text:
    Dennis Felsted et al. v. Kimberly Auto Services, Inc., et al.
    (9698)
    Dupont, C. J., Landau and Heiman, Js.
    Argued May 3
    decision released September 10, 1991

      Roger Sullivan, for the appellants (plaintiffs).

      James J. Giulietti, with whom, on the brief, was Richard J. Falcigno, for the appellee (defendant Terminal Taxi Company).
   Landau, J.

The plaintiffs, Dennis and Marilyn Felsted, brought a personal injury action alleging that on April 2, 1986, Dennis Felsted was injured while operating a Connecticut Transit Company bus, which was struck by a taxicab being towed by the named defendant, Kimberly Auto Services, Inc. (Kimberly). The jury returned a general verdict in favor of the plaintiffs against Kimberly and its driver, the defendant Erroll Marshall, and in favor of the defendant Terminal Taxi Company (Terminal).

The plaintiffs appeal from the judgment for defendant Terminal and challenge the court’s denial of their motion to amend their complaint. The plaintiffs claim that the court improperly (1) denied their request to amend their complaint and (2) charged the jury on the issues of agency and respondeat superior, on the burden of proof with regard to both agency and Terminal’s special defense, and on adverse inferences. We do not agree.

The jury reasonably could have found the following facts. On April 2, 1986, Dennis Felsted, while operating a bus, was directed by a police officer to stop his vehicle in order to permit a tow truck, owned and operated by Kimberly, to retrieve a disabled taxicab owned by Terminal. The taxicab, while under tow, struck the stopped bus resulting in injuries to Dennis Felsted. The tow truck had been summoned by the police department. Neither Terminal nor its driver, Robert Allen, took any part in the request for or selection of the tow truck.

I

The plaintiffs claim that the court improperly denied their April 12, 1988 request to amend their complaint in which they sought to add a third count alleging lessor liability under General Statutes § 14-154a. The court, acting on the basis of General Statutes § 52-584, denied the plaintiffs’ request “because the amendment presents a new cause of action which has been commenced more than two years from the date of the injury.”

The plaintiffs originally alleged, in their first and second counts, that “[a]s a principal or employe[r] of the Defendant Kimberly Auto Services, Inc., the Defendant Terminal Taxi Company is responsible for the said carelessness and negligence of its agent or employee and for all injuries and damage proximately caused thereby.” The plaintiffs sought to allege further that because Terminal leased the taxicab to the driver, it was also liable pursuant to § 14-154a for damage caused by the operation of its leased vehicle.

Section 52-584 provides that “[n]o action to recover damages for injury to the person, or to real or personal property, caused by negligence . . . shall be brought but within two years from the date when the injury is first sustained . . . .” Section 14-154a provides that “[a]ny person renting or leasing to another any motor vehicle owned by him shall be liable for any damage to any person or property caused by the operation of such motor vehicle while so rented or leased, to the same extent as the operator would have been liable if he had also been the owner.”

In amending a complaint “ ‘[i]t is proper to amplify or expand what has already been alleged in support of a cause of action, provided the identity of the cause of action remains substantially the same.’ ” Giglio v. Connecticut Light & Power Co., 180 Conn. 230, 239, 429 A.2d 486 (1980), quoting Gallo v. G. Fox & Co., 148 Conn. 327, 330, 170 A.2d 724 (1961). An amendment to a complaint that sets up a new and different cause of action speaks as of the date when it is filed. Sharp v. Mitchell, 209 Conn. 59, 71-72, 546 A.2d 846 (1988); Keenan v. Yale New Haven Hospital, 167 Conn. 284, 285, 355 A.2d 253 (1974).

Section 52-584 prohibits the requested amendment because the plaintiffs sought to amend their complaint on April 12,1988, more than two years after the cause of action accrued on April 2,1986. The plaintiffs’ original complaint involved the relationship between Terminal and Kimberly. The proposed third count, however, involved the relationship between Terminal and its driver. The first two counts and the proposed third count involved different sets of circumstances and depended on different facts to prove or disprove the allegations. See Sharp v. Mitchell, supra, 73. Because the new cause of action alleged in the third count involved a claim for personal injuries caused by negligence, it is one sounding in tort and is governed by the two year statute of limitations applicable to certain tort actions. The trial court, therefore, properly denied the plaintiffs’ motion to amend the complaint after the two year statute of limitations had run.

II

The plaintiffs, in a series of claims addressed to the trial court’s charge to the jury, argue that the court improperly (1) charged upon the issues of agency and respondeat superior liability, (2) charged upon the burden of proof as to the issues of agency and Terminal’s special defense that Kimberly was an independent contractor, (3) refused to charge on agency liability principles in accordance with § 427 of the Restatement (Second) of Torts, and (4) instructed the jury to draw no adverse inference from the failure of Terminal to call its driver, Robert Allen, as a witness.

In reviewing a challenge to jury instructions, we must examine the charge in its entirety. State v. Grullon, 212 Conn. 195, 204, 562 A.2d 481 (1989). While the instructions need not be “ ‘ “exhaustive, perfect or technically accurate,” ’ ’’they must be “ ‘ “correct in law, adapted to the issues and sufficient for the guidance of the jury.” ’ ” Preston v. Keith, 217 Conn. 12, 17, 584 A.2d 439 (1991). We conclude that the court properly instructed the jury.

A

The plaintiffs raise numerous challenges to the court’s instructions to the jury regarding the principles of agency and respondeat superior and their application to the facts of this case. The plaintiffs in essence claim that the trial court incorrectly commented upon evidence adduced at trial and thereby removed issues of fact from the jury’s consideration.

The matter of commenting on evidence rests in a trial court’s sound discretion. Kevin Roche-John Dinkeloo & Associates v. New Haven, 205 Conn. 741, 746, 535 A.2d 1287 (1988); State v. Pollitt, 205 Conn. 132, 155, 531 A.2d 125 (1987). Although a trial court has not only the right, but often the duty to comment on the evidence; State v. Pollitt, supra, 155-56; “ ‘[a] court’s review of the evidence in its charge to the jury is subject to the overriding consideration that its comments be fair and that they not mislead the jury, so that injustice is not. done to either party. . . .’ ” Kevin Roche-John Dinkeloo & Associates v. New Haven, supra, 745. The nature and extent of a court’s comments depend largely on the facts of a case and the manner in which it was tried. State v. Pollitt, supra, 155. “ ‘ “It is the duty of the trial judge, in submitting the law and the facts to the consideration of a jury, to refer to the testimony so far as may be necessary to assist the jury to a clear apprehension of the relation of the testimony, whose credibility they must determine, to the material facts they must decide .... It is evident that whenever this duty is well done, the charge must to some extent uncover the weakness of a weak case, the difficulties of a difficult case, or the strength of a strong case.” ’ ” State v. LaCasse, 9 Conn. App. 79, 85, 516 A.2d 145, cert. denied, 201 Conn. 815, 518 A.2d 72 (1986).

The plaintiffs take issue with the court’s comments regarding the lack of evidence that an express contract existed between Terminal and Kimberly, that Terminal did not hire Kimberly, that any subsequent instructions from Terminal to Kimberly after Kimberly had been summoned to the scene of the accident would not bear on the issue of prior authorization, as well as the court’s comment on Terminal’s denial that its drivers had the authority to employ tow operators or to have vehicles moved. A review of these comments indicates that the recitation was a fair and accurate portrayal of the testimony and facts adduced at trial. Moreover, the trial court cautioned the jurors to rely on their own recollection of the evidence, and not to rely on the court’s recitation of the facts.

B

The plaintiffs also assert that the court improperly charged the jury on the shifting burden of proof regarding the presumption of agency pursuant to General Statutes § 52-183 and Terminal’s special defense that Kimberly was an independent contractor.

Section 52-183 creates a rebuttable presumption that the operator of a motor vehicle is the “agent and servant of the owner of the motor vehicle and operating it in the course of his employment.” The presumption ceases to operate, however, “ ‘when the trier finds proven facts which fairly put in issue the question, and the burden of proving that the car . . . was operated by an agent of the owner . . . then rests upon the plaintiff ....’” Bogart v. Tucker, 164 Conn. 277, 282, 320 A.2d 803 (1973), quoting Koops v. Gregg, 130 Conn. 185, 188, 32 A.2d 653 (1943). Therefore, although Terminal initially had the burden of rebutting this statutory presumption, the burden of proving agency shifted to the plaintiffs once Terminal successfully rebutted the presumption. A review of the record reveals that the court properly instructed the jury that Terminal had the burden of rebutting the presumption and that the burden did not shift to the plaintiff until Terminal had overcome the presumption.

The defense of independent contractor, under our modern rule of pleading, should be specially pleaded. Royal Homes, Inc. v. Dalene Hardwood Flooring Co., 151 Conn. 463, 466, 199 A.2d 698 (1964). “The plaintiff, however, is still bound to prove the essential allegations of his complaint.” Janow v. Ansonia, 11 Conn. App. 1, 8, 525 A.2d 966 (1987). The burden of proving agency is on the plaintiffs. Botticello v. Stefanovicz, 177 Conn. 22, 26, 411 A.2d 16 (1979), citing Cyclone Fence Co. v. McAviney, 121 Conn. 656, 659, 186 A. 635 (1936). Although Terminal assumed the burden of proof that Kimberly was an independent contractor, the plaintiffs retained the burden of proving an agency relationship between Kimberly and Terminal. A review of the record reveals that the trial court properly charged on the plaintiffs’ burden of proving that Kimberly was Terminal’s agent and properly charged that Terminal had the burden of proving its special defense, and if it met its burden, that no liability could be imputed, and that Terminal would have a complete defense.

C

The plaintiffs next claim that the trial court incorrectly refused to instruct the jury on agency liability in accordance with 2 Restatement (Second), Torts § 427. They claim that the charge should have been given because the “risk realized was inherent in the towing work undertaken.”

To comply with our rules, a request to charge must be relevant to the evidence and issues presented in court. State v. Falcone, 191 Conn. 12, 26, 463 A.2d 558 (1983). The trial court should instruct the jury on only those issues that are relevant to the facts in issue. State v. Santangelo, 205 Conn. 578, 599, 534 A.2d 1175 (1987); Bonner v. Winter, 175 Conn. 41, 48, 392 A.2d 436 (1978). Because the evidence failed to indicate that Terminal employed Kimberly, the Restatement is not applicable. The trial court properly declined to give the plaintiffs’ requested charge.

D

Last, the plaintiffs argue that the court incorrectly instructed the jury to draw no adverse inference from the failure of Terminal to call its driver, Allen, as a witness. The plaintiffs specify that they are not challenging the court’s denial of their request to give a Secondino charge. Rather, the plaintiffs assert that the court’s instruction to the jurors that they could not “speculate or conjecture or guess what [Allen] might have said” was prejudicial because it eroded the plaintiffs’ argument that the absence of this witness ought to be considered adversely by them. Although we do not comment on the propriety of a reverse Secondino charge, we conclude that the court’s instruction was not prejudicial.

As we have previously stated, a jury charge must be correct in the law, adapted to the issues and sufficient for the guidance of the jury. Preston v. Keith, supra. When reviewing jury instructions, we view the instructions as part of the whole trial. Champagne v. Raybestos-Manhattan, Inc., 212 Conn. 509, 566, 562 A.2d 1100 (1989); State v. Kurvin, 186 Conn. 555, 563, 442 A.2d 1327 (1982). Because the evidence presented at trial did not indicate an agency relationship between Kimberly and Terminal, the absence of Terminal’s driver could not have substantially affected the outcome of this case. The court’s charge could not have prejudiced the jury, and it was reasonable for the jury to find for the defendant Terminal.

The judgment is affirmed.

In this opinion the other judges concurred.

       The Restatement (Second), Torts § 427 provides “negligence as to DANGER INHERENT IN THE WORK.
      “One who employs an independent contractor to do work involving a special danger to others which the employer knows or has reason to know to be inherent in or normal to the work, or which he contemplates or has reason to contemplate when making the contract, is subject to liability for physical harm caused to such others by the contractor’s failure to take reasonable precautions against such danger.”

       In Secondino v. New Haven Gas Co., 147 Conn. 672, 675, 165 A.2d 598 (1960), the Supreme Court concluded that “ ‘[t]he failure of a party to produce a witness who is within his power to produce and who would naturally have been produced by him, permits the inference that the evidence of the witness would be unfavorable to the party’s cause.’ ”


source: Caselaw Access Project

author: Landau, J.

license: Public Domain

text:
    Diana K. Broderick, Executrix (Estate of Donald H. Broderick) v. Insurance Company of North America
    (9749)
    Spallone, Landau and Heiman, Js.
    Argued June 3
    decision released September 10, 1991

      T. Stevens Bliss, for the appellant (plaintiff).

      Timothy F. Woodbridge, for the appellee (defendant).
   Landau, J.

Pursuant to General Statutes § 52-235 (a), the trial court reserved a question of law with the consent of both parties. The sole issue before us is whether the underinsured motorists coverage in the business automobile policy that was issued by the defendant to the employer of the plaintiff’s decedent may be stacked.

The following facts are not in dispute. The plaintiff’s decedent died from injuries suffered in an automobile accident on April 22, 1989, in New Fairfield, as the result of the negligence of an underinsured motorist. At the time of the accident, the decedent was operating an automobile that was owned by his employer, New Milford Bank and Trust Company, and, as the occupant of the automobile, was an insured for purposes of the underinsured motorists coverage of his employer’s business automobile liability policy. The plaintiff recovered the sum of $20,000, exhausting the limits of liability under all bodily injury and liability bonds and applicable insurance policies.

The defendant’s automobile liability insurance policy held by New Milford Bank and Trust Company provided uninsured and underinsured motorists coverage in the amount of $500,000 for each of two automobiles separately described in the “Schedule of Covered Autos.” A separate premium of $29 per vehicle was paid for uninsured motorists coverage.

A fleet policy is “any insurance policy covering a number of vehicles owned by a business, a governmental entity, or an institution.” Cohn v. Aetna Ins. Co., 213 Conn. 525, 530, 569 A.2d 541 (1990). Although stacking has been applied to a variety of circumstances; see id., 528; it has not been extended to business automobile liability policies that constitute fleet insurance contracts. Chmielewski v. Aetna Casualty & Surety Co., 218 Conn. 646, 669, 591 A.2d 101 (1991); Wilson v. Security Ins. Co., 213 Conn. 532, 535, 569 A.2d 40, cert. denied, U.S. , 111 S. Ct. 52, 112 L. Ed. 2d 28 (1990); Cohn v. Aetna Ins. Co., supra.

Although the plaintiff agrees that the policy involved is a business automobile liability policy, she argues that this policy is not a fleet policy because it affords coverage for only two cars. We conclude that the outcome of this case does not turn on the specific number of vehicles insured, but, rather, is controlled by the line of cases that preclude stacking of fleet insurance policies as expressed in Cohn v. Aetna Ins. Co., supra, and as reiterated recently in Chmielewski v. Aetna Casualty & Surety Co., supra.

The rationale precluding the stacking of fleet insurance policies “is based on the ‘objectively reasonable expectation^] of the parties’ to the insurance policy. Cohn v. Aetna Ins. Co., supra, 530.” Chmielewski v. Aetna Casualty & Surety Co., supra, 670. In determining the reasonable expectations of the parties, the court does not view the particular insured and the vehicle involved in isolation, “but must hypothesize the total amount of coverage necessitated by the plaintiffs claim of stacking.” Id. Under the plaintiff’s claim, therefore, we must hypothesize that each covered vehicle would be afforded the same coverage. Id. Thus, if both covered vehicles were on the road simultaneously the total available coverage if stacking were allowed would be $1,000,000 for each vehicle, or $2,000,000, at a premium cost of $58. We conclude that such an expectation is unreasonable. See id., 670-71; Cohn v. Aetna Ins. Co., supra, 531.

On the basis of the rationale set forth in Chmielewski and Cohn, we conclude that the answer to the question on reservation is that the underinsured motorist coverage in this business automobile policy cannot be stacked.

In this opinion the other judges concurred.

No costs will be taxed in this court in favor of either party.


author: Norcott, J.

text:
    Thomas Buccino et al. v. Cable Technology, Inc., et al.
    (9569)
    Dupont, C. J., O’Connell and Norcott, Js.
    Argued May 28
    decision released September 10, 1991

      Elena M. Gervino, with whom, on the brief, was Dean M. Gordiano, for the appellants (plaintiffs).

      Robert A. Randich, with whom, on the brief, was Ross G. Fingold, for the appellees (defendants).
   Norcott, J.

The plaintiffs, Thomas and Irma Buccino, appeal from the judgment of the trial court in an action in which they claimed a breach of two commercial leases. The plaintiffs sought damages and attorney’s fees pursuant to the lease agreements. The defendants, Cable Technology, Inc. (Cable), and Michael Cariglia, its president, answered the complaint by asserting four special defenses: (1) that they had complied with all of the lease obligations; (2) that all expenses incurred by the plaintiffs were the responsibility of the plaintiffs; (3) that they had paid all money owed to the plaintiffs; and (4) that the doctrine of res judicata barred the plaintiffs’ cause of action. The defendants also counterclaimed, asserting, in essence, that the plaintiffs previously had initiated a vexatious lawsuit because they themselves were responsible for the defendants’ breach of the lease agreement.

After a trial to the court, judgment was rendered for the plaintiffs on the complaint in the amount of $17,458.15 and for the defendants on the counterclaim in the amount of $10,000. The dispositive question on appeal is whether the trial court wrongfully denied the plaintiffs’ claim for attorney’s fees.

The trial court could reasonably have found the following facts. In 1982, the plaintiffs purchased a 35,000 square foot building in Willington. The building had been built in approximately 1860, and an annex had been constructed in 1916. The plaintiffs leased 19,000 square feet of the building to Cable in 1982. The following year, Cable rented an additional 11,000 square feet. In consideration of a $7500 reduction in rent, the defendants agreed in the lease to paint the second floor ceiling.

As one of the many covenants to which the defendant lessees were subject, the lease provided that “the lessees covenant that in the event that lessors are required to employ an attorney in order to enforce a provision of this lease, the lessees shall pay a reasonable attorney’s fee.” In its memorandum of decision, the trial court acknowledged that the lease provided for reasonable attorney’s fees but concluded that “there is no justification to award the more than $17,000 in counsel fees requested.” In reaching this conclusion, the court noted that most of the plaintiffs’ claims had been resolved in favor of the defendants and that judgment was to be rendered for the defendants on their counterclaim.

The plaintiffs argue that the trial court improperly denied them reasonable attorney’s fees that were expressly provided for in the lease agreement. We disagree.

“ ‘[A]bsent contractual or statutory authorization, there can be no recovery, either as costs or damages, for the expenses of litigation or the expenditures for counsel fees by a party from his opponent.’ ” Gionfriddo v. Avis Rent A Car System, Inc., 192 Conn. 280, 297, 472 A.2d 306 (1984), quoting Bross Line Construction Corporation v. Ryan Crane Service Corporation, 32 Conn. Sup. 181, 182, 345 A.2d 594 (1975). Where a contract expressly provides for the recovery of reasonable attorney’s fees, an award under such a clause requires an evidentiary showing of reasonableness. Bizzoco v. Chinitz, 193 Conn. 304, 310, 476 A.2d 572 (1984); Appliances, Inc. v. Yost, 186 Conn. 673, 680, 443 A.2d 486 (1982). A trial court may rely on its own general knowledge of the trial itself to supply evidence in support of an award of attorney’s fees. Bizzoco v. Chinitz, supra. “The amount of attorney’s fees to be awarded rests in the sound discretion of the trial court and will not be disturbed on appeal unless the trial court has abused its discretion.” Link v. Shelton, 186 Conn. 623, 629, 443 A.2d 902 (1982). This is because the trial court is always in a more advantageous position to evaluate the services of counsel than a reviewing court. Id.

In this case, the trial court acknowledged that the lease provided for an award of attorney’s fees but determined that, despite the plaintiffs’ offer into evidence of bills that they had received from their attorney for the litigation here, any such award was unwarranted. The plaintiffs sought no articulation of the trial court’s ruling, and we are left to review the record to determine whether the court’s conclusion was an abuse of discretion. We find that the trial court’s decision is supported by the record.

To begin, we note again that the lease agreement called for the award of reasonable counsel fees “in the event the [plaintiffs] are required to employ an attorney in order to enforce a provision of [the] lease.” It is clear from the record that the trial court did not consider the plaintiffs’ litigation to be necessary to enforce a provision of the lease. In support of this conclusion, the trial court found that the defendants had prevailed in the vast majority of the claims in issue. The court first determined that the plaintiffs had not met their burden of proving that the defendants had breached the lease by leaving the property extensively damaged. The court awarded the plaintiffs only small amounts, $125, $800 and $357.11, as reimbursement for a filing cabinet and two electrical breakers wrongfully removed by the defendants and for costs related to cleaning the premises after the defendants had vacated them.

With respect to the plaintiffs’ claim for rent, the court found that the payments for the disputed months of August and September were for use and occupancy and not for rent. Once the lease legally was terminated by the issuance of the notice to quit, any money owed the plaintiffs by the defendant tenants at sufferance were for use and occupancy and not pursuant to the lease agreement. Lonergan v. Connecticut Food Store, Inc., 168 Conn. 122, 131, 357 A.2d 910 (1975); Sippin v. Ellam, 24 Conn. App. 385, 391, 588 A.2d 660 (1991). Accordingly, the trial court properly concluded that the plaintiffs’ claim for rent was not related to the enforcement of a provision of the lease agreement. In addition, the defendants conceded before trial that they were liable for their use and occupancy of the premises during August and September. As such, this matter was not truly at issue during the trial. The court’s decision to deny attorney’s fees on this basis is thus clearly supported by the record.

The trial court also awarded the plaintiffs $5750 for the painting of the ceiling, a matter to which the lease agreement referred. Again, there was evidence before the court that the defendants did not dispute their responsibility for this obligation; in fact, before the pleadings were closed, the defendants offered to pay an “equitable amount of cash” representing the plaintiffs’ cost of painting the ceiling themselves. This offer also included a further offer to pay for the use and occupancy of the premises during August and September contingent upon the forbearance of all parties from further litigation. The sum total of the defendants’ offers certainly exceeded $17,458, the aggregate of the amount recovered by the plaintiffs in this litigation. From our review of the record, we agree with the trial court that the requested attorney’s fees were not in furtherance of the enforcement of a provision of the lease. The court, therefore, reasonably concluded that the plaintiffs’ request for attorney’s fees was unwarranted.

Because we agree with the trial court’s finding that any award of attorney’s fees was unreasonable, we need not remand the case, as the plaintiffs suggest, for the trial court to award some amount of fees less than the more than $17,000 initially requested by the plaintiffs.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendants’ counterclaim specifically alleged that the plaintiffs (1) had initiated a summary process action without probable cause and with malicious intent, (2) had breached the “quiet enjoyment” provision of the lease, (3) had committed a violation of the Connecticut Unfair Trade Practices Act and (4) had failed to maintain the leased premises in a habitable condition.

       The plaintiffs also claim that the trial court improperly concluded that there was insufficient evidence to support certain of their claims. We have repeatedly held that where the factual basis of the court’s decision is challenged, we must determine whether the facts as set out in the trial court’s memorandum of decision are supported by the evidence, or whether, in light of the evidence and the pleadings in the entire record, those facts are clearly erroneous. O’Sullivan v. Bergenty, 214 Conn. 641, 648, 573 A.2d 729 (1990), citing Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980). Here, the plaintiffs’ claim is unsupported by the record, and we will not retry facts or pass on the credibility of witnesses. Holy Trinity Church of God in Christ v. Aetna Casualty & Surety Co., 214 Conn. 216, 223, 571 A.2d 107 (1990).

       The plaintiffs specifically requested $17,353.35 in attorney’s fees.


text:
    Capitol Restorations Corporation v. Construction Services of Bristol, Inc.
    (9581)
    Norcott, Foti and Landau, Js.

      Argued June 4
    decision released September 10, 1991

      Gregory P. Klein, for the appellant (defendant).

      George E. Tillinghast, Jr., for the appellee (plaintiff).
   Norcott, J.

The defendant contractor appeals from the judgment of the trial court awarding the plaintiff subcontractor $21,058.60 for work it performed at the Sanseer Mill Office Park in Middletown. The defendant claims (1) that the plaintiff failed to meet its burden of proof, (2) that the trial court improperly refused to allow the defendant to amend its answer by adding seven special defenses, (3) that the trial court improperly refused to admit into evidence a letter written by Jan Cunningham, an historical consultant, to Perry Smart, an employee of the CDC Financial Corporation, (4) that the trial court improperly refused to admit into evidence a prior arbitration award, and (5) that the plaintiff’s claim is precluded by that arbitration award. We affirm the decision of the trial court.

The following facts are relevant to our discussion of the defendant’s claims. The plaintiff, Capitol Restorations Corporation, was hired by the defendant, Construction Services of Bristol, Inc., to perform masonry restoration and acid cleaning on the exteriors of the buildings at the Sanseer Mill Office Park in Middletown. The plaintiff instituted this action by complaint dated May 9,1988, alleging that it was owed $16,300 by the defendant for services rendered at the office park. The defendant filed its answer on July 11, 1988. On September 26,1990, the day of trial, the defendant moved to amend its answer by adding seven special defenses. Six of the defenses essentially restated the contents of the defendant’s disclosure of defenses, filed on June 13, 1988, but the seventh alleged that the plaintiff’s cause of action was barred by the doctrines of res judicata and collateral estoppel because the issues involved had been litigated in an earlier arbitration proceeding. The trial court denied the defendant’s motion, reasoning that “it seems to me this is coming in at the last second. I’m going to deny it.”

During the course of the trial that followed, the plaintiff relied solely on the testimony of Tony Raíala, the president of Capitol Restorations Corporation, and the only witnesses called by the defendant were Jack Walsh, the president of Construction Services of Bristol, Inc., and Mike Mickowski, that company’s vice president. In essence, Raíala testified that his company had satisfactorily completed the masonry restoration and acid cleaning at the office park, and Walsh and Mickowski testified that the plaintiff’s work was unsatisfactory and failed to comply with the terms of their contract. The trial court found the issues in favor of the plaintiff and awarded it $16,300 in damages and $4758.66 interest. From this judgment, the defendant appeals.

I

The defendant first claims that the plaintiff failed to meet its burden of proving either (1) that it had complied with the terms of the parties’ contract or (2) that it was entitled under the theory of quantum meruit to the reasonable value of its services. As such, the defendant essentially challenges the trial court’s factual findings.

“It is axiomatic that ‘a reviewing authority may not substitute its findings for those of the trier of facts.’ Wilcox Trucking, Inc. v. Mansour Builders, Inc., 20 Conn. App. 420, 423, 567 A.2d 1250 (1989), cert. denied, 204 Conn. 804, 573 A.2d 318 (1990). Tn a contract action, findings of fact should be overturned only when they are clearly erroneous.’ Pomarico v. Gary Construction, Inc., 5 Conn. App. 106, 112, 497 A.2d 70, cert. denied, 197 Conn. 816, 499 A.2d 1336 (1985).’ Wilcox Trucking, Inc. v. Mansour Builders, Inc., supra, 425.” Four D’s, Inc. v. Mattera, 25 Conn. App. 308, 312, 594 A.2d 484 (1991).

Here, the trial court, after hearing the conflicting testimony of Raíala, Walsh and Mickowski, found that the work had been reasonably completed and rendered judgment in favor of the plaintiff. The resolution of conflicting testimony is within the exclusive province of the trial court. Gaynor-Stafford Industries, Inc. v. Water Pollution Control Authority, 192 Conn. 638, 647, 474 A.2d 752, cert. denied, 469 U.S. 932, 105 S. Ct. 328, 83 L. Ed. 2d 265 (1984); Gallicchio Bros., Inc. v. C & S Oil Co., 191 Conn. 104, 109, 463 A.2d 600 (1983). In this case, the court credited Raíala’s testimony and based its factual findings on that testimony. The trial court’s findings were not clearly erroneous and we decline to disturb its decision.

II

The defendant next challenges the trial court’s refusal to allow it to amend its answer on the day of trial by adding seven special defenses. This ruling was fully within the discretion of the court. “A trial court has wide discretion in granting or denying amendments to the pleadings and rarely will [a reviewing] court overturn the decision of the trial court. Citizens National Bank v. Hubney, 182 Conn. 310, 312-13, 438 A.2d 430 (1980).” Hanson Development Co. v. East Great Plains Shopping Center, Inc., 195 Conn. 60, 67, 485 A.2d 1296 (1985). The court in this case refused to permit the amendment because the case had been pending for more than two years and because the proposed amendment was offered on the day of trial. An appellate court “ ‘will not interfere with the decision of a trial court not to permit an amendment unless an abuse of discretion is clearly evident.’ ” (Citations omitted.) Id. Under the circumstances of this case, there was no such abuse of discretion.

Ill

The defendant next claims that the trial court improperly refused to admit into evidence a letter written by Jan Cunningham, a historical consultant, to Perry Smart, an employee of the CDC Financial Coporation. In her letter, Cunningham expressed her dissatisfaction with certain mortar samples provided by the plaintiff and recommended that new mortar samples be prepared. A copy of the letter was sent to Walsh at Construction Services of Bristol, Inc.

At trial, the plaintiff objected to the admission of Cunningham’s letter as hearsay. The defendant argued that the letter was actually part of the parties’ contract notifying the plaintiff that its work was unacceptable and, as such, was not offered for the truth of its contents. The defendant also argued that if it was hearsay, the letter qualified as a business record for purposes of that exception to the hearsay rule. The trial court sustained the plaintiffs objection, and the defendant excepted to that ruling.

On appeal, the defendant asserts only that Cunningham’s letter, as a part of the parties’ contract, was not hearsay because it was not offered for the truth of the matters asserted therein. See Rompe v. King, 185 Conn. 426, 428, 441 A.2d 114 (1981); Vazzano v. Slater, 6 Conn. App. 1, 6, 502 A.2d 440 (1986). The defendant’s argument fails, however, because the letter was neither sent by the defendant nor addressed to the plaintiff. As such, the trial court correctly concluded that Cunningham’s letter was not part of the parties’ contract and properly refused its admission on that basis.

IV

The defendant’s fourth claim is that the trial court improperly refused to admit into evidence a prior arbitration award. The defendant, however, failed to take exception to the court’s ruling or to offer the document at issue as an exhibit for identification. “Our rules of practice make it clear that counsel must object to a ruling of evidence, state the grounds upon which objection is made, and take exception to the ruling to preserve the grounds for appeal.” State v. Lizotte, 200 Conn. 734, 742A, 517 A.2d 610 (1986); Filosi v. Hawkins, 1 Conn. App. 634, 640, 474 A.2d 1261 (1984). Because the defendant failed to except to the trial court’s ruling and because the defendant does not seek review under the bypass rule of State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1983), as reformulated in State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989); see Adolphson v. Zoning Board of Appeals, 205 Conn. 703, 716, 535 A.2d 799 (1988); Hurtado v. Hurtado, 14 Conn. App. 296, 300, 541 A.2d 873 (1988) (applying Evans rule to civil cases); we decline to review this claim.

V

Finally, the defendant claims that the plaintiffs cause of action is barred by the doctrines of res judicata and collateral estoppel because the issues involved had been litigated in an earlier arbitration proceeding between the defendant and the owner of the Sanseer Hill Office Park. This claim was not raised at trial, however, because the court, in its discretion, refused to allow the defendant to add the defenses of res judicata and collateral estoppel to its answer on the day of trial. This court need not address claims not distinctly raised at trial. Practice Book § 4185. We, therefore, decline to review the defendant’s final claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       We also note that the letter was not admissible as a business record because the defendant made no attempt to show that the letter was made or kept in the ordinary course of business. See General Statutes § 52-180.

       At trial, the defendant twice attempted to introduce evidence of the prior arbitration proceeding. Both times the plaintiff objected, arguing that the evidence was irrelevant because the plaintiff was not a party to the arbitration. The trial court sustained the plaintiff’s objections. We note that the evidence of the arbitration proceedings was irrelevant not because the plaintiff was not a party to those proceedings but because the defenses of res judicata and collateral estoppel were not properly before the trial court since the court had denied the defendant’s motion to amend its answer.


author: O’Connell, J. Cretella, J.,

text:
    Society for Savings v. Carmine S. Stramaglia et al.
    (8591)
    O’Connell, Lavery and Cretella, Js.
    Argued March 27
    decision released September 10, 1991

      Robert L. Fisher, Jr., for the appellant (named defendant).

      Stephanie M. Weaver, for the appellee (defendant Thomas Ackerson).
   O’Connell, J.

This appeal involves a dispute between two defendants in a mortgage foreclosure action. The foreclosing plaintiff (bank) did not participate in the appeal. The defendant Carmine S. Stramaglia claims that the trial court abused its discretion in denying his motion to open the judgment of foreclosure. We affirm the judgment of the trial court.

The following facts are relevant. The bank instituted this action to foreclose a mortgage on real estate owned jointly by Carmine S. Stramaglia and Patricia R. Stramaglia. Patricia Stramaglia is not a party to this appeal. The defendant Thomas Ackerson claims an interest in the property by virtue of a judgment lien solely against the undivided one-half interest of Carmine Stramaglia. On March 20, 1989, a judgment of strict foreclosure was rendered, and law days were set to commence on April 17, 1989.

On April 15,1989, two days before the first law day, the Stramaglias filed for chapter 13 bankruptcy, resulting in an automatic stay of the foreclosure proceedings. See 11 U.S.C. § 362 (a) (1). The stay was subsequently lifted, and new law days were set to commence on November 7, 1989. Ackerson’s new law day was November 9,1989. On November 3,1989, Stramaglia filed a motion to open the judgment of strict foreclosure, based on his representation that he had reached a settlement with the bank. The settlement provided that Stramaglia would pay the bank an agreed amount of money, and the bank would withdraw its foreclosure action following the opening of the judgment.

Ackerson objected to opening the judgment on the ground that as a subsequent encumbrancer, he had a vested interest in having the law days go forward. He also argued that Stramaglia had already caused substantial delays in the foreclosure action. The trial court denied Stramaglia’s motion to open the judgment and, for the third time, set new law days, this time to commence on November 17, 1989. On November 8, 1989, Stramaglia filed a motion to reargue the trial court’s denial of his motion to open. That motion was opposed by Ackerson. The trial court agreed with Ackerson that Stramaglia had engaged in dilatory tactics and denied the motion to reargue. This appeal followed.

General Statutes § 49-15 expressly provides that a motion to open a judgment of foreclosure is addressed to the discretion of the trial court. Unless the trial court erroneously applied the law or abused its discretion, the trial court’s decision will not be disturbed on appeal. Connecticut National Bank v. N. E. Owen II, Inc., 22 Conn. App. 468, 475, 578 A.2d 655 (1990), citing Melillo v. Spiro, 187 Conn. 333, 334, 445 A.2d 921 (1982). Stramaglia has failed to demonstrate any abuse of discretion by the trial court. The trial court’s articulation of its denial to open the judgment states that it will not reward Stramaglia for his dilatory tactics. Specifically, the trial court noted that Stramaglia did not secure counsel until the eleventh hour and filed for bankruptcy only two days before the law days were to commence.

Stramaglia further claims that the trial court abused its discretion because upon redemption, by payment of the entire mortgage debt and costs, Ackerson would acquire title to the entire property. Because Ackerson’s judgment lien entitled him only to a one-half interest in the property, Stramaglia claimed that Ackerson would receive a windfall due to the trial court’s decision. This argument, however, ignores General Statutes § 49-20, which expressly allows a redeeming encumbrancer to acquire title to the entire property, notwithstanding that his lien encumbered less than a full interest in the property. Thus, the trial court, in a proper exercise of its discretion, reasonably determined that the motion to open should be denied on the basis of the substantial delays caused by Stramaglia’s actions.

The judgment is affirmed and the case is remanded with direction to set new law days.

In this opinion, Lavery, J., concurred.

Cretella, J.,

dissenting. I cannot join in the majority opinion because I believe that the failure of the trial court to open the judgment of strict foreclosure amounted to an abuse of judicial discretion.

Although it is well established that the trial court has discretion to grant or to deny a motion to open a judgment of strict foreclosure, the court is required to take into consideration all of the facts and circumstances of the matter at hand and such discretion should be exercised fairly and equitably in order that complete justice may be done between the parties. Hartford Fed eral Savings & Loan Assn. v. Tucker, 196 Conn. 172, 491 A.2d 1084, cert. denied, 474 U.S. 920, 106 S. Ct. 250, 88 L. Ed. 2d 258 (1985). Foreclosure actions, being equitable in nature, require that the court examine the effect of its decision on each of the parties. “Discretion . . . imports something more than leeway in decision-making.” State v. Onofrio, 179 Conn. 23, 29, 425 A.2d 560 (1979). Such discretion should be exercised in conformity with the spirit of the law and should not impede or defeat the ends of substantial justice. Buckley v. Warden, 181 Conn. 286, 290, 435 A.2d 348 (1980); Hammerberg v. Leinert, 132 Conn. 596, 604, 46 A.2d 420 (1946).

Although the record reveals that the trial court based its denial on the actions taken by Stramaglia in allegedly delaying the proceedings by securing counsel at the last moment and by filing a petition in bankruptcy, such actions, although not to be condoned or encouraged by the court certainly were not of an illegal nature. In today's economic climate, mortgagors have been forced to take all possible legal means in order to “buy some time.” It appears that Stramaglia was doing exactly that and was successful since he was ultimately able to raise sufficient capital to satisfy the foreclosing bank and thus was granted an opportunity possibly to save the residence. Such a “window of opportunity” does not appear often and, in the present matter, the window that had been momentarily opened was suddenly closed by the objections of a judgment lien holder.

It is not uncommon to open a judgment of strict foreclosure for the purpose of allowing the bank to withdraw its foreclosure action. To have done so here would have in no way jeopardized the interest of the judgment lien holder, who was still free to pursue his own action to foreclose the judgment lien that was then pending in the Litchfield Superior Court. That action would, in fact, have been more equitable and just for all parties concerned simply because it would have been directed against only the property interest of the defendant Carmine S. Stramaglia, leaving intact the interest of the defendant Patricia R. Stramaglia, who was not a party to the judgment lien.

While the majority correctly notes that the foreclosing judgment lien holder has a statutory right to a redemption of the total property, equity and justice would dictate that the judgment of strict foreclosure should have been opened for the purpose of allowing the foreclosing bank to withdraw the foreclosure action.

Accordingly, I dissent.

       Because both parties to the appeal are defendants, in order to avoid confusion, each is referred to by name rather than by his party status in the case.

       Although the judgment lien encumbered only a one-half interest in the property, this issue is not controlling on appeal because Patricia Stramaglia did not appeal. Because Carmine Stramaglia does not claim to represent Patricia Stramaglia’s interest, he has no standing to complain of an adverse effect of the court’s ruling on her interest.

       General Statutes § 49-15 provides: “Any judgment foreclosing the title to real estate by strict foreclosure may, at the discretion of the court rendering the same, upon the written motion of any person having an interest therein, and for cause shown, be opened and modified, notwithstanding the limitation imposed by section 52-212a, upon such terms as to costs as the court deems reasonable . . . .” (Emphasis added.)

       It is not our intention to penalize a mortgagor for exercising his rights under the federal bankruptcy statutes. The trial court, however, may take the filing of bankruptcy into consideration as part of the totality of circumstances in determining whether to open a judgment.

       “[General Statutes] § 49-20. REDEMPTION BY HOLDER OF ENCUMBRANCE on part of property foreclosed. When a strict foreclosure judgment contains a provision that title to the real estate being thereby foreclosed shall vest in the encumbrancer who redeems pursuant to the judgment, or specifies that the title shall vest in any particular person or persons who redeem as therein provided, the validity and effect of the judgment and of the provision therein shall not be limited or otherwise affected by the fact that the encumbrance or interest of the person so redeeming applies to or covers only a portion of the property described and being foreclosed in the judgment. In such case, if the foreclosure judgment requires that person to pay the entire amount thereof or be foreclosed of all equity to redeem the premises described in the judgment, the person shall, by the judgment, acquire all the rights and title of the foreclosing party granted by the judgment, as fully as if his interest or encumbrance covered all of the property described in the judgment.”


author: Dupont, C. J.

text:
    Karen K. C. Savage v. Wallace G. Savage, Jr.
    (9425)
    Dupont, C. J., Landau and Heiman, Js.
    Argued May 3
    decision released September 10, 1991

      Michael W. Murray, for the appellant (plaintiff).

      C. Michael Budlong, with whom was Kathleen A. Murrett, for the appellee (defendant).

      Donna P. Murhpy, for the minor children.
   Dupont, C. J.

The plaintiff appeals from the judgment and postjudgment orders rendered in connection with the dissolution of her marriage to the defendant. On appeal, the plaintiff challenges the trial court’s (1) vacation of its child support order, (2) calculation of an arrearage of child support, (3) original order requiring postjudgment evaluation of the parties and minor children by a child psychiatrist or psychologist, and (4) division of the parties’ property. The first two challenges relate to postjudgment orders rendered on July 18, 1990, and the last two, to the judgment rendered on April 17, 1990. We affirm the judgment of the trial court in part and reverse it in part.

The trial court rendered a judgment of dissolution of the parties’ marriage and awarded legal custody of the issue of the marriage to the defendant, with liberal visitation rights to the plaintiff, which effectively allowed the plaintiff to have physical custody of the two minor children 40 percent of the time. The trial court also ordered that the defendant pay child support to the plaintiff, who was unemployed at the time of the judgment.

Approximately two months later, the defendant filed a motion for a modification of the child support order, alleging a substantial change in circumstances. On May 9,1990, the plaintiff moved that the court find the defendant in contempt of the court’s orders relating to alimony and child support, in its judgment of April 17, 1990. On July 18, 1990, the trial court granted the defendant’s motion and vacated its child support order, and also calculated an arrearage of child support due.

The plaintiff argues that the trial court abused its discretion by vacating its child support order without hearing any evidence of a substantial change in circumstances to support the defendant’s motion. It is axiomatic that a trial court, in deciding a domestic relations case, has broad discretion. Leo v. Leo, 197 Conn. 1, 4, 495 A.2d 704 (1985); Vonaa v. Vonaa, 15 Conn. App. 745, 747, 546 A.2d 923 (1988). In cases involving a modification of alimony or support awards, “great weight is due to the action of the trial court and every reasonable presumption will be made in favor of its correctness.” Noce v. Noce, 181 Conn. 145, 149, 434 A.2d 345 (1980); Vonaa v. Vonaa, supra. “A trial court’s financial orders will not be disturbed unless the court has abused its discretion or its findings have no reasonable basis in the facts.” (Emphasis added.) LaBow v. LaBow, 13 Conn. App. 330, 345, 537 A.2d 157, cert. denied, 207 Conn. 806, 540 A.2d 374 (1988).

General Statutes § 46b-86 (a), 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 .... After the date of judgment, modification . . . may be made upon a showing of such substantial change of circumstances, whether or not such change of circumstances was contemplated at the time of the dissolution. . . .” A party moving for a modification of a child support order must clearly and definitely establish the occurrence of a substantial change in the circumstances of either party that makes the continuation of the prior order unfair and improper. See Curzi v. Curzi, 21 Conn. App. 5, 7, 570 A.2d 1134 (1990); LaBow v. LaBow, supra.

Here, the defendant, who moved for the modification, failed to meet his burden of proving a substantial change in circumstances. The defendant claims that the plaintiff was pregnant at the time of the dissolution and that her failure to disclose the pregnancy was a fraud on the court. He further argues that, because of her pregnancy, the plaintiff had no intention of seeking employment. The defendant, however, failed to produce any evidence to substantiate these assertions, and his counsel simply stated them to the court. The defendant failed to demonstrate that the plaintiff did not intend to work or to seek work for whatever reason or that, if the fact of her pregnancy was assumed, she would be unable to work during or after her pregnancy.

Representations of counsel are not evidence. Cologne v. Westfarms Associates, 197 Conn. 141, 154, 496 A.2d 476 (1985). Even if there had been evidence of the plaintiff’s alleged pregnancy, a court could not conclude that there was an inability to work outside the home or the lack of an intention to work because neither is implicit in pregnancy or motherhood. Because there was no evidence from which the court could find that there was a substantial change in circumstances or a fraud, its prior existing order for child support should not have been vacated.

The plaintiff next claims that the trial court improperly calculated an arrearage of child support that had accrued from the date of the judgment to the date of the decision on the defendant’s motion for modification of child support. The defendant agrees that the trial court incorrectly calculated that arrearage. Both parties claim that the trial court, in calculating the arrearage, misinterpreted or misapplied its own order for determining child support as set forth in its memorandum of decision. Each party, however, proposes a different interpretation of that order and arrives at a different amount of child support that is due. The parties’ disagreement about the interpretation of the order turns on whether the trial court considered child support guidelines.

General Statutes § 46b-215b (a) requires that child support guidelines be considered in all determinations of child support. Battersby v. Battersby, 218 Conn. 467, 470, 590 A.2d 427 (1991). Section 46b-215b (a) provides a rebuttable presumption that the amount established by the application of the guidelines is the amount of support to be ordered. There must be a “specific finding on the record that the application of the guidelines would be inequitable or inappropriate,” in light of the criteria of § 46b-215a, in order to rebut the presumption.

Here, we are unable, from the record, to determine how the trial court arrived at $1364 as the arrearage of child support owed by the defendant. At the time of the dissolution, the trial court established a formula for calculating the amount of child support to be paid by the defendant, and ordered that the defendant pay the plaintiff child support in the amount of “forty percent (40%) of the child support calculation after first deducting the $60 alimony and the actual cost of daycare, from the Father’s net weekly wage of $556.72 as shown on the April 9, 1990 sworn financial affidavit.” We cannot determine, however, whether the court applied the child support guidelines in order to establish the arrearage due under this formula. We cannot do so because the arrearage established is at variance with the amount of support due if the child support guidelines were used.

Section 46b-215b (a) establishes a rebuttable presumption, and therefore, unless there is a specific finding on the record that would allow the presumption to be rebutted, child support awarded must be in the amount provided by the guidelines. We must remand this case so that the trial court may either recalculate the amount due on the basis of the child support guidelines or make a specific finding in accordance with the statute.

The plaintiff next claims that the trial court abused its discretion in ordering, as part of its judgment, that the parties and the minor children engage in postjudgment consultation with a child expert. Specifically, the trial court ordered the parties and the minor children to consult with David Mantell, a child expert, or a child expert of Mantell’s choice, for evaluation four times a year for at least two hours at each meeting for two years after the date of the judgment. The purpose of the order was to “enable Dr. Mantell or the child expert of Dr. Mantell’s choice, to become familiar with” the parties. The court “hoped that the insights so gained” would result in a settlement of custody and visitation by the parties. The attorney for the children was “encouraged to file a modification motion” whenever a report from Mantell leads her to believe a modification would be appropriate. The evaluating expert was to submit periodic reports to the parties and the court.

General Statutes § 46b-56 governs a trial court’s orders regarding a custody determination and care of minor children in a dissolution action. That section provides in part that “the court may at any time make . . . any proper order regarding . . . custody and visitation if it has jurisdiction . . . according to its best judgment upon the facts of the case and subject to such conditions and limitations as it deems equitable.” General Statutes § 46b-56 (a).

At trial, Mantell testified that both parents were capable of caring for the minor children. Mantell, however, was unable to recommend which party would be the more suitable custodial parent. The trial court awarded custody to the defendant because it believed that the defendant would be more willing than the plaintiff to recognize the importance of the role of the noncustodial parent in the children’s lives. The trial court ordered the postjudgment consultation so that more information could be gathered in hopes that the parties would agree in the future to a custody arrangement or that the attorney for the minor children would move, if appropriate, for a modification of the court’s custody order.

General Statutes §§ 46b-3 and 46b-6 govern pretrial investigations in a pending family relations matter. General Statutes § 46b-6 allows a trial court to order an investigation in “a pending family relations matter” of any circumstance of that matter, which may be helpful, material or relevant to a proper disposition of the case, including an evaluation of a child’s mental state or condition. General Statutes § 46b-3 permits a court to employ the services of a psychiatrist, psychologist or family counselor in carrying out such an evaluation. By utilizing these statutory provisions, a trial court may obtain a disinterested assessment of the facts of a particular case in order to dispose of it properly. See Pascal v. Pascal, 2 Conn. App. 472, 479, 481 A.2d 68 (1984). “They [General Statutes §§ 46b-3 and 46b-6] do not authorize any more than that.” Id.

Section 46b-6 applies to pending family relations matters and § 46b-3 applies to the implementation of § 46b-6 and other domestic relations matters requiring investigative assistance for their resolution. The purpose of ordering evaluation under these statutes is to assist a court in disposing of a case. Once a case has been disposed of by the rendition of a final judgment and there is nothing further pending, as was the case here, there is no longer a reason for ordering an ongoing evaluation.

The trial court awarded legal custody of the minor children to the defendant. That award, which was entered as part of the decree dissolving the marriage of the parties, was a final determination of the custody issue. Hall v. Hall, 186 Conn. 118, 122, 439 A.2d 447 (1982). Until such time as a motion for modification of custody is made and a court has altered custody, the original custody award remains undisturbed. Id. The trial court’s order here compelling consultation with Mantell for two years into the future is not a proper custody order but rather is an attempt to force consultation for purposes of a postjudgment evaluation. There is no statutory authorization for such an evaluation without a pending motion or matter before a court.

We conclude, therefore, that the trial court abused its discretion in rendering an order compelling post-judgment evaluation.

The plaintiff’s final claim is that the trial court failed to consider her contribution to the acquisition of the family home in its financial award dividing the assets of the parties. General Statutes § 46b-81 (c) sets forth numerous factors that a trial court must consider in assigning the property of the parties whose marriage is to be dissolved by the court. As relevant, that section provides that'‘[t]he court shall . . . consider the contribution of each of the parties in the acquisition . . . of their respective estates.” The plaintiff is correct in asserting that a trial court must consider all the statutory criteria in determining how to divide the parties’ property in a dissolution action. Leo v. Leo, supra, 5; Kane v. Parry, 24 Conn. App. 307, 313-14, 588 A.2d 227 (1991). A trial court, however, need not give each factor equal weight; Kane v. Parry, supra; or recite the statutory criteria that it considered in making its decision or make express findings as to each statutory factor. Leo v. Leo, supra; Zern v. Zern, 15 Conn. App. 292, 295, 544 A.2d 244 (1988).

The trial court in its memorandum of decision stated that it had considered all factors in the relevant statute. Further, the trial court’s assignment of the property had a reasonable basis in the facts and, thus, will not be disturbed. Krause v. Krause, 189 Conn. 570, 572, 456 A.2d 1204 (1983). There was no abuse of discretion in this regard. Zern v. Zern, supra.

The judgment, insofar as it compels postjudgment evaluation of the parties and minor children, is reversed, and the postjudgment orders vacating the child support award and relating to the calculation of the arrearage due are set aside and the case is remanded for further proceedings consistent with this opinion; in all other respects, the judgment is affirmed.

In this opinion the other judges concurred.

       This appeal was filed on August 7,1990. As to the first two issues raised by the plaintiff, the appeal was timely because it was filed within twenty days from the issuance of notice of the court’s postjudgment orders. Practice Book § 4009. As to the last two issues, however, the appeal was not timely because the judgment to which those issues relate became final more than twenty days prior to the date of filing of the appeal. We, nonetheless, consider those issues. Where an appellee, as the defendant here, fails to file a timely motion to dismiss, we consider the defect of untimeliness to be waived. Cardoza v. Zoning Commission, 211 Conn. 78, 81 n.4, 557 A.2d 545 (1989); LaReau v. Reincke, 158 Conn. 486, 495, 264 A.2d 576 (1969); McCarthy v. Bridgeport, 21 Conn. App. 359, 361 n.1, 574 A.2d 226, cert. denied, 215 Conn. 814, 576 A.2d 543 (1990).

       General Statutes § 46b-86 (a) was amended by Public Acts 1990, No. 90-213, § 45 and No. 90-188. The amendments, however, do not affect this case.

       General Statutes § 46b-3 provides in relevant part: “For the purposes of any investigation or pretrial conference the judge presiding at any family relations session may employ the services of any probation officer, including those under the direction of the office of adult probation, physician, psychologist, psychiatrist or family counselor. ...”
      General Statutes § 46b-6 provides in its entirety: “In any pending family relations matter the court or any judge may cause an investigation to be made with respect to any circumstance of the matter which may be helpful or material or relevant to a proper disposition of the case. Such investigation may include an examination of the parentage and surroundings of any child, his age, habits and history, inquiry into the home conditions, habits and character of his parents or guardians and evaluation of his mental or physical condition. In any action for dissolution of marriage, legal separation or annulment of marriage such investigation may include an examination into the age, habits and history of the parties, the causes of marital discord and the financial ability of the parties to furnish support to either spouse or any dependent child.”