, nationally and internationally, and that he had had a couple of interviews, the fact that the defendant has been unemployed does not necessarily mean that his earning capacity has been diminished. See Berry v. Berry, 88 Conn. App. 674, 685, 870 A.2d 1161 (2005) (“loss of employment does not warrant alimony modification unless the moving party also proves that [the party’s] earning capacity has changed substantially”).

As an appellate court, we do not review the evidence to determine whether a conclusion different from the one reached could have been reached. “Rather, our role is to determine whether there was a reasonable basis in the record to support the determination made.” Rac-sko v. Racsko, 91 Conn. App. 315, 324, 881 A.2d 460 (2005). On the basis of the foregoing, we conclude that there was sufficient evidence of the defendant’s employment history to support the court’s finding of an earning capacity of $100,000. The finding, therefore, was neither contrary to law nor clearly erroneous.

II

The defendant next claims that the court improperly ordered him to obtain a life insurance policy in the amount of $500,000 because there was no evidence of his ability to obtain life insurance, the cost of life insurance or his ability to pay for the policy. We are not persuaded.

“An order for life insurance is very often an appropriate and necessary component of a judgment of dissolution of marriage. . . . Indeed, orders requiring the maintenance of life insurance have been approved on numerous occasions by our courts.” (Citation omitted; internal quotation marks omitted.) Porter v. Porter, 61 Conn. App. 791, 805, 769 A.2d 725 (2001). General Statutes §§ 46b-82 (a) and 46b-84 (f) were amended in 2003 to provide: “The court may order that a party obtain life insurance as such security unless such party proves, by a preponderance of the evidence, that such insurance is not available to such party, such party is unable to pay the cost of such insurance or such party is uninsurable. . . .” These amendments place the burden regarding the availability and cost of the life insurance on the party upon whom the life insurance obligation is to be imposed.

At trial, the plaintiff requested in her proposed orders that the defendant maintain life insurance in the amount of $500,000 to secure the alimony and child support obligations. The defendant did not argue, nor did he present any evidence or ask for an additional opportunity to present evidence, that the insurance was unavailable to him or that it was too costly for him to maintain. Because the defendant failed to meet his burden of proof as required by statute, we cannot conclude that the court abused its discretion in fashioning the life insurance order.

III

The defendant next claims that the court abused its discretion in requiring him to obtain a bond to secure his child support and alimony payments for one year. We disagree.

The defendant acknowledges that §§ 46b-82 and 46b-84 give the court the authority to order security for the payment of his alimony and child support obligations. The defendant contends, however, that the cost of a bond to secure his alimony and support obligations for a one year period would be approximately $41,080 and that the court made such an order in the absence of a finding that the bond was available for purchase within the financial means of the obligor in accordance with § 46b-84 (g). As noted, the court indicated that it did consider all of the statutory factors in fashioning its financial orders. See Tracey v. Tracey, 97 Conn. App. 122, 124-25, 902 A.2d 729 (2006) (court has wide latitude in applying statutory criteria to particular circumstances of case, and although court must consider all statutory criteria in dividing property in dissolution action, it does not need to make express finding as to each criterion). Although the court did not make the specific finding that the defendant had the financial means to secure the bond, the defendant did show on his financial affidavit significant assets, sufficient to secure a bond in the amount required by the court’s order. Accordingly, the court acted within its discretion.

IV

The defendant next claims that the court improperly granted to the plaintiff tax dependency exemptions for two of the parties’ four children, in addition to deductions for interest payments, property taxes and related deductions, for the 2006 tax year. We are unpersuaded.

It is well established that “[i]t is within a court’s power to allocate tax exemptions. ” McCarthy v. McCarthy, 60 Conn. App. 636, 639, 760 A.2d 977 (2000). “[W]hen confronted with the question of whether a court may allocate tax exemptions, actions for dissolution of marriage are inherently equitable proceedings. . . . The power to act equitably is the keystone to the court’s ability to fashion relief in the infinite variety of circumstances which arise out of the dissolution of a marriage. Without this wide discretion and broad equitable power, the courts in some cases might be unable fairly to resolve the parties’ dispute .... Our limited scope of review is consistent with the general proposition that equitable determinations that depend on the balancing of many factors are committed to the sound discretion of the trial court.” (Internal quotation marks omitted.) Fish v. Fish, 90 Conn. App. 744, 763-64, 881 A.2d 342 (2005), rev’d in part on other grounds, 285 Conn. 24, 939 A.2d 1040 (2008).

The defendant claims that the order regarding tax exemptions amounted to a retroactive modification of his support obligations and may affect the assets and liabilities of one or both of the parties. The defendant, however, provides no support for this novel argument. Accordingly, we conclude that the court acted equitably and within its discretion in its allocation of tax exemptions.

V

The defendant next claims that the court improperly determined his share of unreimbursed medical and day care expenses and reasonable and necessary day care expenses because it did not consider his alimony obligation in its calculations. The plaintiff concedes, and we agree, that the alimony award should have been included in the calculation of the parties’ respective obligations regarding unreimbursed medical and day care expenses. Accordingly, we reverse the judgment as it relates to this claim.

VI

The defendant next claims that the court improperly declared that all of its financial orders were in the nature of support and, therefore, not dischargeable in bankruptcy. Although the court does not have the authority to determine the nature of a debt in contravention of a determination by the federal Bankruptcy Court, it was well within its discretion to indicate in its judgment that it was intending all of the orders to be in the nature of support as guidance to the Bankruptcy Court because “[t]he main principle guiding bankruptcy courts in determining whether a debt is nondischargeable alimony, maintenance or support is the intent of the parties or the state court in creating the obligation and the purpose of the obligation in light of the parties’ circumstances at the time.” 4 W. Collier, Bankruptcy (15th Ed. Rev. 2003) § 523.11 [6]. Accordingly, although the ultimate question of dischargeability rests with the Bankruptcy Court, it was not improper for the trial court to posit that all of its financial orders were in the nature of support.

VII

The defendant finally claims that the court improperly transferred custodianship of the children’s educational accounts to the plaintiff. Specifically, the defendant contends that the court did not have jurisdiction to make such an order because the custodianship of those accounts rests solely with the Probate Court. In support of this claim, the defendant cites General Statutes §§ 46a-557a and 45-559c (d). Because those statutes do not exist in the General Statutes, the defendant’s claim is facially inadequate.

The judgment is reversed as to the order regarding unreimbursed medical and day care expenses and the matter is remanded for further proceedings as to that issue in accordance with this opinion. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       The defendant is not actively seeking employment in Connecticut.

       The defendant contends that he has been unable to obtain employment as a result the plaintiffs actions and his resultant incarceration for violating a restraining order. The defendant, however, provides no support for this claim.

       The defendant also argues, in his reply brief, that reliance on §§ 46b-82 (a) and 46b-84 (f) violates his constitutional right to due process. It is “a well established principle that arguments cannot be raised for the first time in a reply brief.” (Internal quotation marks omitted.) Statewide Grievance Committee v. Burton, 282 Conn. 1, 19 n.7, 917 A.2d 966 (2007). We therefore do not address it.

       At oral argument, it was brought to this court’s attention that a postjudgment hearing was held regarding life insurance. Because we affirm the judgment in its original form, we need not address that proceeding.

       General Statutes § 46b-82 (a) provides in relevant part: “At the time of entering the decree, the Superior Court may order either of the parties to pay alimony to the other, in addition to or in lieu of an award pursuant to section 46b-81. The order may direct that security be given therefor on such terms as the court may deem desirable, including an order pursuant to subsection (b) of this section or an order to either party to contract with a third party for periodic payments or payments contingent on a life to the other party. The court may order that a party obtain life insurance as such security unless such party proves, by a preponderance of the evidence, that such insurance is not available to such party, such party is unable to pay the cost of such insurance or such party is uninsurable. ...”

       General Statutes § 46b-84 (f) provides in relevant part: “After the granting of a decree annulling or dissolving the marriage or ordering a legal separation, and upon complaint or motion with order and summons made to the Superior Court by either parent or by the Commissioner of Administrative Services in any case arising under subsection (a) or (b) of this section, the court shall inquire into the child’s need of maintenance and the respective abilities of the parents to supply maintenance. The court shall make and enforce the decree for the maintenance of the child as it considers just, and may direct security to be given therefor, including an order to either party to contract with a third party for periodic payments or payments contingent on a life to the other party. The court may order that a party obtain life insurance as such security unless such party proves, by a preponderance of the evidence, that such insurance is not available to such party, such party is unable to pay the cost of such insurance or such party is uninsurable. ...”

       The parties’ proposed orders, both dated September 26, 2006, were filed with the court on October 3, 2006. The trial in this matter was held on October 3 and 4, 2006, and March 1, 2007.

       We recognize that this case may appear to conflict with Watrous v. Watrous, 108 Conn. App. 813, 949 A.2d 557 (2008). We distinguish this case from Watrous because the Watrous court made it clear that the statute as amended was not brought to the court’s attention, plain error review was not sought, and supplemental briefs were not requested and were not filed. Here, the application of the amended statute has been briefed and is squarely before the court.

       General Statutes § 46b-84 (g) provides in relevant part: “Whenever an obligor is before the court in proceedings to establish, modify or enforce a support order, and such order is not secured by an income withholding order, the court may require the obligor to execute a bond or post other security sufficient to perform such order for support, provided the court finds that such a bond is available for purchase within the financial means of the obligor. . . .”

       Although financial orders in a dissolution action generally are interrelated, because this error can be corrected by a mere mathematical calculation, we see no need to remand the entire case for a new trial on the basis of our reversal of this claim alone. See Gentile v. Carneiro, supra, 107 Conn. App. 651 (every improper order does not necessarily merit reconsideration of all of trial court’s financial orders).