author: SCHALLER, J.

text:
    STATE OF CONNECTICUT v. RICARDO MACK
    (AC 32584)
    Beach, Alvord and Schaller, Js.
    March 22
    officially released May 31, 2011

      William B. Westcott, special public defender, for the appellant (defendant).

      James M. Ralls, assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, and John F. Fahey, senior assistant state’s attorney, for the appellee (state).
   Opinion

SCHALLER, J.

The defendant, Ricardo Mack, appeals from the judgment of conviction, rendered after a jury trial, of one count of murder in violation of General Statutes § 53a-54a (a) and two counts of assault in the first degree with a firearm in violation of General Statutes § 53a-59 (a) (5). On appeal, the defendant claims it was improper for the court to admit handwritten notes discovered in another inmate’s cell as evidence of the defendant’s consciousness of guilt on the grounds that (1) the evidence was irrelevant and (2) its admission violated his federal constitutional rights. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. A shooting resulting in the death of Chaz Booth and gunshot injuries to two other persons, Terrice Kimble and Christopher Henry, occurred in the early morning hours of December 24, 2005, in Hartford. Booth, Kimble, Henry and the defendant were among a crowd of people in Papa’s Pizza, which is a restaurant on Union Place in Hartford. Booth was sitting at a table near the front of the restaurant on the right side when, at approximately 2:42 a.m., the defendant raised his arm and fired several gunshots from a handgun. The defendant then moved forward, closer to Booth, and fired additional gunshots before running out the door. Ten cartridge cases were recovered from the restaurant. Booth died from a total of seven gunshot wounds, with bullet trajectories indicating that the bullets entered him from the back.

When the gunshots were fired, Kimble jumped on top of a table to make his way out of the restaurant. Once he was outside, he discovered that he had been shot and had suffered wounds to his arm and torso. Henry was sitting at the table opposite from where Booth was sitting. When the gunshots were fired, Henry dropped to the floor and hid under the table. He discovered that he had been shot in the leg, so he “scooted” out of the restaurant without getting up from the floor.

The defendant fled the restaurant in a red Jeep Cherokee driven by another person. A Hartford police officer responded to a report of gunshots being fired at the restaurant and learned that a red Jeep Cherokee had left the scene. On his way to the restaurant, the officer came upon a motor vehicle accident involving a red Jeep Cherokee. When the officer approached, the defendant fled from the vehicle on foot. The officer apprehended the defendant, arrested him and brought him to the police station. The police recovered the handgun used in the shooting from the vehicle.

The defendant made a statement to the police in which he confessed to the shooting. He stated that he believed that Booth had shot and killed his friend Marlon Atkinson, also known as “Pints,” in 2004. The defendant shot Booth at the restaurant in retaliation for Atkinson’s murder.

At trial, counsel for the defendant argued that the defendant had acted in self-defense. Two witnesses testified in support of this defense. Jaquan Leggett testified that the defendant was in a heated conversation with someone at the restaurant just prior to the shooting, and that he saw a man consistent with Booth’s description with a gun in his hand. Floyd Riley testified that, sometime before the shooting, the defendant had told him that Booth had threatened him. The defendant did not mention any of these facts in his signed confession. Both surviving victims of the shooting, Kimble and Henry, testified that they did not recall seeing Booth with a gun, nor did they recall hearing any argument between the defendant and Booth.

At trial, the state presented evidence relating to the defendant’s consciousness of guilt. Specifically, it pointed to the defendant’s flight from the restaurant, the defendant’s flight from the red Jeep Cherokee following the collision and the arrival of the police, and the alleged effort of the defendant, in the form of certain notes seized from the cell of an inmate named Marcus Perry, to solicit testimony concerning his claim of self-defense.

Regarding the notes, the following facts are relevant. In March, 2008, shortly before the defendant’s trial, officers from the department of correction searched the cell belonging to Perry. They found two handwritten notes. The jury reasonably could have found that the first note asked Perry to testify that he was at the restaurant and witnessed the events that transpired, including that Perry saw Booth shoot first and that he and another witness saw one of Booth’s “boys” take his gun from him. See footnote 5 of this opinion. The second handwritten note consisted of two lists, titled “what I had on” and “what he had on,” and descriptions of clothing consistent with what the defendant and Booth were wearing at the restaurant that night.

On occasions over the course of the defendant’s incarceration, his cell also was searched for contraband, and certain letters or notes had been seized and kept by the department of correction, as was done for each inmate. One of the officers who searched Perry’s cell believed that he recognized the handwriting on the two notes found as the defendant’s, so the notes were compared with “known” samples of his writing from letters seized from the defendant’s cell on prior occasions. The notes and “known” exemplars of the defendant’s handwriting were admitted as full exhibits at trial. Additional facts will be set forth as necessary.

On appeal, the defendant makes a number of claims concerning the court’s admission of the notes seized from Perry’s cell. These claims fairly can be summarized as follows: (1) the notes were not relevant; and (2) the admission of the notes was fundamentally unfair and deprived him of certain constitutional rights.

I

The defendant claims that the court abused its discretion by admitting the notes found in Perry’s cell because they were not relevant. Specifically, he claims that they were not probative of the defendant’s consciousness of guilt. He also appears to argue that because the notes and “known” exemplars of his handwriting contained inflammatory language that was more prejudicial than probative, the court should not have admitted them on relevance grounds. We are not persuaded.

We note that the state argues that these claims are unreviewable because, although the defendant’s counsel objected to the admission of the notes on relevance grounds at trial, his counsel conceded at trial that the jury could find that the notes related to the allegations in this case. Although counsel made such a concession, he argued against admitting the letters on relevance grounds, maintaining that they were more prejudicial than they were probative. Based on our thorough review of the record, we will review the defendant’s evidentiary claims because they properly were preserved.

We begin by setting forth our standard of review and the principles that guide our analysis. “The trial court’s ruling on the admissibility of evidence is entitled to great deference . . . [and] will be overturned only upon a showing of a clear abuse of the court’s discretion.” (Internal quotation marks omitted.) State v. Zillo, 124 Conn. App. 690, 695, 5 A.3d 996 (2010).

“Within the law of evidence, relevance is a very broad concept. Evidence is relevant if it has any tendency to make the existence of any fact that is material to the determination of the proceeding more probable or less probable than it would be without the evidence. . . . Relevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue. . . . One fact is relevant to another if in the common course of events the existence of one, alone or with other facts, renders the existence of the other either more certain or more probable. . . . Evidence is not rendered inadmissible because it is not conclusive. All that is required is that the evidence tend to support a relevant fact even to a slight degree, [as] long as it is not prejudicial or merely cumulative.” (Emphasis added; internal quotation marks omitted.) State v. Collins, 299 Conn. 567, 587 n.19, 10 A.3d 1005 (2011).

A

The defendant first argues that the notes were not probative of his consciousness of guilt. He argues that the notes established nothing more than that he may have been discussing his case with a potential eyewitness, prompting the witness’ recollection, not that he was soliciting false testimony. He argues that, because there was no evidence of money, threats, or other bases to believe that he “[put] Perry up to” testifying on his behalf, there was nothing present in the notes or the surrounding circumstances to “make out a prima facie basis for an inference” of consciousness of guilt. We disagree.

A discussion of consciousness of guilt evidence is helpful. “Evidence that an accused has taken some kind of evasive action to avoid detection for a crime, such as flight, concealment of evidence, or a false statement, is ordinarily the basis for a [jury] charge on the inference of consciousness of guilt.” State v. Oliveras, 210 Conn. 751, 759, 557 A.2d 534 (1989). “[C]onsciousness of guilt [evidence] goes to the question of the defendant’s state of mind, a determination which in turn requires an assessment of the defendant’s motivations .... In seeking to introduce evidence of a defendant’s consciousness of guilt, [i]t is relevant to show the conduct of an accused ... as well as any statement made by him subsequent to an alleged criminal act, which may be inferred to have been influenced by the criminal act.” (Internal quotation marks omitted.) State v. Davis, 98 Conn. App. 608, 628, 911 A.2d 753 (2006), aff'd, 286 Conn. 17, 942 A.2d 373 (2008).

“The fact that evidence is susceptible of different explanations or would support various inferences does not affect its admissibility, although it obviously bears upon its weight. So long as the evidence may reasonably be construed in such a manner that it would be relevant, it is admissible.” State v. Reid, 193 Conn. 646, 656 n.12, 480 A.2d 463 (1984). Attempts to suborn perjury on the defendant’s behalf have been held to warrant a jury instruction on consciousness of guilt. State v. Coltherst, 263 Conn. 478, 503-507, 820 A.2d 1024 (2003) (letter offering to pay for alibi); State v. Reid, supra, 656 (statement “ ‘get the three witnesses lined up’ ” relevant to show attempt to fabricate alibi).

In the present case, the defendant challenges whether the notes seized from Perry’s cell were probative of his consciousness of guilt. Together, the notes contain details about the events that occurred in the restaurant on the morning of the shooting. The notes, which were found shortly before the defendant’s trial was to begin, indicate that it was “crunch time” and that Perry would be called “real soon . . . .” See footnote 5 of this opinion. Notably, the defendant does not argue that the notes were in any way ambiguous insofar as they related to the events at issue in the trial. Nor does he argue on appeal that it was in any way possible for the jury to believe that he was not the author of the notes. Rather, he argues that he was merely preparing a fact witness for trial, in much the same way that an attorney would prepare a witness for trial: by going through the details of Perry’s recollection.

The defendant’s suggested interpretation of the notes is not the only reasonable interpretation, however. The notes reasonably may be construed in such a manner that it would appear that the defendant was asking Perry to testify falsely concerning the defendant’s claim of self-defense. See footnote 5 of this opinion. The defendant disguised his identity by signing one note “you [know] who it is.” The alleged facts contained in the first note supported the defendant’s claim of self-defense: Perry saw Booth “talking shit” to the defendant; Perry saw Booth pull out a gun first; Perry and another person saw one of Booth’s “boys” take the gun from him. The first note contained details as to how Perry purportedly came to know about the defendant’s plight and implored Perry to “just go over this till they call you . . . .” The second note contained details as to what the defendant and Booth were wearing. The jury reasonably could construe these statements to mean that Perry was not, in fact, at the restaurant that night, and, thus, had no personal knowledge of what the parties were wearing, or that he was at the restaurant, but he did not actually observe the details to which the defendant wanted him to testify.

It is not for the reviewing court to determine whether the defendant’s or the state’s interpretation of the notes is correct. That there is a claimed ambiguity goes to the weight that the jury should afford the evidence, not to its admissibility. There is a reasonable view of the evidence that would support an inference that the defendant wrote the notes because he wanted to bolster his claim of self-defense with Perry’s false testimony. This view is probative of the defendant’s consciousness of guilt. Accordingly, we conclude that the notes were relevant.

B

Relevant evidence may be excluded, however, if its prejudicial effect outweighs its probative force. On appeal, the defendant also appears to argue that because the notes and certain “known” exemplars of his handwriting contained inflammatory language that was prejudicial, the court should not have admitted them on relevance grounds.

The following additional procedural history is necessary to understand this claim and the defendant’s remaining claims. At trial, the state solicited testimony of a correction officer and a handwriting expert regarding six “known” samples of the defendant’s handwriting. Small exemplars taken from the “known” samples were shown to the jury to provide a basis of comparison in order for the state to establish the defendant’s authorship of the two notes found in Perry’s cell. Outside of the jury’s presence, there was an evidentiary dispute regarding whether the contents of the “known” samples should be admitted as full exhibits because they contained prejudicial information. There also was a dispute concerning the expert’s use of a “known” exemplar containing the word “nigga,” a word also found in the first note. See footnote 5 of this opinion. The court ruled initially that the contents of the “known” samples would not be admitted as full exhibits but that the handwriting expert could testify regarding the exemplars, including the challenged exemplar.

During cross-examination of the handwriting expert, counsel for the defendant solicited testimony that the expert had been told that the “known” letters were written by the defendant; he had no personal knowledge of that fact. In response, the state sought to admit the entirety of the “known” samples as full exhibits to show, by their content, that the defendant had written them. Further colloquy outside of the jury’s presence occurred. The court concluded that defense counsel’s questioning appeared to invite the inference that the defendant was not the author of the “known” letters. After some discussion, including regarding how the “known” samples could be redacted, the defendant chose to stipulate that he authored the “known” letters. The “knowns” were not admitted as full exhibits.

On appeal, as he did at trial, the defendant argues that the admission of the notes seized from Perry’s cell was unfairly prejudicial because an inflammatory word, “nigga,” was used in one of the notes and, because that word also appeared in the samples of “known” writings, the handwriting expert used it as an exemplar from the “known” writings that were shown to the jury. The court, however, gave the jury a limiting instruction regarding the purpose of the proffered evidence and how to treat the presence of words that it might find inappropriate or offensive. “The jury is presumed to have followed the court’s instructions unless there is evidence to the contrary in the record.” State v. Bryant, 106 Conn. App. 97, 106, 940 A.2d 858 (2008), appeal dismissed, 291 Conn. 777, 970 A.2d 80 (2009); cf. State v. Davis, supra, 98 Conn. App. 630 (limiting instruction minimized any unduly prejudicial impact of evidence of parole status); see also State v. Skidd, 104 Conn. App. 46, 68-69, 932 A.2d 416 (2007) (racial epithet used in state’s closing argument did not unfairly prejudice defendant when word relevant to defendant’s intent and used in reference to testimony of several trial witnesses).

None of the other prejudicial material that may have been contained in the “known” letters was ever shown to the jury. We conclude that, especially in light of the court’s limiting instruction, the proffered evidence was not more prejudicial than it was probative of a relevant fact. Accordingly, the notes seized from Perry’s cell, and, insofar as they are challenged, the exemplars of the defendant’s “known” writing, properly were admitted.

II

The defendant also claims that the admission of the notes found in Perry’s cell and the circumstances under which he stipulated that he was the author of the “known” letters violated certain of his rights guaranteed by the United States constitution. Some of his arguments are intertwined with the relevancy issues already discussed. We conclude that these claims, insofar as they are distinct from the issue of whether the notes and samples of “known” writing were relevant, are not reviewable.

The defendant concedes that his claims of constitutional error were not preserved at trial and seeks review of his claims pursuant to the familiar four-pronged analysis set forth in State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). To prevail under Golding, the defendant must satisfy all four of the prongs. See footnote 8 of this opinion. If the defendant fails to satisfy either of the first two prongs, his claim is not reviewable. The second prong of Golding requires that the alleged trial court violation be truly of constitutional magnitude and not be simply a presentation on the admissibility of evidence. State v. Burgos-Torres, 114 Conn. App. 112, 116-17, 968 A.2d 476, cert. denied, 293 Conn. 908, 978 A.2d 1111 (2009). “The defendant can not raise a constitutional claim by attaching a constitutional label to a purely evidentiary claim or by asserting merely that a strained connection exists between the evidentiary claim and a fundamental constitutional right.” State v. Stepney, 94 Conn. App. 72, 79, 891 A.2d 67, cert. denied, 278 Conn. 911, 899 A.2d 40 (2006).

First, the defendant seeks Golding review of his claim that his constitutional right to a jury verdict under the sixth and fourteenth amendments to the constitution “was violated by the trial court’s invitation to view his entire [claim of] self-defense, as stated in notes to Perry, as something that could provide a basis of guilt simply by his maintaining the defense.” Other than the admission of the notes found in Perry’s cell, which we have determined was proper, he does not cite record evidence to support his assertion that the court deprived the defendant of his “right to have criminal liability determined by a jury . . . .” We conclude that the defendant has attempted to attach a constitutional label to what is otherwise an evidentiary claim, and, thus, his claim is not reviewable pursuant to the second prong of Golding.

Second, the defendant seeks Golding review of his claim that he was deprived of his right to confront witnesses guaranteed by the sixth amendment to the constitution. Specifically, he claims he was deprived a “ ‘meaningful cross-examination into a legitimate area of inquiry’ ” as part of his cross-examination of Greg Kettering, the state’s expert handwriting witness. A close reading of the defendant’s argument, however, belies his claim that his constitutional rights were implicated: the defendant does not claim that the court unduly restricted his examination of the witness. Compare State v. Brown, 273 Conn. 330, 337-40, 869 A.2d 1224 (2005). Rather, his objection is to the fact that after his examination of Kettering, the court “offered the defendant a Hobson’s choice between stipulating to the authenticity of the ‘knowns’ ... or suffering their admission as a full exhibit” with redactions as discussed in part IB of this opinion. Because the defendant has not alleged an action by the court that implicates a fundamental right, this claim is not reviewable pursuant to the second prong of Golding.

Finally, the defendant seeks Golding review of his claim that the court violated his right to due process because it “lost sight of its proper role” and became “an advocate for the state’s case.” Again at issue is the admission of the notes found in Perry’s cell. The gravamen of this claim is that the court violated the defendant’s due process rights because it did not compel the state to accept the defendant’s offer to stipulate to having authored the notes prior to the state’s attempt to put the notes into evidence. The result of this claimed failure was that the state put prejudicial evidence before the jury as part of its effort to establish that the defendant had authored the notes—specifically, that the defendant was incarcerated and that the “known” samples contained inflammatory language. Compare State v. Cornelius, 120 Conn. App. 177, 181-83, 990 A.2d 927 (reviewing pursuant to Golding defendant’s claim that court’s comment during jury charge implicated court’s neutrality), cert. denied, 296 Conn. 910, 993 A.2d 467 (2010). Based on our thorough review of the record, we conclude that this claim is not reviewable pursuant to the second prong of Golding. Not even a strained connection can be found to exist between the claimed action, or inaction, by the court and the claimed violation of a fundamental constitutional right.

The judgment is affirmed.

In this opinion the other judges concurred.

       The court imposed a total effective sentence of ninety years imprisonment.

       The defendant also asks this court to exercise its supervisory authority to abandon, or strictly limit, the doctrine of consciousness of guilt under our law. Our Supreme Court has declined such invitations; see, e.g., State v. Coward, 292 Conn. 296, 316, 972 A.2d 691 (2009); and we, as an intermediate appellate court, are bound by such decisions. State v. Smith, 107 Conn. App. 666, 684-85, 946 A.2d 319, cert. denied, 288 Conn. 902, 952 A.2d 811 (2008). Accordingly, we decline to do so.

       The restaurant had a security system, which recorded a silent video from four small cameras inside. Police seized the video, which showed the shooter and the shooting, but not the victim. The video was admitted as a full exhibit at trial, and portions of the recording were shown to the jury.

       The court found that the defendant had been advised properly of his rights and had knowingly, intelligently and voluntarily waived them. The defendant does not claim in this appeal any impropriety with the court’s admitting this confession into evidence.

       The first note found in Perry’s cell stated: “M-l what’s popin my boy yeah, it’s crunch time my nigga your boy is good but ail I need for you to do is let these people no thay you came from the Hot Club on bartholomew St in Hartford then you went to papa’s ordered your food you and mo-b and sat at the window next to the front but you was siting on the same side where the kid was at and then you saw me and him talking you seen talking shit to me then you seen him pull out first and shot at me first then you had fell to the floor after the shot’s was fired you and mo-b saw one of his boys take the gun from him it was a black gun you dident see who it was but you saw him take the gun from him then yall left then you saw the shit on the news then you came to jail and found out who I was and you told me that you was at papa’s and you told me what you saw, and you told me that you would help because he tried to kill me. Feel me that’s it and yo I respect you for real it’s only right we get up out there the true story but yo just go over this till they call you they will call you real soon write mo-b and just let him no it’s time and be ready feel me but yo holla me and be easy over there my nigga for real. One. you no who it is” The note was signed “One” in larger letters, with the phrase “you [know] who it is” printed underneath.

       We decline, therefore, to review the defendant’s claim that the court committed plain error by admitting the challenged evidence. “The plain error doctrine is not ... a rule of reviewability. It is a rule of reversibility. That is, it is a doctrine that this court invokes in order to rectify a trial court ruling that, although either not properly preserved or never raised at all in the trial court, nonetheless requires reversal of the trial court’s judgment, for reasons of policy.” (Internal quotation marks omitted.) State v. Christopher E., 126 Conn. App. 815, 825, 12 A.3d 1072, cert. denied, 300 Conn. 936, 17 A.3d 473 (2011).

       The court’s limiting instruction provided in relevant part: “[The notes found in Peny’s cell, which were admitted as full exhibits, and the exemplars that were referenced in the PowerPoint presentation] constitute in part. . . the state’s claim of consciousness of guilt. . . . [Y]ou may find [that these notes and exemplars] contain language or certain words [that] you may feel are inappropriate or offensive. The significance of the [notes], however, if you find [them] to be significant, relates to [their] use [as] evidence of consciousness of guilt and not the propriety of specific words. Therefore, while you may consider the note[s] as evidence of consciousness of guilt . . . provided, of course, you find the defendant to be the writer of the note[s], you are not to consider in your deliberations the propriety of the language used by the writer of the note in deciding this case.”

       “ [A] defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail.” (Emphasis in original.) State v. Golding, supra, 213 Conn. 239-40.

       As discussed in part I B of this opinion, the defendant later stipulated to authoring the “knowns.”

       The defendant acknowledges that the court issued a curative instruction regarding the claimed prejudicial evidence and does not challenge the efficacy of that instruction.


source: Caselaw Access Project

author: WEST, J.

license: Public Domain

text:
    YAO GONG v. XUANWEI HUANG
    (AC 31145)
    Beach, Bear and West, Js.

      Argued January 3
    officially released May 31, 2011

      Yao Gong, pro se, the appellant-cross appellee (plaintiff).

      Xuanwei Huang, pro se, the appellee-cross appellant (defendant).
   Opinion

WEST, J.

The defendant, Xuanwei Huang, appearing pro se, cross appeals from the judgment of the trial court dissolving his marriage to the plaintiff, Yao Gong, claiming, inter alia, that the court abused its discretion when it: (1) failed to address his motion for modification of the pendente lite alimony order in a timely manner; (2) failed to consider the plaintiffs dissipation of marital assets when it rendered its final judgment; (3) did not hold the plaintiff in contempt regarding her failure to maintain the mortgage and common charge payments of the parties’ Norwalk condominium (condominium) and her failure to return his personal property; (4) failed to modify the visitation agreement entered into by the parties; and (5) ordered the defendant to compensate the plaintiff $5000 for the disparity in value between their automobiles. We disagree and accordingly affirm the judgment of the court.

The following facts and procedural history are relevant to the defendant’s cross appeal. In July, 2007, the plaintiff commenced the underlying marital dissolution action against the defendant. The commencement of that action initiated a protracted, highly contentious and litigious procedural course. The parties have two minor children from their marriage: a younger daughter, bom on December 20, 2006, and an older daughter, bom on May 31, 2004. On December 17,2007, the court, Munro, J., ordered the defendant to pay the plaintiff pendente lite $215 weekly in child support, $95 weekly for day care costs and $200 weekly in alimony. In addition, the court also ordered the plaintiff to bring the mortgage and common charges of the parties’ condominium current and to maintain those charges during the pendency of the dissolution action. On February 4, 2008, pursuant to a stipulated agreement, the defendant’s obligations to provide the plaintiff with child support and day care expenses were discontinued after he traveled to China and assumed the parenting responsibilities for the parties’ youngest daughter. On May 25, 2008, an ex parte protective order was issued against the defendant that prohibited him from harassing or threatening the plaintiff or entering the condominium. That order remained in effect until June 23,2008. Subsequently, a second protective order was issued against the defendant and that order remained in effect throughout the pendency of the dissolution action. On March 24, July 25 and August 28, 2008, the defendant filed successive motions for modification of the pendente lite alimony order. Each of those motions requested a reduction of the pendente lite alimony order. On July 24 and August 28,2008, the defendant also filed motions for contempt against the plaintiff, alleging that she had violated the court’s pendente lite order to maintain the financial obligations regarding the condominium and to provide him with financial documentation. On October 29,2008, the court, Malone, J., approved a parenting agreement (parenting agreement) between the parties that granted the plaintiff sole custody of the older daughter and granted sole custody of the younger daughter to the defendant.

On May 22, 2009, the court, by way of memorandum of decision, rendered judgment dissolving the parties’ marriage on the ground of irretrievable breakdown. The final judgment of dissolution incorporated by reference the parenting agreement. In addition to ordering that the parties’ condominium be sold, with the proceeds from the sale to be divided equally between them, the court also ordered that neither party would receive child support or alimony. Additionally, the court found that the parties’ recently purchased Shanghai properly was a marital asset and ordered it to be sold with the proceeds of that sale also to be divided equally. The defendant was further ordered to compensate the plaintiff in the amount of $5000 for the disparity in value between their automobiles.

On June 3, 2009, the defendant filed a motion entitled “motion for trial judge to modify and clarify judgment” in which the defendant, inter alia, reiterated his claim that the plaintiff was in contempt regarding her alleged failure to return his personal property. He also filed a postjudgment motion requesting that his visitation rights pertaining to his older daughter be modified. On August 12, 2009, in response to the defendant’s post-judgment motion, the court issued an amended memorandum of decision finding that the plaintiff was not in violation of the parenting agreement, nor was she in contempt of the court order that required her to return the defendant’s personal belongings. Additionally, the court found that “[n]either party had provided credible testimony, and the court could not determine if [the defendant’s property] had already been returned or removed, or even existed at the time of trial.”

Thereafter, on September 24, 2009, the defendant filed another postjudgment motion to reargue. On this occasion he claimed, inter alia, that the court was required to order that the termination of his pendente lite alimony payments be made retroactive to the date of the first scheduled hearing on his request for modification. On March 29, 2010, the court held a hearing with respect to the foregoing postjudgment motion and the defendant’s motion for contempt, filed September 21, 2009, and entered the following order with regard to each motion: “See transcript. Orders in accordance with [the] ruling on the record.” Subsequent to filing his appellant brief on February 25, 2010, the defendant amended his cross appeal on April 19 and May 17, 2010. Additional facts will set forth as necessary.

“We begin by setting forth our general standard of review in an appeal challenging the financial orders made in a dissolution of marriage judgment. The well settled standard of review in domestic relations cases is that this court will not disturb trial court orders unless the trial court has abused its legal discretion or its findings have no reasonable basis in the facts. ... As has often been explained, the foundation for this standard is that the trial court is in a clearly advantageous position to assess the personal factors significant to a domestic relations case .... In determining whether a trial court has abused its broad discretion in domestic relations matters, we allow every reasonable presumption in favor of the correctness of its action.” (Internal quotation marks omitted.) Shaulson v. Shaulson, 125 Conn. App. 734, 739, 9 A.3d 782 (2010), cert. denied, 300 Conn. 912, 13 A.3d 1102 (2011). With these principles in mind, we address each of the defendant’s claims in turn.

I

A

The defendant first claims that the court failed to address his motions for modification of the pendente lite alimony order in a timely manner. Specifically, he claims that the court abused its discretion when it delayed ruling on the motions until it issued its memorandum of decision on May 22, 2009. We disagree.

Before addressing the merits of the defendant’s claim, we first establish this court’s jurisdiction. It is well established that our appellate review is permitted only from final judgments. See Ahneman v. Ahneman, 243 Conn. 471, 478, 706 A.2d 960 (1998). It is equally settled that “a ruling by a trial court regarding financial issues in a marital dissolution case—whether it be a pendente lite ruling, a ruling issued in conjunction with a final dissolution judgment or a decision regarding a postjudgment motion—is a final judgment for purposes of appeal.” Id., 479. A trial court’s decision not to consider a motion properly before it is “the functional equivalent of a denial” and, thus, considered a final judgment for the purposes of appellate review. Id., 480.

In the present case, the defendant filed three motions requesting a reduction in his obligation to pay pendente lite alimony on March 24, July 25 and August 28, 2008. It is clear from our review of the record that the court was faced with competing motions regarding the amount of alimony that the defendant was required to provide. It is equally clear that the court attempted to resolve the issues contained in the parties’ motions on numerous occasions but was unable to as a result of the behavior of both parties. During a hearing on October 29, 2008, the court, once again, was forced to delay its ruling on the parties’ motions for modification, and it subsequently ordered that both parties provide each other with updated financial affidavits. At a hearing on December 1, 2008, the court assigned a discovery special master to assess the parties’ financial status, given their continued lack of cooperation in complying with discovery orders. The court also informed the parties that after it received the report from the discovery special master it then would be able to assess their pending motions properly at the beginning of the trial.

At trial, the court conducted a thorough canvass of the parties’ marital assets as well as their current and future financial needs. In its memorandum of decision, the court did not award alimony to the plaintiff and ordered the parties’ condominium to be sold, thus, effectively ruling on the defendant’s previous motions to terminate his obligation to pay alimony. See Evans v. General Motors Corp., 277 Conn. 496, 508, 893 A.2d 371 (2006) (court’s ruling on particular issue can be inferred through the substantive effect of the court’s orders and memorandum of decision). In effect, the court’s orders after trial terminated the pendente lite orders concerning alimony and payment of the condominium obligations. Saunders v. Saunders, 140 Conn. 140, 146, 98 A.2d 815 (1953) (“[a]n order for alimony pendente lite is interlocutory and terminates with the judgment which follows it”).

In summary, the record is rife with examples illustrating that both parties participated in causing the delays, instead of the court. For example, on July 22, 2008, the defendant was held in contempt for his failure to comply with discovery orders, and, additionally, he failed to appear at the discovery special master’s conference on February 20, 2009, to address ongoing discovery issues. See footnote 12 of this opinion. For the defendant now to claim that the court abused its discretion by not ruling on his motions in a timely manner is untenable. Indeed, it is clear that in this particular case, the court reasonably could have decided to address those motions at trial because it was unable to do so, as a result of the behavior of the parties, at several scheduled motion calendars. Therefore, because we “allow every reasonable presumption in favor of the correctness of [the court’s] action”; (internal quotation marks omitted) Shaulson v. Shaulson, supra, 125 Conn. App. 739; we conclude that the court did not abuse its discretion by not terminating the pendente lite alimony order until it rendered its final judgment. Accordingly, we conclude the defendant’s claim to be without merit.

B

The defendant also claims that the court abused its discretion when it denied his postjudgment motion requesting that the court’s order terminating his obligation to pay alimony be retroactive to the date of the initial hearing on his motion for modification. In essence, he contends that the court was required to order that the discharge of his obligation to pay alimony be made retroactive to April 21, 2008.

As a procedural matter, we conclude that the record is inadequate for review regarding this claim. On September 24,2009, the defendant filed amotion to reargue, claiming, inter alia, that the court was required to order that the termination of his obligation to provide alimony to the plaintiff be retroactive to April 21,2008. On March 29, 2010, the court ruled on the defendant’s motion and entered the following order: “See transcript. Orders in accordance with [the] ruling on the record.”

This court has consistently stated that it is the responsibility of the appellant to provide an adequate record for review. See Sevastian v. Sevastian, 73 Conn. App. 605, 608, 808 A.2d 1180 (2002); see also Practice Book §§ 61-10, 63-8 and 63-8A. In the absence of an adequate record, we cannot review the defendant’s claim on appeal properly. See Sevastian v. Sevastian, supra, 608.

In the present case, we cannot review adequately the defendant’s claim because he has not provided this court with a copy of the transcript from the March 29, 2010 hearing. “The duty to provide this court with a record adequate for review rests with the appellant.” Disciplinary Counsel v. Villeneuve, 126 Conn. App. 692, 700, 14 A.3d 358 (2011); see Practice Book § 61-10. Without the necessary factual findings and legal conclusions made by the court, any decision made by us respecting the defendant’s claims would be entirely speculative. See Disciplinary Counsel v. Villeneuve, supra, 701. Thus, we are unable to review this claim.

II

The defendant next claims that the court abused its discretion when it failed to consider in its final judgment evidence that the plaintiff dissipated marital assets. Specifically, the defendant claims that the court ignored evidence that the plaintiff transferred assets to her family in China and ignored the financial disparity regarding the parties’ retirement accounts. We disagree.

“[Dissipation in the marital dissolution context requires financial misconduct involving marital assets, such as intentional waste or a selfish financial impropriety, coupled with a purpose unrelated to the marriage.” (Internal quotation marks omitted.) Finan v. Finan, 287 Conn. 491, 499, 949 A.2d 468 (2008). The defendant appears to claim that during the pendency of the dissolution action, the plaintiff improperly transferred over $74,000 to an account in China in an attempt to dissipate marital assets and that the court ignored that fact when rendering its judgment. In assessing this claim, “we are mindful of the well trodden notion that the trial court is the sole arbiter of credibility, [and it is] free to accept or reject, in whole or in part, the testimony offered by either party.” (Internal quotation marks omitted.) Shaulson v. Shaulson, supra, 125 Conn. App. 742-43.

In the present case, the court found that the plaintiff had transferred $60,000 of the parties’ assets to China to pinchase the Shanghai property. As a result, the court found the property to be a marital asset and ordered it to be sold and the proceeds to be divided equally between the parties. This finding demonstrates that the court considered the defendant’s claim about the plaintiffs transfer of assets to China. Additionally, the court ordered that each party would retain his or her retirement accounts “free and clear of the other party.” The court is in the best position to assess the credibility of the evidence, and, as a result, we will not second-guess the court’s distribution of assets unless there has been an abuse of discretion or it is found that the court could not have reasonably concluded as it did, based on the facts presented. See de Repentigny v. de Repentigny, 121 Conn. App. 451, 460, 462, 995 A.2d 117 (2010). In the present case, the defendant has made no such showing.

Ill

Next, the defendant claims that the court erred when it failed to rule on his motions for contempt against the plaintiff regarding her alleged failure to return his personal belongings and her alleged failure to maintain the mortgage and common charges of the parties’ condominium. We disagree.

“Courts have in general the power to fashion a remedy appropriate to the vindication of a prior . . . judgment. . . . Having found noncompliance, the court, in the exercise of its equitable powers, necessarily ha[s] the authority to fashion whatever orders [are] required to protect the integrity of [its original] judgment.” (Internal quotation marks omitted.) Behrns v. Behrns, 124 Conn. App. 794, 821, 6 A.3d 184 (2010). Therefore, we must determine whether the court abused its discretion in fashioning the remedy in this case. “This is so because [i]n a contempt proceeding, even in the absence of a finding of contempt, a trial court has broad discretion to make whole a party who has suffered as a result of another party’s failure to comply with the court order.” (Emphasis in original; internal quotation marks omitted.) Fuller v. Fuller, 119 Conn. App. 105, 115, 987 A.2d 1040, cert. denied, 296 Conn. 904, 992 A.2d 329 (2010).

Although the court did not rule expressly on the defendant’s motion for contempt regarding the plaintiffs financial obligations concerning the condominium, it did find that the plaintiff failed to maintain the mortgage and common charges as ordered pendente lite and, thus, ordered in the judgment that if the payments were not made current prior to the sale of that property, the unpaid costs would be deducted from the plaintiffs share of the divided proceeds. We conclude that the court exercised its discretion properly by compensating the defendant for the plaintiffs violation of the court order. See Evans v. General Motors Corp., supra, 277 Conn. 508 (combined effect of memorandum of decision and subsequent order was final judgment on matter).

In its amended memorandum of decision on August 12, 2009, the court did not find the plaintiff in contempt regarding her alleged failure to return the defendant’s personal belongings. The court stated that it could not discern whether the property was returned or “even existed at the time of the trial.” As stated previously, we will not second-guess the court’s determination of the parties’ credibility. See de Repentigny v. de Repentigny, supra, 121 Conn. App. 460, 462. Our review of the record does not reveal that the court abused its broad discretion in the manner in which it addressed the defendant’s motions for contempt. Accordingly, the defendant’s claim fails.

IV

Next, the defendant appears to challenge the court’s order regarding his motion for modification of visitation. We conclude that the defendant has abandoned this claim due to inadequate briefing.

In his amended appeal to this court dated May 17, 2010, the defendant claims that the court “inappropriately ruled [on the] visitation plan . . . .” That amended appeal, however, was filed after the defendant filed his cross appellant brief with this court on February 25, 2010. Consequently, the defendant’s brief does not address that claim; instead, he argues that the court improperly failed to consider his motion. Our review of the record does not reveal that the defendant requested supplemental briefing to address this issue. “Although we are solicitous of the rights of pro se litigants . . . [s]uch a litigant is bound by the same rules . . . and procedure as those qualified to practice law.” (Internal quotation marks omitted.) State v. Klinger, 103 Conn. App. 163, 169, 927 A.2d 373 (2007). Insofar as the defendant attempts to set forth a claim of error regarding the court’s May 17, 2010 order, such a claim has not been presented or briefed adequately and, therefore, is deemed abandoned. See Mullen & Mahon, Inc. v. Mobilmed Support Services, LLC, 62 Conn. App. 1, 10, 773 A.2d 952 (2001) (“[assignments of error which are merely mentioned but not briefed beyond a statement of the claim will be deemed abandoned and will not be reviewed by this court” [internal quotation marks omitted]). On this basis we decline review of the defendant’s claim.

V

The defendant’s final claim is that the court abused its discretion when it ordered him to compensate the plaintiff $5000 for the disparity in value between their automobiles. Specifically, the defendant asserts that the court did not consider properly all of the parties’ marital assets in total when it issued this order. We do not agree.

As we have stated previously, this court will not disturb a court’s judgment in a domestic relations matter unless the court has abused its broad discretion, and we will allow every reasonable presumption in favor of the correctness of its action. See Shaulson v. Shaulson, supra, 125 Conn. App. 739. “[T]he foundation for this standard is that the trial court is in a clearly advantageous position to assess the personal factors significant to a domestic relations case . . . .” Id.

Relying on Papa v. Papa, 55 Conn. App. 47, 737 A.2d 953 (1999), and Tevolini v. Tevolini, 66 Conn. App. 16, 783 A.2d 1157 (2001), the defendant appears to claim that the court did not have a reasonable basis to form its conclusion as a result of there being no evidence in the record regarding the value of the parties’ automobiles. We conclude that the court did not abuse its discretion in its assessment. At trial, the court was in possession of financial affidavits from the parties and received testimony from the plaintiff that the appraised value of the defendant’s 2006 Toyota Corolla was $15,000 and that her 1998 Toyota Camry was appraised at $1275. In light of the proffered evidence, we will not second-guess the court’s assessment of value concerning each automobile. See de Repentigny v. de Repentigny, supra, 121 Conn. App. 460, 462. Accordingly, this claim fails.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff filed a direct appeal on May 29, 2009. On October 29, 2009, the plaintiffs appeal was dismissed by this court for failing to comply with a nisi order issued by this court on October 5, 2009. Consequently, the plaintiffs appeal is not before this court.

       In the defendant’s first amended cross appeal dated April 19, 2010, he also claimed that the court improperly determined that both parties’ testimony lacked credibility and that the court refused to rule on his motion to reargue. That amended appeal was filed after the defendant filed his cross appellant brief with this court on February 25,2010. We conclude, therefore, that the defendant has abandoned those claims. See Updike, Kelly & Spellacy, P.C. v. Beckett, 269 Conn. 613, 642-43, 850 A.2d 145 (2004) (claims not briefed on appeal are considered abandoned).
      The defendant also makes several claims, in his appellate brief, regarding the parties’ property located in Shanghai, China. During oral argument before this court, however, the defendant abandoned those claims stating that the property had been sold and the proceeds of that sale were allocated consistent with the trial court’s order in its final dissolution judgment.

       Our review of the record reveals that prior to the court’s amended memorandum of decision dissolving the parties’ marriage on August 12,2009, the defendant filed over thirty motions for contempt against the plaintiff. In addition to the contempt motions, the defendant also filed a myriad of motions throughout the course of the underlying action raising other issues.

       In Ms motions, the defendant claimed that he had mcurred additional expenses or that Ms financial situation had changed substantially. Each motion appears to have been marked off.

       The parenting agreement also contained visitation provisions that provided, inter alia, that the defendant would have visitation with Ms older daughter on alternate Saturdays from 10 a.m. until 6 p.m. and the plaintiff would have visitation with her younger daughter on alternate Saturdays from 10 a.m. until 5 p.m.

       The court issued an order regarding the defendant’s motion to modify visitation on May 17, 2010.

       We note that the court correctly interpreted the defendant’s motion to “modify and clarify judgment” as a motion to reargue and subsequently denied that motion given that the defendant sought to modify the substantive terms of the dissolution order. See Mickey v. Mickey, 292 Conn. 597, 605, 974 A.2d 641 (2009) (“[mjotions for clarification may not, however, be used to modify or to alter the substantive terms of a prior judgment”).

       In its memorandum of decision, the court also stated that “[t]he other motions for contempt requested by the defendant are not ruled on at this time in that both parties have filed appeals from the final judgment.”

       On September 21,2009, the defendant filed another motion for contempt against the plaintiff, alleging violations of various court orders.

       The defendant has failed to provide this court with a transcript of the hearing on March 29, 2009, as is required by Practice Book § 61-10. See Practice Book §§ 63-8 and 63-8A.

       On September 26,2008, the plaintiff also filed a motion for modification, requesting an increase in the defendant’s pendente lite alimony payments.

       Our review of the record reveals that those motions were marked off frequently due to the parties’ absence at multiple hearings, being unprepared to proceed or their failure to adhere properly to procedural requirements. The defendant repeatedly failed to comply with financial discovery orders in addition to failing to follow procedural steps to notify opposing counsel prior to one of the scheduled hearings on his motions for modification. We note particularly that, on July 22, 2008, the court found the defendant in contempt regarding his failure to comply with an order to produce financial documents. Additionally, the defendant failed to appear for a scheduled status conference hearing on February 20, 2009, which the court had appointed a discovery special master, attorney Robert M. Wechsler, to attempt to resolve the ongoing discovery issues pertaining to the parties’ financial status. During the hearing, the defendant called Wechsler on his cell phone to inform him that he was requesting a continuance, as Wechsler put it, “for various and sundry reasons.” Despite informing the defendant that any such continuance required the court’s permission, the defendant failed to appear. Wechsler also informed the court that the defendant did not provide him with the supplemental interrogatories that he had requested.

       The defendant now asserts that the responsibility for the delay is somehow rooted in the court’s negligence and that it consistently “refused” to rule on his motions for modification until it rendered its final judgment. We note that as a general rule a trial court “must consider and decide on a reasonably prompt basis all motions properly placed before it . . . .” See Ahneman v. Ahneman, supra, 243 Conn. 484; see also Ramin v. Ramin, 281 Conn. 324, 338, 915 A.2d 790 (2007). We conclude, however, that the present case is not an example of the court refusing to consider motions properly put before it, as discussed in Ahneman and Ramin, but, rather, a case in which the parties purposely circumvented any attempt, by the other, to advance the procedural posture of the case. Compare Ramin v. Ramin, supra, 336 (court refused expressly to address motion for contempt) and Ahneman v. Ahneman, supra, 482-83 (court expressly declined to consider defendant’s motions either prior to or as part of final judgment) with Eckert
        v. Eckert, 285 Conn. 687, 698-99, 941 A.2d 301 (2008) (court’s failure to grant hearing prior to issuing an oral ruling on motion for modification was not equivalent to refusal). After our thorough review of the record it is apparent that the court never refused expressly to consider the motions. See Eckert v. Eckert, supra, 699. Rather, it is clear that the court attempted to resolve those motions on numerous occasions but was unable because of the parties’ behavior and their unwillingness to provide accurate financial information. See footnote 12 of this opinion. As a result, the defendant’s claim that the court refused to rule on his motions for modification is without merit.

       Given that the court did not order further alimony after it ordered that the parties’ Norwalk condominium be sold, it is reasonable to conclude that the pendente lite alimony order was to assist the plaintiff with her obligations to pay the mortgage and the common charges associated with maintaining the condominium.

       In his appellate brief, the defendant also contends, albeit cursorily, that the delay violated his procedural due process rights. The defendant did not raise this claim before the trial court and has not directed us to any authority supporting his position that a delay in ruling on a motion for modification rises to the level of a constitutional violation. As that claim was not raised before the trial court and was briefed inadequately, we decline review. See Lawton v. Weiner, 91 Conn. App. 698, 709 n.7, 882 A.2d 151 (2005).

       Additionally, we note that it is impermissible for a court to modify alimony pendente lite after the predissolution period had ended. See General Statutes § 46b-86. “[T]he purpose of alimony pendente lite is to provide a party with support during the pendency of the dissolution action. . . . Allowing a court to modify an award of alimony pendente lite retroactively at the time the dissolution is granted would frustrate that purpose because it would encourage spouses to delay making their alimony payments until the time of dissolution, hoping that the order for alimony pendente lite would be forgiven or changed at that time.” (Internal quotation marks omitted.) Clark v. Clark, 127 Conn. App. 148, 158, 13 A.3d 682 (2011).

       We note also that, to the extent the defendant is challenging the propriety of the pendente lite alimony order, any such challenge would be rendered moot as a result of the pendente lite order being extinguished when the final judgment was rendered. See footnote 16 of this opinion.

       The defendant also claims that the court’s delay in denying these motions violated his due process rights. For similar reasons as we have set forth in footnote 15 of this opinion, we conclude that claim to be without merit.


author: PER CURIAM.

text:
    SUZANNE NOWACKI v. MICHAEL J. NOWACKI
    (AC 32327)
    DiPentima, C. J., and Alvord and Borden, Js.

      Argued March 14
    officially released May 31, 2011

      Michael J. Nowacki, pro se, the appellant (defendant).

      Kevin F. Collins, for the appellee (plaintiff).

      Veronica E. Reich, for the minor children.
   Opinion

PER CURIAM.

The defendant, Michael J. Nowacki,

appeals from various postjudgment orders of the trial court following the dissolution of his marriage to the plaintiff, Suzanne Nowacki.

The parties were divorced on June 29, 2005. At that time, the parties entered into a separation agreement that the court accepted and incorporated into the judgment of dissolution. On June 29, 2009, the court granted the plaintiffs motion for the appointment of an attorney for the minor children. Shortly thereafter, attorney Veronica Reich was appointed as the attorney for the minor children. In December, 2009, Reich filed an ex parte emergency motion for modification of custody and parenting time. This motion alleged that since Reich’s appointment in July, 2009, the defendant’s behavior increasingly had become erratic, and this led to concerns regarding the long-term welfare of the children. On December 2, 2009, the court granted Reich’s motion. Specifically, it provided: “It is ordered that the plaintiff . . . have sole legal and physical custody of the minor children . . . and that the defendant . . . have supervised visitation, on schedule to be determined, pending further hearing before this court. It is further ordered that the defendant ... be cited to appear before this court then and there to be heard on this issue.” The court scheduled a hearing where the defendant would be afforded the opportunity to show cause why the plaintiffs request for sole legal and physical custody should not be continued.

On January 22, 2010, the court found that the defendant was not competent to represent himself in the proceedings. The court’s finding was based on testimony from a psychiatrist that the defendant “has an inability to actually perceive the reality of the situation and to be able to deal with it on a normal scale.” The court stated that it was “going to have to stop the proceedings and . . . going to have to look into the appointment of someone to represent [the defendant].”

On July 14, 2010, the court held a status conference at which time certain financial affidavits were to be exchanged. At this proceeding, the court, Schofield, J., read into the record the transcript from a proceeding held on July 6, 2010, where the court noted that a hearing scheduled for July 23, 2010, would be limited to whether the defendant was competent to represent himself and a determination of Reich’s fees. On July 6,2010, the court had ordered the parties to complete a face-to-face exchange of fully executed financial affidavits on July 14, 2010. On July 14, 2010, counsel for the plaintiff represented that he had such a financial document and was prepared to exchange it with the defendant. Counsel also indicated at the July 14,2010 hearing that, on May 17, 2010, the defendant had been ordered to produce a financial affidavit by the court, Malone, J. It does not appear from the record that the defendant complied with Judge Malone’s May 17, 2010 order. On July 14, 2010, as a result of the defendant’s failure to present a financial affidavit, the court, Schofield, J., found him in contempt for violating her order of July 6, 2010, to produce a financial affidavit and had the defendant removed from the courtroom.

I

The defendant filed his initial appeal on May 27,2010. According to this appeal form, he has appealed from the January 22, 2010 order that he was not competent to represent himself and the May 17, 2010 order to produce a financial affidavit. We conclude that we lack subject matter jurisdiction over both of these claims.

A

With respect to the claim regarding the January 22, 2010 finding that he was not competent to represent himself, subsequent events have rendered this claim moot. Specifically, on November 19,2010, Judge Malone vacated the finding that the defendant was not able to represent himself and ordered that the hearing on the custody modification be scheduled for a later date.

“It is axiomatic that if the issues on appeal become moot, the reviewing court loses subject matter jurisdiction to hear the appeal. . . . Mootness implicates [our] court’s subject matter jurisdiction and is thus a threshold matter for us to resolve. ... It is a well-settled general rule that the existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow. . . . An actual controversy must exist not only at the time the appeal is taken, but also throughout the pendency of the appeal. . . . When, during the pendency of an appeal, events have occurred that preclude an appellate court from granting any practical relief through its disposition of the merits, a case has become moot.” (Citation omitted; internal quotation marks omitted.) Sullivan v. McDonald, 281 Conn. 122, 125, 913 A.2d 403 (2007); see Putman v. Kennedy, 279 Conn. 162, 169, 900 A.2d 1256 (2006).

As the order finding the defendant not competent to represent himself has been vacated, we cannot afford him any practical relief. Accordingly, we lack jurisdiction and dismiss this portion of the defendant’s appeal.

B

With respect to the May 17, 2010 order that required the defendant to produce a financial affidavit, we conclude that we lack jurisdiction as a result of a lack of a final judgment. “The jurisdiction of the appellate courts is restricted to appeals from judgments that are final. General Statutes §§ 51-197a and 52-263; Practice Book § [61-1] .... The policy concerns underlying the final judgment rule are to discourage piecemeal appeals and to facilitate the speedy and orderly disposition of cases at the trial court level. . . . The appellate courts have a duty to dismiss, even on [their] own initiative, any appeal that [they lack] jurisdiction to hear.” (Internal quotation marks omitted.) Clark v. Clark, 115 Conn. App. 500, 503, 974 A.2d 33 (2009); see Practice Book § 66-8; see also State v. Fielding, 296 Conn. 26, 35, 994 A.2d 96 (2010).

“An order issued upon a motion for discovery is ordinarily not appealable because it does not constitute a final judgment, at least in civil actions.” (Internal quotation marks omitted.) Ingels v. Saldana, 103 Conn. App. 724, 731, 930 A.2d 774 (2007); see Chrysler Credit Corp. v. Fairfield Chrysler-Plymouth, Inc., 180 Conn. 223, 226, 429 A.2d 478 (1980). As an interlocutory order, this discovery order would be immediately appealable only if it met the two part test articulated in State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983). See Cruz v. Gonzalez, 40 Conn. App. 33, 35, 668 A.2d 739 (1995). We conclude that the present order neither terminates a separate and distinct proceeding nor so concludes the rights of the parties that further proceedings cannot affect them. See id. Accordingly, we lack jurisdiction and therefore dismiss this portion of the defendant’s appeal.

II

On July 29, 2010, the defendant filed a first amended appeal. The defendant appears to claim that the July 14, 2010 hearing was invalid because it occurred prior to a decision on his motion to restore his right to self-representation. This amended appeal farther purports to challenge the propriety of the July 14, 2010 hearing where the financial affidavits were to be exchanged, while his initial appeal of the May 17, 2010 order was pending. We conclude that the defendant has abandoned these claims as a result of an inadequate brief.

“It is well settled that [w]e are not required to review claims that are inadequately briefed. . . . We consistently have held that [a]nalysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly. . . . [F]or this court judiciously and efficiently to consider claims of error raised on appeal . . . the parties must clearly and fully set forth their arguments in their briefs. We do not reverse the judgment of a trial court on the basis of challenges to its rulings that have not been adequately briefed. . . . The parties may not merely cite a legal principle without analyzing the relationship between the facts of the case and the law cited. . . . [Assignments of error which are merely mentioned but not briefed beyond a statement of the claim will be deemed abandoned and will not be reviewed by this court.” (Internal quotation marks omitted.) Keating v. Ferrandino, 125 Conn. App. 601, 603-604, 10 A.3d 59 (2010); see Cooke v. Cooke, 99 Conn. App. 347, 353, 913 A.2d 480 (2007).

We carefully have reviewed the defendant’s brief. The defendant has failed to cite relevant case law and apply those principles to the issues raised in this amended appeal. He has not demonstrated, aside from unsupported assertions, how the trial court’s rulings were improper. In short, we are presented with an inadequate brief. Accordingly, we decline to review the claims raised in the defendant’s first amended appeal.

III

On July 29, 2010, the defendant filed a second amended appeal. On this appeal form, he noted that he is appealing from “ [a]llocation of [attorney for the minor children] fees . . . Restoring Self Representation Rights was a predicate motion, Trial Court usurping powers of Appellate Court.” We interpret this appeal to be focused on the award of fees to Reich. We acknowledge that the defendant has cited three cases that ostensibly pertain to attorneys for minor children. We conclude, nevertheless, that the defendant has failed to supply the required analysis to explain this claim adequately. Accordingly, we decline to review the merits of it.

IV

On August 10, 2010, the defendant filed a third amended appeal. The defendant appears to challenge the finding by Judge Schofield that he was not competent to represent himself and the denial of his motion for a mistrial. With respect to the former, we dismiss this claim as moot. See part IA of this opinion. As to the latter, we conclude that the defendant has abandoned it as a result of an inadequate brief.

V

On September 24, 2010, the defendant filed a fourth amended appeal. The appeal form states: “Judge Malone stated on Sept. 20 hearing in Stamford, no decision on any motion would be made before status conf.” To the extent that the defendant challenges the determination that he was not competent to represent himself, we conclude it is moot. See part I A of this opinion. With respect to any other claim, we conclude that the defendant has abandoned it as a result of an inadequate brief. See part II of this opinion.

VI

On December 13, 2010, the defendant filed a fifth amended appeal. The defendant challenges a “[c]ustody [s]tudy [o]rder” purportedly ordered by Judge Malone on December 10, 2010, as well as various motions that were denied. This amended appeal challenges decisions made by the trial court nearly three months after his brief was filed. The defendant has not requested permission to file an amended brief. Accordingly, we decline to review the issues raised in his fifth amended appeal as inadequately briefed.

The defendant’s initial appeal and that portion of his third amended appeal addressing his right to represent himself are dismissed as moot. The decisions of the trial court with respect to the remaining appellate claims are affirmed.

       As part of the dissolution judgment, the court restored the plaintiffs maiden name, and she is now known as Suzanne Sullivan.

       During the proceeding, Kenneth Robson, a psychiatrist, testified that he had been appointed by the court to evaluate the plaintiff and the defendant.

       Under certain circumstances, not found in the present case, discovery orders may be appealed before a final judgment on the merits has been rendered. “[W]e require that those ordered to comply with discovery be found in contempt of court before we consider an appeal . . . .” (Internal quotation marks omitted.) Green Rock Ridge, Inc. v. Kobernat, 250 Conn. 488, 498, 736 A.2d 851 (1999). We note that the defendant has not been found in contempt for violating the May 17, 2010 order by Judge Malone to disclose the financial affidavit. Judge Schofield found the defendant in contempt for violating her order of July 6, 2010.

       In reaching that conclusion, we are mindful of the plaintiffs pro se status. “[Ijtis the established policy of the Connecticut courts to be solicitous of pro se litigants and when it does not interfere with the rights of other parties to construe the rules of practice liberally in favor of the pro se party. . . . Nonetheless, [ajlthough we allow pro se litigants some latitude, the right of self-representation provides no attendant license not to comply with relevant rules of procedural and substantive law.” (Internal quotation marks omitted.) Ervin v. Avallone, 108 Conn. App. 55, 56 n.1, 947 A.2d 380, cert. denied, 288 Conn. 911, 953 A.2d 652 (2008).


text:
    THE TRAVELERS HOME AND MARINE INSURANCE COMPANY v. MARC KRAVITZ
    (AC 32004)
    DiPentima, C. J., and Lavine and Peters, Js.
    Argued April 11
    officially released May 31, 2011

      Jan A. Marcus, for the appellant (defendant).

      John B. Farley, for the appellee (plaintiff).
   Opinion

PER CURIAM.

The defendant, Marc Kravitz, appeals from the judgment of the trial court rendered in favor of the plaintiff, Travelers Home and Marine Insurance Company. On appeal, the defendant claims that the court improperly confirmed an arbitration award and dismissed his motion to vacate the award without holding an evidentiary hearing. We conclude that the trial court properly determined that it lacked subject matter jurisdiction, pursuant to General Statutes § 52-420 (b), to consider the merits of the defendant’s motion to vacate. Accordingly, we affirm the judgment of the trial court.

On December 3, 2009, the plaintiff, pursuant to General Statutes § 52-417, filed an application for an order to confirm an appraisal award dated September 17, 2009, against the defendant. The defendant’s property had sustained damage which was covered by a homeowner’s insurance policy issued by the plaintiff. The parties disagreed on the amount needed to repair the damages. The terms of the insurance policy provided: “If [the parties] fail to agree on the amount of loss, either may demand an appraisal of the loss. In this event, each party will choose a competent and impartial appraiser within 20 days after receiving a written request from the other. The two appraisers will choose an umpire. . . . The appraisers will separately set the amount of loss. If the appraisers submit a written report of an agreement to us, the amount agreed upon will be the amount of loss. If they fail to agree, they will submit their differences to the umpire. A decision agreed to by any two will set the amount of loss.”

Pursuant to the policy, two appraisers and an umpire were selected. The defendant’s appraiser, Christopher Frattaroli, estimated that the cost of doing the necessary repairs exceeded $100,000. The plaintiffs appraiser, Vincent Saliemo, provided an estimate of approximately $35,000. The umpire chosen by the two appraisers, Angelo Mustich, found the cost of repairs to be $38,331.63. Saliemo agreed with Mustich, and the amount of the defendant’s loss was set at that amount. On October 26, 2009, the defendant was notified of the appraisal award.

On January25,2010, the defendant filed an opposition to the plaintiffs application to confirm the appraisal award, as well as a motion to vacate. Attached to the defendant’s opposition was an affidavit from Frattaroli, in which he stated that, after the appraisals had been completed, he saw Saliemo and Mustich talking by themselves on the shoulder of 1-95, with both of their cars pulled off to the side of the highway. Frattaroli conceded that he had no knowledge of the topic of this conversation.

On February 3, 2010, the court overruled the defendant’s objection to the plaintiffs application to confirm the arbitration award. The court denied the motion to vacate the award as untimely and, for this reason, did not consider the merits of the defendant’s objection or motion to vacate. The court granted the plaintiffs application and rendered judgment accordingly. This appeal followed.

Section 52-420 (b) provides: “No motion to vacate, modify or correct an award may be made after thirty days from the notice of the award to the party to the arbitration who makes the motion.” It is well established that if such a motion is not filed within thirty days, the trial court lacks subject matter jurisdiction over such motion. Wu v. Chang, 264 Conn. 307, 312, 823 A.2d 1197 (2003); Middlesex Ins. Co. v. Castellano, 225 Conn. 339, 344, 623 A.2d 55 (1993); Vail v. American Way Homes, Inc., 181 Conn. 449, 452-53, 435 A.2d 993 (1980).

“As a threshold matter, we address our standard of review. We have long held that because [a] determination regarding a trial court’s subject matter jurisdiction is a question of law, our review is plenary. . . . Moreover, [i]t is a fundamental rule that a court may raise and review the issue of subject matter jurisdiction at any time. . . . Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it. . . . [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction . . . .” (Internal quotation marks omitted.) Bloomfield v. United Electrical, Radio & Machine Workers of America, Connecticut Independent Police Union, Local 14, 285 Conn. 278, 286, 939 A.2d 561 (2008).

On appeal, the defendant claims that the trial court “should have conducted an evidentiary hearing after [he] made a prima facie showing of potential corruption in the [a]ppraisal process.” Although he does not dispute that the motion to vacate was filed outside of the thirty day period, the defendant claims that, due to the unique circumstances of this case, an exception to § 52-420 (b) is warranted.

In Wu v. Chang, supra, 264 Conn. 312, our Supreme Court rejected the argument that a claim of fraud abrogated “the statutorily mandated thirty day period within which a party to an arbitration proceeding must move to vacate an award . ...” As part of its rationale, the court noted the clear intent by the legislature to enact a specific arbitration statutory scheme. Id., 313. Any judicially created exception to the thirty day time period would run contrary to both the legislative intent, as well as the “efficient, economical and expeditious resolution of private disputes.” Id. We disagree with the defendant’s claim that an appearance of impropriety requires a departure from the controlling precedent set by our Supreme Court. We do note, however, that there is no evidence regarding the content of the discussion between Saliemo and Mustich.

The defendant also argues that public policy, namely, ensuring the “absolute impartiality of arbitrators,” supplies a basis to vacate the award. In Bloomfield v. United Electrical, Radio & Machine Workers of America, Connecticut Independent Police Union, Local 14, supra, 285 Conn. 278, our Supreme Court rejected this argument. The court first stated that it is not permitted to supply language to the statute, or to rewrite a statute to achieve a particular result. Id., 288-89. It also pointed to the “legislature’s well established support of arbitration as a mechanism for the inexpensive and expedient resolution of private disputes.” Id., 290. The court reiterated the importance of the thirty day time period of § 52-420 (b). Id., 291. “To conclude that the thirty day time limitation . . . does not apply to motions to vacate arbitration awards that are based on public policy grounds would be inconsistent with our recent decision in Wu, and would frustrate the legislative purpose of facilitating the expedient resolution of private disputes. Accordingly, we conclude that the thirty day filing period set forth by § 52-420 (b) applies to an application to vacate an arbitration award on the ground that it violates public policy.” Id., 292.

In this case, the defendant does not dispute that he filed the motion to vacate outside of the statutorily mandated thirty day time frame. Pursuant to § 52-420 (b), and precedent from our Supreme Court, we conclude that the trial court properly determined that it lacked jurisdiction to conduct an evidentiary hearing.

The judgment is affirmed.

       Under these facts, the specific type of arbitration award is known as an appraisal award.