author: Dupont, J.

text:
    The First New Haven National Bank v. Daniel J. Rowan et al. Eli Moore, Inc. v. Sara K. Rowan et al.
    (2247)
    Testo, Dupont and Borden, Js.
    Argued February 28
    decision released June 5, 1984

      Daniel J. Rowan and Sara K. Rowan, pro se, the appellants (defendants).

      JohnR. Lambert, for the appellee (plaintiff in the first case).

      Lawrence J. Greenberg, for the appellee (plaintiff in the second case).
   Dupont, J.

Two foreclosure actions which were consolidated for trial are the subject of this appeal. The first is entitled First New Haven National Bank v. Rowan, and the second is entitled Eli Moore, Inc. v. Rowan. The defendants appeal from judgments of strict foreclosure against them. In 1977, the bank and Eli Moore, Inc., in two separate actions, obtained judgments against the defendants. The plaintiffs thereafter filed judgment liens on the land records, and subsequently brought actions to foreclose their liens.

In First New Haven National Bank v. Rowan, both individual defendants filed a “disclosure of defense” and later “answered” the plaintiff’s complaint by filing a letter containing a plan to satisfy the judgment. Both the “disclosure” and the “answer” were expunged by the trial court and a motion for default for failure to plead was granted. In Eli Moore, Inc. v. Rowan, Sara Rowan’s disclosure of defense was expunged as well as her substitute pleading designated “Answer.” The plaintiff’s motion for default for failure to plead was then granted. Both defendants appeared pro se in the foreclosure proceedings.

The basic issue of this appeal is whether the trial court was correct in expunging the defendants’ pleadings.

The disclosure of defense in First New Haven National Bank, in which both individuals are named defendants, essentially asks for a moratorium in payment and speaks of a “plan for repayment.” Since these defendants were not represented by an attorney, the disclosure of defense was correctly expunged. Practice Book § 236. The defendants then filed an “Answer” asking that the material in the disclosure of defense be considered an answer, and attached letters thereto relating to plans for payment. A careful examination of the material of the defendants’ answer reveals that it is not responsive to the allegations of the complaint and contains irrelevant and immaterial statements. None of the statements constitutes a defense to a foreclosure action. The court did not err in expunging it, and in subsequently granting the plaintiffs motion for default for failure to plead. Nothing in the defendants’ pleadings suggests any meritorious defenses to the foreclosure action and the judgment of default for failure to plead was properly rendered. Burritt Mutual Savings Bank of New Britain v. Tucker, 183 Conn. 369, 373-74, 439 A.2d 396 (1981).

In Eli Moore, Inc. v. Rowan, the case in which only Sara Rowan is an individual defendant, a disclosure of defense was also filed and expunged pursuant to Practice Book § 176. In the “Answer” which she subsequently filed, the defendant sought to incorporate material in the disclosure of defense and to answer the allegations of the complaint. When the pleadings are fairly read, it is apparent that one of the allegations of the defendant’s answer is not irrelevant. Paragraph three of the plaintiff’s complaint alleges that the judgment rendered for the plaintiff in the prior action giving rise to the judgment lien was in the amount of $47,673.60. Paragraph three of the “Answer” and “Disclosure of Defense” alleges that the judgment in favor of the plaintiff was $22,673.60, and that judgment in the case was also rendered in favor of Greater New York Insurance Company for $25,000. Paragraph five of the answer claims that the judgment as to Eli Moore, Inc., was to be paid at the rate of $300 per month, and that the defendant was not in default as to those payments. Greater New York Insurance Company is not a party to the present action, although counsel for the plaintiff at oral argument correctly stated that it must repay the insurance company, as its subrogee, any sums collected by the plaintiff from the defendant in excess of $22,673.60.

The defendant’s entire answer should not have been expunged since certain of its paragraphs raised the issue of whether the plaintiff’s judgment lien could be foreclosed while the defendant was discharging her obligations under the terms of the judgment rendered against her. It is not disputed that the defendant, at the time the judgment of foreclosure of the plaintiff’s lien was rendered, was not in default of the terms of the underlying judgment. Those portions of the defendant’s answer, however, which are unrelated to this issue should have been expunged. No other allegations of the answer are relevant to any meritorious defense.

An action of foreclosure is an equitable action. City Savings Bank v. Lawlor, 163 Conn. 149, 155, 302 A.2d 252 (1972). Even after a judgment of foreclosure, a debtor may rehabilitate the right to redeem the real estate if, by a subsequent agreement, the debtor and creditor acquiesce in a new schedule of payments and if the agreement is substantially performed by the debtor. Milestan v. Tisi, 140 Conn. 464, 101 A.2d 504 (1953). There is no difference in this principle whether an action is brought to foreclose a mortgage or a judgment lien. Id., 473. A trial court has discretion, after a review of the equities, to withhold foreclosure. Lettieri v. American Savings Bank, 182 Conn. 1, 12, 437 A.2d 822 (1980); Hamm v. Taylor, 180 Conn. 491, 497, 429 A.2d 946 (1980). Certainly one of the equities in an action for foreclosure of a judgment lien is the fact that the debtor is not in default of the terms ordered as payment of the judgment. If a judgment of foreclosure of a mortgage would not be rendered when the mortgage payments are current, a judgment of foreclosure of a judgment lien should not be rendered without a full hearing on the merits of whether the payments on the judgment are current. See Hughes v. Contemporary Mission, Inc., 180 Conn. 150, 429 A.2d 827 (1980).

The sole Connecticut case on the precise issue of this case involved a plaintiff’s demurrer to a defense that the defendant was discharging the order of a judgment against him by making the weekly payments required, and that, therefore, the plaintiff could not foreclose a judgment lien. The demurrer was overruled, and the court stated that it was within the trial court’s province to decide the circumstances surrounding the acceptance by the creditor of the payments and to determine the effect of that acceptance on any judgment of foreclosure of a judgment lien or in setting a law day. West Haven Teachers Federal Credit Union v. Kimberly, 31 Conn. Sup. 226, 327 A.2d 596 (1974). The defendant in this case is entitled to no less.

There is no error in the case of First New Haven National Bank v. Rowan; there is error in the case of Eli Moore, Inc. v. Rowan, the judgment is set aside and the case is remanded for further proceedings consistent with this opinion.

In this opinion the other judges concurred.

       This appeal, originally filed in the Supreme Court, was transferred to this court. Public Acts, Spec. Sess., June, 1983, No. 83-29, § 2 (c).

       The defendants, Daniel Rowan and Sara Rowan, are the joint owners of the realty which is the subject of the foreclosure actions. Other defendants are various banks with an interest in the real estate. They have not appealed. Sara Rowan, but not Daniel Rowan, is one of the defendants in Eli Moore, Inc. v. Rowan. Both Sara and Daniel Rowan are defendants in First New Haven National Bank v. Rowan.

       The judgment in favor of Eli Moore, Inc., was rendered on June 21, 1977, pursuant to a stipulation of the parties. The amount of the judgment was $47,673.60, the sum which the defendant had fraudulently embezzled from her employer, Eli Moore, Inc. The sum of $25,000 had previously been paid by Greater New York Mutual Insurance Company to Eli Moore, Inc., pursuant to the provisions of a fidelity insurance policy which Eli Moore, Inc., carried on all of its employees. This court takes judicial notice of the stipulation for judgment in that case. McCleave v. John J. Flanagan Co.,
        115 Conn. 36, 38, 160 A. 305 (1932). The judgment rendered in favor of Eli Moore, Inc. in the amount of $47,673.60 was payable in the amount of $22,673.60 to the plaintiff, Eli Moore, Inc., and $25,000 to the insurance company as subrogee of Eli Moore, Inc. Payment was first to be made to the plaintiff at the rate of $300 per month until the debt due it was discharged, and thereafter to the insurance company at the same rate. It was also provided that in the event of default of any installment payment, the plaintiff Would be entitled to immediate execution on the judgment.

       On appeal, the defendants raise various claims relating to a denial of due process of law. These issues were not raised at the trial level and will not be considered on appeal. Practice Book § 3063; Burritt Mutual Savings Bank of New Britain v. Tucker, 183 Conn. 369, 377, 439 A.2d 396 (1981).

       See footnote 3, supra.

       General Statutes § 49-46 provides in pertinent part as follows: “Any person having the legal title to any judgment . . . may cause such a judgment lien to be recorded .... Any such lien may be foreclosed ... in the same manner as mortgages . . . .”


source: Caselaw Access Project

author: Borden, J.

license: Public Domain

text:
    Michael J. Iamartino et al. v. Lawrence J. Avallone et al.
    (2340)
    Testo, Dupont and Borden, Js.

      Argued December 7, 1983
    decision released June 12, 1984

      Daniel Shepro, with whom was Robert M. Opotzner, for the appellants (named defendant et al.).

      Jack D. Garamella, for the appellees (plaintiffs).
   Borden, J.

This is an appeal from two judgments of strict foreclosure rendered by the trial court. The plaintiffs commenced two separate mortgage foreclosure actions against the defendants: one, in the judicial district of Danbury, concerns a lot and house in Brookfield; the other, in the judicial district of Litchfield, concerns unimproved real property in New Milford. The action filed in Litchfield was transferred to Danbury and the two cases were consolidated for trial.

The plaintiffs’ mortgages on both parcels were junior to first mortgages. At oral argument on this appeal we were informed that the first mortgage on the New Milford property has since been foreclosed, extinguishing the plaintiffs’ second mortgage on that property. This renders the appeal from that judgment moot. City National Bank of Connecticut v. Henderson, 1 Conn. App. 96, 468 A.2d 1258 (1983). We therefore confine our discussion to the appeal from the judgment of foreclosure rendered on the Brookfield mortgage.

The court found the following facts. On May 23,1979, the named defendant, Lawrence J. Avallone, executed a promissory note in the principal amount of $66,000, plus interest, payable monthly at an annual rate of eighteen percent. The principal was due on or before November 23, 1979. To secure this note Avallone granted a second mortgage on the property in Brook-field. This mortgage deed was executed in the statutory form and upon the statutory condition. See General Statutes §§ 47-36c and 47-36j. Avallone did not pay this note when it came due.

On January 23, 1980, Avallone executed and delivered to the plaintiffs a second note in the principal amount of $72,600, plus interest, at the annual rate of eighteen percent, payable monthly beginning February 23,1980. The principal was due May 23,1980. The difference between the $66,000 due on the first note and the $72,600 principal amount of the second note represented a bonus. The second note provided for forgiveness of the bonus if the note was paid in full on or before February 23,1980. Upon the execution of this note, the plaintiffs returned the first note to Avallone. Although the plaintiffs did not lend Avallone any new money in connection with the second note, they did give consideration in the form of forebearance from foreclosure on the mortgage, which was in default by virtue of nonpayment of the first note. The parties also executed and recorded a mortgage modification agreement. Avallone did not pay this note when due.

The court further found that Avallone is a speculator in buying, selling and developing land, and has been a contractor for six years. Before that he was in the home improvement business. He has owned a variety of properties, including a shopping center. At the time of the Brookfield mortgage, the house on the property was seventy percent completed, and was built on speculation. He later moved his family into the house, where they resided at the time of the trial.

Avallone was represented by counsel in all his dealings with the plaintiffs. He was accustomed to doing business with second mortgage lenders other than the plaintiffs. These plaintiffs were not the only second mortgage lenders available to him in the Danbury area. In May, 1980, he had obtained an eighteen month mortgage loan on other property, in the principal amount of $100,000, plus interest at an annual rate of twenty-two percent and a bonus of fifteen points. Between January and March, 1980, he obtained another second mortgage loan from another lender in the amount of $75,000, plus interest for one year at an annual rate of thirteen percent and a bonus of ten points. His business was speculation. The loans involved here are not the loans of a householder or a long-established commercial or manufacturing business. The interest rates and bonuses involved reflected the general charges made at that time for the type of financing sought by Avallone: highly speculative, with great credit risk to the lender, in an economic environment of high interest rates for the most credit-worthy borrowers. Avallone was not misled by the plaintiffs; was not forced into the transaction by them; and entered it with full knowledge of what he was doing and receiving.

The court, rejecting the legal claims of the defendants, Lawrence and Loumay Avallone, concluded that neither the usury statute, the mortgage modification agreement nor the doctrine of unconscionability barred foreclosure, and rendered judgment for the plaintiffs. The defendants appeal, claiming error in these three issues; in addition, they claim error in a ruling on evidence and in a reference in the judgment to a default purportedly entered against Loumay Avallone. We find no error.

I

We disagree with the defendants’ first claim on appeal; namely, that there was no bona fide mortgage upon which to bring an action of foreclosure because of the substitution of the notes. It is settled law in this state that a mortgage deed secures a debt, not a note. Bolles v. Chauncey, 8 Conn. 389, 391-92 (1831). When the second note was substituted for the original note, it did not extinguish Avallone’s debt to the plaintiffs; it simply enlarged that debt, which enlargement the mortgage modification agreement reflected on the land records. As between the plaintiffs and these defendants, the initial mortgage remained valid, even though a new note had been given in substitution for the original note. See City National Bank v. Stoeckel, 103 Conn. 732, 741, 132 A. 20 (1926); see also State National Bank v. Dick, 164 Conn. 523, 530, 325 A.2d 280 (1964) (the principle that a mortgage deed must accurately describe the debt is relevant to subsequent encumbrancers but not as between the parties to the deed).

The defendants’ contention that the mortgage modification agreement was invalid because it did not contain the word “grant” is equally bereft of merit. General Statutes § 47-36a (b) (1) specifically provides that “[t]he use of the word ‘grant’ is not necessary to convey” real estate. Since the initial mortgage deed did not require the inclusion of the word “grant,” neither did the mortgage modification agreement.

II

The defendants next claim in effect that the foreclosure is barred because the note was usurious. We agree with the trial court that the loan to Avallone falls within the exemption from the operation of the usury statute; General Statutes § 37-4; of a “bona fide mortgage of real property for a sum in excess of five thousand dollars.” General Statutes § 37-9 (3). Thus, the defense of usury was unavailable in a suit for foreclosure of this mortgage. Associated East Mortgage Co. v. Highland Park, Inc., 172 Conn. 395, 405, 374 A.2d 1070 (1977). Avallone’s claim that the word “sum” in General Statutes § 37-9 (3) is limited to cash finds but slim support in the language of the statute and no support in its purpose, in reason or in economic reality. Furthermore, since usury is a defense personal to the borrower, or his accommodation maker or endorser, it was unavailable to Loumay Avallone. Whalley Motors, Inc. v. Kesselman, 145 Conn. 342, 346, 143 A.2d 158 (1958).

HI

The gist of the defendant’s next claim is that foreclosure should be withheld because the mortgage note bore an unconscionable rate of interest. The plaintiffs calculate the interest rate at thirty-seven percent, based on a six month payment period from November, 1979 through May 23, 1980. The defendants calculate the rate at forty-five percent, on the basis of a four month payment period from January 23, 1980, to May 23, 1980. As did the trial court, we find it unnecessary to resolve this dispute, and we conclude that, using either rate, under the circumstances of this case the transaction between the parties was not unconscionable.

We first consider our scope of review of the trial court’s conclusion that the transaction was not unconscionable. As applied to real estate mortgages, the doctrine of unconscionability draws heavily on its counterpart in the Uniform Commerical Code which, although formally limited to transactions involving personal property, furnishes a useful guide for real property transactions. Olean v. Treglia, 190 Conn. 756, 762, 463 A.2d 242 (1983); Hamm v. Taylor, 180 Conn. 491, 495, 429 A.2d 946 (1980). It is clear that under the code the question of unconscionability is a matter of law to be decided by the court based on all the facts and circumstances of the case. General Statutes § 42a-2-302; Uniform Commercial Code § 2-302, comment 3; Stanley A. Klopp, Inc. v. John Deere Co., 510 F. Sup. 807, 810 (E.D. Pa. 1981). It is equally clear, therefore, that whether a real estate mortgage note is unconscionable is a question of law; see Hamm v. Taylor, supra, 495-97; and is thus reviewable by us, unlimited by the “clearly erroneous” standard.

Whether an interest rate is unconscionable depends, inter alia, on the borrower’s financial circumstances, the increased risk of a second mortgage and whether the mortgaged property is income-producing. Id., 495. “ ‘[T]he basic test is whether, in the light of the general commercial background and the commercial needs of the particular trade or case, the clauses involved are so one-sided as to be unconscionable under the circumstances existing at the time of the making of the contract.’ ” Id., 495-96.

Under this gauge this transaction was not unconscionable. The loan was a commercial, not a consumer, transaction. The note was secured by a second mortgage on nonincome producing property which, at the time of the transaction, was not fully improved. Avallone was an experienced real estate speculator, who at about the same time borrowed substantial funds from other lenders at comparably high rates. The plaintiffs were not the only source of funds available to him. The financing which Avallone sought was for a highly speculative venture, involving great risk to the lenders, in an economic environment of high interest rates even for the most credit worthy borrowers. The rate charged was in line with the general rates prevailing at that time for that type of financing. Avallone was represented by counsel; was not misled or forced into the transaction; and entered it with full knowledge of its risks and rewards. Thus, despite what appears to be a high rate of interest, we conclude that the note in question was not unconscionable. See also In Re Metal-Built Products, Inc., 3 Bankr. 176 (E.D. Pa. 1980) (interest rate exceeding one hundred percent held, on facts of the case, not unconscionable).

IV

Loumay Avallone next argues that the court erroneously entered a default and rendered a judgment against her for failure to plead, when in fact she filed an answer and special defenses. Although the memorandum of decision erroneously refers to such a default, both the transcript and the judgment correctly reflect that she was not defaulted and that she was permitted to present her defense. Her claim of error is without merit.

V

Finally, the defendants challenge the court’s ruling striking their expert witness’ opinion that the interest rate charged was unreasonable. The witness testified that the rate was far in excess of the market and unreasonable. The plaintiff objected to the word “unreasonable.” The court sustained the objection and granted the motion to strike. We note that the defendants did not state the basis of their claim. See Practice Book § 288. Moreover, the same witness also testified that the rate was outrageous and gouging. We fail, therefore, to see how the defendants were harmed by the ruling.

There is no error in the judgment concerning the Brookfield mortgage; the appeal concerning the New Milford mortgage is dismissed as moot.

In this opinion the other judges concurred.

       This appeal, originally filed in the Supreme Court, was transferred to this court. Public Acts, Spec. Sess., June, 1983, No. 83-29, § 2 (c).

       In the record, Avallone is referred to both individually and as “d/b/a Avallone Construction Company.” References in this opinion to Lawrence Avallone refer to him under both appellations.
      The other defendants are a mortgagee and an attaching creditor whose interests are junior to that of the plaintiffs; and Loumay Avallone, to whom Lawrence Avallone quitclaimed the property subsequent to granting the plaintiffs’ mortgage. Thus, she is the owner of the equity of redemption in the property. Both she and Lawrence Avallone are the appellants in this court. References in this opinion to “the defendants” refer to Lawrence and Loumay Avallone.


author: Dannehy, C.P. J.

text:
    State of Connecticut v. Benjamin Soriano
    (2701)
    Dannehy, C.P.J., Testo and Hull, Js.
    Argued April 3
    decision released June 12, 1984

      Jon C. Blue, for the appellant (defendant).

      William Domnarski, deputy assistant state’s attorney, with whom, on the brief, were Thomas P. Miaño, assistant state’s attorney, and Katherine J. Lambert, deputy assistant state’s attorney, for the appellee (state).
   Dannehy, C.P. J.

The defendant, charged in a substitute information with robbery in the first degree in violation of General Statutes § 53a-134 (a) (4), moved during his trial by jury to suppress testimony that might be given by two women who were present at the robbery and observed the defendant there, and who subsequently made photographic identifications of the defendant. After a suppression hearing at which these women and a police detective testified, a judge of the Superior Court in the judicial district of Hartford-New Britain at Hartford denied the motion. The defendant was convicted. His appeal presented one issue: Did the court err in denying the defendant’s motion to suppress the out-of-court photographic identifications by two of the witnesses to the crime and the subsequent in-court identification by one of those witnesses under the circumstances of this case?

A summary of the facts most favorable to the state shows that on October 4, 1977, about 11:30 p.m., one man and two women were in a Sevén-Eleven store in Manchester. Those present were a female employee and two customers, one a man, the other a woman. The various individuals were going about their business when two black males entered the store, one brandishing a gun. Neither was wearing a mask. The man with the gun pulled a five dollar bill out of the female customer’s hand. The other collected all the money from the cash register into a bag. The gunman then demanded the money in the safe. Upon being told there was no safe, he walked into another room looking for one. When he returned he went behind the counter and took four cartons of cigarettes, the employee’s jacket and money and property from the male customer. The store was brightly lit and the employee and the customers had time to observe the facial features of the unmasked gunman. Thereafter, the robbers left. The whole incident lasted only seconds.

The defendant offered an alibi defense which was essentially that he was en route from Utah to New York on the night of the robbery.

The defendant claims that the trial court erred in denying his motion to suppress any reference to the pretrial identifications and any in-court identification, arguing the pretrial procedures were impermissibly suggestive and thereby resulted in a denial of his due process rights.

The transcript of the hearing on the motion to suppress reveals that about seven weeks after the robbery the female employee and the male customer went to the Manchester police station to view a photographic display which contained the defendant’s photograph. The defendant’s photograph was the only one which showed a placard hanging from his neck displaying numbers and the words “New York City Police Dept.” The male customer was unable to identify any of the ten men pictured in the display but did pause to ponder the defendant’s photograph. The employee unequivocally identified the defendant as the robber with the gun. Later the same day, at her home, the female customer selected the defendant’s photograph from the display after looking at the same ten photographs.

At the close of the testimony at the suppression hearing, the court heard arguments from both counsel. The court, in denying the motion to suppress, found from the evidence clear and convincing proof that under all of the circumstances of this case there was no substantial likelihood of irreparable misidentification.

The identification testimony at trial was essentially the same as at the hearing on the motion to suppress. Both women testified. Each said she had no doubts of the accuracy of her pretrial identification. The female employee did not identify the defendant in court, saying she could not be sure. The female customer identified the defendant as the robber.

The defendant claims that the photographic display was unnecessarily suggestive because his photograph was emphasized by the placard hanging from his neck, visibly marking him as a person who, at the very least, had been in significant trouble with the law. It is certainly a better practice for police officers to cover any police identification markings, if “mugshots” are used. There is, however, no strict rule against the display of such photographs. State v. Peary, 176 Conn. 170, 176, 405 A.2d 626 (1978), cert. denied, 441 U.S. 966, 99 S. Ct. 2417, 60 L. Ed. 2d 1072 (1979). The nature of the photograph is only one factor to be considered. The test of an unnecessarily suggestive identification procedure depends on the facts and circumstances of each case. Simmons v. United States, 390 U.S. 377, 383, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968); State v. McKnight, 191 Conn. 564, 569, 469 A.2d 397 (1983). McKnight defined the issue as whether, under the totality of the circumstances, the identification was reliable even though the pretrial procedure was suggestive. In applying the test, the court must determine whether there was no substantial likelihood of misidentification. Moreover, McKnight reiterated that on a motion to suppress evidence based upon photographic identifications, the defendant as the moving party must bear the initial burden of proving that the photographic identification was unconstitutional in some manner. State v. McKnight, supra, 570.

On review, like our Supreme Court, this court must first determine whether the identification procedure was unnecessarily suggestive; and second, if it is found to have been so, determine whether the identification was nevertheless reliable based upon an examination of the totality of the circumstances.

The witnesses who identified the defendant’s photograph viewed the display independently of one another. There is no evidence that either of them was told which person in the display was under suspicion. There is no evidence that the police, at any time prior to or at the time of the identifications, called to the attention of the eyewitnesses the location of the defendant’s photograph. In light of the fact that the witnesses testified that they had no doubts of their identification and did not notice the placard on the defendant’s photograph, we fail to see how its mere presence can be successfully claimed to have had an effect on the witnesses’ identification. The answer is that it cannot. Finally, we do not consider the length of time between the crime and the photographic identifications in the case to militate against reliability. State v. McKnight, supra, 573; see also Jennings v. United States, 431 A.2d 552 (D.C. Ct. App. 1981), cert. denied, 457 U.S. 1135, 102 S. Ct. 2964, 73 L. Ed. 2d 1353 (1982). The circumstances in this case indicate quite clearly that the witnesses saw the defendant at close range in bright light. There were no obstructions to vision. No precise estimate of the total time the witnesses observed the defendant was given. There is a fair inference that the time was ample.

The trial judge gave a correct instruction to the jury on identification testimony, emphasizing the fact that identification in the legal sense could take place only after an opportunity to see and observe the person later identified. The alleged weakness in the photographic identification procedure was thus properly left for consideration by the jury as bearing on the weight to be given the identification. Therefore, the defendant’s motion to suppress the identifications, as well as the related motion for a finding of not guilty, was rightfully denied. The defendant failed to sustain his burden of demonstrating that the identification procedure was unnecessarily suggestive.

There is no error.

In this opinion the other judges concurred.

       This appeal, originally filed in the Supreme Court, was transferred to this court. Public Acts, Spec. Sess., June, 1983, No. 83-29, § 2 (c).

       The defendant raises for the first time on appeal that the identification procedure also violated an alleged Connecticut common law test for exclusion of identification evidence that is the result of “fancied recognition” of a witness. See State v. Frost, 105 Conn. 326, 342, 135 A. 446 (1926). Because this ground for exclusion was not presented to the trial court, and because the defendant has articulated no exceptional circumstances that warrant appellate review, it is not addressed by this court. Practice Book § 3063; State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). Even were this court to address this ground which apparently had not been utilized for over fifty years, there is no basis to distinguish it from the constitutional tests set forth in this opinion. Accordingly, the court will not further address this new ground for exclusion.

       At trial, the defendant did not object to the in-court identification. Accordingly, no error as to that issue has been preserved. We have, nevertheless, reviewed the record upon this issue to determine whether there was any substantial likelihood that the defendant was misidentified. In resolving this issue in this manner, the court finds that defense counsel, in failing to make an objection, merely submitted to the ruling of the trial judge to allow the identification testimony.


text:
    Janet L. Gennarini v. Frank L. Gennarini
    (2317)
    Dannehy, C.P.J., Testo and Borden, Js.
    Argued February 7
    decision released June 12, 1984

      Ernest C. La Follette, for the appellant (defendant).

      Dianne M. Ventura, with whom, on the brief, was Richard J. Kilcullen, for the appellee (plaintiff).
   Borden, J.

The principal issue in this appeal concerns the propriety of the trial court’s interview in chambers with the seven year old child of the parties, in the absence of the parties and their counsel and over the objection of the defendant. Before the court was the plaintiff’s postjudgment motion for modification of an existing postjudgment visitation order. During the course of the hearing, the court, sua sponte, decided to interview the child. The defendant’s request for both attorneys to be present was denied. The court interviewed the child in chambers with a court reporter present but sealed the transcript and refused, even after its ruling on the motion for modification was issued, to release the transcript because of a promise of confidentiality it had made to the child. The court modified the judgment by substantially reducing the scope of the defendant’s visitation with the child, from which modification the defendant appealed.

In a custody or visitation dispute, the question of the propriety of a private interview between trial court and minor child conducted without the consent of both parties has yielded a range of appellate responses. See, e.g., Bailey v. Bailey, 3 Ariz. App. 138, 412 P.2d 480 (1966); Marshall v. Stefanides, 17 Md. App. 364, 302 A.2d 682 (1973); Roudabush v. Roudabush, 62 Mich. App. 391, 233 N.W.2d 596 (1975); Callen v. Gill, 7 N.J. 312, 81 A.2d 495 (1951); Lavene v. Lavene, 148 N.J. Super. 267, 372 A.2d 629 (1977); Lincoln v. Lincoln, 24 N.Y.2d 270, 247 N.E.2d 659 (1969) (approval of private interview); see also Unif. Marriage and Divorce Act § 404 (a), 9A U.L.A. 203 (1973) (approval of private interview); Jenkins v. Jenkins, 125 Cal. App. 2d 109, 269 P.2d 908 (1954); In re Gibbons, 245 N.C. 24, 95 S.E.2d 85 (1956); Cook v. Cook, 5 N.C. App. 652, 169 S.E.2d 29 (1969); Rea v. Rea, 195 Or. 252, 245 P.2d 884 (1952); Baker v. Vidal, 363 S.W.2d 158 (Tex. Civ. App. 1962) (disapproval of private interview); note, 99 A.L.R.2d 954; comment, “Use of Extra-Record Information in Custody Cases,” 24 U. Chi. L. Rev. 349 (1957). For those courts which have approved the practice, the conditions under which such an interview should be conducted and preserved for the record have varied considerably. See, e.g., Bailey v. Bailey, supra (court’s promise of confidentiality to child should be honored); Marshall v. Stefanides, supra (stenographic record required); Roudabush v. Roudabush, supra (informal interview approved); Fleishman v. Walters, 40 App. Div. 2d 622, 336 N.Y.S.2d 511 (1972) (stenographic record required).

We find ourselves in accord with those courts which have prohibited such a practice. We conclude that in the absence of the consent of the parties to such a procedure it is a violation of due process of law for the trial court to interview a minor child in the absence of the parties and their counsel. In re Gibbons, supra; Cook v. Cook, supra; see Jenkins v. Jenkins, supra, 112-13.

We are aware that the judicial practice of interviewing a minor child privately in visitation and custody disputes is not uncommon, either in Connecticut or in other jurisdictions. We are aware, moreover, that it has gained fairly widespread approval by appellate courts. We are also aware, however, as the plaintiff here conceded at oral argument, that such a practice carves out the only place in our jurisprudential landscape in which, without the parties’ consent, the factfinder deciding the ultimate merits of a controversy is permitted to consider evidence which is presented to it in the absence of the parties and their counsel. Ordinarily, so-called “secret evidence” has long been thought to be constitutionally invalid. See, e.g., Interstate Commerce Commission v. Louisville & Nashville R.R. Co., 227 U.S. 88, 33 S. Ct. 185, 57 L. Ed. 431 (1913); Jaffe v. State Department of Health, 135 Conn. 339, 345-47, 64 A.2d 330 (1949).

We must begin our inquiry, therefore, with the basic proposition, articulated by our Supreme Court in a closely related context, that in deciding on custody and visitation a court must “exercise [its] authority in a manner consistent with the due process requirements of fair notice and reasonable opportunity to be heard. Without a hearing, a trial court may not adjudicate a question of such vital importance to the parties, and one so inherently fact-bound in its resolution. Before a parent is permanently deprived of legal custody, or any change is made therein, the usual and ordinary procedures of a proper and orderly hearing must be observed.” Strohmeyer v. Strohmeyer, 183 Conn. 353, 356, 439 A.2d 367 (1981) (court may not, sua sponte, award joint custody in the absence of notice and hearing on that issue). Indeed, our rules of practice recognize this notion by requiring that a family relations case study report must be available to the parties and their counsel prior to the hearing and is only admissible in evidence if its author is available for cross-examination. Practice Book § 479. We note, moreover, that there is no statutory basis for the practice at issue here.

Surely such a legally extraordinary and unique procedure as a private interview between child and fact-finder, involving as it does a radical departure from “the usual and ordinary procedures of a proper and orderly hearing” on such an “inherently fact-bound” determination; Strohmeyer v. Strohmeyer, supra; must carry with it compelling reasons of necessity and value to the fact-finding process in order to command constitutional approval. Our examination of the reasons and values posited in favor of such a procedure does not persuade us that they justify such a departure.

The principal justifications advanced for the practice are the necessity of ascertaining the child’s preferences and feelings to the trial court’s very sensitive determination of custody or visitation, and the need to obtain that information in a way which will maximize the child’s freedom of expression and avoid the trauma of requiring an expression of those preferences and feelings in the ordinary adversarial setting or in the presence of the parents about whom the child is expressing them. See, e.g., Lavene v. Lavene, supra; Lincoln v. Lincoln, supra. We do not deny the sensitivity and difficulty of the custody or visitation decision. Nor do we deny the desirability of avoiding unnecessary trauma to the child involved in such a decision. These justifications, however, rest on several assumptions which we believe to be of sufficient doubt so as not to justify the practice; and they ignore other factors which we believe to be of sufficient weight to require its invalidity.

First, whether the child’s preferences and feelings as to custody and visitation are a significant factor in the court’s ultimate determination of the best interest of the child will necessarily depend on all the facts of the particular case, including the child’s age and ability intelligently to form and express those preferences and feelings. See, e.g., General Statutes § 46b-57. Thus, the necessity of such information is undercut, because it cannot be said that that category of information is so important that the court would almost invariably want or need it. Indeed, in this case the court volunteered, at the hearing on the defendant’s motion to release the transcript of the interview, that its decision would not have changed had it not spoken to the child. Thus, in this case the value to the factfinding process was marginal at best.

Second, even when it is elicited, the information may be of questionable accuracy. A child caught up in the maelstrom of family strife may produce, to the psychologically untrained eye and ear, distorted and thus misleading images not only of the child’s parents but of the child’s own feelings; and those feelings themselves may be transient. See Lincoln v. Lincoln, supra, 273.

Third, parents learn through long, and sometimes painful, experience with their children that how a child expresses something is often more important than what is expressed. Our law places a rightful premium on the ability of the factfinder to judge a witness’ testimony by his demeanor; see Sportsmen's Boating Corporation v. Hensley, 192 Conn. 747, 750, 474 A.2d 780 (1984); and thus on the parties’ right as well to be present at the witness’ testimony so as to be able to challenge that testimony by reference to that demeanor. The trial judge who undertakes, without parental consent, to interview a child in private denies the objecting parent his comparable right, if he wishes to exercise it, to view his child’s demeanor and to give the court the benefit of his experience with the child in that regard.

Fourth, the continued vitality of our judicial system rests in part on the continued perception on the part of its participants of the basic fairness of its procedures. So long as the judicial process has, of necessity, committed to it the task of deciding, for parents who cannot agree between themselves, the custody and visitation of their children, the procedures by which that decision is reached must at the least leave those parents with the perception of fairness. Secret evidence secured by the court over a parent’s objection can only undermine to an impermissible degree that perception. In this case the trial court’s statement to the effect that its decision would have been the same in the absence of the interview cannot be taken to cure the error; that statement cannot be expected to erase the objecting party’s reasonable perception of unfairness.

If both parties do not agree to an in chambers interview between the trial judge and the child in their absence, the full panoply attendant on the usual adversary hearing is not the only choice available to the parties and the court. There is a spectrum of available choices. At one end is the choice of simply proceeding without an expression of preference or feeling from the child. This may result from the fact that neither parent wishes to subject the child to the litigation process in any way. At the other end, of course, is the admittedly distasteful choice of having the child testify as would any other witness. This could only result from a conscious tactical choice by either parent, or both, and their counsel. We believe, however, that the likelihood of this happening with any frequency is minimal; and in any event the trial judge would have the discretion to minimize the impact on the child by requiring that this be heard in chambers or in a closed courtroom. See General Statutes §§ 46b-11 and 46b-49; Practice Book § 478.

In between these two extremes, the court may glean the child’s preferences and feelings from the contents of a family relations case study report admitted into evidence under Practice Book § 479; and from the testimony of the domestic relations officer and any experts or other witnesses who have had contact with the child. In this connection, we are in accord with the position taken by the New Jersey courts: “Such few remarks attributed to the child as were given in the testimony did not go to contested facts but to the child’s emotional reactions. The rules of evidence are somewhat relaxed in trials having to do with a determination of custody of [or visitation with] an infant where it is necessary to learn of the child’s psychology and preferences. Therefore it is sometimes pertinent to bring to the court’s knowledge the temperament, disposition and reactions of the child by testimony that borders upon hearsay in that it embraces a recital of the child’s remarks. Such testimony, however, is not strictly hearsay because the objective and the result are to look into the child’s mind and not to establish the truth or falsity of other matters set up as facts.” Callen v. Gill, 7 N.J. 312, 318, 81 A.2d 495 (1951); see also Tait & LaPlante, Handbook of Conn. Evidence § 11.13 (declarations of state of mind as exception to the hearsay rule).

We emphasize that we do not, by this decision, preclude an interview in chambers between judge and child, in the absence of the parties or their counsel, where both parties and the attorney for the child consent. Whether to conduct such an interview remains, of course, within the court’s discretion; and the procedures governing it remain a matter of agreement among all concerned, including the court. If such an interview takes place we strongly recommend that a domestic relations officer, who is likely to be more familiar to the child than the judge, be present. Furthermore, some record of the interview must be made immediately available to the parties before the trial proceeds further, and the record must be preserved for appellate review. The record may be established by a court reporter present at the interview, in which case the notes should be read to the parties and counsel immediately; but that is not necessary. The parties and the court may not deem it necessary that a court reporter be present, in order to maximize the informality of the interview process; in that case the court must, after the interview, state on the record a summary of the interview and invite comments from anyone else present at the interview to supplement its summary. The twin purposes of this record-making requirement are to provide the parties with the evidence which has thus been presented to the fact finder in their absence, so that they can guide themselves accordingly throughout the rest of the hearing, and to preserve for review that part of the evidence which otherwise would be shielded from appellate scrutiny. See Marshall v. Stefanides, supra.

It follows from what we have said that the court erred in conducting the private interview in this case. This conclusion renders it unnecessary for us to consider the defendant’s other claims of error, since it is not clear that they will arise again.

There is error, the judgment modifying the judgment of dissolution is set aside and the case is remanded for a new hearing on the motion for modification.

In this opinion the other judges concurred.

       This appeal, originally filed in the Supreme Court, was transferred to this court. Public Acts, Spec. Sess., June, 1983, No. 83-29, § 2 (c).

       The defendant moved in the trial court for unsealing of the transcript for purposes of appellate review. The court denied this motion. The defendant then moved in the Supreme Court for review of this action. The Supreme Court granted the motion for review but denied the relief requested. In view of our disposition of the case it has not been necessary for us to examine the transcript.

       We note that in this protracted and bitterly contested visitation dispute the court did not deem it necessary to appoint an attorney for the minor child. Our Supreme Court has recently and repeatedly emphasized that such an appointment under these circumstances is the better practice. See Salvio v. Salvio, 186 Conn. 311, 324-25, 441 A.2d 190 (1982); Presutti v. Presutti, 181 Conn. 622, 637 n.11, 436 A.2d 299 (1980). Such an appointment should have been made here; and when there is such an attorney the absence of that attorney’s consent would be of equal constitutional moment.

       General Statutes § 46b-49 provides that the court may order that a visitation hearing, inter alia, “be private. The court may exclude all persons except the officers of the court, a court reporter, the parties, their witnesses and their counsel.” Cf. General Statutes § 46b-138, which provides that in a juvenile matter the “conversations of the judge with a child or youth whose case is before the court shall be privileged.” We express no opinion on the constitutionality of this statute.

       General Statutes § 46b-57 permits the court, in fashioning custody and visitation orders, to “giv[e] consideration to the wishes of the child if he is of sufficient age and capable of forming an intelligent preference.”

       Thus, we regard as constitutionally insufficient the requirement, thought sufficient by some courts; see Marshall v. Stefanides, 17 Md. App. 364, 302 A.2d 682 (1973); that the record of the interview be made immediately available to the parties.

       For example, the parties and court may agree that neither the parties nor their counsel attend; or that counsel, but not the parties, attend; and that counsel, if attending, may or may not participate in the actual interview process.


text:
    Joan Vaiuso v. Joseph Vaiuso
    (2850)
    Testo, Dupont and Borden, Js.
    Argued April 3
    decision released June 12, 1984

      Randall B. Chapnick, for the appellant (defendant).

      Wesley W. Horton, with whom, on the brief, was William R. Moller, for the appellee (plaintiff).
   Borden, J.

This is an appeal by the defendant from the judgment of the trial court dissolving the marriage of the parties. The defendant, on appeal, makes a wholesale attack on the trial court’s factual findings and conclusions. Because the trial court’s determinations are subject to limited review in domestic relations cases; Carpenter v. Carpenter, 188 Conn. 736, 739, 453 A.2d 1151 (1982); and because the trial court’s findings and conclusions are supported by the evidence on the whole record, we find no error.

The trial court found a number of facts as hereinafter discussed. The parties were married in September, 1973, when the plaintiff was twenty-nine years old and the defendant was twenty-four years old. No minor children were born to the parties, although the plaintiff was very eager to have a family and had made the defendant aware of her eagerness in her discussions with him prior to their marriage. In those discussions the plaintiff told the defendant that because of her concern about the recurrence of cancer which she had had in her reproductive organs in 1969, and because of her age, she wanted to start a family immediately after the marriage. The defendant agreed. After the marriage, however, he persuaded her that they should not attempt to have children during the first year because of financial reasons. After the first year of marriage their financial situation improved, but the defendant still continued to refuse to start a family. Communication between them broke down almost completely and the plaintiff, eager to work out their marital problems, urged the defendant to join in marital counseling but he refused. The plaintiff herself ultimately began counseling with a priest. As a result of the defendant’s inattention toward the plaintiff, his refusal to have a family and his refusal to participate in marital counseling, the plaintiff instituted an action to dissolve their marriage in 1975. The parties were separated for a period of about nine months after that action was commenced and, on the eve of the final hearing for dissolution, the plaintiff contacted the defendant and told him of her continuing desire to work out their marital problems. The defendant agreed to continue the marriage, but only on his terms. The plaintiff agreed and they reconciled. Thereafter, the defendant’s continued lack of affection, his inattentiveness to the needs of the plaintiff, his insulting comments to her, and his involvement with his family and friends to the exclusion of the plaintiff, led to the present action by the plaintiff to dissolve the marriage.

The trial court further found that both parties were gainfully employed during the marriage. The plaintiff was employed in various secretarial positions until 1979 when she opened her own hypertrichology business. The defendant worked throughout the marriage for Vaiuso Farms, Inc., a family business of which he is a twenty-five percent owner. In addition, he partially owns and operates a business known as J & J Christmas Trees, and he also owns and operates a snowplowing business.

With respect to the parties’ ownership of real property, the trial court made certain factual findings. Shortly before the marriage, the defendant purchased a two family house on Leete Street, West Haven, title to which was placed in his name and his father’s name although the defendant provided all the consideration. After the marriage the defendant continued to hold title to that property jointly with his father for several years until it was sold, even though during that time the parties occupied it as their marital home. The house was sold in 1978 and the defendant testified that he received a check for approximately $25,000 at the time of the closing. He did not, however, provide the court with an explanation as to the disposition of the funds. The parties acquired a two-family house on Thompson Street, West Haven, in 1974 which was sold in 1978. The defendant testified that he received approximately $9000 at the time of the closing. He could not, however, offer any explanation as to the disposition of the proceeds from the sale. The parties jointly owned a one-family home on Hickory Hill Road, Branford, subject to a first mortgage having a balance of $38,000. The defendant’s real estate appraiser valued the home at $150,000.

The findings of fact by the trial court as to personal property were as follows. The plaintiff operates a hypertrichology business which she started in 1979 with less than $2000 worth of furniture and equipment. The plaintiff and the defendant have divided the furniture and furnishings from the home. The defendant owns twenty-five percent of the farm business; the value of his share of that business was more than the $2000 he claimed in his financial affidavit. The defendant maintained an unusual relationship with his family in that he had bank accounts in his name and his father’s name, in his name and his mother’s name, and in his name and his cousin’s name under the trade name of J & J Christmas Trees. He owns equipment in his snowplowing business and in the J & J Christmas Tree business.

The court further found that, although the defendant is a hard-working man, his concern for money and wealth was always much more important to him than his wife and his marriage. It also found that the years, during which the plaintiff, who is thirty-eight years old, could have realized her desire for giving birth to a family, have passed her by because of her dedication to the marriage and to her continued efforts to make it work. The court concluded that the defendant was primarily responsible for the breakdown of the marriage. It awarded the defendant’s interest in the family home on Hickory Hill Road, Branford, to the plaintiff as lump sum alimony. The court also found that the plaintiff had no liquid assets and awarded her $6500 in counsel fees.

The defendant has taken a shotgun approach in this appeal; see Baker v. Baker, 166 Conn. 476, 478, 352 A.2d 277 (1974); and has assigned as error virtually all of the trial court’s findings and conclusions. The plaintiff urges us not to consider the issues raised by the defendant because of his failure to comply with Practice Book § 3060F in that he did not properly state the facts of the case. In view of the fact that the defendant properly set forth the facts in his reply brief, and in the interests of justice, we will review his claims. See Practice Book § 3164; Pisel v. Stamford Hospital, 180 Conn. 314, 330, 430 A.2d 1 (1980).

The principal issue on appeal is whether the trial court abused its discretion in awarding the defendant’s interest in the family home to the plaintiff as lump sum alimony. In this connection, he argues that the court erred in concluding that he failed to account for approximately $34,000 in funds he received from the sale of two houses, one on Leete Street and the other on Thompson Street, West Haven. He maintains that both parties testified that the proceeds from the sale of these properties went toward the purchase of the house on Hickory Hill Road, Branford.

The parties’ testimony on the disposition of these funds was far from clear. While the plaintiff testified that part of the funds was used to purchase the house on Hickory Hill Road, the defendant testified that the $9000 from the Thompson Street sale was placed in a savings account. He was, however, unable to state in what bank it was deposited or what the funds were used for. With respect to the $25,000 from the Leete Street sale, the defendant testified that he did not know what happened to it. At the second hearing held in this case, on September 15,1982, the defendant offered no evidence regarding the disposition of the funds.

The ultimate question before us on this issue is whether the trial court could have reasonably concluded that the defendant did not account for the funds. See Corbin v. Corbin, 179 Conn. 622, 624, 427 A.2d 432 (1980). The weight given to the evidence before it and the credibility of the witnesses are within the sole province of the trial court. Carpenter v. Carpenter, supra, 742; Dubicki v. Dubicki, 186 Conn. 709, 713, 443 A.2d 1268 (1982); Corbin v. Corbin, supra, 624-25. Our review of the record before us indicates that the defendant was in almost total control of the parties’ finances. He failed, however, to provide the court with an explanation as to the disposition of the funds. Moreover, although the testimony might have supported a different finding, the trial court was not bound to accept as persuasive even testimony that was not directly contradicted. Johnson v. Healy, 176 Conn. 97, 103, 405 A.2d 54 (1978). It was therefore reasonable for the court to conclude as it did. See Leveston v. Leveston, 182 Conn. 19, 24, 437 A.2d 819 (1980).

The defendant maintains that on the basis of all the evidence before it and on the basis of the law, the court could not have reasonably concluded as it did in awarding the parties’ real estate to the plaintiff as lump sum alimony. In determining whether to award alimony, and the amount of the award, the court “ ‘shall consider the length of the marriage, the cause for the . . . dissolution of the marriage . . . the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties and [any property] award . . . pursuant to section 46b-81 . . . .’ ” Weiman v. Weiman, 188 Conn. 232, 234, 449 A.2d 151 (1982), quoting General Statutes § 46b-82. The court is, however, under no obligation to make express findings as to each of these statutory criteria; Carpenter v. Carpenter, 188 Conn. 736, 740, 453 A.2d 1151 (1982); and we, as a reviewing court, will not vary the weight placed upon specific statutory criteria or the weight placed upon documentary or testimonial evidence. Barnes v. Barnes, 190 Conn. 491, 495, 460 A.2d 1302 (1983). Our review is limited to determining whether the trial court abused its discretion in making its financial award. Id., 494. In the present case, the trial court filed an exhaustive memorandum of decision, in which it considered the statutory criteria. Its final determination is legally and logically consistent with the facts found and will not be disturbed. Vanderlip v. Vanderlip, 1 Conn. App. 158, 160, 468 A.2d 1253 (1984). We note, moreover, that “[t]he power to act equitably is the keystone to the court’s ability to fashion relief in the infinite variety of circumstances which arise out of the dissolution of a marriage.” Pasquariello v. Pasquariello, 168 Conn. 579, 585, 362 A.2d 835 (1975); Anderson v. Anderson, 191 Conn. 46, 57, 463 A.2d 578 (1983).

The defendant next argues that trial court erred in concluding that the parties had divided the furniture and furnishings from their home. He contends that the plaintiff’s own testimony refuted this factual conclusion. Our review of the transcript indicates that the plaintiff testified that they had agreed on a division of these items of personalty and that the relative values of what she took and what he took were equal. She also, in her testimony, specifically claimed entitlement to the items which she had taken. The defendant did not, in his testimony, claim that there was no such agreement. He merely disputed the relative values of what each party had taken. Nowhere does it appear in this record that the defendant requested the court to reallocate the items of personalty taken by each, which were listed on exhibits in this case. Under these circumstances, we find no abuse of discretion in the court’s leaving the personalty in its status quo.

The defendant contends that the trial court erred in determining that he owned or had control of at least $30,000 of funds actually owned and controlled by Vaiuso Farms, Inc., and that the true value of his interest in the farm was more than $2000. The court reached no such conclusion. What the court concluded was that the value of the defendant’s interest in the farm, including sums on deposits in banks, the value of the farm equipment and the value of the good will of the business, was more than the $2000 he claimed in his financial affidavit. The discussion about the $30,000 concerned the court’s attempt to estimate the size of the farm’s bank accounts from the interest that passed through, for federal income tax purposes, to the defendant in 1980. This conclusion is not clearly erroneous in light of the evidence in the record as a whole.

The defendant maintains that the court based its valuation of his interest in the farm primarily upon $1850.08 of savings bank interest which was passed through to him, for federal income tax purposes, from the farm’s account and that the court disregarded the fact that the farm was a subchapter S corporation. Our reading of the memorandum of decision does not indicate that the court primarily relied on this one finding in reaching its conclusion as to the defendant’s interest in the farm. In any event, the defendant could have moved pursuant to Practice Book § 3082 for the trial court to clarify its decision. See Barnes v. Barnes, supra, 493-94. Since it is the responsibility of the appellant to provide us with an adequate appellate record, we decline under the present circumstances to remand the case to correct an alleged deficiency which the appellant could have remedied. Id., 494; Urban v. Leggio, 1 Conn. App. 226, 228, 470 A.2d 1226 (1984).

The defendant argues next that the court erred in disregarding the fact that his Christmas tree business was a partnership, in that it attributed all the assets of the partnership to him; it attributed nonexistent assets to the partnership; it did not take into consideration the liabilities of the partnership; and it faulted the defendant for having a bank account with his cousin under the trade name of the partnership.

Although certain of the court’s findings with regard to the defendant’s partnership with his cousin are somewhat ambiguous, we cannot, in view of the defendant’s failure to move for clarification of the court’s decision, say that the court’s conclusion was clearly erroneous. Practice Book § 3082; Urban v. Leggio, supra, 228. Moreover, our review of the record indicates that much if not all of the evidence relating to the partnership was in the possession and control of the defendant and his cousin. The court found that the defendant had a safe-deposit box in the name of J & J Christmas Trees; that he failed to disclose the existence of the safe-deposit in his interrogatories before the trial; that at about the time this action commenced he arranged to have his name removed from the box; that the box still contains the records of the business; and that the partnership was almost entirely a cash business. Where a party through his own wrongful conduct limits the financial evidence available to the court, that party cannot complain about the resulting calculation of a monetary award. Leveston v. Leveston, supra, 24.

The defendant next maintains that the court erred in concluding that he owned the equipment in his snowplowing business, when this conclusion is completely unsupported by any evidence. Our review of the transcript indicates that there was ample evidence to support the court’s conclusion on this issue. Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980).

The defendant argues that the court erred in concluding that he had an “unusual relationship” with his family. The court found that throughout the marriage the defendant maintained bank accounts in his name and his father’s name, in his name and his mother’s name, and in his name and his cousin’s name. In addition, the court found that although from 1973 to 1979 the defendant was the owner of the property in which the parties made their marital home, title to the property was held in his name and his father’s name. In view of these findings, which are supported by the evidence on the record, the court’s conclusion that the defendant maintained an unusual relationship with his family is not clearly erroneous. Id.

The defendant next argues that the court erred in concluding that a thirty-eight year old woman cannot give birth to children and that the plaintiff herself was not able to do so. We do not read the court’s conclusion as stating that a thirty-eight year old woman cannot give birth. While it could, perhaps, have been more aptly stated, the gist of the court’s conclusion was that, because of the plaintiff’s efforts to make the marriage work by complying with the defendant’s wishes, the years, during which her desire to give birth to children and raise a family was likely to be realized, had passed her by.

The defendant next argues that the trial court erred in concluding that he was the cause of the marital breakdown. The court made extensive findings of fact with respect to the cause of the marital breakdown. Its conclusion that the defendant was the cause of the breakdown embraces those findings; is well articulated in the memorandum of decision; is sufficiently supported by the evidence on the record; and is not clearly erroneous. Pandolphe’s Auto Parts, Inc. v. Manchester, supra.

The defendant finally argues that the trial court erred in awarding $6500 in attorney’s fees to the plaintiff. He maintains that, from all the evidence, it was quite clear that neither party had ample liquid funds with which to pay counsel fees. Whether to allow counsel fees, and if so in what amount, lie within the broad discretion of the trial court. Anderson v. Anderson, supra, 58. In exercising its broad discretion, the court must consider the statutory criteria set out in General Statutes §§ 46b-62 and 46b-82 and the respective financial abilities of the parties. Anderson v. Anderson, supra, 58-59. In the present case, the court found that the plaintiff did not have any liquid assets with which to pay her attorney. Whether a party has ample liquid funds to pay counsel fees is determined by examining the total financial resources of the parties in light of the statutory factors. Id., 59. We have carefully considered the totality of the circumstances reflected in the court’s financial awards and we cannot say that it abused its discretion and acted unreasonably in granting the plaintiff’s request for counsel fees.

The defendant concedes that the postjudgment orders which he assigned as error are not properly before us and need not be considered. One involving counsel fees for the plaintiff to defend this appeal was not considered by this court because it was not properly appealed; Practice Book §§ 3062, 3096; and the other, involving a stay on appeal, has been lifted.

There is no error.

In this opinion the other judges concurred.

       This appeal, originally filed in the Supreme Court, was transferred to this court. Public Acts, Spec. Sess., June, 1983, No. 83-29, § 2 (c).

       J & J Christmas Trees is a partnership owned and operated by the defendant and his cousin.

       Although on cross-examination the plaintiff also testified that there was not an agreement on all the items, she did testify several times, on direct examination in her case in chief and in her rebuttal evidence, that there was such an agreement.

       The corporation was a subchapter S corporation. See I.R.C. § 1361 et seq. (1982).


author: Testo, J.

text:
    University of Hartford v. City of Hartford
    (2401)
    Testo, Hull and Borden, Js.
    Argued April 4
    decision released June 19, 1984

      Edward F. Hennessey, for the appellant (plaintiff).

      Richard M. Cosgrove, deputy corporation counsel, with whom, on the brief, was Richard H. Goldstein, corporation counsel, for the appellee (defendant).
   Testo, J.

This appeal arises from the dismissal by the Superior Court of the plaintiff’s tax appeal from the denial of tax exempt status with respect to certain property in Hartford by the board of tax review of the city of Hartford. In its complaint, the plaintiff requested partial tax exempt status on the tax list for 1980 for a building it leases at 967-983 Asylum Avenue in Hartford, and in the amended complaint for the partial exemption on the list for 1981. The question to be determined is whether the plaintiffs leasehold interest qualifies for tax exemption under General Statutes § 12-81 (7).

The facts are not in dispute. The subject property was acquired on June 24, 1964, by the lessor, Hartford National Bank and Trust Company, as trustee under a will. On that date, by written lease, it leased the land with a building on it to three individuals. A notice of the lease was recorded on the land records of the city of Hartford on February 17, 1965. The lease period extended from May 1,1964, to April 30, 2027, at specified rents. After April 30,1975, the rent was to be an amount mutually agreeable to the lessor and lessee or as fixed by arbitration. The lessees agreed to demolish the building presently on the land and to erect another building subject to the lessor’s approval. The lessees assumed responsibility for repairs and maintenance of the new building and could make structural additions or alterations, subject to the lessor’s reasonable consent. The lessees also agreed to insure the property against all claims, to indemnify the lessor and to pay, as additional rent, all taxes assessed against the land and buildings. The lessees, however, could protest taxes in the name of the lessor and retain any refund obtained. They could assign the lease without the consent of or liability to the lessor, or mortgage the leasehold for future construction.

The lessees’ interest was assigned during the years between 1964 and 1979. On December 14, 1979, that assignee made a valid assignment of the lease to the plaintiff for the unexpired term of forty-eight years. At that time, there was a building on the land containing 157 units, mostly residential but some commercial. The plaintiff acquired the lease for additional student housing and expended over $500,000 to refurbish the building for that purpose. The leases of existing tenants were not renewed as their terms expired except in the case of elderly and handicapped tenants, who were allowed to continue occupancy indefinitely. By October 1,1980, the building was in use as a dormitory. Based upon square footage, 66.2 percent was for student housing and 33.8 percent for nonstudent use. This latter figure included all commercial tenants, all elderly and handicapped tenants and all persons associated with the plaintiff who serviced the student housing. From October 1, 1980, to October 1, 1981, the percentage of student occupancy increased. The plaintiff calculated the charge to students for on-campus housing on a maintenance and upkeep basis so that the amounts paid by the students produced no profit to the plaintiff. Depreciation was not included and actual costs were not met by the students’ charges. The charges made to students occupying the leased property in issue were calculated on the same basis as on-campus housing plus added costs for security personnel and transportation to and from the campus. Rents from the commerical unit produced a fair profit, but rents from the elderly and handicapped operated at a loss. Overall revenue from the building produced a loss, aside from any allowance for depreciation, in the amount of $48,000 in 1980 and $351,000 in 1981.

The land and building has always been assessed to the Hartford National Bank and Trust Company, as trustee and record owner of the fee. On October 1, 1980, and October 1,1981, the defendant’s assessors assessed the land for $292,510 and the building for $996,310. The assessments were based on 70 percent of the market value of $417,870 for the land and $1,423,300 for the building. The exemption claimed by the plaintiff in each year has been 66.2 percent of the $996,310 assessed against the building amounting to $659,557. The plaintiff has conceded liability under the terms of the lease for the balance of $336,753 assessed against the building and $292,510 against the land.

On appeal, the plaintiff claims that the trial court erred (1) in concluding that the property interest held by the plaintiff did not constitute “real property” within the meaning of General Statutes § 12-81 (7); and, alternatively, (2) in concluding that, notwithstanding General Statutes § 12-64 which includes all air right easements within the definition of taxable interests in real estate, the statute did not apply to the property interest held by the plaintiff within the meaning of § 12-81 (7).

A trial court’s conclusions are tested by its findings, and a conclusion cannot stand if it is legally or logically inconsistent with the facts found or if it involves some erroneous rule of law applicable to the case. Red Top, Inc. v. Board of Tax Review, 181 Conn. 343, 347, 435 A.2d 364 (1980); Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980); Hallmark of Farmington v. Roy, 1 Conn. App. 278, 280, 471 A.2d 651 (1984). General Statutes § 12-81 (7) exempts from taxation, subject to the provisions of § 12-88, all real property of, or held in trust for, a corporation organized exclusively and used exclusively for educational purposes. Red Top, Inc. v. Board of Tax Review, supra, 350; New Canaan Country School, Inc. v. New Canaan, 138 Conn. 347, 349, 84 A.2d 691 (1951); Connecticut Junior Republic Assn., Inc. v. Litchfield, 119 Conn. 106, 108, 115, 174 A. 304 (1934). Section 12-88 requires that the real property mentioned in subdivision (7) of § 12-81 belong to or be held in trust for such an organization. Hartford Hospital v. Hartford, 160 Conn. 370, 372-73, 279 A.2d 561 (1971).

The general rule of construction in taxation cases is that provisions granting an exemption from a tax are to be construed strictly against the party claiming the exemption. Sachem’s Head Assn. v. Board of Tax Review, 190 Conn. 627, 629, 461 A.2d 995 (1983); Oxford v. Beacon Falls, 183 Conn. 345, 346, 439 A.2d 348 (1981). As far as educational institutions are concerned, however, § 12-81 (7) “does not grant an exemption in the technical sense.” Rather, it merely states a rule of nontaxability, and consequently does not fall within the general rule. Hartford Hospital v. Hartford, supra, 374; Arnold College v. Milford, 144 Conn. 206, 210, 128 A.2d 537 (1957); Yale University v. New Haven, 71 Conn. 316, 329-33, 42 A. 87 (1899).

In the present case, we need not determine whether the building in question is used exclusively for educational purposes, if the plaintiffs interest therein does not constitute “real property” within §§ 12-81 (7) and 12-88. In interpreting statutes such as these which are clear and unambiguous, it is the duty of the reviewing court to apply the legislature’s directive since “where the wording is plain, courts will not speculate as to any supposed intention because the question before a court then is not what the legislature actually intended but what intention it expressed by the words that it used.” P. X. Restaurant, Inc. v. Windsor, 189 Conn. 153, 159, 454 A.2d 1258 (1983), quoting Robinson v. Unemployment Security Board of Review, 181 Conn. 1, 6, 434 A.2d 293 (1980); In re Petition of State’s Attorney, Cook County, Illinois, 179 Conn. 102, 106-107, 425 A.2d 588 (1979); Phipps v. Niejadlik, 175 Conn. 424, 434, 399 A.2d 1256 (1978). For the plaintiff to qualify for a 66.2 percent'tax exemption, its interest under the lease must be considered ownership of real property or be held in trust for it.

It is settled law in this state that real property taxes are normally assessed against the owner. Lerner Shops of Connecticut, Inc. v. Waterbury, 151 Conn. 79, 82-84, 193 A.2d 472 (1963); Montgomery v. Branford, 107 Conn. 697, 701, 142 A. 574 (1928). Leased property is assessed against the lessor as the owper' of the freehold estate; see Montgomery v. Branford, supra; who by statute is obligated to pay the tax even though the lessee, as herein, agreed to pay the taxes. Lerner Shops of Connecticut, Inc. v. Waterbury, supra.

There are, however, certain circumstances under which the lessee has been treated as the fee owner for tax purposes. See Russell v. New Haven, 51 Conn. 259 (1883); Parker v. Redfield, 10 Conn. 490 (1835); see also Osborne v. Humphrey, 7 Conn. 335 (1829) (building used for gospel ministry leased for 999 years). For example, in Parker, it was held that buildings erected by the lessee under an agreement that they may be removed at the end of the lease term, were deemed to be the property of the lessee and taxable. Parker v. Redfield, supra, 495-97. Likewise, our Supreme Court concluded in Russell that the ownership of the building was in the lessee, because the lease agreement provided for the purchase of the building by the lessor and was drawn up in such a manner as to exclude the idea of ownership in the lessor. Russell v. New Haven, supra, 261-62. The plaintiffs lease agreement in this case does not fall within these situations. Its lease clearly indicates that the building to be erected would be subject to a substantial measure of supervision and control by the lessor, not only in its design and construction but also in its subsequent operation. In addition, the lease is for forty-eight years and does not provide for either the removal of the buildings or for their purchase by the lessor at the end of the lease term. We cannot, therefore, say that the trial court’s conclusion that the plaintiff’s leasehold interest is an insufficient indicium of ownership to qualify as “real property” within the definition of the tax statutes was clearly erroneous.

Alternatively, the plaintiff maintains that even if the interest created by this lease would not be deemed “real property” within the meaning of § 12-81 (7), the 1967 amendment to General Statutes § 12-64 which included air right easements within the definition of taxable interests in real estate applied to the property interest held by the plaintiff and made such interest “real property” within the meaning of § 12-81 (7).

The introductory language of § 12-64 states: “All of the following-mentioned property, not exempted, shall be set in the list of the town where it is situated and . . . shall be liable to taxation . . . .” “The subsequent enumeration recites only specific tangible property (buildings, lots, etc.) with the otherwise single exception of ‘easements to use air space.’ ” Hartford Electric Light Co. v. Wethersfield, 165 Conn. 211, 218, 332 A.2d 83 (1973). This language gives the assessors the authority to impose a tax on any of the enumerated items situated in their respective towns. Id., 218-19. The purpose behind defining an easement to use air space as an interest in real estate was to “allow a municipality to tax air rights above its property, railroad tracks and streets.” Id., 223. The plaintiff’s leasehold interest in privately held land and the building thereon is not an easement to use air space within the purview of General Statutes § 12-64.

There is no error.

In this opinion the other judges concurred.

       This appeal, originally filed in the Supreme Court, was transferred to this court. Public Acts, Spec. Sess., June, 1983, No. 83-29, § 2 (c).

       General Statute^ § 12-81 (7), in relevant part, exempts from taxation the following property: “Subject to the provisions of section 12-87 and 12-88, the real property of, or held in trust for, a corporation organized exclusively for scientific, educational, literary, historical or charitable purposes or for two or more such purposes and used exclusively for carrying out one or more of such purposes and the personal property of, or held in trust for, any such corporation, provided (a) any officer, member or employee thereof does not receive or at any future time shall not receive any pecuniary profit from the operations thereof, except reasonable compensation for services in effecting one or more of such purposes or as proper beneficiary of its strictly charitable purposes, and provided (b) in 1965, and quadrennially thereafter, a statement on forms prepared by the secretary of the office of policy and management shall be filed on or before the last day required by law for the filing of assessment returns with the local board of assessors of any town, consolidated town and city or consolidated town and borough, in which any of its property claimed to be exempt is situated.”
      General Statutes § 12-87 provides: “During any year for which a report is not required by subdivisions (7), (10) and (11) of section 12-81, a report shall be filed during the time prescribed by law for the filing of assessment lists next succeeding the acquiring of property not theretofore made exempt by said subdivisions. Property otherwise exempt under any of said subdivisions and this section shall be subject to taxation until the requirements of said subdivisions and of this section have been complied with.”
      General Statutes § 12-88 provides: “Real property belonging to, or held in trust for, any organization mentioned in subdivision (7), (10), (11), (13), (14), (15), (16) or (18) of section 12-81, which real property is so held for one or more of the purposes stated in the applicable subdivision, and from which real property no rents, profits or income are derived, shall be exempt from taxation though not in actual use therefor by reason of the absence of suitable buildings and improvements thereon, if the construction of such buildings or improvements is in progress. The real property belonging to, or held in trust for, any such organization, not used exclusively for carrying out one or more of such purposes but leased, rented or otherwise used for other purposes, shall not be exempt. If a portion only of any lot or building belonging to, or held in trust for, any such organization is used exclusively for carrying out one or more of such purposes, such lot or building shall be so exempt only to the extent of the portion so used and the remaining portion shall be subject to taxation.”

       See footnote 2, supra.

       General Statutes § 12-64 provides in relevant part: “All the following-mentioned property, not exempted, shall be set in the list of the town where it is situated and, except as otherwise provided by law, shall be liable to taxation at a uniform percentage of its present true and actual valuation, not exceeding one hundred per cent of such valuation, to be determined by the assessors: Dwelling houses, garages, barns, sheds, stores, shops, mills, buildings used for business, commercial, financial, manufacturing, mercantile and trading purposes, ice houses, warehouses, silos, all other buildings, house lots, all other building lots, agricultural lands, shellfish lands, all other lands, quarries, mines, ore beds, fisheries, property in fish pounds, machinery and easements to use air space whether or not contiguous to the surface of the ground. An easement to use air space shall be an interest in real estate and may be assessed separately from the surface of the ground below it. Any interest in real estate shall be set by the assessors in the list of the person in whose name the title to such interest stands on the land records and, if the interest in real estate consists of an easement to use air space, whether or not contiguous to the surface of the ground, which easement is in the form of a lease for a period of not less than fifty years, which lease is recorded in the land records of the town and provides that the lessee shall pay all taxes, said interest shall be deemed to be a separate parcel and shall be separately assessed in the name of the lessee, and if the interest in real estate consists of a lease of land used for residential purposes which allows the lessee to remove any or all of the structures, buildings or other improvements on said land erected or owned by the lessee, which lease is recorded in the land records of the town and provides that the lessee shall pay all taxes with respect to such structures, buildings or other improvements, said interest shall be deemed to be a separate parcel and said structures, buildings or other improvements shall be separately assessed in the name of the lessee, provided such separate assessment shall not alter or limit in any way the enforcement of a lien on such real estate in accordance with chapter 205, for taxes with respect to such real estate including said land, structures, buildings or other improvements.”

       The 1967 amendments to General Statutes § 12-64 added to the third sentence “and, if the interest in real estate consists of an easement to use air space, whether or not contiguous to the surface of the ground, which easement is in the form of a lease for a period of not less than fifty years, which lease is recorded in the land records of the town and provides that the lessee shall pay all taxes, said interest shall be deemed to be a separate parcel and shall be separately assessed in the name of the lessee.” Public Acts 1967, No. 829.


author: Per Curiam.

text:
    Sandra Jannetty v. Joseph Jannetty
    (2391)
    Testo, Dupont and Borden, Js.
    Argued March 7
    decision released June 19, 1984

      Gary I. Cohen, with whom, on the brief, was John C. Bullock, for the appellant (plaintiff).

      Paul J. Yamin, for the appellee (defendant).
   Per Curiam.

This is an appeal from a postjudgment modification of a judgment rendered on March 17, 1982, in an action for the dissolution of marriage. The original judgment, in pertinent part, ordered that the parties would have joint custody of their fifteen year old child, with the recommendation that physical custody be with the plaintiff mother. The defendant was ordered to pay seventy dollars per week to the plaintiff for the support of the minor child “while [the child was] residing with the plaintiff or such daily portion thereof if not continuous.” Shortly after the rendition of the judgment, the defendant filed a motion to reargue and clarify, which was denied, after a hearing, on May 4, 1982. Nine days later the defendant filed a “motion for physical support and custody.” The trial court, DeMayo, J., modified the judgment by ordering that physical custody of the minor child be awarded to the defendant and that the plaintiff pay the defendant forty dollars per week as child support. The sole issue on appeal is whether the trial court erred in modifying the original financial orders. The claim of the plaintiff is that there was no evidence of a substantial change in circumstances of either party upon which such a modification could be based.

General Statutes § 46b-86 (a), in pertinent part, provides that “any final order for the periodic payment of permanent alimony or support . . . may at any time thereafter be continued, set aside, altered or modified . . . upon a showing of a substantial change in the circumstances of either party.” Decisional law makes it clear that the substantial change must not have been contemplated at the time of the original decree and must have arisen thereafter. Connolly v. Connolly, 191 Conn. 468, 473, 464 A.2d 837 (1983); Howat v. Howat, 1 Conn. App. 400, 402-403, 472 A.2d 799 (1984).

In the present case, the defendant did not show that there had been an uncontemplated substantial change in the circumstances of either party between the time of the final judgment and the modification, a period of less than two months.

As of the date of the original judgment, the memorandum of decision of the trial court makes it clear that the son was living with his paternal grandmother during the week and with his father during the weekend. The son, at that time, stated that he wished to live with his father. Since the trial court believed that the son’s interests might better be served by residing with his mother, it recommended that physical custody be with the mother. In contemplation of the eventuality that his son would reside with him, the defendant sought certain items of furniture which were in possession of the plaintiff. The trial court denied that request. The defendant’s post-trial motion for physical custody states, as its basis, that the minor child “desires to live with the defendant.” Since that fact was contemplated by the trial court at the time of the original judgment, it cannot serve as a foundation for the substantial change in circumstances necessary for modification of child support orders. Furthermore, the trial court, knowing that the physical custody of the son was not with the mother at the time, did not order her to pay any amount for child support.

The financial affidavits of the parties, filed at the time of the original judgment and at the time of the modification, differ only to the extent that they are reflective of the orders of the original judgment. The plaintiff had approximately $100 more in weekly income and the defendant had approximately $100 less in weekly income at the time of the modification hearing because of the original award of $100 to the plaintiff of weekly periodic alimony. Any difference in the dollar value of the assets of the plaintiff and the defendant during the same time period is also attributable to the original judgment. Such a change in the financial condition of the parties does not constitute an uncontemplated substantial change in their circumstances.

There is error, the judgment is set aside and the case is remanded to the trial court with direction to delete from the modification of the judgment, the order that the plaintiff pay the defendant forty dollars per week as child support.

       This appeal, originally filed in the Supreme Court, was transferred to this court. Public Acts, Spec. Sess., June, 1983, No. 83-29, § 2 (c).

       The plaintiff also claimed error in the trial court’s modification of that portion of the original judgment relating to custody. The trial court’s memorandum of decision in response to the plaintiff’s motion for articulation, however, makes it clear that there was no modification of the original joint custody order. This issue, therefore, is not considered by this court. Physical custody of the child, shortly after the dissolution of the marriage of the parties and at the time of oral argument was with the defendant father. In accordance with the original judgment, the plaintiff is not due any sums for child support as long as the child is not residing with her.

       At the time of the original judgment, the defendant’s financial affidavit indicated that he was paying $100 per week to his mother for the support of his son. Presumably, now that the child no longer resides with his grandmother, the defendant will be relieved of this obligation.


text:
    Marilyn Hotchkiss v. Christopher Barnhart
    (2089)
    Dannehy, C.P.J., Hull and Borden, Js.
    Argued March 6
    decision released June 19, 1984

      Sean C. Butterly, with whom was James P. Caulfield, for the appellant (plaintiff).

      Mitchell M. Berger, for the appellee (defendant).
   Per Curiam.

The plaintiff appeals from a judgment by the court in favor of the defendant in a negligence action arising out of an automobile accident at a highway intersection. The court found that the plaintiff was negligent in failing to yield the right of way when making a left hand turn thereby violating General Statutes § 14-242 (e). From the judgment, the plaintiff appeals.

The critical issue at the trial was whether the defendant had proceeded far enough into the intersection to constitute an “immediate hazard” within the meaning of General Statutes § 14-242 (e). The court found that the defendant had so proceeded, thereby obligating the plaintiff to yield the right of way to the defendant.

In a case of this type, the credibility of witnesses is of particular significance. It is axiomatic that it is within the province of the trial court to assess that credibility. Gallicchio Bros., Inc. v. C & S Oil Co., 191 Conn. 104, 109, 463 A.2d 600 (1983). The trial court is in the best position to observe the demeanor and conduct of the witnesses and parties, which is not reflected in a printed record. Lupien v. Lupien, 192 Conn. 443, 445, 472 A.2d 18 (1984). This court will not reject a factual finding unless it is clearly erroneous. Practice Book § 3060D; Lupien v. Lupien, supra. There is nothing in the record before us which indicates that the factual findings of the trial court were clearly erroneous.

There is no error.

       This appeal was originally filed in the Appellate Session of the Superior Court. Public Acts, Spec. Sess., June, 1983, No. 83-29, § 3 (c).


text:
    White Oak Corporation v. Department of Revenue Services
    (2386)
    Dannehy, C.P.J., Hull and Dupont, Js.
    Argued March 8
    decision released June 19, 1984

      Robert L. Klein, assistant attorney general, with whom, on the brief, was Joseph I. Lieberman, for the appellant (defendant).

      David J. Heinlein, with whom, on the brief, was Yolanda Sefcik, for the appellee (plaintiff).
   Per Curiam.

The plaintiff appealed, pursuant to General Statutes § 12-422, from a decision of the department of revenue services which assessed a use tax deficiency against it. The parties submitted a stipulation of facts to a state trial referee, Hon. Howard W. Alcorn, acting as the trial court, who rendered judgment for the plaintiff. The defendant appeals from that judgment. The stipulation of facts, in summary, states that the plaintiff provided the services of watchmen, traffic officers and flagmen, and provided flashing lights as was required by its contracts with the state for highway and bridge construction. The stipulation further provides that the state reimbursed the plaintiff for the cost. A use tax deficiency of $11,818.19 was assessed against the plaintiff on the purchase of these services and the rental of flashing lights. The tax was imposed under General Statutes § 12-411.

The issue of this appeal is whether the trial court erred in finding that the services in question and the rental of equipment were resold to the state and were therefore exempt from the use tax. The defendant argues that the services and equipment were not resold to the state but were used by the plaintiff in performing its contracts and that the plaintiff is not in the business of reselling these items.

The trial court filed a detailed memorandum of decision; White Oak Corporation v. Department of Revenue Services, 39 Conn. Sup. 234, 475 A.2d 343 (1982); which adequately discusses the facts and the sole issue. After examining the record and the briefs of the parties, we conclude that no further articulation of the law or facts is necessary. Faith Center, Inc. v. Hartford, 192 Conn. 434, 436, 472 A.2d 16 (1984); Hinchliffe v. American Motors Corporation, 192 Conn. 252, 253, 470 A.2d 1216 (1984). The trial court memorandum should be referred to for a detailed discussion.

There is no error.

       This appeal, originally filed in the Supreme Court, was transferred to this court. Public Acts, Spec. Sess., June, 1983, No. 83-29, § 2 (c).