author: LANDAU, J.

text:
    COMMISSIONER OF LABOR v. MARY LOU WALL ET AL.
    (AC 21148)
    Landau, Schaller and Dupont, Js.

      Argued December 11, 2001
    officially released April 30, 2002

      MarcP. Mercier, for the appellants (named defendant et al.).

      Glenn A. Woods, assistant attorney general, with whom on the brief, were Edward Reynolds and Gary Williams, assistant attorneys general, and Richard Blumenthal, attorney general, for the appellee (plaintiff).
   Opinion

LANDAU, J.

The defendants, Mary Lou Wall and Suburban Homes & Condos, Ltd. (Suburban), appeal from the judgment of the trial court awarding $10,633.36 in withheld wages and penalties to five former employees of the defendants and awarding $7500 in attorney’s fees to the plaintiff commissioner of labor. On appeal, the defendants claim that the court improperly (1) held that the parties had not agreed to a policy authorizing up to a 50 percent “back charge” reduction in commissions earned by the claimants, (2) held that two of the individual claimants were entitled to withheld commissions for merely having obtained a buyer or listing, respectively, (3) failed to estop two of the individual claimants from repudiating the existence of the 50 percent “back charge” policy and (4) awarded the plaintiff double damages, attorney’s fees and costs pursuant to General Statutes § 31-72. We affirm the judgment of the trial court.

The following facts and procedural history are necessary to our disposition of the defendants’ appeal. Wall is a licensed real estate broker and is the owner and operator of Suburban, a real estate firm in Wethersfield. Between February 2,1995, and May 16,1997, five former employees of Suburban filed complaints with the labor department, alleging that they had not been paid for all hours worked and that wages in the form of commissions had been withheld from them.

The labor department, after reviewing the defendants’ records, determined that a total of $10,612.25 in wages had been withheld from the five claimants in violation of General Statutes §§ 31-71b and 31-71c. Demand for payment was made on the defendants, but they failed to tender payment. On March 30, 1999, the plaintiff brought an action for unpaid wages and compensation on behalf of the five claimants.

On April 5, 2000, the damages portion of the trial commenced, and the court heard testimony over four days on the issues of the amount, if any, of unpaid compensation due each of the claimants, interest on that sum, and whether the plaintiff could prevail on his claim for double damages and attorney’s fees, as provided for in § 31-72. The testimony centered on the particulars of the individual real estate transactions on which the claimants’ claims were based, detailing the nature of the work performed by the various participants, as well as the method by which employees were compensated for their work.

The court found that the evidence established that Suburban enforced a “ticket policy” under which agents could negotiate with another agent to cover for them for the purpose of performing a particular, discrete task. Among the types of activities for which a ticket might be assessed were attendance at a preclosing inspection or at the closing itself. Those tickets would result in a charge of between $50 and $100, deducted from the commission due that agent.

Wall also testified that Suburban enforced a “back charge” policy under which an agent who abandoned a transaction, or who could not otherwise follow a sale through to closing, would have 50 percent of the commission due automatically deducted. That half of the commission deducted as a “back charge” would be given to the agent who completed the sale. According to Wall, a back charge would be assessed when the work performed by another agent to effectuate a closing was more significant than the discrete, isolated tasks compensated according to the ticket policy. The court concluded that the evidence did not support a finding that Suburban had such a back charge policy in place.

At the conclusion of the trial, the court rendered judgment for the plaintiff and awarded double damages in the amount of $10,633.36, interest on each commission due calculated at the rate of 1 percent per month and attorney’s fees in the amount of $7500 as well as costs. This appeal followed.

I

The defendants’ first claim on appeal is that the court improperly held that the parties had not agreed to a system of compensation authorizing up to a 50 percent “back charge” reduction in commissions owed to the claimants. We disagree.

The defendants’ claim challenges a factual finding of the court and, accordingly, our review is limited. “The factual findings of a [trial referee] on any issue are reversible only if they are clearly erroneous. ... [A reviewing court] cannot retry the facts or pass upon the credibility of the witnesses. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Citations omitted; internal quotation marks omitted.) Post Road, Iron Works, Inc. v. Lexington Development Group, Inc., 54 Conn. App. 534, 540, 736 A.2d 923 (1999).

In its memorandum of decision, the court stated: “[T]his court finds the so called [back charge] policy was applied so erratically as not to be a policy at all. Sometimes Suburban deducted less than 50 percent of an agent’s commission when he or she left the employ before a transaction was completed . . . sometimes Suburban deducted more than the 50 percent of the commission to which an agent was entitled . . . and sometimes Suburban deducted the entire commission .... Obviously, the practice was at the whim of Mary Lou Wall, and she deducted any portion of the commission she chose without any itemization or explanation.”

Each of the claimants testified that they were never informed of Suburban’s so-called “back charge” policy. Although other former employees testified that the policy was discussed at staff meetings, the court, as the finder of fact, was free to adopt either version of the events. Moreover, the evidence presented at trial supports a finding that the deductions that Suburban charged against an agent’s commission followed no hard and fast rule. Reviewing the transactions that are the subject of this action reveals that Suburban, allegedly pursuant to its back charge policy, assessed charges against agents’ commissions ranging from 57 percent to 100 percent, and in at least one instance imposed a ticket in lieu of a back charge.

Claimant Andrew C. Benko was the listing agent for 88 Oakdale Street in Wethersfield. The parties agreed that that agent’s share of the total commission generated was $1150. Of that amount, Suburban retained $500 and paid Benko $650. With respect to another transaction, the sale of 4 Brentwood in Windsor, Wall testified that although a 50 percent back charge would have been appropriate pursuant to Suburban’s alleged policy, Benko was assessed a ticket for $250.

Claimant Steven M. Alexander was the selling agent for 222 West Main Street in Plainville. He secured a contract of sale for the property on January 22, 1997, and left Suburban’s employ on February 6, 1997. Wall testified that to bring the transaction to a close, the financing on the property had to be changed and that she had to get a commitment from the seller to repair various problems with the plumbing. Wall testified that the change in the property’s financing resulted in an additional $300 charge, which the agency paid. Although Wall claimed to have assessed the standard 50 percent back charge against Alexander’s commission on the transaction, the claimant received only $300 out of a total commission of $1200. Wall testified that she deducted an additional $300 from Alexander’s commission to compensate the agency for its costs in correcting what she characterized as Alexander’s failure to do his job. In the case of two other claimants, Alexis R. DeRubertis and Anita D. Flore, Suburban withheld the entire commission due them on particular sales.

The court concluded that “there was no fixed policy at all, but rather the agreement between Suburban and its employees applied to the effect that Suburban was entitled to retain a reasonable portion of an agent’s commission share to cover the costs of closing properties that were the subject of contracts of sale entered into prior to an agent leaving but not settled until after he or she left.” Because the evidence presented at trial supports the court’s conclusion, we cannot say that its conclusion was clearly erroneous. Therefore, that conclusion must stand.

II

The defendants next claim that the court improperly held that two of the claimants, DeRubertis and Fiore, were entitled to commissions for merely having obtained a buyer and listing, respectively. We disagree.

The controversy between the parties essentially relates to the point at which an agent has performed sufficient work toward effectuating a sale that she is entitled to share in the commission on the closing of that sale. That presents the court with a question of fact, and “the court’s conclusion must stand unless it is contrary to or unsupported by the facts, or is in conflict with logic or reason, or violates the applicable rules of law.” Pitt v. Kent, 149 Conn. 351, 356, 179 A.2d 626 (1962).

The two transactions at issue with respect to the defendants’ claim are the sale of 9 Rosewood Lane, Bloomfield (DeRubertis), and 29 Robin Brook Drive, Newington (Fiore). Neither DeRubertis nor Fiore received any commission from the respective sales of those properties.

The buyer of 9 Rosewood Lane was a referral brought into the office by DeRubertis. DeRubertis testified that she spent a significant amount of time showing the client properties in Bloomfield, writing contracts for various properties that the client was interested in, including the contract for 9 Rosewood Lane, and generally developing a rapport with the client. DeRubertis also testified on cross-examination that although Suburban’s agents were not paid directly for any of those disparate tasks, payment for such tasks was wrapped into the commission earned at the time of closing on a property. It is undisputed that the buyer closed on the property.

Wall testified that although DeRubertis had negotiated the original contract for the sale of the property, the entire contract had to be renegotiated and that consequently, the deal negotiated by DeRubertis effectively ceased to exist, and the closing reflected an entirely new deal in which DeRubertis had no part. Despite Wall’s assertions regarding the extent of the alterations to the contract necessary to close the deal, those subsequent changes simply were noted on the contract originally prepared by DeRubertis; no new document was drafted. Wall also testified that subsequent to the claimant’s departure, she was required to visit the property for inspections between four and six times. Wall could not, however, recall the specific purpose of those visits.

The court was free to evaluate the testimony of the witnesses as to the extent of additional work required to close the sale and the reasonableness of any apportionment of the commission. On the basis of the testimony presented at trial, we can not conclude that the court’s finding that DeRubertis should have received some compensation for her efforts was clearly erroneous.

Fiore listed 29 Robin Brook Drive on May 4, 1994. The contract for the property was signed on September 1, 1994, and Fiore left Suburban on September 7, 1994. Fiore testified that the listing agent’s primary responsibility subsequent to obtaining the listing was to conduct open houses at the property. Once an offer on the property was made, the buyer’s agents would be responsible for conducting inspections and arranging for financing. At that point, the listing agent’s primary tasks simply were to monitor the process to ensure that it was moving forward and to attend the closing to receive the commission check.

Wall’s testimony indicated that a more significant amount of work was necessary to close on the property following Flore’s departure. She testified that among other tasks that needed to be completed, it was necessary for her to renegotiate the sales price because it would not have been possible for the buyers to get financing under the deal as structured.

Regardless of the actual effort necessary to effectuate the sale of the property following Flore’s departure, the evidence supported the court’s finding that Flore was entitled to some commission by virtue of being the listing agent. Indeed, Suburban actually had paid the claimant some commission on two other transactions for which she had acted as the listing agent and which closed after she had left the defendants’ employ. Just as she had in those other transactions, DeRubertis had obtained a contract for the sale of 29 Robin Brook Drive prior to leaving Suburban. One of the defendants’ own witnesses testified that once a property closed, an agent would be entitled to at least some commission for merely having obtained the listing. That position is supported by the express terms of the employment contract itself. The employment agreement states that an agent earns a commission for the listing of a property once that property is sold and that if such closing occurs after the agent has left the agency, then the agency may retain an amount reasonable given the circumstances.

The court’s findings were derived from the evidence presented at trial, and that evidence is sufficient to support the conclusion that Fiore was entitled to at least some commission on the particular sale. Accordingly, we find that the court’s conclusion in that regard was not clearly erroneous.

Ill

The defendants next claim that the court improperly failed to estop two of the individual claimants, Frederick S. Grilli and Alexander, from challenging the 50 percent “back charge” policy. The defendants base that claim on allegations that the claimants had personally benefited from the “back charge” policy that they now repudiate.

Whether the party claiming estoppel has proved the necessary elements to establish an estoppel involve questions of fact that we review under the clearly erroneous standard. Middlesex Mutual Assurance Co. v. Walsh, 218 Conn. 681, 699, 590 A.2d 957 (1991). To successfully assert an estoppel defense based on the ratification of a contract by the acceptance of the benefits of that contract, the terms of the contract must be established. See Sawmill Brook Racing Assn., Inc. v. Boston Realty Advisors, Inc., 39 Conn. App. 444, 450, 664 A.2d 819 (1995). Although agreement to a compensation arrangement may be inferred by looking to the conduct of the parties, we cannot say that in the case before us, the parties’ conduct supports the conclusion that the claimants had ratified the alleged “back charge” policy.

The claimants’ claims are consistent with their testimony regarding the manner in which commissions were divided within the office, both generally and with respect to the individual transactions on which the defendants base their estoppel defense. The claimants do not dispute that in the specific instances cited by the defendants, they received 50 percent of another agent’s commission as a result of their efforts in bringing a property to close. They do dispute, however, that such division was pursuant to an established “back charge” policy as opposed to a general practice of apportioning commissions “reasonably” between the participating agents on an ad hoc basis.

Without having first established the necessary factual predicates that the defendants themselves were operating in accordance with the alleged “back charge” policy and that the claimants actually were informed that they were being compensated pursuant to such a policy, the defendants cannot successfully assert an estoppel against the claimants on the basis of the ratification of an agreement. Accordingly, we conclude that the defendants have failed to satisfy their burden of establishing the existence of the elements essential to an estoppel and that the court’s failure to find an estoppel in favor of them was not clearly erroneous.

IV

The defendants’ fourth and final claim is that the court improperly awarded double damages and attorney’s fees. We disagree.

General Statutes § 31-72 provides for the discretionary award of double damages and attorney’s fees in unpaid wage cases. Our case law has established that such an award is appropriate where there is evidence of bad faith, arbitrariness or unreasonableness. Butler v. Hartford Technical Institute, Inc., 243 Conn. 454, 470, 704 A.2d 222 (1997); Sansone v. Clifford, 219 Conn. 217, 229, 592 A.2d 931 (1991). The defendants argue that the court cannot make a finding of bad faith, arbitrariness or unreasonableness where the amount of commission due to an employee at the time of that employee’s termination was not clearly identifiable because of a disagreement between the parties as to the method of computing such compensation. In support of their argument, the defendants cite NYCONN Dala Systems v. Cottrell, Superior Court, judicial district of New Haven at Meriden, Docket Nos. CV950242202, CV950247574 (January 17, 1996), and Hardy v. Saliva Diagnostic Systems, Inc., 52 F. Sup. 2d 333 (D. Conn. 1999). Although the finding of the court with respect to the defendants’ conduct is a question of fact, whether such a finding is precluded where the evidence establishes a bona fide disagreement between the parties about the method of compensation presents a question of law over which our review is plenary.

Each of the cases cited by the defendants is distinguishable from the case at bar because neither one involved a situation in which the employer arbitrarily enforced the very policy that it claimed governed employee compensation. Moreover, the Hardy court did not conclude that it could not have found that the employer had acted in bad faith, arbitrarily or unreasonably. Rather, it simply declined to make such a finding independently in light of the plaintiffs failure to request a jury interrogatory on the issue and the existence of a bona fide dispute between the parties as to whether the plaintiff was actually entitled to the wages awarded. Hardy v. Saliva Diagnostic Systems, Inc., supra, 52 F. Sup. 2d 340-41.

In contrast to the cases cited by the defendants, the court here found that the defendants’ withholding in fact had been motivated not by a good faith belief that they were acting in accordance with the terms of the employment agreement, but rather by mere whim and caprice. The court’s finding that Wall’s deductions and withholdings were arbitrary was supported by the testimony presented at trial. Given that factual finding by the court, we conclude that the award of double damages was a reasonable exercise of the court’s discretion pursuant to § 31-72.

The judgment is affirmed.

In this opinion the other judges concurred.

       The five claimants involved with the present action are Andrew C. Benko, Anita D. Fiore, Frederick S. Grilli, Steven M. Alexander and Alexis R. DeRubertis.

       The court rendered judgment in favor of the third defendant, Gary Wall, who is not a party to this appeal. We refer in this opinion to Mary Lou Wall and Suburban as the defendants.

       General Statutes § 31-72 provides in relevant part: “When any employer fails to pay an employee wages in accordance with the provisions of [this section] ... or fails to compensate an employee . . . such employee . . . may recover, in a civil action, twice the full amount of such wages, with costs and such reasonable attorney’s fees as may be allowed by the court .... The Labor Commissioner may collect the full amount of any such unpaid wages ... as well as interest calculated . . . from the date the wages or payment should have been received, had payment been made in a timely manner. . . .”

       The five individuals had been employed by the defendants as real estate agents for differing periods from 1989 to 1997.

       The plaintiff sought double damages in the amount of $21,224.50 as well as reasonable attorney’s fees, costs and interest.

       The preliminary issue of whether the claimants were employees or, as the defendants argued, merely independent contractors was decided at a separate trial held over three days on September 14, 15 and 16, 1999.

       The total agent’s commission on the sale of 4 Brentwood was $2116, and Benko was paid $1766.

       The details of those two transactions are discussed in II.

       With respect to Grilli, the defendants rely on his acceptance of 50 percent of the commission due on the sale of 2360 Main Street, Rocky Hill, a transaction that was initiated by another agent and assigned to him by Wall as a result of that agent’s unavailability, to support the conclusion that he ratified the alleged “back charge” policy. The defendants make the same claim with respect to Alexander on the basis of his acceptance of 50 percent of the commission due on a transaction abandoned by another Suburban agent and assigned to him by Wall. Wail testified that those cases were assigned to the respective claimants with specific reference to the alleged “back charge” policy.

       We note that although Superior Court opinions are not binding on us, they may be persuasive. L & R Realty v. Connecticut National Bank, 46 Conn. App. 432, 438, 699 A.2d 291 (1997), rev’d on other grounds, 246 Conn. 1, 715 A.2d 748 (1998). Similarly, “[although an interpretation of our state statutes by a federal court may be persuasive authority, it... is not binding on [the Appellate Court].” In re Michaela Lee R., 253 Conn. 570, 602, 756 A.2d 214 (2000).

       The court found as follows: “In this case, the court finds that Suburban did act arbitrarily and unreasonably in withholding the portion of commissions to which the claimants were entitled. It applied its own purported 50 percent back charge policy erratically and arbitrarily, and it made deductions from [the] claimants’ commissions without justification. Moreover, it gave no details of the deductions made. In several instances, it exaggerated the amount of work Suburban did after a claimant left. In other instances, the deductions had no relationship to the amount of work done by Suburban. In still other cases, it denied a commission entirely. The court finds that Suburban deliberately deprived the claimants [of] a fair share of the commissions due them and persistently acted in bad faith. Thus, the court concludes that the claimants are entitled to twice the amount of the commissions due them.”


source: Caselaw Access Project

author: MIHALAKOS, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. KATHY GREENE
    (AC 20348)
    Schaller, Mihalakos and Dranginis, Js.
    Argued January 18
    officially released April 30, 2002

      Auden Grogins, special public defender, for the appellant (defendant).

      Eileen F. McCarthy, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Anne Mahoney, assistant state’s attorney, for the appellee (state).
   Opinion

MIHALAKOS, J.

The defendant, Kathy Greene, appeals from the judgment of conviction, rendered after a jury trial, of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (3), assault in the first degree in violation of General Statutes § 53a-59 (a) (3) and risk of injury to a child in violation of General Statutes § 53-21. The defendant’s sole claim on appeal is that a new trial should be ordered because the trial court improperly admitted prejudicial and irrelevant evidence of the defendant’s prior misconduct against the victim. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The victim, Raegan McBride, was bom on January 14, 1995. In December, 1996, the victim was enrolled by her parents into a licensed day care facility, which the defendant operated out of her home in Windsor. The defendant told the victim’s mother, Patrice McBride, that she was a licensed medical technical aide and licensed to administer medication and to perform cardiopulmonary resuscitation. By agreement and after an initial part-time trial period, the victim was placed in the defendant’s care Monday through Friday, from 7:15 a.m. to 5:30 p.m. The defendant also agreed to discipline the victim by using only what is commonly known as “time outs,” or periods of the child having to sit quietly alone.

On February 17, 1997, the victim was treated for an ear infection by her pediatrician, who agreed that she could still be placed in day care. On February 24, 1997, the victim’s grandmother, Patricia Ward, took the still-ailing victim to the defendant’s home around 7:15 a.m. As Ward prepared to leave, the victim cried and grabbed Ward’s leg. One of the defendant’s foster children told Ward that the victim always cried when she was left with the defendant but that she would calm down soon. The defendant then approached the victim and told her to stop crying or she would become angry. After reassuring the victim, Ward departed.

Just before 3 p.m. that afternoon, the defendant called McBride at work to report that the victim was coughing up mucus and blood and making a strange breathing noise. The defendant also asked whether the victim was ever diagnosed as having a seizure and insisted that McBride pick her up immediately. McBride told the defendant that Ward would pick up the victim. McBride then called Ward, who agreed to do so. Subsequently, McBride left work and drove to the defendant’s home where she saw Ward’s car and an ambulance parked outside.

The defendant had placed a call for emergency assistance at approximately 3:05 p.m. Responding to that call, police officers and paramedics arrived and began administering first aid to the victim, whose condition had deteriorated into cardiac arrest. Contemporaneously, Ward told a police officer that the victim had an earache and was taking penicillin recently as treatment. The victim and Ward were then transported by ambulance to the Connecticut Children’s Medical Center at Hartford Hospital. The defendant, having offered to do so, drove McBride to the hospital.

After receiving farther medical attention at the hospital, the victim was pronounced dead at 4:12 p.m. Near the time of her death, the victim’s treating physician, James Wiley, noted that she had suffered retinal hemorrhages in both eyes. This observation was consistent with a diagnosis of “shaken baby” or “shaken impact” syndrome. While at the hospital, McBride informed the defendant of the victim’s death and asked her what had happened. The defendant did not reply. Ward also confronted the defendant, who threw her hands up and said, “There’s no bruises on her.” Ward then asked a physician to perform a full autopsy on the victim.

On February 25, 1997, Edward McDonough, deputy chief state medical examiner, performed an autopsy on the victim. The autopsy of the victim disclosed no evidence of external injury, but revealed bleeding under the victim’s scalp and in the tissue between her scalp and her skull, as well as bleeding around and tears in her brain. The autopsy also disclosed multiple skull fractures and that the victim’s injuries occurred within about four to six hours of her death. Further, the victim’s death was certified as a homicide and her ear infection was not related to her cause of death. These observations also were consistent with a diagnosis that “shaken impact” syndrome involving blunt force trauma to the victim’s head was the cause of the victim’s death. Subsequent examinations of the victim’s eyes, brain and skull revealed findings similar in kind and degree to those derived from the autopsy. Additional facts and procedural history will be provided as necessary.

The defendant asserts on appeal that the court improperly admitted prejudicial and irrelevant evidence of her prior misconduct against the victim. More specifically, the defendant argues that the court abused its discretion in allowing the testimony of two child witnesses, who related accounts of the misconduct. We disagree.

“As a general rule, evidence of a defendant’s prior crimes or misconduct is not admissible. . . . We have, however, recognized exceptions to the general rule if the purpose for which the evidence is offered is to prove intent, identity, malice, motive, a system of criminal activity or the elements of a crime. . . . [Prior misconduct] evidence may also be used to corroborate crucial prosecution testimony. . . . Moreover, we have held that such evidence may be used to complete the story of the crime on trial by placing it in the context of nearby and nearly contemporaneous happenings. . . .

“To determine whether evidence of prior misconduct falls within an exception to the general rule prohibiting its admission, we have adopted a two-pronged analysis. . . . First, the evidence must be relevant and material to at least one of the circumstances encompassed by the exceptions. Second, the probative value of such evidence must outweigh the prejudicial effect of the other crime evidence. . . .

“Our standard of review on such matters is well established. The admission of evidence of prior uncharged misconduct is a decision properly within the discretion of the trial court. . . . [E]very reasonable presumption should be given in favor of the trial court’s ruling. . . . [T]he trial court’s decision will be reversed only where abuse of discretion is manifest or where an injustice appears to have been done. . . . The problem is . . . one of balancing the actual relevancy of the other crimes evidence in light of the issues and the other evidence available to the prosecution against the degree to which the jury will probably be roused by the evidence.” (Citation omitted; internal quotation marks omitted.) State v. Vega, 259 Conn. 374, 396-97, 788 A.2d 1221 (2002).

The record reflects the following additional facts and procedural history. Prior to the testimony of the child witnesses, the court heard argument as to whether their testimony was admissible. The state argued that the testimony was necessary to establish an element of the crimes charged, to show that the crimes were not accidental and to explain the defendant’s motive. Defense counsel objected and argued that evidence of uncharged misconduct could not be admitted to prove the defendant’s guilt of the crime charged, to show bad character or to demonstrate a propensity to commit the charged crime. Defense counsel further argued that the testimony could not be used to demonstrate the defendant’s identity because the misconduct involved was not sufficiently unique or identical in method so as to be called a signature offense. Finally, defense counsel asserted that the testimony was more prejudicial than probative because of the strength of the state’s case, the plethora of other evidence available to the state, the degree to which it could rouse the jurors’ emotions and its inability to demonstrate a system of criminal activity by the defendant. The court ruled that it would admit testimony regarding misconduct against the victim because it showed the defendant’s specific animus toward the victim and lent itself toward questions concerning the defendant’s motive, opportunity and state of mind.

The first child witness testified that she, her brother and other children were in the defendant’s care after school hours in February, 1997. She further testified that the defendant treated the victim poorly, would “almost force feed” the victim and would spank the victim if she did not eat. The second child witness, the first witness’ brother, did not identify the defendant from the witness stand, but confirmed that he was also in the defendant’s care after school. He further testified that, if the victim would not eat, the defendant would “shove the food in her mouth and slap her.” He also stated that the victim would then cry and the defendant would tell her to “shut up.” After the testimony of the two child witnesses ended, the court instructed the jury that evidence of prior misconduct could be used only to establish intent, motive or identity and not to establish the defendant’s bad character, a predisposition on the part of the defendant to commit any of the crimes with which she was charged or to demonstrate a criminal propensity.

As an initial matter, the defendant’s argument that the state improperly introduced, and the court improperly admitted, the testimony to prove the defendant’s identity through signature offenses is misplaced. Our law allows many exceptions to the rule against prior misconduct evidence, including circumstances where such evidence is offered to prove identity, malice, motive or the elements of a crime. See id. Testimony aligned with any one of these exceptions may provide the catalyst necessary to admit prior misconduct evidence so long as it is relevant and material to the subject of the exception and is more probative than prejudicial. Id., 397.

The record is clear that the state offered the testimony to establish an element of the crime charged, the defendant’s malice toward the victim and her motive. The state mentioned identity only as one of the exceptions to the rule against admitting prior misconduct evidence and not as part of its argument for admitting the evidence at issue. Further, the court admitted the evidence chiefly on the ground that it was quite probative of malice and motive because it showed specific instances of the defendant’s misconduct toward the victim. Therefore, the defendant’s argument as it relates to the identity exception has no real bearing on this case.

The defendant also contends that the evidence of her prior misconduct toward the victim was not nearly so severe as the misconduct involved in the crime charged. As a result, the defendant argues that the prior misconduct evidence was unable to demonstrate motive on her part. Further, the defendant asserts that the prior misconduct evidence was irrelevant and highly prejudicial because it did not prove a history of serious violence between the defendant and the victim.

“ [E] vidence is relevant only when it tends to establish the existence of a material fact . . . .” (Internal quotation marks omitted.) State v. Downing, 68 Conn. App. 388, 394, 791 A.2d 649 (2002). Such evidence is admissible even when it is not conclusive or is relevant to only a slight degree, provided that it is not prejudicial or simply cumulative. See State v. Cuesta, 68 Conn. App. 470, 476, 791 A.2d 686, cert. denied, 260 Conn. 914, 796 A.2d 559 (2002). Prejudicial evidence is evidence that “tends to have some adverse effect upon a defendant beyond tending to prove the fact or issue that justified its admission into evidence.” (Internal quotation marks omitted.) State v. Feliciano, 256 Conn. 429, 454, 778 A.2d 812 (2001). Yet, a balance must be struck between what evidence is prejudicial and how probative that evidence is despite its ability to whip up emotions. See State v. Vega, supra, 259 Conn. 396-97.

We recognize that prior misconduct evidence cannot be used merely to show an evil disposition or criminal propensity. See State v. O’Neill, 200 Conn. 268, 273, 511 A.2d 321 (1986). We conclude, however, that here the court reasonably ruled that the evidence of specific acts of piior misconduct against the victim was admissible. First, we conclude that the prior misconduct evidence, while certainly damaging to the defendant, was relevant and material because the defendant’s spanking, slapping, and force-feeding of the victim tends to establish the material fact of the defendant’s malice toward the victim and lends itself to discerning the motive behind her later actions. In arriving at our conclusion, we note that our Supreme Court has held that “[t]he test for determining whether evidence is unduly prejudicial is not whether it is damaging to the defendant but whether it will improperly arouse the emotions of the jury.” (Emphasis added; internal quotation marks omitted.) State v. Pappas, 256 Conn. 854, 888, 776 A.2d 1091 (2001). While the prior misconduct evidence was sure to stir some emotions, it just as clearly was relevant to demonstrate the defendant’s malice toward the victim, her motive, and an element of the crimes charged.

Our review of the record also demonstrates that the court carefully balanced the issues involved and properly determined that the probative value of the prior misconduct evidence outweighed its prejudicial effect. Further, to avoid unduly prejudicing the defendant or admitting cumulative evidence, the court admitted only specific acts of misconduct against the victim while carefully excluding evidence of misconduct against other children that would serve only the purpose of rousing the jury’s passions. Hence, it was not an abuse of discretion for the court, in balancing these factors, to determine that the evidence was highly relevant to illustrate the exceptions for which it was offered and that its probative value outweighed its prejudicial effect. This is especially true in light of the defendant’s agreement to discipline the victim with “time outs” only.

Nevertheless, even if the court abused its discretion by allowing the testimony, the error was harmless given the state’s strong medical evidence against the defendant, which included gruesome details of the victim’s injuries, the time frame in which those injuries occurred and the cause of her death. The argument that the challenged testimony unduly aroused the emotions of the jurors is specious when held up against the certain effect of these unchallenged medical facts. Bearing all this in mind, we conclude that the court’s well reasoned ruling was not an abuse of its discretion and did not manifest an injustice on the defendant.

The judgment is affirmed.

In this opinion the other judges concurred.

       In its November 18, 1999 judgment, the court vacated the defendant’s sentence for assault in the first degree and merged that conviction with her conviction for manslaughter in the first degree. As a result, the defendant was sentenced to consecutive terms of twenty years for manslaughter in the first degree and ten years for risk of injury to a child for a total effective sentence of thirty years of incarceration.

       Wiley testified at trial that “shaken baby” syndrome typically occurs when a child, usually three years old or younger, is shaken with sustained, vigorous force. This shaking leads to hemorrhaging in the blood vessels of the eyes and skull. The shaking necessary for such a result would be more than that sustained in a normal fall off of a bed or even from an adult’s standing height. Wiley further explained that this shaking is followed typically by a major impact causing blunt trauma to the head, including severe injuries to the brain and skull. Wiley stated that such an impact could result from throwing a child against a flat surface. Finally, Wiley testified that a child subjected to this type of mistreatment could suddenly lose consciousness, fall into a coma and, frequently, would remain comatose or die.

       The court also noted, as an aside, that this case involved a “kind of strange identity issue,” but that the testimony was admissible because it was more probative than prejudicial in that it involved specific acts against the victim. The court specifically precluded testimony from the child witnesses concerning some twenty or more other acts of misconduct committed against other children. The court reasoned that limiting the testimony in this way would prevent a prejudicial “piling on” of other misconduct evidence against the defendant.


author: BISHOP, J.

text:
    BETH ANN MONGILLO v. EDWARD MONGILLO
    (AC 20975)
    Lavery, C. J., and Bishop and Peters, Js.

      Argued February 15
    officially released April 30, 2002

      Lori Welch-Rubin, for the appellant (plaintiff).

      Kevin P. Thornton, for the appellee (defendant).
   Opinion

BISHOP, J.

In this appeal from a marital dissolution judgment, the plaintiff, Beth Ann Mongillo, claims that the trial court acted improperly (1) in its determination that the marriage was no longer viable after seven years, (2) in its award of alimony for a period of one year and (3) in its failure to award her any portion of the vested pension benefits of the defendant, Edward Mongillo. We affirm the judgment of the trial court.

The record discloses the following relevant information. The parties, who were married on April 10, 1987, had one child, who was bom in May, 1992. At the time of the marital dissolution hearing in June, 2000, the plaintiff was forty-three years of age and the defendant was forty-six. Their child, then eight years old, was residing primarily with the plaintiff in the former family residence. The plaintiff, a junior college graduate with a degree in travel administration, was working approximately fifteen hours a week as a teacher’s aide. Her financial affidavit filed in conjunction with the marital dissolution hearing reflected gross weekly earnings of $237.65. She previously had worked as a travel agent for approximately five years and later as an administrative assistant with the Southern New England Telephone Company (telephone company) for approximately nine years. When she voluntarily left her employment with the telephone company in conjunction with the birth of the parties’ child, she had weekly gross earnings of approximately $530. In conjunction with her departure from the telephone company, she received an early retirement benefit that she placed into an individual retirement account. At the time of the marital dissolution hearing, the plaintiff indicated on her affidavit that the account had a value of approximately $80,000.

The plaintiff undertook the primary care of the parties’ child and did not resume employment outside the home until the pendency of the marital dissolution action. At the marital dissolution hearing, the plaintiff testified that she had no present intention of resuming full-time employment. Conflicting evidence was presented as to whether the parties had agreed in their marriage that the plaintiff never would be required to resume outside employment or would become reemployed as soon as their child was of school age. At the time of the marital dissolution action, the child was in the second grade.

The defendant, a college graduate, was earning approximately $64,000 annually as a technical high school department head where he had been employed for twenty-two years. In conjunction with his employment, the defendant, as a participant in the Connecticut state teachers retirement program, had the vested right to receive a monthly pension upon retirement and once he reached age sixty-five.

On June 16, 2000, the court rendered judgment dissolving the parties’ marriage on the ground of irretrievable breakdown. It awarded joint custody of the daughter to the parties and physical custody of her to the plaintiff. The defendant was ordered to pay child support to the plaintiff in the amount of $188 per week. The court also ordered the defendant to pay alimony in the amount of $200 per week for one year.

With respect to the parties’ assets, the court found that the defendant had made significant contributions to the marriage from assets he owned prior to the marriage, from gifts and from an inheritance he had received. The court noted also that during the course of the marriage, the plaintiff had received funds from her family that had been contributed to the marriage, though in amounts substantially less than the defendant’s contributions.

The court granted the plaintiff possession of the former family residence until the child’s eighteenth birthday with the proviso that the plaintiff pay the taxes and maintain the property during her occupancy. The court heard evidence that the parties had made improvements to the residence, which they had purchased for $184,000 in 1988. The parties’ affidavits reflected that at the time of the marital dissolution, there was no mortgage on the property. The court further ordered a sale of the residence upon the child’s eighteenth birthday, with the proceeds to be divided 40 percent to the plaintiff and 60 percent to the defendant.

The court also made orders concerning the parties’ personal property. Those orders included a provision that the plaintiffs vested pension benefits from the telephone company would remain her property and that the defendant would retain ownership of his vested pension benefits. On July 6, 2000, the plaintiff timely filed the present appeal. Additional facts and procedural history will be presented as necessary.

I

The plaintiff claims that the court improperly stated in its memorandum of decision that “[flor all practical purposes, this marriage was viable for only seven years.” In support of her claim, the plaintiff argues that because the court also noted that the parties had ceased sexual relations seven years after their marriage, the court’s finding of fact was tantamount to a determination that the parties could not have a viable marital relationship absent sexual relations. She argues, further, that the court’s finding that the marriage was not viable after seven years resulted in the failure of the court to consider the plaintiffs contributions to the marriage after seven years. We are unpersuaded.

We begin our analysis by setting forth the appropriate standard of review. “We have long held that a finding of fact is reversed only when it is clearly erroneous. ... A factual finding is clearly erroneous when it is not supported by any evidence in the record or when there is evidence to support it, but the reviewing court is left with the definite and firm conviction that a mistake has been made. . . . Simply put, we give great deference to the findings of the trial court because of its function to weigh and interpret the evidence before it and to pass upon the credibility of witnesses.” (Citations omitted; internal quotation marks omitted.) Hartford Electric Supply Co. v. Allen-Bradley Co., 250 Conn. 334, 345-46, 736 A.2d 824 (1999).

The evidence presented at the dissolution hearing indicated as follows. The parties married in 1987. Shortly after the birth of their daughter in 1992, they began experiencing significant marital strife. The defendant believed that the plaintiff focused her attention exclusively on their daughter and considered him unimportant. With increasing frequency, the defendant, upon his return home from work, secluded himself in the basement and emerged only to eat dinner in the company of the plaintiff and their daughter. Although the defendant at times cared for his daughter, his interaction with her as well as the plaintiff was extremely limited. On a rare occasion, the defendant joined the plaintiff and their daughter in weekend activities. During 1994, the parties discontinued their sexual relationship, which had been in gradual decline.

The record discloses that there was evidence supporting the court’s finding that after seven years, the parties’ marriage no longer had been viable. Furthermore, upon completing our review of the record, we were not left with a definite and firm conviction that the court mistakenly had made that finding.

In consideration of the remaining arguments advanced by the plaintiff, we conclude that the court’s finding that the marriage had ceased to be viable during the year that the parties had stopped having sexual relations does not establish that the court based its finding as to viability solely on the fact that the parties had discontinued their sexual relationship. The court’s factual finding that the parties had ceased sexual relations in 1994 does not support the proposition that the court failed to consider other trial evidence relevant to its determinations. Additionally, the record is devoid of any support for the plaintiffs assertion that the court did not consider the marital contributions of either party after 1994 in fashioning its orders.

II

Next, the plaintiff claims that the court improperly limited the duration of her alimony to one year. She challenges the duration of the award on two grounds: (1) during the dissolution hearing, no evidence was presented that indicated alimony would be unnecessary or less necessary to her in one year; and (2) the court never expressly stated that it had considered the relevant statutory criteria.

“[General Statutes §] 46b-82 governs awards of alimony. That section requires the trial court to consider ‘the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties and the award, if any, which the court may make pursuant to [General Statutes §] 46b-81, and, in the case of a parent to whom the custody of minor children has been awarded, the desirability of such parent’s securing employment’ in ordering either party to pay alimony to the other. In awarding alimony, ‘[t]he court must consider all of these criteria. . . . It need not, however, make explicit reference to the statutory criteria that it considered in making its decision or make express findings as to each statutory factor.’ ... In particular, rehabilitative alimony, or time limited alimony, is alimony that is awarded primarily for the purpose of allowing the spouse who receives it to obtain further education, training, or other skills necessary to attain self-sufficiency. . . . Rehabilitative alimony is not limited to that purpose, however, and there may be other valid reasons for awarding it.” (Citations omitted; emphasis in original.) Bornemann v. Bornemann, 245 Conn. 508, 539-40, 752 A.2d978 (1998).

“An appellate court will not disturb a trial court’s orders in domestic relations cases unless the court has abused its discretion or it is found that it could not reasonably conclude as it did, based on the facts presented. ... In determining whether a trial court has abused its broad discretion in domestic relations matters, we allow every reasonable presumption in favor of the correctness of its action.” (Internal quotation marks omitted.) Smith v. Smith, 249 Conn. 265, 282-83, 752 A.2d 1023 (1999).

In the present case, the court awarded one year of alimony to the plaintiff on the basis of its finding that she was underemployed and would need only a short period of time to procure full-time employment. The court made those findings after hearing evidence concerning the plaintiffs education, prior employment and earnings history. We conclude that sufficient evidence was presented to support the court’s durational alimony order.

In response to the plaintiffs remaining argument, we note that a court is not required to reference expressly the statutory criteria that it considered in awarding alimony. Bomemann v. Bomemann, supra, 245 Conn. 539. We therefore conclude that the court did not abuse its discretion in limiting the duration of the alimony to one year. We note that the court did not render its alimony order nonmodifiable either as to amount or duration, and, consequently, the plaintiff was not foreclosed from timely filing a motion for modification of the alimony award. See Scoville v. Scoville, 179 Conn. 277, 280, 426 A.2d 271 (1979).

Ill

Finally, the plaintiff claims that the court improperly declined to award her a percentage of the defendant’s vested pension. In support of her claim, she argues that the court (1) failed to value the defendant’s pension and (2) failed to distribute the pension equitably in light of its substantial value, the defendant’s failure to fully and fairly disclose it in his financial affidavit, and the length of the parties’ marriage. We review that claim under the abuse of discretion standard, which we set forth in part II.

“The distribution of assets in a dissolution action is governed by § 46b-81, which provides in pertinent part that a trial court may ‘assign to either the husband or the wife all or any part of the estate of the other. . . . In fixing the nature and value of the property, if any, to be assigned, the court, after hearing the witnesses, if any, of each party . . . shall consider the length of the marriage, the causes for the . . . dissolution of the marriage . . . the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income. The court shall also consider the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates.’ ” Krafick v. Krafick, 234 Conn. 783, 792, 663 A.2d 365 (1995).

“There are three stages of analysis regarding the equitable distribution of each resource: first, whether the resource is property within § 46b-81 to be equitably distributed (classification); second, what is the appropriate method for determining the value of the property (valuation); and third, what is the most equitable distribution of the property between the parties (distribution).” Id., 792-93. The present case concerns the proper treatment of the defendant’s vested pension under the second and third stages of the equitable distribution scheme.

A

We first consider the plaintiffs argument that the court failed to value the defendant’s vested pension. We distill from the plaintiffs brief and her statements during oral argument that she specifically contends that the court should have assigned a present value to the defendant’s pension before distributing it. Given the circumstances of the present case, we disagree.

The record discloses that the defendant had a vested right under a defined benefit plan that entitled him to receive a fixed sum per month upon reaching age sixty-five. As the plaintiff conceded during oral argument before us, the record discloses also that neither she nor the defendant had presented evidence of the present value of his pension. “Calculating a pension’s present value depends on several factors, including the employee spouse’s life expectancy, the proper interest rate for discount and the date of retirement.” Id., 800. It is not the function of the court to make calculations of that sort to fill evidentiary gaps. Accordingly, in the absence of such evidence, we conclude that the court did not abuse its discretion in declining to assign a present value to the defendant’s pension.

B

We now consider the plaintiffs argument that the court failed to distribute the pension equitably in light of its substantial value, the defendant’s failure to fully and fairly disclose it in his financial affidavit, and the length of the parties’ marriage.

In fashioning its orders for the disposition of property, the court is obligated to consider the statutory factors relating to the disposition of property in marital dissolution. See General Statutes § 46b-81. The statutory scheme setting forth the criteria for the court’s exercise of discretion in making property awards provides no support for the plaintiffs argument that it was error for the court not to award the plaintiff a portion of the defendant’s retirement benefits.

She argues further that the court should have awarded a portion of the defendant’s pension because he failed to disclose it at trial. A review of the transcript and the parties’ financial affidavits supports the plaintiffs claim that the defendant did not list his pension on his financial affidavit and that his right to receive pension benefits was revealed only on cross-examination. Although we agree with the plaintiff that the defendant had an affirmative duty to disclose that information on his financial affidavit, his failure in that regard does not provide an independent basis for an award of the pension to the plaintiff. Given the totality of the court’s property disposition awards, the court did not act improperly in failing to award the plaintiff a portion of the defendant’s pension.

The judgment is affirmed.

In this opinion the other judges concurred.

       We note that the plaintiff did not seek an articulation of the court’s memorandum of decision.

       For clarity, we note that our Supreme Court in Krafick v. Krafick, supra, 234 Conn. 793, concluded thatvestedpensionbenefits constitute property for the purposes of equitable distribution pursuant to General Statutes § 46b-81.

       In that context, we use the adjective “vested” when referring to pension interests “in which an employee has an irrevocable . . . right, in the future, to receive his or her account balance (under a defined contribution plan), or his or her accrued benefit (under a defined benefit plan), regardless of whether the employment relationship continues.” (Internal quotation marks omitted.) Bender v. Bender, 258 Conn. 733, 737 n.2, 785 A.2d 197 (2001).

       “[A] ‘defined benefit plan’ refers to a plan [that] is ‘funded to provide a definitely determinable benefit to the employee upon retirement.’ ” Krafick v. Krafick, supra, 234 Conn. 793 n.19.