author: DUPONT, J. VERTEFEUILLE, J.,

text:
    DEBORAH A. AMODIO v. VINCENT N. AMODIO
    (AC 15692)
    O’Connell, C. J., and Foti, Lavery, Landau, Schaller, Spear, Hennessy, Vertefeuille and Dupont, Js.
    Argued September 23, 1999
    officially released January 25, 2000

      Richard L. Goldblatt, for the appellant (plaintiff).

      Donald L. Altschuler, with whom, on the brief, was Richard Altschuler, for the appellee (defendant).
   Opinion

DUPONT, J.

The primary issue of this appeal is whether General Statutes (Rev. to 1989) § 46b-86 (a), as amended by Public Acts 1990, No. 90-213, § 46, precludes modification of the amount of child support awarded at the time of a judgment of dissolution of marriage in accordance with a written agreement of the parties that precluded such modification, which agreement was incorporated by reference into the judgment of dissolution. The support award was substantially more than the child support guidelines promulgated pursuant to Public Acts 1989, No. 89-203, § 1, now General Statutes § 46b-215a, and the court rendering the judgment of dissolution made no specific finding that the application of the child support guidelines would be inequitable or inappropriate. The plaintiff appeals from the judgment of the trial court granting the defendant’s motion to modify the amount of child support.

This is the second time this issue has been raised in this court. We previously reversed the judgment of the trial court on the ground that the trial court lacked subject matter jurisdiction to modify the defendant’s child support obligation because the dissolution decree clearly and unambiguously foreclosed modification of the support order under the financial circumstances presented. Amodio v. Amodio, 45 Conn. App. 737, 742, 697 A.2d 373 (1997). Our Supreme Court reversed our decision, concluding that the trial court had the jurisdiction to entertain the motion for modification. Amodio v. Amodio, 247 Conn. 724, 724 A.2d 1084 (1999). The case was remanded to this court for a determination of “whether the trial court properly exercised its authorify in granting the motion to modify.” Id., 732. The Supreme Court made it clear that its decision that the trial court had jurisdiction “does not mean necessarily that the trial court correctly interpreted or applied the statute in this case; nor does it mean that modification was warranted.” Id.

The following facts are relevant to our disposition of this appeal. The plaintiff, Deborah A. Amodio, and the defendant, Vincent N. Amodio, were married on May 11, 1979, and had two children bom in 1983 and 1985. On July 31, 1990, the parties stipulated that their marriage had broken down irretrievably and requested a dissolution. The parties submitted a lengthy and comprehensive written separation agreement to the court that covered, inter alia, alimony, child support, medical insurance for the children, counsel fees and division of assets. The agreement was drafted by the defendant’s counsel. The judgment of dissolution, dated July 31, 1990, provided: “It is further adjudged and decreed that the parties comply with the provisions of an Agreement between them dated July 26, 1990, which is found by the Court to be fair and equitable under all circumstances and is approved and incorporated herein by reference.” The agreement and the judgment provided for $325 per week in child support for their two minor children and did not award alimony to either party.

The agreement provided for the joint custody of the two minor children and for reasonable visitation by the defendant with the children, who were to reside with the plaintiff. The defendant had the right to claim the two children as his dependents for tax purposes. Paragraph 3D stated: “It is agreed that any modification of support orders sought in the future shall be based upon a change in circumstances reflecting an increase in gross wages above the base of $900.00 per week as stated in the affidavit filed herewith.” Paragraph eleven of the agreement provided: “The parties agree that this Agreement shall be submitted to the Court before which said pending action for dissolution shall be tried, and in the event a judgment of dissolution shall be entered in said action or any other action which may hereafter be brought in favor of either party against the other, the parties hereto agree that they shall be bound by all the terms of this Agreement, and this Agreement shall not be merged in any decree or judgment that may be granted in such action, but shall survive the same and shall be forever binding and conclusive on the parties, and the decree or judgment in such action shall incorporate in full or in substance the terms of this Agreement.”

After paying child support as ordered in the judgment of dissolution for almost five years, the defendant, on April 7,1995, sought a modification of the support order because the order did not conform to the child support guidelines as they existed in 1990 or as of the date of the defendant’s motion to modify. He sought a support order pursuant to the guidelines of June 1, 1994.

At the hearing on the motion to modify, the defendant testified that he worked for a family business at the time of dissolution and still did, and had a gross income of $900 per week both at the time of the dissolution and at the date of his testimony. The trial court noted that the guidelines were in effect at the time of the dissolution, and that the nonmerger of the agreement in the decree might mean that the plaintiff would have a separate action against the defendant if there were a downward modification of child support. The court stated that the amount of child support currently being paid is not in accordance with the guidelines, and that, on the basis of McHugh v. McHugh, 27 Conn. App. 724, 609 A.2d 250 (1992), because the court entering the initial orders did not explain the deviation, the guidelines govern.

The defendant claimed at the modification hearing that the original trial court acted improperly, as a matter of law, when it rendered its judgment of child support, which granted more than 15 percent in excess of the child support guidelines then in effect, without making a specific finding on the record that the application of the guidelines would be inequitable or inappropriate. He also claimed, as a matter of law, that he was entitled to a modification in accordance with the child support guidelines in effect at the time of his motion because the amount he was paying exceeded the guidelines by more than 15 percent. If the defendant is correct that the dissolution court acted improperly, then the parties’ agreement that the child support was nonmodifiable until the husband’s income exceeded $900 per week, would not prevail and the opening clause of § 46b-86 (a), “ [u]nless and to the extent that the decree precludes modification,” would be negated. The trial court then would have the power to modify the support order.

The trial court, Pittman, J., ordered a downward modification retroactive to May 1, 1995, from $325 per week, the figure in the parties’ agreement, to $220 per week, the figure that, if modification were proper, was established by the guidelines. The court also found an overpayment of child support by the defendant of $3885. The trial court noted that the dissolution court, Mihalakos, J., had substantially deviated from the guidelines and had not made a specific finding on the record that the application of the guidelines would be inequitable or inappropriate pursuant to § 2 of Public Acts 1989, No. 89-203, which was subsequently codified as General Statutes § 46b-215b (a). The court based its modification on the fact that the current amounts of child support being paid were not in accordance with the guidelines and that the case of McHugh v. McHugh, supra, 27 Conn. App. 724, makes it clear that unless the dissolution court explains the statutory deviation, the child support guidelines would govern.

Two statutes, §§ 46b-86 (a) and 46b-215b (a), and their connection with each other, are involved in this appeal. The purpose of both statutes is to assure that children receive adequate financial support from their parents, thereby reducing governmental expenditures for their support. Turner v. Turner, 219 Conn. 703, 713, 595 A.2d 297 (1991).

“Since 1984, the United States Congress has actively encouraged states to take measures to assure that children receive adequate financial support from their parents, thereby reducing governmental expenditures for support of children. The Child Support Enforcement Amendments of 1984, enacted as Public Law 98-378 and codified at 42 U.S.C. § 666 et seq., amended part D of title IV of the Social Security Act to require that states establish procedures to improve the effectiveness of child support enforcement (IV-D) programs. In those amendments, Congress conditioned the states’ receipt of federal funds for [Aid to Families with Dependent Children] programs and for IV-D programs upon compliance with these requirements. Among the requirements was a provision directing states to establish, by law or by judicial or administrative action, guidelines for child support award amounts that would be available to, but not binding upon, judges who had the authority to enter child support orders. 42 U.S.C. § 667 (a). Such guidelines were intended to provide rehable benchmarks for use in quasi-judicial proceedings, to expedite awards of child support, and to guide courts to more equitable awards in order to address the ‘feminization of poverty’ resulting from consistent underestimates- of the cost of rearing children by increasing the average level of awards. See, e.g., R. D. Thompson & S. F. Paikin, ‘Formulas and Guidelines for Support,’ 36 Juv. & Fam. Ct. J. 33 (1985).

“Four years later, Congress enacted the Family Support Act of 1988 to increase the responsibility of the states to assist all families, including those who do not receive welfare assistance, to establish, modify and enforce support obligations. Public Law 100-485, codified at 42 U.S.C. § 666 et seq. Section 103 (a) of the 1988 act required the states to create a rebuttable presumption that the amounts recommended in the child support guidelines are the correct amounts to be awarded.” Turner v. Turner, supra, 219 Conn. 713-14.

The first issue we must decide is whether the original trial court properly rendered the orders included in the judgment of dissolution, pursuant to a written agreement of the parties that included a child support provision that deviated from the amount recommended in the guidelines, without any reference to the guidelines. Specifically, we must determine whether the trial court was required to. make a specific finding on the record that the application of the guidelines would be inequitable or inappropriate when it rendered the original dissolution decree incorporating the agreement of the parties. The resolution of this issue depends initially on an analysis of the relevant statutes.

On July 31,1990, the date of the dissolution judgment, Public Act 89-203, § 2, provided: “The child support guidelines promulgated pursuant to section 8 of public act 85-548 and any updated guidelines issued pursuant to section 1 of this act shall be considered in all determinations of child support amounts within the state. In all such determinations there shall be a rebuttable presumption that the amount of such awards which resulted from the application of such guidelines is the amount of support to be ordered. A specific finding on the record that the application of the guidelines would be inequitable or inappropriate in a particular case, as determined under criteria established by the commission under section 1 of this act, shall be sufficient to rebut the presumption in such case.” Public Act 89-203, § 2, took effect October 1, 1989, and was codified as General Statutes § 46b-215b (a) on January 1, 1991. Section 1 of Public Act 89-203 was codified as General Statutes § 46b-215a. See footnote 3.

The language of § 2 of Public Act 89-203 did not expressly mandate that a trial court make a specific finding that the application of the guidelines would be inequitable or inappropriate whenever the court entered a child support order that deviated from the guidelines. “General Statutes § 46b-215b (a) does not ‘require the trial courts to apply the Guidelines to all determinations of child support, but creates only a rebuttable presumption as to the amount of child support. It requires only that the trial court consider the Guidelines.’ ” Draper v. Draper, 40 Conn. App. 570, 572, 672 A.2d 522 (1996). The purpose of the guidelines is to ensure that a parent responsible for child support does not pay less than the amounts dictated by the guidelines. Turner v. Turner, supra, 219 Conn. 713-14.

The presumption of § 1 of Public Act 89-203, now § 46b-215b (a), is one of public policy. See Turner v. Turner, supra, 219 Conn. 703. A trial court need not discuss in its opinion its conclusion that a particular presumption has been rebutted by sufficient countervailing evidence, and the failure to do so does not require a reversal if, on appellate review, it is determined that sufficient countervailing evidence did exist. Anderson v. Litchfield, 4 Conn. App. 24, 28-30, 492 A.2d 210 (1985).

In the present case, the dissolution court specifically found the agreement of the parties, including the amount of child support, to be fair. Also, the court asked each of the parties if they thought the agreement was fair, to which both responded, “Yes.” The presumption was, in effect, rebutted by the defendant’s agreement that he would pay $325 and the court’s acquiescence in that amount was appropriate.

At the time of the dissolution, in July, 1990, the court acted properly in awarding more child support than the guidelines provided. The purpose of the child support guidelines is to provide for the adequate support of children. That purpose would be thwarted if a party could not voluntarily agree to pay more than the presumptive amount set by the guidelines as being appropriate and agreeing that the amount would be nonmodifiable. Legislation should be interpreted rationally to obtain a rational result, a result in lockstep with its legislative purpose. See State v. Valinski, 53 Conn. App. 23, 30, 731 A.2d 311, cert. granted on other grounds, 249 Conn. 924, 733 A.2d 847 (1999). A judge is presumed to be aware of existing law, here, the existence of child support guidelines. We conclude that no finding was necessary with regard to the presumption of § 2 of Public Act 89-203, now § 46b-215b (a).

The question then becomes whether the holding in McHugh is relevant and, if so, whether it should be applied retroactively. Subsequent to the trial court’s rendering the judgment of dissolution in the present case, this court decided the case of McHugh v. McHugh, supra, 27 Conn. App. 724. In McHugh, we interpreted § 46b-215b (a) to require atrial court to make a “specific finding on the record that the application of the guidelines would be inequitable or inappropriate when the amount awarded deviates from the amount resulting from the application of the guidelines, as determined by the application of the deviation criteria established in the guidelines . . . .” Id., 728.

The facts of McHugh are dissimilar in many important respects from the facts of the present case. The motion for modification of child support was based on a substantial change in circumstances of the parties rather than a substantial deviation from the amount proscribed by the child support guidelines, the written agreement of the parties was not incorporated by reference into the decree, there was no agreement that the original amount was nonmodifiable and the original award was for unallocated alimony and child support. The trial court ordered a downward modification of child support in the amount of $110 per week although the child support guidelines provided child support of $287 per week. The McHugh court remanded the case to the trial court for a specific finding as to why the guidelines should be ignored as inequitable or inappropriate. Id., 729. In the present case, the trial court relied on McHugh when it granted the defendant’s motion for modification based on the dissolution court’s failure to make such a finding on the record. We must decide whether the trial court improperly applied McHugh to this case. We conclude that McHugh is not relevant to our decision in this case for the primary reason that the amount of child support in our case was agreed to be nonmodifiable at the time of the judgment of dissolution and as such should be treated as a final judgment.

The agreement of the parties executed at the time of the dissolution was incorporated into the judgment and is a contract of the parties. Issler v. Issler, 250 Conn. 226, 235, 737 A.2d 383 (1999); Greenburg v. Greenburg, 26 Conn. App. 591, 595, 602 A.2d 1056 (1992). The construction of a contract to ascertain the intent of the parties presents a question of law when the contract or agreement is unambiguous within the four comers of the instrument. Issler v. Issler, supra, 235. “[T]he construction of a written contract is a question of law for the court.” Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 179, 544 A.2d 1185 (1988); Sacharko v. Center Equities Ltd. Partnership, 2 Conn. App. 439, 445, 479 A.2d 1219 (1984). The scope of review in such cases is plenary. Branch v. Occhionero, 239 Conn. 199, 205, 681 A.2d 306 (1996); Hammond v. Commissioner of Correction, 54 Conn. App. 11, 16, 734 A.2d 571, cert. granted, 251 Conn. 919, 742 A.2d 358 (1999). Because our review is plenary, involving a question of law, our standard for review is not the clearly erroneous standard used to review questions of fact found by a trial court. Our review of the parties’ agreement is plenary and does not turn on whether the parties specifically raised the issue of nonmodifiability in the trial court that granted the defendant’s motion to modify.

“Once the provisions of a separation agreement . . . are incorporated into the dissolution judgment, they can be modified by court order only if the agreement so incorporated does not preclude modification. . . . General Statutes § 46b-86 (a) provides in part that ‘[u]nless and to the extent that the decree precludes modification, any final order for the periodic payment of permanent alimony or support . . . may at any time thereafter be . . . modified by a showing of a substantial change in the circumstances of either party.’ ” (Citations omitted; emphasis added.) Barnard v. Barnard, 214 Conn. 99, 114, 570 A.2d 690 (1990).

Section 46b-86 (a) clearly permits a dissolution court to make nonmodifiable child support awards. See Vandal v. Vandal, 31 Conn. App. 561, 563, 626 A.2d 784 (1993). “Provisions that preclude modification tend to be disfavored. . . . When a provision in a divorce decree that precludes or restricts a later court’s power to modify financial orders is clear and unambiguous, however, that provision will be upheld. ” (Internal quotation marks omitted.) Wichman v. Wichman, 49 Conn. App. 529, 535, 714 A.2d 1274, cert. denied, 247 Conn. 910, 719 A.2d 906 (1998). A party to a contract is entitled to rely on its provisions as the final interpretation of that party’s rights and duties. Zullo v. Smith, 179 Conn. 596, 601, 427 A.2d 409 (1980).

In the present case, the separation agreement that was incorporated into the dissolution judgment clearly and unambiguously forecloses modification of the support order unless the defendant earns more than $900 per week. The provision in the decree limits a subsequent trial court’s power to modify the support order. Accordingly, the provisions of § 46b-86 (a) relating to the modification of child support awards do not apply. Here, the trial court failed to give effect to the parties’ agreement and improperly modified the support order.

Section 46b-86 (a) provides that valid, nonmodifiable portions of dissolution judgments are enforceable and recognizes that “[b]y written agreement, stipulation or by decision of the court, those items or circumstances that were contemplated and are not to be changed maybe specified in the written agreement, stipulation or decision of the court. . . .” The plain language of § 46b-86 (a) also makes clear that if a decree precludes modification, to the extent that it does, no modification may be had. Here, child support in an amount deemed appropriate was agreed upon by the parties, reduced to writing, with a further agreement not to modify that amount until gross wages exceeded a particular amount, and was then approved by the court rendering the judgment of dissolution.

We also conclude that McHugh is not relevant to out-decision because final judgments cannot be affected by the retroactive application of decisional law. Usually, orders incident to a judgment of dissolution of a marriage concerning support are modifiable, and are not final judgments, immutable to change. If, however, they are unambiguously nonmodifiable, judgments as to those orders should be treated as final judgments.

Judgments rendered in case decisions, which are not limited by their terms to prospective application in other cases, can be applied retroactively, but not to cases in which judgments were already final. Marone v. Waterbury, 244 Conn. 1, 10-11, 707 A.2d 725 (1998). Decisional law can apply retroactively only to cases that are pending. Id. The judgment of dissolution in this case was not appealed and was final in 1990 long before McHugh was decided in 1992. The waiver of alimony and the nonmodifiable child support provisions were final in 1990, and subsequent case law cannot disturb these final judgments.

Even if McHugh were relevant, we would not apply it retroactively in this case. The issue of retroactivity of decisional law is a question of policy to be decided by a state’s Supreme Court, and may be decided by the policy considerations of whether litigants could be deemed to have relied on past precedent or whether the “new” resolution of an “old” issue was foreshadowed, or whether equity, given the particular facts, requires a prospective application only. See id.; Jacque v. Steenberg Homes, Inc., 209 Wis. 2d 605, 622-25, 563 N.W.2d 154 (1997); Beavers v. Johnson Controls World Services, Inc., 118 N.M. 391, 395-98, 881 P.2d 1376 (1994); 5 Am. Jur. 2d, Appellate Review § 790 (1995). In determining whether a decision should be applied retroactively, consideration must be given to whether a retroactive application would produce a substantial, inequitable result. See Ostrowski v. Avery, 243 Conn. 355, 377-78 n.18, 703 A.2d 117 (1997).

Dissolution actions are equitable in nature and the courts hearing such actions sit as courts of law and equity. Mitchell v. Mitchell, 194 Conn. 312, 323, 481 A.2d 31 (1984). The defendant did not appeal from the original judgment, claiming that a legal error was made. The plaintiff and the parties’ children are entitled to have the benefit of the bargain that the defendant made with the plaintiff. The plaintiff is not free to renegotiate the property division, which the parties settled, and she can no longer claim alimony. If the child support amount had been less, she might well not have waived her right to alimony or might have bargained for a different division of realty and personalty. To allow a downward modification of child support for the children who live with the plaintiff while all other provisions of the parties’ agreement remain enforceable would be inequitable.

Our previous decisions would also militate against the retroactive application of McHugh. This court was confronted with a similar issue in Cohen v. Cohen, 41 Conn. App. 163, 674 A.2d 869 (1996). That case involved facts similar to those in the present case. In Cohen, an agreement of the parties that covered child support of their two minor children was incorporated into the judgment of dissolution. No appeal was taken from the judgment of dissolution. There is no indication that the case involved a nonmodifiable provision for child support. Almost one year later, the plaintiff sought to open the judgment to have retroactive child support orders issued in accordance with the guidelines. The trial court denied the plaintiffs motion, and he appealed. Id., 164.

On appeal, the plaintiff in Cohen claimed that although the parties privately had agreed to the amount of child support the plaintiff was required to pay, the trial court improperly failed to consider or make reference to the child support guidelines as required by § 46b-215b (a). Id., 165. This court declined to review the plaintiffs claim and affirmed the judgment of the trial court because the plaintiff failed to provide an adequate record for appellate review. In dicta in a footnote, however, we noted: “The plaintiff relies on Favrow v. Vargas, 231 Conn. 1, 647 A.2d 731 (1994), to support his argument that the trial court is mandated to make a specific finding on the record of the amount of child support required by the guidelines. Favrow, however, was not decided until after the dissolution in this case and we will not apply Favrow retroactively in these circumstances. See Draper v. Draper, [supra, 40 Conn. App. 570]. . . . The plaintiffs reliance on McHugh v. McHugh, [supra, 27 Conn. App. 724], is misplaced for the same reasons.” Cohen v. Cohen, supra, 41 Conn. App. 167 n.4.

Similarly, in Draper v. Draper, supra, 40 Conn. App. 573, the defendant claimed that the trial court improperly failed to make a specific finding on the record of the amount of the child support required by the guidelines before deciding whether and to what extent the award should deviate therefrom as mandated by Favrow v. Vargas, supra, 231 Conn. 25-29. On appeal, this court held: “We first note that the defendant’s reliance on Favrow is misplaced. Favrow's requirement that a specific finding of the amount of support required by the child support guidelines must be made on the record was not established until 1994, when that case was decided. The present case preceded Favrow, and we will not apply Favrow retroactively in these circumstances.” Draper v. Draper, supra, 573. Although Draper concerned the retroactive application of Favrow, the logic and reasoning of it applies equally to the issue in the present case regarding McHugh.

The defendant urges this court to determine that the trial court properly applied McHugh retroactively. We decline to do so. The defendant has failed to present to this court any authority to support its position. The cases relied on by the defendant are factually dissimilar to the present one. At the time the judgment of dissolution was rendered, the dissolution court was not required to make a specific finding on the record concerning the applicability of the guidelines and properly rendered judgment in accordance with the parties’ agreement, after finding it to be fair and equitable. We would not apply McHugh retroactively to require such a specific finding.

We conclude that the court should not have modified the amount of child support payable by the defendant.

The judgment is reversed and the case is remanded with direction to deny the motion to modify.

In this opinion O’CONNELL, C. J., and FOTI, LAVERY, LANDAU, SCHALLER and SPEAR, Js., concurred.

VERTEFEUILLE, J.,

with whom HENNESSY, J., joins, dissenting. I respectfully disagree with the majority’s conclusion that the trial court improperly exercised its authority under General Statutes (Rev. to 1999) § 46b-86 (a) and improperly applied McHugh v. McHugh, 27 Conn. App. 724, 609 A.2d 250 (1992). I also disagree with the majority’s conclusion that the child support order in question was nonmodifiable, and I would decline to decide the issue because it was neither raised nor decided by the trial court. Accordingly, I respectfully dissent.

Our scope of review in appeals from family relations decisions is limited. “The well settled standard of review in domestic relations cases is that this court will not disturb trial court orders unless the trial court has abused its legal discretion or its findings have no reasonable basis in the facts. . . . Gallo v. Gallo, 184 Conn. 36, 50, 440 A.2d 782 (1981). ... In determining whether there has been an abuse of discretion, the ultimate issue is whether the court could reasonably have concluded as it did.” (Citations omitted; internal quotation marks omitted.) Turner v. Turner, 219 Conn. 703, 708-709, 595 A.2d 297 (1991).

I do not take issue with the facts as stated by the maj ority. I believe, however, that the following additional facts are important to an understanding of the issues in this case. In 1990, when the dissolution judgment was entered, both parties were represented by counsel, neither of whom informed the trial court that the child support in the amount of $325 to which they had agreed deviated substantially from the amount called for in the child support guidelines (guidelines). The trial court was not aware of the deviation from the guidelines and, therefore, made no finding with respect to the deviation. See General Statutes (Rev. to 1989) § 46b-86 (a), as amended by Public Acts 1990, No. 90-213, § 46.

The guidelines set forth the total weekly amount that is necessary for the support of a child or children, which is called the “basic obligation.” The responsibility for payment of the basic obligation is determined through the use of a worksheet that allocates the obligation between the mother and the father on the basis of their respective incomes. See Regs., Conn. State Agencies § 46b-215a-2. At the time of the hearing on the motion to modify child support in the present case in 1996, the basic obligation under the guidelines for the children in this case was $305. In 1990, when the original support order entered, the plaintiff was not employed outside her home, and her share of the basic obligation was zero. In 1996, however, the plaintiff was employed outside her home, and her share of the support obligation was calculated to be $85 per week. The defendant’s share of the support, therefore, was reduced to $220.

My analysis of the propriety of the trial court’s order modifying the child support payable by the defendant begins with the applicable statute. Section 46b-86 (a) permits the court to modify child support orders in two alternative circumstances. The first, which is not at issue in the present case, is “upon a showing of a substantial change in the circumstances of either party . . . .” General Statutes § 46b-86 (a). The second is “upon a showing that the final order for child support substantially deviates from the child support guidelines established pursuant to section 46b-215a, unless there was a specific finding on the record that the application of the guidelines would be inequitable or inappropriate. ...” (Emphasis added.) General Statutes § 46b-86 (a). Under this second ground, a child support order is modifiable if it substantially deviates from the guidelines and there was no finding by the court that entered the order that the application of the guidelines would be inequitable or inappropriate. There is no dispute that the defendant in the present case moved to modify his child support obligation on the basis of this second ground of the statute.

The second ground was added to § 46b-86 (a) in 1990 and did not take effect until after the date of the dissolution judgment. Public Acts 1990, No. 90-188, § 1. Soon after the statute took effect, our Supreme Court was asked to determine whether the new ground for modification applied retroactively to child support orders not conforming to the guidelines that were entered before the effective date of the amended statute. Turner v. Turner, supra, 219 Conn. 703. The Supreme Court held that the statute did apply to nonconforming support orders entered before the statute was adopted, concluding that the statute “allows the court to modify child support orders that were once deemed appropriate but no longer seem equitable in the light of changed social or economic circumstances in the society as a whole, as reflected in the mandatory periodic revisions of the child support guidelines.” Id., 718.

Approximately one year after Turner, this court decided McHugh v. McHugh, supra, 27 Conn. App. 724. The issue in McHugh was whether the trial court properly granted a motion to modify child support when it entered an order for support in the amount of $110 per week, despite the fact that the guidelines called for an order of $287 and without making any finding with respect to the deviation. We began our analysis in McHugh with General Statutes § 46b-215b, which requires that the guidelines be considered in all determinations of child support amounts, including modifications. We next noted that § 46b-215b creates a rebuttable presumption that the amount of child support to be ordered by the court is the amount resulting from the guidelines unless there is a specific finding on the record that the guidelines amount would be inequitable or inappropriate. We then acknowledged the 1990 amendment to § 46b-86 (a), which permitted modification to conform to the guidelines, and our Supreme Court’s holding in Turner that the amendment applies retroactively to nonconforming support orders previously entered. In light of the two statutory provisions, §§ 46b-215b and 46b-86 (a), and the holding in Turner, we concluded, “[i]t follows, therefore, that once the court enters an order of child support that substantially deviates from the guidelines, and makes a specific finding that the application of the amount contained in the guidelines would be inequitable or inappropriate, as determined by the application of the deviation criteria established in the guidelines, that particular order is no longer modifiable solely on the ground that it substantially deviates from the guidelines. By the same token, in the absence of such a specific finding, the order is continually subject to modification on the ground of a substantial deviation from the guidelines. ” (Emphasis added.) Id., 728-29. Because the trial court in McHugh deviated from the guidelines without making the necessary finding, we reversed the judgment of the trial court and remanded the case for a new hearing. Id., 729.

The reasoning of McHugh is cogent and the conclusion in the case was compelled by application of the express provisions of the two applicable statutes, § § 46b-215b and 46b-86 (a), together with the retroactivity holding in Turner. I would conclude that the trial court in the present case properly applied the reasoning from McHugh in granting the defendant’s motion to modify. The trial court determined that the 1990 child support order was a substantial deviation from the guidelines and that the necessary finding supporting deviation was not made. Therefore, the trial court found that the support order was modifiable to conform to the guidelines.

The majority distinguishes McHugh on its facts and refuses to apply it retroactively. I am not persuaded by the factual distinctions, and I conclude that whether McHugh is applied retroactively or not, our reasoning in that case, based as it was on the express provisions of the two statutes and the holding of our Supreme Court in Turner, is inescapable. In refusing to make McHugh retroactive, the majority relies on our refusal in Draper v. Draper, 40 Conn. App. 570, 672 A.2d 522 (1996), to make retroactive our Supreme Court’s decision in Favrow v. Vargas, 231 Conn. 1, 647 A.2d 731 (1994). The decision in Favrow, however, which required the trial court to make a finding on the record of the presumptively correct support amount under the guidelines before finding it inequitable or inappropriate, was based on the court’s construction of § 46b-215b, not on any of the clear, express provisions of the statute. I conclude that the trial court properly applied our reasoning from McHugh and properly exercised its authority under § 46b-86 (a) in granting the defendant’s motion to modify.

I would reverse the decision of the trial court, however, because of the court’s failure to consider two factors required by statute. Section 46b-86 (a) provides in relevant part that “[i]n determining whether to modify a child support order based on a substantial deviation from such child support guidelines the court shall consider the division of real and personal property between the parties set forth in the final decree and the benefits accruing to the child as the result of such division. ...” There is no evidence in the record that the trial court considered these factors. I would, therefore, reverse the judgment of the trial court and remand this case for further hearing limited to a consideration of these statutory factors.

Finally, I respectfully dissent from the majority’s conclusion that the 1990 child support order was nonmodifiable. I would decline to reach this issue. A review of the transcript of the hearing on the motion to modify demonstrates that the plaintiff did not claim that the child support amount was nonmodifiable. Although the plaintiff made reference to the provision in the agreement that stated that any future modification of child support should be based on an increase in the defendant’s wages to an amount exceeding $900 per week, she never argued that the support order was nonmodifiable. The plaintiff claimed that the agreement between the parties was a binding contract with many interdependent elements and that the court, therefore, should not vary the child support amount. Because the issue of nonmodifiability was not raised, the trial court made no finding with respect to the modifiability of the child support amount. We do not consider issues that were neither raised nor decided in the trial court. Practice Book § 60-5; State v. Vasquez, 9 Conn. App. 648, 653, 520 A.2d 1294, cert. denied, 203 Conn. 808, 525 A.2d 523 (1987). I, therefore, disagree with the majority’s conclusion that the child support order in the parties’ agreement was nonmodifiable.

Accordingly, I dissent.

       At the time of the dissolution judgment, General Statutes (Rev. to 1989) § 46b-86 (a), as amended by Public Acts 1990, No. 90-213, § 46, which took effect on July 1, 1990, provided: “Unless and to the extent that the decree precludes modification, any final orderfortheperiodicpaymentofpermanent alimony or support or an order for alimony or support pendente lite may at any time thereafter be continued, set aside, altered or modified by said court upon a showing of a substantial change in the circumstances of either party. After the date of judgment, modification of any child support order issued before or after [July 1,1990] may be made upon a showing of such substantial change of circumstances, whether or not such change of circumstances was contemplated at the time of dissolution. By written agreement, stipulation or by decision of the court, those items or circumstances that were contemplated and are not to be changed may be specified in the written agreement, stipulation or decision of the court. This section shall not apply to assignments under section 46b-81 or to any assignment of the estate or a portion thereof of one party to the other party under prior law.”
      We are not involved in this case with whether the amendments to § 46b-86 (a) involving child support guidelines, Public Acts 1990, No. 90-188, § 1, and Public Acts 1991, No. 91-76, § 1, which took effect after the judgment of dissolution in this case, may be retroactively applied to child support awards. Turner v. Turner, 219 Conn. 703, 720, 595 A.2d 297 (1991), answers that question in the affirmative. See also In re Eden F., 250 Conn. 674, 741 A.2d 873 (1999).

       The agreement of the parties “clearly and unambiguously forecloses modification of the support order unless the defendant earns more than $900 per week.” Amodio v. Amodio, 45 Conn. App. 737, 742, 697 A.2d 373 (1997).

       Public Act 89-203, § 1, provides in relevant part: “The commission for child support guidelines is established to review the child support guidelines promulgated pursuant to section 8 of public act 85-548 [not codified], to establish criteria for the establishment of guidelines to ensure the appropriateness of child support awards and to issue updated guidelines not later than January 1, 1991 and every four years thereafter. . . .” Public Act 89-203, § 1, took effect July 1,1989, and was codified as General Statutes § 46b-215a on January 1, 1991.

       The motion to modify was granted because the child support order at the time of the parties’ dissolution of marriage and as of the date of the motion deviated by more than 15 percent from the guidelines promulgated pursuant to § 46b-215a.
      If the trial court properly granted the motion to modify, it would be necessary to remand the case to the trial court for a hearing. “In determining whether to modify a child support order based on a substantial deviation from such child support guidelines the court shall consider the division of real and personal property between the parties set forth in the final decree and the benefits accruing to the child as the result of such division. ...” General Statutes § 46b-86 (a). This was not done by the trial court before it rendered judgment modifying the child support amount.

       The Supreme Court also required us, on remand, to decide the issue of whether the trial court improperly applied McHugh v. McHugh, 27 Conn. App. 724, 609 A.2d 250 (1992). Amodio v. Amodio, supra, 247 Conn. 727 n.3.

       It is clear from the testimony of the plaintiff at the time of dissolution that the provision as to nonmodifiable child support unless the defendant earned more than $900 was to protect the defendant from a motion to modify child support by the plaintiff. At the dissolution hearing, the plaintiffs counsel questioned her as to whether she understood the provision in the agreement precluding modification:
      “The Court: That if you desire to return to court to seek a modification of child support, the court will be considering that your husband was earning $900 gross income at the time of the dissolution of your marriage in its deliberation as to whether or not to modify any future support. Do you understand that?
      “[The Plaintiff]: Yes, now I do.”

       Section 46b-86 (a), at the time of the judgment of dissolution, did not provide a rebuttable presumption as to a deviation of less or more than 15 percent from the guidelines.

       In Favrow v. Vargas, 231 Conn. 1, 25, 647 A.2d 731 (1994), our Supreme Court went a step further and held that “a trial court, in deciding that the application of the guidelines would be inequitable or inappropriate in a particular case . . . must first determine on the record the amount of support indicated by the guidelines schedule.” The plaintiff, as legal guardian of the two children in that case, sought an order of child support. There was no agreement of nonmodifiability, nor any agreement to pay more than the child support guidelines required, nor any agreement as to the amount required by the guidelines.

       The issue of retroactivity of legislation is an issue different from the retroactivity of decisional law.

       We recognize that this case is not brought on behalf of the parties’ minor children to delete a nonmodifiable provision of an agreement of the parties that restricted or defeated the children’s right of support. See Guille v. Guille, 196 Conn. 260, 266, 492 A.2d 175 (1985).

       The cases relied on by the defendant do not concern an original judgment of dissolution that incorporated an agreement of the parties providing for nonmodifiable child support, that deviated from the guidelines rendered without any reference to the guidelines, but, rather, child support orders entered subsequent to the McHugh decision by a trial court while entert aining a party’s motion for modification of the original order. See Baker v. Baker, 47 Conn. App. 672, 707 A.2d 300 (1998); Castro v. Castro, 31 Conn. App. 761, 627 A.2d 452 (1993).

       General Statutes (Rev. to 1999) § 46b-86 (a) provides in relevant part: “Unless and to the extent that the decree precludes modification, any final order for the periodic payment of permanent alimony or support or an order for alimony or support pendente lite may at any time thereafter be continued, set aside, altered or modified by said court upon a showing of a substantial change in the circumstances of either party or upon a showing that the final order for child support substantially deviates from the child support guidelines established pursuant to section 46b-215a, unless there was a specific finding on the record that the application of the guidelines would be inequitable or inappropriate. There shall be a rebuttable presumption that any deviation of less than fifteen per cent from the child support guidelines is not substantial and any deviation of fifteen per cent or more from the guidelines is substantial. Modification may be made of such support order without regard to whether the order was issued before, on or after May 9,1991. In determining whether to modify a child support order based on a substantial deviation from such child support guidelines the court shall consider the division of real and personal property between the parties set forth in the final decree and the benefits accruing to the child as the result of such division. . . .”

       General Statutes (Rev. to 1989) § 46b-86 (a), as amended by Public Acts 1990, No. 90-213, § 46, provides: “Unless and to the extent that the decree precludes modification, any final order for the periodic payment of permanent alimony or support or an order for alimony or support pendente lite may at any time thereafter be continued, set aside, altered or modified by said court upon a showing of a substantial change in the circumstances of either party. After the date of judgment, modification of any child support order issued before or after [July 1,1990] may be made upon a showing of such substantial change of circumstances, whether or not such change of circumstances was coni emplated at the time of dissolution. By written agreement, stipulation or by decision of the court, those items or circumstances that were contemplated and are not to be changed may be specified in the written agreement, stipulation or decision of the court. This section shall not apply to assignments under section 46b-81 or 1 o any assignment of the estate or a portion thereof of one party to the other party under prior law.”


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    IN RE NELSON T. ET AL.

    (AC 19586)
    O’Connell, C. J., and Foti and Landau, Js.
    Argued December 7, 1999
    officially released January 25, 2000

      Raymond J. Rigat, for the appellant (respondent mother).

      William G. Bumpus, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Benjamin Zivyon, assistant attorney general, for the appellee (petitioner).

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79-3, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Opinion

PER CURIAM.

In this appeal from the judgments of the trial court terminating her parental rights with respect to her minor children, the respondent mother claims that the trial court improperly found (1) that she failed to achieve sufficient rehabilitation pursuant to General Statutes (Rev. to 1997) § 17a-112 (c) (3) (B) and (2) that termination was in the best interests of the children.

We have fully reviewed the records and briefs and considered the oral arguments of the parties. In her appeal, the respondent mother relies solely on fact bound issues. The trial court’s findings are supported by the evidence and the inferences that may reasonably be drawn therefrom. Having applied the appropriate standard of review; see In re Roshawn R., 51 Conn. App. 44, 51, 720 A.2d 1112 (1998); we conclude that the trial court did not abuse its discretion and that its decision conforms to the applicable law.

The judgments are affirmed.

       The parental rights of the children’s respondent fathers were also terminated in the consolidated termination proceedings in the trial court. Only the respondent mother has appealed.


author: HENNESSY, J.

text:
    IN RE KASHEEMA L. ET AL.

    (AC 17767)
    O’Connell, C. J., and Hennessy and Freedman, Js.
    Argued September 15, 1999
    officially released January 25, 2000

      Mary Ann Barile, for the appellant (respondent mother).

      Jane R. Rosenberg, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Susan T. Pearlman, assistant attorney general, for the appellee (petitioner).

         In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79-3, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Opinion

HENNESSY, J.

The respondent mother appeals from the trial court’s judgments terminating her parental rights with respect to her four children. The respondent claims that the trial court failed to adhere to General Statutes (Rev. to 1997) § 17a-112 (c) (3) (B) in finding that she failed to achieve such a degree of personal rehabilitation as would encourage the belief that within a reasonable time, she could assume a responsible position in the lives of her children. We affirm the judgments of the trial court.

The following facts and procedural history are relevant to this appeal. The respondent has an extensive history of drug abuse. In March, 1992, the commissioner of the department of children and families (commissioner) petitioned the court, alleging that the respondent’s two children were neglected. The petition alleged that the two children, one of whom was one month old, were found on the street with the intoxicated respondent at 4 a.m. The temperature was just below freezing and the children were nearly hypothermic. The two children were eventually adjudicated to be neglected. The younger child was committed to the commissioner’s custody, and the older child was allowed to return to the respondent under protective supervision at an in-patient drug rehabilitation program. The respondent relapsed after the six month treatment program and the older child was once again brought before the court, subsequently adjudicated neglected and committed to the custody of the commissioner.

Thereafter, the respondent gave birth to a third child, who was also committed to the commissioner’s care within six weeks of his birth because the respondent returned to her shelter intoxicated and unable to care for the child. The child was returned to the respondent under protective supervision, but was later removed once again because the respondent was still using drugs, had an unsanitary apartment and an abusive boyfriend and was not properly caring for her child.

The respondent was in another drug rehabilitation program when her fourth child was bom. Shortly thereafter, the child was committed to the care of the commissioner when the respondent left the child with someone and failed to return. The respondent began another drug treatment program and left against clinical advice one month later. The following month, she entered yet another substance abuse program, which she completed in March, 1996. During the lives of her children, the respondent had entered five drug abuse programs and relapsed after completing each of them. In April, 1996, the commissioner filed petitions for termination of the respondent’s parental rights in all four children. Since that time, the respondent completed another substance abuse program and has since remained drug free. She has also married and secured employment.

The court found that despite the efforts of the department of children and families to reunify the respondent with her children, the respondent failed to attend some visits with her children and did not go to scheduled classes to help her with her deficits. In addition, she has a high risk of relapse into her drug problem, as she has been in and out of numerous drug programs without success. The trial court also found that the respondent failed to achieve such a degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the needs and age of the children, she could assume a responsible position in the lives of these children pursuant to § 17a-112 (c) (3) (B). In addition, the trial court found that it was in the best interests of the children to have the respondent’s parental rights terminated. The respondent appealed.

“ ‘The hearing on a petition to terminate parental rights consists of two phases, adjudication and disposition. See Practice Book § 1042.1 et seq. [now § 33-1 et seq.]. In the adjudicatory phase, the trial court determines whether the statutory ground for termination of parental rights exists by clear and convincing evidence.’ ” In re Pascacio R., 52 Conn. App. 106, 109, 726 A.2d 114 (1999). “In making the adjudicatory determination, the court is limited to considering events preceding the filing of the termination petition or the latest amendment.” In re Tabitha P., 39 Conn. App. 353, 367, 664 A.2d 1168 (1995); see Practice Book § 33-3 (a).

“If the trial court determines that a statutory ground for termination exists, it proceeds to the dispositional phase. In the dispositional phase, the trial court determines whether the termination of parental rights is in the best interests of the child. In re Maximina V., 44 Conn. App. 80, 82-83, 686 A.2d 1005 (1997). In re Drew R., 47 Conn. App. 124, 127, 702 A.2d 647 (1997).” (Internal quotation marks omitted.) In re Pascacio R., supra, 52 Conn. App. 109. “In making this determination, the trial court can consider all events occurring prior to the date of the dispositional hearing, including those occurring after the filing of the termination petition.” In re Tabitha P., supra, 39 Conn. App. 367.

“The standard for review on appeal [from a termination of parental rights] is whether the challenged findings are clearly erroneous. In re Luis C., [210 Conn. 157, 166, 554 A.2d 722 (1989)]; In re Christina V., 38 Conn. App. 214, 223, 660 A.2d 863 (1995). ... On appeal, our function is to determine whether the trial court’s conclusion was legally correct and factually supported. . . . We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached .... Rather, on review by this court every reasonable presumption is made in favor of the trial court’s ruling.” (Citation omitted; internal quotation marks omitted.) In re Pascado R., supra, 52 Conn. App. 109-10.

The respondent claims that the court failed to adhere to the statutory criteria of § 17a-112 (c) (3) (B). Specifically, she claims that the court (1) found that she did, in fact, achieve rehabilitation, (2) improperly considered an “all encompassing” best interest standard and (3) improperly relied on publications in reaching its finding of failure to achieve personal rehabilitation pursuant to § 17a-112 (c) (3) (B).

I

“Personal rehabilitation as used in the statute refers to the restoration of a parent to his or her former constructive and useful role as a parent.” (Internal quotation marks omitted.) In re Christina V., supra, 38 Conn. App. 220. “[Section 17a-112 (c) (3) (B)] requires parental rights to be terminated if by clear and convincing evidence it is established that the respondent’s level of rehabilitation falls short of the level which would encourage the belief that within a reasonable time, considering the age and needs of the child, the parent could assume a responsible position [in the life of the child]. . . . Thus, the statute requires the trial court to analyze the respondent’s rehabilitative status as it relates to the needs of the particular child, and further, that such rehabilitation must be foreseeable within a reasonable time.” (Internal quotation marks omitted.) In re Hector L., 53 Conn. App. 359, 366-67, 730 A.2d 106 (1999).

The court found by clear and convincing evidence that the respondent failed to achieve a sufficient degree of personal rehabilitation as required by the statute. After hearing testimony from the respondent’s own psychologist, a court-appointed psychiatrist and the children’s therapists, the court found that even with all the progress the respondent had made since the petition for termination was filed, the respondent is still not presently able to care for her children. Namely, the respondent’s sobriety is too fragile and the risk of relapse is too great. Her whole support system would be enormously taxed if the children were returned to her, thereby adding to the risk of reunification.

The respondent claims that the court did in fact find that she had achieved rehabilitation. Specifically, the respondent posits that because the court noted her “recovery” in the seventeen months between the filing of the petition to terminate parental rights and the termination hearing, it found that she had achieved rehabilitation. Contrary to the respondent’s claim, in its memorandum of decision, the court states specifically that the respondent had not achieved sufficient rehabilitation. The court did note that after the petition for termination was filed, the respondent obtained a job and became drug free. In considering whether the respondent had achieved rehabilitation, however, the court properly considered only the events that occurred prior to the filing of the termination petition. In re Tabitha P., supra, 39 Conn. App. 367 (“[i]n making the adjudicatory determination, the court is limited to considering events preceding the filing of the termination petition or the latest amendment”). In light of the evidence of the respondent’s extensive history of drug abuse, the resulting neglect of her children and her history of relapse, the court’s decision that the respondent had not achieved rehabilitation was not clearly erroneous.

II

The respondent also claims that the court improperly used an “all encompassing best interest standard” in reaching the decision to terminate her parental rights. In the dispositional phase of a termination hearing, the court determines whether termination is in the best interests of the children. In re Pascacio R., supra, 52 Conn. App. 106. “In arriving at this decision, the court is mandated to consider and make 'written findings regarding seven factors delineated in [General Statutes (Rev. to 1997) § 17a-112 (e), now § 17a-112 (d)].” In re Tabitha P., supra, 39 Conn. App. 362.

The court found that the termination was in the best interests of the children. Relying on the testimony of expert witnesses, the court determined that the respondent’s sobriety was fragile and that the risk of relapse, particularly in the event of reunification with the children, was great. In addition, the court found that the children had suffered significant neglect at the hands of the respondent. They are extremely fearful of being removed from their present homes and have formed primary attachments with the foster parents they have been with for most of their lives.

The respondent claims that the court improperly considered the fact that the children have lost parental attachments with the respondent and instead formed reciprocal, quality relationships with the foster parents. To the contrary, one of the factors that the court was required to consider was the “feelings and emotional ties of the child with respect to his parents . . . and any person who has exercised physical care, custody or control of the child for at least one year and with whom the child has developed significant emotional ties . . . .” General Statutes (Rev. to 1997) § 17a-112 (e) (4), now § 17a-112 (d) (4). Because the court found by clear and convincing evidence that the respondent is unable to care for her children and has a high risk of relapse of substance abuse, and because the children have strong emotional ties with their foster families, we hold that the court’s decision that termination was in the best interests of the children is not clearly erroneous.

Ill

The respondent makes much of the fact that the court cited scholarly works in its memorandum of decision to support the finding that it is in the best interests of the children to terminate her par ental rights. In its decision, the court cited literature in footnotes to explain the psychological effects of a child bonding with a foster parent. In In re Angellica W., 49 Conn. App. 541, 552-53, 714 A.2d 1265 (1998), this court held that it was not an abuse of the trial court’s discretion to make reference in its opinion to the same literature cited by the trial court here. In addition, we noted that our Supreme Court has cited the same literature as secondary authority in its opinions. Id. We note that the trial court merely made reference to the scholarly works and did, in fact, make its own findings as to the best interests of the children. We hold, therefore, that the respondent’s claim that the court improperly cited the literature in question has no merit. Accordingly, we conclude that the court’s decision to terminate the respondent’s parental rights was not clearly erroneous.

The judgments are affirmed.

In this opinion the other judges concurred.

       The parental rights of the children’s respondent fathers were also terminated. Only the respondent mother has appealed. We refer to her in this opinion as the respondent.

       General Statutes (Rev. to 1997) § 17a-112 (c) provides in relevant part: “The Superior Court, upon hearing and notice . . . may grant a [termination] petition filed pursuant to this section if it finds by clear and convincing evidence (1) that the Department of Children and Families has made reasonable efforts to locate the parent and to reunify the child with the parent ... (2) that termination is in the best interest of the child, and (3) that over an extended period of time, which . . . shall not be less than one year . . . (B) the parent of a child who has been found by the Superior Court to have been neglected or uncared for in a prior proceeding has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child . . . .” The amendment to § 17a-112 (c) that took effect after the filing of the petition in this case; see Public Acts 1996, No. 96-246, § 18; is not at issue. We refer in this opinion to the 1997 revision for convenience.

       We note that a parent who has obtained a job and remained drug free in not necessarily rehabilitated. See In re Christina V., supra, 38 Conn. App. 219.

       The cited literature was J. Goldstein, A. Freud & A. Solnit, Beyond the Best Interests of the Child (1973), and J. Goldstein, A. Freud & A. Solnit, Before the Best Interests of the Child (1979).


author: SCHALLER, J.

text:
    DORETTA F. SENDER v. JOSEPH J. SENDER
    (AC 18626)
    Schaller, Spear and Dupont, Js.
    Argued November 1, 1999
    officially released February 1, 2000

      Jeffrey D. Ginzberg, with whom, on the brief, was Kenneth M. Potash, for the appellant (defendant).

      Steven P. Kulas, with whom, on the brief, was Prescott W. May, for the appellee (plaintiff).
   Opinion

SCHALLER, J.

The defendant, Joseph J. Sender, appeals from the postjudgment order of the trial court finding him in contempt of an order that directed him to restore funds to two custodial accounts for the parties’ minor children. On appeal, the defendant claims that the trial court lacked jurisdiction and, therefore, improperly ordered him (1) to restore funds to the accounts and (2) to place the plaintiffs name on the accounts. We affirm the judgment of the trial court.

The following facts are necessary for a resolution of this appeal. The parties were married on December 14, 1973, and have two minor children, a son bom on October 1, 1983, and a daughter bom on October 11, 1988. In 1994, the plaintiff, DorettaF. Sender, brought an action for dissolution of the marriage, and the defendant filed a counterclaim. Both parties sought, inter alia, a dissolution, custody of and support for the children, and conveyance of property. At the time of trial, the defendant’s financial affidavit indicated that he was the custodian of two Connecticut Uniform Gifts to Minors Act accounts, which totaled $20,000. In July, 1996, the marriage was dissolved. The dissolution judgment included a provision ordering that “ [t]he plaintiffs name shall be placed on the custodial accounts for the two minor children . . . with both the plaintiffs and the defendant’s signatures required for any withdrawal of these funds.”

On September 24, 1997, the plaintiff filed a motion for contempt based on the defendant’s failure to place the plaintiffs name on the custodial accounts. Although the defendant had not complied with the court’s order, the plaintiff did not claim this motion for hearing. On October 28,1997, the plaintiff filed another motion for contempt, alerting the court that the defendant still had not put her name on the accounts. Furthermore, the plaintiff alleged in this motion that the defendant had withdrawn almost $18,000 from the accounts. On January 20,1998, the court issued an order requiring the defendant to place the plaintiffs name on the accounts and to restore the accounts to their amounts at the time of the dissolution. The court, however, made no contempt finding. In response to a further motion for contempt filed on April 23, 1998, the court, on June 30, 1998, found the defendant in contempt and ordered as follows: “The funds [in the amount of $18,000] must be restored. [The defendant] is in contempt of the court order. The accounts are to be restored in thirty days from today’s date.” From this postjudgment order, the defendant has appealed.

In reviewing the defendant’s claimed improprieties concerning the finding of contempt, we are guided by standards that limit our review. “[0]ur review [of a finding of civil contempt] is technically limited to questions of jurisdiction such as whether the court had authority to impose the punishment inflicted and whether the act or acts for which the penalty was imposed could constitute a contempt. . . . This limitation originates because by its veiy nature the court’s contempt power . . . must be balanced against the contemnor’s fundamental rights and, for this reason, there exists the present mechanism for the eventual review of errors which allegedly infringe on these rights. . . . [Our Supreme Court has] found a civil contempt to be improper or erroneous because: the injunction on which it was based was vague and indefinite . . . the findings on which it was based were ambiguous and irreconcilable . . . the contemnor’s constitutional rights were not properly safeguarded . . . the penalties imposed were criminal rather than civil in nature . . . and the contemnor, through no fault of his own, was unable to obey the court’s order. . . . Papa v. New Haven Federation of Teachers, 186 Conn. 725, 731-32, 444 A.2d 196 (1982) ....

“Although . . . plenary review of civil contempt orders extends to some issues that are not truly jurisdictional, its emphasis on fundamental rights underscores the proposition that the grounds for any appeal from a contempt order are more restricted than would be the case in an ordinary plenary appeal from a civil judgment. Commissioner of Health Services v. Youth Challenge of Greater Hartford, Inc., 219 Conn. 657, 666, 594 A.2d 958 (1991) . . . .” (Citations omitted; internal quotation marks omitted.) Eldridge v. Eldridge, 244 Conn. 523, 527-28, 710 A.2d 757 (1998).

Our scope of review in appeals from family relations decisions also is limited. “The well settled standard of review in domestic relations cases is that this court will not disturb trial court orders unless the trial court has abused its legal discretion or its findings have no reasonable basis in the facts. . . . Gallo v. Gallo, 184 Conn. 36, 50, 440 A.2d 782 (1981). ... In determining whether there has been an abuse of discretion, the ultimate issue is whether the court could reasonably have concluded as it did.” (Citations omitted; internal quotation marks omitted.) Turner v. Turner, 219 Conn. 703, 708-709, 595 A.2d 297 (1991).

I

The defendant’s sole claim concerning the finding of contempt for failure to restore the funds to the accounts is that the court lacked subject matter jurisdiction to order him to do so and, therefore, improperly found his conduct contemptuous. The crux of the defendant’s argument is that because the underlying issue dealt with his actions as custodian, pursuant to General Statutes § 45a-557b (a), the Probate Court was the only court with jurisdiction to hear the case. We disagree.

General Statutes § 51-164s provides in relevant part: “The Superior Court shall be the sole court of original jurisdiction for all causes of action, except such actions over which the courts of probate have original jurisdiction, as provided by statute. . . .” Disputes under the Connecticut Uniform Transfers to Minors Act, General Statutes §§ 45a-557 through 45a-560b, fall under the original jurisdiction of the Probate Court. Section 45a-557b (a) provides in relevant part: “Courts of probate in any district in which the transferor, the minor or the custodian is resident, or in which the custodial property is located shall have jurisdiction of any disputes or matters involving custodianship under sections 45a-557 to 45a-560b, inclusive. . . .” The defendant argues that although the Superior Court had jurisdiction over the dissolution of marriage action, it lacked jurisdiction to order him to do anything in his capacity as custodian because § 45a-557b (a) grants the Probate Court exclusive jurisdiction on custodial matters. We reject this rationale.

We begin our analysis by observing that “ ‘[t]he Superior Court of this state as a court of law is a court of general jurisdiction. It has jurisdiction of all matters expressly committed to it and of all others cognizable by any law court of which the exclusive jurisdiction is not given to some other court. The fact that no other court has exclusive jurisdiction in any matter is sufficient to give the Superior Court jurisdiction over that matter.’ State ex rel. Morris v. Bulkeley, 61 Conn. 287, 374, 23 A. 186 [1892].” LaBella v. LaBella, 134 Conn. 312, 316, 57 A.2d 627 (1948). Section 45a-557b (a) does not give the Probate Court exclusive jurisdiction. There is nothing in the language of § 45a-557b (a) to indicate that the legislature intended the phrase “[c]ourts of probate . . . shall have jurisdiction of any disputes or matters involving custodianship under sections 45a-557 to 45a-560b” to produce the result that the defendant urges. Our legislature has consistently drafted legislation to state expressly when a court has exclusive jurisdiction. See, e.g., General Statutes § 46b-42 (granting Superior Court exclusive jurisdiction over all complaints seeking dissolution of marriage, decree of annulment or legal separation); General Statutes § 46b-212h (a) (granting family support magistrate division or Superior Court exclusive jurisdiction over child support orders); General Statutes § 52-12 (granting Superior Court exclusive jurisdiction over sale of certain real property).

Moreover, the defendant’s assertion runs contrary to existing case law. In Hall v. Dichello Distributors, Inc., 6 Conn. App. 530, 535, 506 A.2d 1054, cert. denied, 200 Conn. 807, 512 A.2d 230 (1986), we addressed the jurisdictional limitations of the Probate Court, finding that there are “limited types of actions over which the Superior Court does not exercise original jurisdiction . . . .” We indicated that the three types of actions in which the Superior Court is limited in jurisdiction are those involving the “custody of a child not the issue of the marriage involved in a divorce, settlement of an executor’s or administrator’s account, and the question of due execution of a will.” Id. The cause of action in this case does not fit into any of the three jurisdictional categories that we articulated in Hall.

We previously have determined that the Superior Court has jurisdiction to order parties to take actions dealing with custodial accounts. See, e.g., Weisbaum v. Weisbaum, 2 Conn. App. 270, 477 A.2d 690 (1984). Weisbaum was a dissolution of marriage case in which the Superior Court ordered the defendant, as custodian, to make payments from the minor children’s custodial trust funds. Id., 271-72. On appeal, this court found that the Superior Court had abused its discretion in permitting the invasion of the custodial account. Id., 272. We determined, however, that the trial court acted properly in ordering the defendant to take action, thus implicitly determining that jurisdiction existed in the trial court.

In addition, the issue of whether the Probate Court has exclusive jurisdiction when the underlying issue deals with § 45a-557b was addressed in State v. Pompei, 52 Conn. App. 303, 726 A.2d 644 (1999). In Pompei, we rejected the defendant’s argument that the charge of first degree larceny of custodial funds was nothing more than a civil dispute between the minor and the custodian. Id., 305-307. We stated that “[wjhile the defendant’s actions as custodian are relevant, they do not transform the case into a civil dispute between the custodian and minor child.” Id., 306. The same rationale is applicable here. In this case, although the Probate Court would have been an appropriate forum had the dispute involved only the custodian and the minor child, the defendant’s actions in his capacity as custodian do not override the fact that the dispute arose in the context of a dissolution action over which the Superior Court had exercised jurisdiction.

We conclude that the trial court had jurisdiction to order the defendant to restore the accounts to their original amounts at the time of the dissolution. On the basis of the record before us, the trial court did not act improperly in finding the defendant in contempt for failing to adhere to the court’s restoration order.

II

The defendant also claims that the court improperly ordered him to place the plaintiffs name on the accounts and, therefore, improperly found him in contempt. The defendant argues that the language of General Statutes § 45a-558g prevents him from complying with the court’s order because only one person may be named as a custodian. The record, however, reveals that the court found the defendant in contempt only for failing to restore the funds to the accounts. Although the court on more than one occasion ordered the defendant to place the plaintiffs name on the accounts, the defendant failed to appeal from the dissolution judgment, in which the court gave this order for the first time. A resolution of the issue concerning who is to serve as custodian of the accounts in question is crucial in view of our decision affirming the contempt order relating to restoration. See General Statutes § 45a-558g. Because the only issue properly appealed, however, is the contempt order for failing to restore the funds, we cannot properly address the defendant’s second claim. Accordingly, we must leave it to the parties and the trial court to take appropriate steps to protect the custodial funds once they are restored.

The judgment is affirmed.

In this opinion the other judges concurred.

       The Connecticut Uniform Gifts to Minors Act, General Statutes §§ 45a-546 through 45a-556, was replaced in 1995 by the Connecticut Uniform Transfers to Minors Act, General Statutes §§ 45a-557 through 45a-560b. See Public Acts 1995, No. 95-117. General Statutes § 45a-557b (a) provides: “Sections 45a-557 to 45a-560b, inclusive, apply to a transfer that refers to said sections in the designation under subsection (a) of section 45a-558f by which the transfer is made if at the time of the transfer, the transferor, the minor or the custodian is a resident of this state or the custodial property is located in this state. Courts of probate in any district in which the transferor, the minor or the custodian is resident, or in which the custodial property is located shall have jurisdiction of any disputes or matters involving custodianship under sections 45a-557 to 45a-560b, inclusive. The custodianship so created remains subject to said sections and to such probate court jurisdiction despite a subsequent change in residence of a transferor, the minor or the custodian, or the removal of custodial property from this state.”

       Although the dissolution judgment was appealed to this court and affirmed, this order was not the subject of the appeal. See Sender v. Sender 45 Conn. App. 916, 694 A.2d 45, cert. denied, 242 Conn. 914, 697 A.2d 369 (1997).

       The plaintiff filed several motions for contempt concerning this issue. Although both parties cite the September 24, 1997 motion for contempt as the starting point of this dispute, the first motion actually was filed by the plaintiff on June 13, 1997.

       The motion the plaintiff filed on April 23, 1998, alleged that there remained a shortfall of about $18,000 in the children’s trustee accounts and sought to hold the defendant in contempt for failing to comply with the court’s January 20, 1998 order that he replenish those funds.

       The trust funds were also set up under the Connecticut Uniform Gifts to Minors Act, which was codified at the time as General Statutes §§ 45-101 through 45-109b.

       General Statutes § 45a-558g provides: “A transfer may be made for only one minor, and only one person may be the custodian. All custodial property held under sections 45a-557 to 45a-560b, inclusive, by the same custodian for the benefit of the same minor constitutes a single custodianship.”


author: SPALLONE, J.

text:
    STATE OF CONNECTICUT v. EAKER MCCLENDON
    (AC 18772)
    Foti, Landau and Spallone, Js.

      Argued December 13, 1999
    officially released February 1, 2000

      Glenn W. Falk, special public defender, with whom, on the brief, was Laura G. Holland, law student intern, for the appellant (defendant).

      Harry Weller, senior assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Robert, J. O’Brien, assistant state’s attorney, for the appellee (state).
   Opinion

SPALLONE, J.

The defendant, Eaker McClendon, appeals from the judgment of conviction, rendered after a jury trial, of felony murder in violation of General Statutes § 53a-54t and robbery in the first degree in violation of General Statutes §§ 53a-134 (a) (2)* and 53a-8. The sole claim raised on appeal is that there was insufficient evidence to convict him of felony murder and first degree robbery. The defendant claims that the state failed to prove that he was an accomplice to the underlying robbery rather than someone who was merely present at the scene.

From the evidence adduced at trial and reasonable inferences to be drawn therefrom, the jury could have found the following facts. At approximately 9:30 p.m. on October 24, 1994, the defendant, Leotis Payne and Alexander Lacks arrived at the New Haven apartment of Steven Thomas and Henry Jones, ostensibly to speak with Jones, and remained there for approximately one-half hour. Thomas observed the men having a discussion, but could not hear what they were discussing because they were whispering.

Later that evening, Thomas again observed the defendant, Payne and Lacks at the comer of Frank and Eddy Streets, where they approached him and asked for a ride in his van. Subsequently, Jones gave the defendant, Payne and Lacks a ride in Thomas’ van. After approximately fifteen minutes, they returned to the comer of Frank and Eddy Streets and parked.

At approximately the same time, Jose Anthony Marrero along with his girlfriend, Amy Cobain, and a friend, Devon MacFarlane, walked to the home of Louie Hood, a friend of Marrero, to see if Hood wanted to accompany them to a store. Upon arriving at Hood’s home, Marrero, Cobain and MacFarlane noticed the defendant, Payne and Lacks standing next to the van parked at the corner of Frank and Eddy Streets. Marrero approached them and stated that he hoped they were not selling drugs. They assured him that they were not.

After talking to the three men, Marrero went upstairs to getHood. Hood joined the group, and they proceeded to a nearby store to get change for a $100 bill. The defendant, Payne and Lacks, who were standing by the van, also started walking toward the store.

While Marrero was in the store getting change for the $100 bill, one of the three men entered, stood next to him and observed the transaction. Marrero was given five $20 bills for the $100. Marrero exited the store and, along with Hood, Cobain and MacFarlane, walked toward Hood’s home. The defendant, Payne, and Lacks followed them. Suddenly, Payne approached Cobain and put a gun to her head. Lacks and the defendant, who were standing close behind Payne, seemingly acting as lookouts, repeatedly urged Payne to “hurry up.” Payne demanded that Marrero, Cobain and Hood turn over their valuables. Hood pushed Cobain out of the way and told her to run. Marrero then stepped toward Payne, and Payne held the gun to his head, whereupon Mar rero asked Payne not to shoot.

While the defendant and Lacks were encouraging Payne to hurry, Payne went through Marrero’s pockets and took his money and some papers. After taking Marrero’s money, the defendant and Lacks started to leave the scene. Payne backed away from the victims and then shot at Marrero. Hood managed to push Marrero out of the way, but was struck in the left shoulder by the bullet. Thereafter, the defendant, Payne and Lacks ran off together. The bullet that struck Hood traveled downward, passed through his heart and lung, and came to rest in his liver. Hood died from the gunshot wound.

After investigating the homicide, on October 27,1994, New Haven police officers arrived at 7B Station Court to execute arrest warrants for the defendant and Lacks. They surrounded the building when they arrived. After forcing open the door to the apartment, the police entered and found Lacks in a second floor bedroom, hiding behind a bed. The defendant jumped from a second floor window. When he landed, he was immediately confronted by a uniformed police officer who had been stationed there to prevent any attempted escapes. The defendant ran when he saw the officer, but he was caught after a brief chase.

The defendant’s claim that there was insufficient evidence to support his conviction is unavailing. The two-pronged test for determining whether evidence is sufficient to support a conviction is well established. “First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . . State v. Greenfield, 228 Conn. 62, 76, 634 A.2d 879 (1993).” (Internal quotation marks omitted.) State v. Sivri, 231 Conn. 115, 126, 646 A.2d 169 (1994); see State v. DeJesus, 236 Conn. 189, 195, 672 A.2d 488 (1996).

“ ‘The question on appeal is not whether we believe that the evidence established guilt beyond a reasonable doubt, but rather whether, after viewing the evidence in the light most favorable to sustaining the judgment, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” State v. Coleman, 42 Conn. App. 78, 82, 679 A.2d 950 (1996), rev’d on other grounds, 241 Conn. 784, 699 A.2d 91 (1997). “While the jury may not speculate to reach a conclusion of guilt, [it] may draw reasonable, logical inferences from the facts proven to reach a verdict.” State v. Williams, 16 Conn. App. 75, 79, 546 A.2d 943 (1988). Deference is given to the trier of fact who had the opportunity to observe the conduct, demeanor and attitude of the trial witnesses and to assess their credibility. State v. Miranda, 41 Conn. App. 333, 338, 675 A.2d 925 (1996), rev’d on other grounds, 245 Conn. 209, 715 A.2d 680 (1998). “Where there is sufficient evidence to support a reasonable inference that the defendant intended to commit the crime charged, whether such an inference should be drawn is properly a question for the jury to decide.” State v. Morrill, 193 Conn. 602, 609, 478 A.2d 994 (1984).

In evaluating evidence, the trier of fact is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence. State v. Sivri, supra, 231 Conn. 132. “On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the jury’s verdict of guilty.” Id., 134; State v. DeJesus, supra, 236 Conn. 196; see State v. Delgado, 247 Conn. 616, 621, 725 A.2d 306 (1999).

“To justify a conviction as an accessory, the state must prove both that the defendant had the intent to aid the principal and that, in so aiding, he had the intent to commit the crime. . . . Mere presence as an inactive companion, passive acquiescence, or the doing of innocent acts which may in fact aid the [principal] must be distinguished from the criminal intent and community of unlawful purpose shared by one who knowingly and willingly assists the perpetrator of the offense in the acts which prepare for, facilitate, or consummate it.” (Citations omitted; internal quotation marks omitted.) State v. Fudge, 20 Conn. App. 665, 668, 569 A.2d 1145, cert. denied, 214 Conn. 807, 573 A.2d 321 (1990). It is, therefore, for the trier of fact to determine whether the defendant was innocently present at the scene of the crime or whether he joined in the robbery that led to Hood’s death. See id.

The defendant’s conduct in this case is remarkably similar to evidence that this court considered in State v. Smith, 15 Conn. App. 122, 123, 543 A.2d 301, cert. denied, 209 Conn. 805, 548 A.2d 441 (1988). There, the defendant accompanied the principal to the scene, cooperated with him and acted as a decoy. He then left the scene with the principal, only to return with the principal during the commission of the crime before attempting to flee the scene with him. Id., 123-24.

Here, the defendant spent the entire evening with Payne and Lacks. They were together when Marrero approached and asked if they were selling drugs. They were standing together by the parked van when the victims walked by on the way to the store. The defendant then accompanied Payne and Lacks as they followed the victims to the store. He waited outside while one of the men followed Marrero into the store. After the victims left the store, the defendant, along with Payne and Lacks, followed them. When Payne accosted the victims and put his gun to Cobain’s head, the defendant did not lag behind but, rather, moved to a spot directly behind Payne and stood alongside Lacks.

Further, contrary to the defendant’s claims, he did more than admonish Payne to “hurry up.” Marrero testified that the defendant and Lacks acted as lookouts during the robbery. Such evidence supports a finding of accessory to a robbery. State v. Gray, 200 Conn. 523, 536-37, 512 A.2d 217, cert. denied, 479 U.S. 940, 107 S. Ct. 423, 93 L. Ed. 2d 373 (1986). Also, the defendant and the others fled the scene together. Finally, the defendant attempted again to flee three days later when the police attempted to serve him with an arrest warrant, thereby indicating a consciousness of guilt. See State v. Gilbert, 52 Conn. App. 531, 542, 727 A.2d 747, cert. denied, 249 Conn. 905, 733 A.2d 224 (1999) (unexplained flight supports finding of consciousness of guilt).

Our review of the record, transcripts and briefs clearly indicates that there was sufficient evidence to support the conviction.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-54c provides: “A person is guilty of murder when, acting either alone or with one or more persons, he commits or attempts to commit robbery, burglary, kidnapping, sexual assault in the first degree, aggravated sexual assault in the first degree, sexual assault in the third degree, sexual assault in the third degree with a firearm, escape in the first degree, or escape in the second degree and, in the course of and in furtherance of such crime or of flight therefrom, he, or another participant, if any, causes the death of a person other than one of the participants, except that in any prosecution under this section, in which the defendant was not the only participant in the underlying crime, it shall be an affirmative defense that the defendant: (1) Did not commit the homicidal act or in any way solicit, request, command, importune, cause or aid the commission thereof; and (2) was not armed with a deadly weapon, or any dangerous instrument; and (3) had no reasonable ground to believe that tiny other participant was armed with such a weapon or instrument; and (4) had no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death or serious physical injury.”

       General Statutes § 53a-134 (a) provides in relevant part: “A person is guilty of robbery in the first degree when, in the course of the commission of the crime of robbery as defined in section 53a-133 or of immediate flight therefrom, he or another participant in the crime ... (2) is armed with a deadly weapon . . . .”

       General Statutes § 53a-8 (a) provides: “A person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender.”


text:
    STATE OF CONNECTICUT v. SCOTT GRAHAM
    (AC 18300)
    Landau, Mihalakos and Spallone, Js.
    Argued November 1, 1999
    officially released February 1, 2000

      Abram Heisler, for the appellant (defendant).

      James M. Ralls, assistant state’s attorney, with whom, on the brief, were Eugene Callahan, state’s attorney, and Robert Katz, supervisory assistant state’s attorney, for the appellee (state).
   Opinion

SPALLONE, J.

The defendant, Scott Graham, claims that the trial court improperly sentenced him to a mandatory thirty days incarceration without considering mitigating circumstances following his conviction for operating a motor vehicle while his license was under suspension in violation of General Statutes (Rev. to 1991) § 14-215 (c). The defendant claims that the sentencing court improperly failed to consider mitigating factors when the statute in effect at the time of his conviction did not permit consideration of mitigating factors, but the statute in effect at the time of sentencing did permit such consideration. We affirm the judgment of the sentencing court.

The following procedural history is relevant to our disposition of this appeal. In August, 1992, the defendant was charged with operating a motor vehicle while his operator’s license was under suspension for driving under the influence of liquor in violation of § 14-215 (c). After a trial to a jury, on January 15, 1993, he was convicted as charged. In June, 1993, the court, Mottolese, J., granted the defendant’s motion in arrest of judgment due to the absence of a judge during jury selection. The state appealed and the judgment was reversed in State v. Graham, 36 Conn. App. 573, 651 A.2d 1339 (1995). On remand for sentencing, the court, Mottolese, J., in July, 1995, imposed a ninety day suspended sentence. Again, the state appealed, and this court reversed the judgment because the sentencing court had failed to impose the mandatory minimum sentence, “thirty consecutive days of which may not be suspended or reduced in any manner.” General Statutes (Rev. to 1991) § 14-215 (c); State v. Graham, 45 Conn. App. 12, 692 A.2d 1306, cert. denied, 241 Conn. 923, 697 A.2d 360 (1997). On remand for sentencing in accordance with § 14-215 (c), the court, Rodriguez, J., imposed the mandatory minimum thirty day sentence. This appeal followed.

The defendant claims that the court improperly sentenced him without considering mitigating factors when the statute in effect at the time of his sentencing permitted the court to do so. We disagree.

When the defendant committed the offense in 1992, when he was convicted in 1993 and when he was sentenced in 1995 after the state’s first appeal, the version of § 14-215 (c) under which he was charged, tried, convicted and initially sentenced provided in relevant part that a person who operated a motor vehicle while his license was suspended due to operating under the influence could receive a sentence of imprisonment of up to one year, “thirty consecutive days of which may not be suspended or reduced in any manner.”

When the defendant was resentenced on remand in March, 1998, § 14-215 (c) had been repealed by the legislature and a new provision enacted, which provided that “[a]ny person who operates any motor vehicle during the period his operator’s license or right to operate a motor vehicle in this state is under suspension or revocation on account of a violation of subsection (a) of section 14-227a or section 53a-56b or 53a-60d or pursuant to section 14-227b, shall be fined not less than five hundred dollars nor more than one thousand dollars and imprisoned not more than one year, and, in the absence of any mitigating circumstances as determined by the court, thirty consecutive days of the sentence imposed may not be suspended or reduced in any manner. The court shall specifically state in writing for the record the mitigating circumstances, or the absence thereof.” (Emphasis added.) Public Acts 1997, No. 97-291, § 4.

“In criminal cases, to determine whether a change in the law applies to a defendant, we generally have applied the law in existence on the date of the offense, regardless of its procedural or substantive nature.” In re Daniel H., 237 Conn. 364, 377, 678 A.2d 462 (1996). Indeed, 140 years ago in State v. Daley, 29 Conn. 272, 277 (1860), our Supreme Court held that a defendant could not be prosecuted if the criminal statute had been amended after the crime and the legislature failed to enact any “savings clause” governing prior offenses. The legislature’s response has been the enactment of savings statutes as reflected in General Statutes § 54-194, which provides that “[t]he repeal of any statute defining or prescribing the punishment for any crime shall not affect any pending prosecution or any existing liability to prosecution and punishment therefor, unless expressly provided in the repealing statute that such repeal shall have that effect”; and in General Statutes § 1-1 (t), which provides that “[t]he repeal of an act shall not affect any punishment, penalty or forfeiture incurred before the repeal takes effect, or any suit, or prosecution, or proceeding pending at the time of the repeal, for an offense committed, or for the recovery of a penalty or forfeiture incurred under the act repealed.”

It is obvious from the clear, unambiguous, plain language of the savings statutes that the legislature intended that the defendant be prosecuted and sentenced in accordance with and pursuant to the statutes in effect at the time of the commission of the crime. Our courts have repeatedly held that these savings statutes preserve all prior offenses and liability therefor so that when a crime is committed and the statute violated is later amended or repealed, defendants remain liable under the revision of the statute existing at the time of the commission of the crime. State v. Carbone, 172 Conn. 242, 255-56, 374 A.2d 215, cert. denied, 431 U.S. 967, 97 S. Ct. 2925, 53 L. Ed. 2d 1063 (1977); State v. DeMartin, 171 Conn. 524, 528-29, 370 A.2d 1038 (1976); Dortch v. State, 142 Conn. 18, 29, 110 A.2d 471 (1954). It appears that savings statutes were enacted to prevent defendants from escaping punishment by allowing the state to pursue them under prior versions of a statute, regardless of whether the newer revision imposed a greater or lesser penalty. Simborski v. Wheeler, 121 Conn. 195, 198-200, 183 A. 688 (1936).

The defendant’s request that this court adopt an “amelioration doctrine,” whereby amendments to statutes that lessen their penalties are applied retroactively is, in essence, asking this court to intervene in the legislative process to nullify by judicial fiat the legislature’s savings statutes. This we will not do. Since the legislature has enacted the general rule that defendants must be prosecuted and punished under the statute in effect at the time of the offense, and because it failed to override that rule with any specific amendment, the court properly sentenced the defendant under the version of § 14-215 (c) that was in effect at the time of his offense.

The judgment is affirmed.

In this opinion the other judges concurred.

       Public Acts 1997, No. 97-291, § 4, took effect in July, 1997.