author: ALVORD, J.

text:
    TARA KUPERSMITH v. COREY KUPERSMITH
    (AC 34849)
    DiPentima, C. J., and Alvord and Harper, Js.

      Argued May 28
    officially released September 24, 2013

      Mark Stem, with whom, on the brief, was Marc T. Miller, for the appellant (defendant).

      Allen Gary Palmer, with whom was Robert M. Wech-sler, for the appellee (plaintiff).
   Opinion

ALVORD, J.

The defendant, Corey Kupersmith, appeals from the judgment of the trial court denying his motion to vacate execution, injunction, exemption and other relief (motion to vacate) and granting an award of attorney’s fees to his former wife, the plaintiff, Tara Kupersmith. On appeal, the defendant claims that: (1) General Statutes §§ 52-350a and 52-350f prohibit a court from ordering a postjudgment property execution to enforce a family support judgment; (2) the court improperly lifted the temporary suspension it had imposed on implementation of the writ of execution because the 2004 dissolution judgment is void because it did not comply with the child support guidelines, was based upon an inaccurate accounting of the plaintiffs assets, and contained a contractual penalty for failure to pay child support in violation of public policy; and (3) the court abused its discretion in awarding the plaintiff attorney’s fees for defending the defendant’s motion to vacate. We affirm the judgment of the trial court with respect to the motion to vacate, but reverse the court’s award of attorney’s fees.

The record reveals the following facts and procedural history. On June 4, 2004, the court rendered a judgment dissolving the parties’ marriage. In the judgment, the court incorporated by reference both a joint parenting plan relative to the parties’ four children and a separation agreement; both documents were signed by the parties and their respective counsel. The separation agreement provided, inter alia, that the defendant would pay the plaintiff alimony in the form of a lump sum payment of $11,700,000 and monthly periodic payments of $30,000; $1500 per child per month in child support; and 85 percent of the expenses incurred in the children’s private school education, extracurricular activities, sports, lessons, camp, or any other activity agreed upon pursuant to the joint parenting plan. It further provided that such payments would be subject to accruing interest if they were not timely paid.

Many postjudgment motions were filed by both parties pertaining to compliance with the terms of their separation agreement and joint parenting plan. On July 5, 2007, the parties entered into a stipulation (2007 stipulation), pursuant to the plaintiff’s motion for contempt, in which they agreed that the defendant owed the plaintiff one million dollars in satisfaction of two provisions in their separation agreement. After the 2007 stipulation, the plaintiff filed multiple motions for orders and motions for contempt, claiming that the defendant had not complied with the terms of the separation agreement. On July 19, 2010, the plaintiff filed a motion to enjoin the defendant’s use of his assets, as she claimed that the defendant had significantly reduced his liquid assets since May, 2009, consistently avoided meeting his support obligations, and was nearly $200,000 in arrears for periodic support payments and payments for the children’s education. Pursuant to the plaintiffs motion, the court, Malone, J., issued an order enjoining the defendant from transferring, selling, pledging, placing a hen on, or encumbering (1) any assets received from the repayment of a loan he made to Christina Wilkenson, (2) any assets that he previously had used as security to prevent foreclosure on the property owned by Wilkenson, and (3) his coin cohection, gun collection and life insurance policy. On November 23, 2010, Judge Malone, pursuant to the plaintiffs application, issued an order for a prejudgment remedy in favor of the plaintiff in the amount of $760,000.

Thereafter, the defendant filed a motion for order and a motion for modification, and the plaintiff filed two motions for order and a motion for contempt. On February 23, 2011, the parties entered into a stipulation (2011 stipulation) resolving their five outstanding motions. The 2011 stipulation provided that the defendant owed the plaintiff a total sum of $1,050,000, which included: $850,000 for child support arrearage through February, 2011; education expenses arrearage, shared children’s expenses arrearage and interest; attorney’s fees to prosecute those claims of unpaid obligations; and $200,000 in future education expenses for the period of March 1, 2011, to June 30, 2012. The terms of the 2011 stipulation further provided that “time is of the essence,” and it set forth a payment schedule, an interest rate for late payments, and a monetary incentive for the defendant to make timely all payments. In the 2011 stipulation, the defendant offered security for the $1,050,000 owed in the form of a pledge of assets from a hedge fund, a mortgage deed or judgment lien encumbering his Greenwich residence, continuation of the injunction granted by Judge Malone, and a mortgage deed or judgment hen encumbering his real property on Martha’s Vineyard.

On November 23, 2011, the plaintiff filed motions for contempt and order, claiming that the defendant had violated the payment terms of the 2011 stipulation. One week later, the court, pursuant to the plaintiffs motions, ordered a property execution in the amount of $300,000 in favor of the plaintiff. On December 15, 2011, the defendant filed a motion to vacate—the motion from which this appeal arises—in which he claimed that “the execution is grounded on a void or voidable agreement.” Specifically, he claimed that provisions of the 2004 dissolution judgment were void because it contained a nonmodifiable term of agreed upon child support, the support award deviated from the child support guidelines without providing justification for the deviation, the support award did not consider as part of the plaintiffs assets $11,700,000 in lump sum alimony, and the separation agreement contained a monetary penalty for failure to pay in violation of the public policy and laws of Connecticut. Further, the defendant claimed that “the execution is improper pursuant to Connecticut statute,” and he argued that a postjudgment property execution is an improper remedy for family support judgments pursuant to § 52-350a.

In response, the plaintiff filed an objection to the motion to vacate and sought reimbursement for the attorney’s fees she incurred defending the motion. On April 30, 2012, the court heard argument from both parties and testimony from the defendant with regard to the motion to vacate. At the conclusion of that hearing, the court stated that it was going to “suspend the execution of the writ of execution on a temporary basis until . . . the court rule[d] on th[e] jurisdictional [matter]” concerning its ability to issue a writ of execution in this case. The plaintiff then filed an amended affidavit of attorney’s fees, and the court gave the defendant one week to challenge the amount or reasonableness of the plaintiffs fee request. The defendant never filed a motion objecting to the reasonableness of the claimed attorney’s fees. On July 10, 2012, the court issued a memorandum of decision, in which it denied the defendant’s motion to vacate and ordered the lifting of the temporary suspension on execution of the writ of execution. The court also ordered the defendant to pay $7500 of the plaintiffs attorney’s fees incurred defending the motion to vacate within sixty days of the judgment. On July 30, 2012, the defendant filed this appeal.

I

The defendant first claims that the court improperly denied his motion to vacate because a writ of execution is an improper remedy for enforcement of a child support order pursuant to the postjudgment procedures detailed in chapter 906 of the General Statutes. Specifically, the defendant claims that “execution is not available for enforcement in a family law proceeding” pursuant to the plain language of two statutes within chapter 906, §§ 52-350a and 52-350f. He recognizes the facial discrepancy between that interpretation of the statutory scheme of chapter 906 and the language of General Statutes § 46b-84 (a), which provides in relevant part that “[a]ny postjudgment procedure afforded by chapter 906 shall be available to secure the present and future financial interests of a party in connection with a final order for the periodic payment of child support,” but he argues that this court previously has resolved this apparent conflict and cites Barber v. Barber, 114 Conn. App. 164, 968 A.2d 981, cert. denied, 292 Conn. 915, 973 A.2d 661 (2009), as support for his position. We conclude that the guidance provided by Barber is inapplicable in this matter because, in that case, this court held only that the plaintiff had failed to establish a prima facie case for a breach of contract claim because she had not submitted evidence of the arrearage, which she claimed constituted the breach. Id., 170. Further, we conclude that, through a 2003 amendment to § 46b-84 (a), it clearly was the legislature’s intent to allow a party to utilize a writ of execution to secure delinquent child support payments.

This case presents an issue of statutory construction, which is a “[question] of law, over which we exercise plenary review.” (Internal quotation marks omitted.) Gianetti v. Rutkin, 142 Conn. App. 641, 650, 70 A.3d 104 (2013). “When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. ... In seeking to determine that meaning, General Statutes § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered. . . . When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter . . . .” (Internal quotation marks omitted.) State v. Tabone, 279 Conn. 527, 534-35, 902 A.2d 1058 (2006).

“In construing two seemingly conflicting statutes, we are guided by the principle that the legislature is always presumed to have created a harmonious and consistent body of law .... Accordingly, [i]f two statutes appear to be in conflict but can be construed as consistent with each other, then the court should give effect to both.” (Internal quotation marks omitted.) Spears v. Garcia, 263 Conn. 22, 32, 818 A.2d 37 (2003). “[I]n the absence of a construction that harmonizes the two, both statutes can be given effect only when they do not conflict.” State v. Tabone, 292 Conn. 417, 433, 973 A.2d 74 (2009). When two statutes conflict, however, “[i]t is a well-settled principle of construction that specific terms covering the given subject matter will prevail over general language of the same or another statute which might otherwise prove controlling. . . . Where there are two provisions in a statute, one of which is general and designed to apply to cases generally, and the other is particular and relates to only one case or subject within the scope of a general provision, then the particular provision must prevail; and if both cannot apply, the particular provision will be treated as an exception to the general provision. . . . Additionally, [i]f the expressions of legislative will are irreconcilable, the latest prevails . . . .” (Citation omitted; internal quotation marks omitted.) Tomlinson v. Tomlinson, 305 Conn. 539, 552-53, 46 A.3d 112 (2012).

We begin by setting forth the relevant statutory provisions. The statutes pertaining to postjudgment procedures are set forth in chapter 906 of the General Statutes. Section 52-350f, which became law in its current form as part of No. 83-581 of the 1983 Public Acts (P.A. 83-581), provides in relevant part that a property execution may be used to secure a “money judgment.” In P.A. 83-581, the legislature also promulgated § 52-350a, which defined “money judgment” as an “order or decree of the court calling in whole or in part for the payment of a sum of money, other than a family support judgment . . .” and a “family support judgment” as “a judgment, order or decree of the Superior Court or a family support magistrate for payment of a legal obligation for support or alimony to a spouse, former spouse or child and includes any such order for periodic payments whether issued pendente lite or otherwise.” (Emphasis added.) General Statutes § 52-350a (13) and (7); P.A. 83-581.

The statutes governing family law are set forth in title 46b of the General Statutes. In 2003, § 46b-84 (a) was amended by No. 03-130 of the 2003 Public Acts to include the sentence: “Any postjudgment procedure afforded by chapter 906 shall be available to secure the present and future financial interests of a party in connection with a final order for the periodic payment of child support.” Thus, on its face, the 2003 amendment to § 46b-84 (a) can be . read to conflict with the chapter 906 statutes, which were promulgated decades earlier and seemingly exclude the ability to enforce a family support judgment through the use of a property execution.

Having determined, as directed by § l-2z, that § 46b-84 (a) is not plain and unambiguous because it facially conflicts with § 52-350a (7) and (13), we follow the further direction of § l-2z and look for interpretive guidance to the legislative history and circumstances surrounding the enactment of § 46b-84 (a), to the legislative policy it was designed to implement, and to its relationship to existing legislation and common-law principles governing the same general subject matter. Because, pursuant to §§ 52-350aand 52-350f, the general language that seems to prohibit utilization of chapter 906 enforcement procedures for family support judgments was already the law when the legislature promulgated the 2003 amendment to § 46b-84 (a), which added the language allowing “[a]ny postjudgment procedure afforded by chapter 906 ... to secure the present and future financial interests of a party in connection with a final order for the periodic payment of child support,” we look to the intent of the legislature in promulgating the subsequent legislation related to the enforcement of final child support orders.

The language in question was added as an amendment to Senate Bill No. 859, 2003 Sess., and it was debated on May 20, 2003. Representative Gerald M. Fox III introduced the amendment, because it was “necessary to clear up the law, especially in a postjudgment scenario to allow for security.” 46 H.R. Proc, Pt. 11, 2003 Sess., p. 3468. As to why it was necessary to clear up the law, Representative Fox stated that “[a] perfect example would be a divorce with an order for support and an order for alimony. The husband has assets within the jurisdiction. The husband has left the jurisdiction. The husband refuses to abide by the order of the court. Under current law, that individual woman, spouse, former spouse, has to continually come back into court on a continuous process for contempt to collect the asset, collect the amount that is owed to her. If, in fact, he removes the asset, she has to chase him. This [amendment] would allow her to secure that debt that has been ordered paid to her so that she has a reasonable and less difficult task in collecting it on a regular basis.” Id., pp. 3468-69.

Representative Robert M. Ward clarified that the intention of the amendment was to facilitate the payment of the support obligations of one who has defaulted, rather than to speculate about future obligations: “[T]he court has discretion. ... If an individual defaults on a payment, I agree with what Representative Fox indicates that it is appropriate, once you’ve defaulted on an order, that there be a right to secure . . . .” Id., pp. 3473-74. Representative Ward continued: “[I]f it’s a postjudgment procedure . . . you could lien for the entire amount, but the indication here is that’s only when somebody is defaulted . . . .” Id., p. 3474.

Representative Fox then addressed a hypothetical scenario posed by Representative Robert Farr, stating: “Can the person [who is owed money stemming from a defaulted payment of a dissolution judgment] go into court and seek a motion for contempt? I think the answer to that is yes. If, in fact, this [amendment] becomes the law, as part of that, and I would assume it would still be in family court, as part of that pending action or postjudgment procedure, can that person now, if this [amendment] becomes law, also go in and attempt to seek an attachment on real estate to secure the payments that are in default and to secure the order that has been previously entered? If this [amendment] is passed, I believe the answer to that is yes.” (Emphasis added.) Id., p. 3476.

The legislative history makes it clear that the amended language of § 46b-84 (a) was enacted with the intention that it would enable a party to address the default of a final order for child support, or alimony; see footnote 8 of this opinion; through utilization of the postjudgment procedures set forth in chapter 906. The intention behind the promulgation of § 46b-84 (a), therefore, clearly conflicts with the language in §§ 52-350a and 52-350f restricting family support judgments.

Following our established principles of statutory interpretation, we attempt to reconcile conflicting statutes in a manner that allows for their coexistence. See Rainforest Cafe, Inc. v. Dept. of Revenue Services., 293 Conn. 363, 377-78, 977 A.2d 650 (2009). The 2003 amendment to 46b-84 (a) was promulgated decades after the general restrictive language in §§ 52-350a and 52-350f was existing law. Also, the 2003 amendment is more specific. Number 03-130 of the 2003 Public Acts addressed a postjudgment collection of alimony or child support after a dissolution judgment, as does § 52-350a. Section 46b-84 (a), however, is within the specific title of the General Statutes reserved for an evolving compendium for family law, as opposed to § 52-350a, which governs the postjudgment procedures for all civil actions. Because § 46b-84 (a) is more specific and was promulgated later, we conclude that where the language of § 52-350a and § 46b-84 (a) conflicts, § 46b-84 (a) must prevail.

Permitting chapter 906 procedures in certain family support judgments as a way of ensuring compliance with support obligations is consistent with the public policy of this state. “We previously have concluded that the statutory scheme regarding child support enforcement evinces a strong state policy of ensuring that minor children receive the support to which they are. entitled.” (Internal quotation marks omitted.) Commissioner of Social Services v. Smith, 265 Conn. 723, 735, 830 A.2d 228 (2003). “Both state and national policy has been, and continues to be, to ensure that all parents support their children and that children who do not live with their parents benefit from adequate and enforceable orders of child support. . . . Child support is now widely recognized as an essential component of an effective and comprehensive family income security strategy. ... As with any income source, the effectiveness of child support in meeting the needs of children is, of necessity, increased when payments are made regularly and without interruption.” (Citations omitted; internal quotation marks omitted.) Sablosky v. Sablosky, 258 Conn. 713, 721, 784 A.2d 890 (2001).

The foundation of the property execution in this case is the monetary terms of the 2011 stipulation judgment and, therefore, a sum certain. The 2011 stipulation captured the defendant’s arrears at that time, as well as an agreed upon sum owed to cover the following defined months of parental responsibility. The facts of this case therefore present the type of family support payments in default for which the legislature sought to permit the use of postjudgment procedures when it enacted § 46b-84 (a). Accordingly, the court properly determined that the writ of execution was a permissible postjudgment procedure in this case.

II

The defendant next claims that the court improperly lifted the temporary suspension it placed on implementation of the plaintiffs writ of execution because the 2004 dissolution judgment was flawed. Specifically, the defendant argues that (1) the judgment deviated from the child support guidelines without providing justification for the deviation, (2) it was based upon an inaccurate accounting of the plaintiffs assets that did not include the $11,700,000 lump sum alimony payment that the plaintiff was awarded, and (3) the agreed upon language of the judgment contained a monetary penalty for failure to pay in violation of the public policy and the laws of Connecticut. We decline to review the defendant’s claims regarding a judgment from which an appeal was not taken.

“The judgment rendered in an action for dissolution of a marriage is final and may not be opened or set aside unless a motion to do so is filed, pursuant to Practice Book [§] 326 [now § 17-4], within four months from the date of its rendition. . . . After that period, absent waiver, consent or other submission to jurisdiction, a court lacks the power to modify or correct a judgment other than for clerical reasons. ... A judgment rendered may be opened after the four month limitation if it is shown that the judgment was obtained by fraud, in the absence of actual consent, or because of mutual mistake.” (Citations omitted; internal quotation marks omitted.) Richards v. Richards, 78 Conn. App. 734, 739, 829 A.2d 60, cert. denied, 266 Conn. 922, 835 A.2d 473 (2003). “Unless a litigant can show an absence of subject matter jurisdiction that makes the prior judgment of a tribunal entirely invalid, he or she must resort to direct proceedings to correct perceived wrongs in the tribunal’s conclusive decision. ... A collateral attack on a judgment is a procedurally impermissible substitute for an appeal.” (Citation omitted; internal quotation marks omitted.) Joe’s Pizza, Inc. v. Aetna Life & Casualty Co., 236 Conn. 863, 876, 675 A.2d 441 (1996).

The defendant here does not argue that the judgment was obtained by fraud, in the absence of actual consent, or because of mutual mistake, but rather he argues that his collateral attack on the 2004 dissolution judgment is an exception to the aforementioned well established procedural precedent. Referring to our Supreme Court’s decision in Maturo v. Maturo, 296 Conn. 80, 92, 995 A.2d 1 (2010), the defendant argues that the court, in 2004, used an incorrect standard for computing the amount of support to award in a situation where the parties’ annual income exceeded the income range set forth in the schedule of basic child support obligations. We are not persuaded that the court used the improper standard, and, more to the point, we are unconvinced that Maturo requires a retroactive application of the current child support guidelines to a dissolution judgment rendered six years before our Supreme Court decided Maturo. Our Supreme Court has recognized that there are certain cases in which the judgment of the trial court should be revisited in order to properly consider the child support guidelines. See, e.g., Maturo v. Maturo, supra, 83 (direct appeal of dissolution judgment); Tuckman v. Tuckman, 308 Conn. 194, 196, 61 A.3d 449 (2013) (same); Tomlinson v. Tomlinson, 305 Conn. 539, 541, 46 A.3d 112 (2012) (direct appeal from denial of motion to modify); Misthopoulos v. Misthopoulos, 297 Conn. 358, 361, 999 A.2d 721 (2010) (direct appeal of dissolution judgment). This, however, is not such a case; the defendant has not properly appealed from the court’s support determination and is attempting to launch a collateral attack on the underlying judgment through an appeal of the denial of a motion that he filed nearly eight years after the judgment was rendered. We will not entertain such a claim.

Ill

The defendant next claims that the court abused its discretion in awarding the plaintiff a portion of the attorney’s fees incurred by the plaintiff in defending the defendant’s motion to vacate. We agree.

“It is well established that we review the trial court’s decision to award attorney’s fees for abuse of discretion. . . . This standard applies to the amount of fees awarded . . . and also to the trial court’s determination of the factual predicate justifying the award. . . . Under the abuse of discretion standard of review, [w]e will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion. . . . [Thus, our] review of such rulings is limited to the questions of whether the trial court correctly applied the law and reasonably could have reached the conclusion that it did. . . .

“[T]his state follows the general rule that, except as provided by statute or in certain defined exceptional circumstances, the prevailing litigant is ordinarily not entitled to collect a reasonable attorney’s fee from the loser. . . . That rule does not apply, however, where the opposing party has acted in bad faith. ... It is generally accepted that the court has the inherent authority to assess attorney’s fees when the losing party has acted in bad faith, vexatiously, wantonly or for oppressive reasons. . . . This bad faith exception applies, not only to the filing of an action, but also in the conduct of the litigation. ... It applies both to the party and his counsel. . . . Moreover, the trial court must make a specific finding as to whether counsel's [or a party’s] conduct . . . constituted or was tantamount to bad faith, a finding that would have to precede any sanction under the court’s inherent powers to impose attorney’s fees for engaging in bad faith litigation practices.” (Internal quotation marks omitted.) Richter v. Richter, 137 Conn. App. 231, 235-36, 48 A.3d 686, cert. denied, 307 Conn. 926, 55 A.3d 568 (2012).

“[A] litigant seeking an award of attorney’s fees for the bad faith conduct of the opposing party faces a high hurdle. ... To ensure . . . that fear of an award of attorney’s fees against them will not deter persons with colorable claims from pursuing those claims, we have declined to uphold awards under the bad-faith exception absent both clear evidence that the challenged actions are entirely without color and [are taken] for reasons of harassment or delay or for other improper purposes . . . and a high degree of specificity in the factual findings of [the] lower courts. . . . Whether a claim is colorable, for proposes of the bad-faith exception, is a matter of whether a reasonable attorney could have concluded that facts supporting the claim might be established, not whether such facts had been established. ... To determine whether the bad-faith exception applies, the court must assess whether there has been substantive bad faith as exhibited by, for example, a patty’s use of oppressive tactics or its wilful violations of court orders; [t]he appropriate focus for the court ... is the conduct of the party in instigating or maintaining the litigation.” (Citation omitted; internal quotation marks omitted.) Berzins v. Berzins, 306 Conn. 651, 662, 51 A.3d 941 (2012). In short, to award attorney’s fees under the bad-faith exception, “the trial court must find both that the litigant’s claims were entirely without color and that the litigant acted in bad faith.” (Emphasis in original.) Id., 663.

In this case, both the plaintiff and the defendant requested attorney’s fees with respect to the motion to vacate. The court found the following facts with regard to each party’s claim. “The [defendant] has offered no evidence of the amount of attorney’s fees claimed or incurred, and that under all the facts and circumstances, he has provided the court with no basis to make such an award. On the other hand, the [plaintiff] has provided the court with an amended affidavit of fees. The court gave the [defendant] ample opportunity to review and request a hearing. The court finds that a portion of the attorney’s fees incurred by the [plaintiff] are fair and reasonable under the circumstances, in large measure due to the [defendant's motion to vacate] which was so lacking in a reasonable basis in fact and law, so that the court draws the conclusion that it was interposed for-purposes of delay and was not made in good faith." (Emphasis added.)

The court found generally both that the defendant’s motion was entirely without color and that he acted in bad faith, yet the court did not support that finding with factual specificity. Cf. Maris v. McGrath, 269 Conn. 834, 848, 850 A.2d 133 (2004); Richter v. Richter, supra, 137 Conn. App. 233-35. The sole factual finding on which the court determined that the defendant’s motion to vacate was made in bad faith was its conclusion that the motion was “lacking in a reasonable basis in fact and law . . . Although we agree with the court’s determination that the plaintiff is permitted to secure the debt owed to her through a property execution, we do not agree with the court that the defendant’s motion to vacate was entirely without color. Because the court made no other findings of fact to support its conclusion that the defendant filed his motion in bad faith, we conclude that the court abused its discretion in awarding attorney’s fees of $7500 to the plaintiff.

The judgment is reversed only as to the award of attorney’s fees and the case is remanded with direction to vacate that award. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       In his statement of issues, the defendant also claims that the trial court abused its discretion by concluding that the writ of execution was constitutionally enforceable despite mathematical discrepancies on its face. The defendant does not, however, discuss this claim in his brief. “It is well settled that [w]e are not required to review claims that are inadequately briefed.” (Internal quotation marks omitted.) Nowacki v. Nowacki, 129 Conn. App. 157, 163, 20 A.3d 702 (2011). Accordingly, we do not review this claim.

       The record does not reveal the nature of the creditor relationship between the defendant and Wilkenson.

       The plaintiff also claimed that the 2011 stipulation was invalid because he was “suffering from several serious debilitating illnesses” and did not have the capacity to enter into the 2011 stipulation, his counsel at the time of the 2011 stipulation did not disclose to him pertinent aspects of his financial situation, the 2011 stipulation was inconsistent with the 2004 dissolution judgment, and the court did not properly consider the child support guidelines before entering orders pursuant to the 2011 stipulation. On appeal, the defendant does not advance these or any other arguments about the validity of the court’s judgment accepting the parties’ 2011 stipulation.

       General Statutes § 52-350a, which defines the terms used in chapter 906, provides in relevant part: “(7) ‘Family support judgment’ means a judgment, order or decree of the Superior Court or a family support magistrate for payment of a legal obligation for support or alimony to a spouse, former spouse or child and includes any such order for periodic payments whether issued pendente lite or otherwise. . . .
      “(13) ‘Money judgment’ means a judgment, order or decree of the court calling in whole or in part for the payment of a sum of money, other than a family support judgment. Money judgment includes any such money judgment of a small claims session of the Superior Court, any foreign money judgment filed with the Superior Court pursuant to the general statutes and in IV-D cases, overdue support in the amount of five hundred dollars or more accruing after the entry of an initial family support judgment. . . .”

       General Statutes § 52-350f provides: “A money judgment may be enforced against any property of the judgment debtor unless the property is exempt from application to the satisfaction of the judgment under section 52-352a, 52-352b, 52-352d or 52-361a or any other provision of the general statutes or federal law. The money judgment may be enforced, by execution or by foreclosure of a real property lien, to the amount of the money judgment with (1) all statutory costs and fees as provided by the general statutes, (2) interest as provided by chapter 673 on the money judgment and on the costs incurred in obtaining the judgment, and (3) any attorney’s fees allowed pursuant to section 52-400c.”

       The defendant relies on dicta in Barber where this court stated in passing that, pursuant to § 52-350a (13), “most family support judgments” are exempt from § 52-350f. Barber v. Barber, supra, 114 Conn. App. 165. This court in Barber, however, limited its consideration to whether the trial court properly “conclud[ed]that a former spouse may not enforce a judgment incorporating a stipulated agreement for child support without introducing evidence of the arrearage allegedly outstanding and unpaid.” (Emphasis added.) Id., 165-66. Such is not the case here, nor is the holding in Barber relevant to any of the defendant’s claims on appeal.

       We note that the language “or family support magistrate” was added to § 52-350a (7) in No. 96-268 of the 1996 Public Acts. This language does not affect our analysis, and we therefore conduct our analysis referencing the promulgation of § 52-350a (7) and (13) in P.A. 83-581.

       Number 03-130 of the 2003 Public Acts contained similar language pertaining to the postjudgment procedures available in chapter 906 and the enforcement of alimony payments. It amended General Statutes § 46b-82 by adding subsection b, which provides: “Any postjudgment procedure afforded by chapter 906 shall be available to secure the present and future financial interests of a party in connection with a final order for the periodic payment of alimony.” General Statutes § 46b-82 (b).

       We note that a “money judgment” for chapter 906 purposes must be a sum certain. Cooke v. Cooke, 99 Conn. App. 347, 351-52, 913 A.2d 480 (2007).

       The subject of this appeal, the denial of the defendant’s motion to vacate, is based on the 2011 stipulation, which was an agreement by the parties, made with the assistance of counsel, with regard to the amount the defendant owed the plaintiff in delinquent payments from the 2004 dissolution judgment. The defendant now, after executing both the 2007 stipulation and the 2011 stipulation, argues that the 2004 settlement agreement contained an improper penalty clause rather than a liquidated damages clause.
      The court found that the parties, in 2004, agreed to a “nontaxable default penalty,” just as the parties had in Dougan v. Dougan, 301 Conn. 361, 364, 21 A.3d 791 (2011). In Dougan, our Supreme Court held that the nontaxable default penalty was enforceable by judicial estoppel. The court’s rationale for that holding is wholly applicable to this case: “First, both the [defendant] and his attorney were aware of and understood the terms of the interest provision at the time that they presented the stipulated agreement to the court, represented to the court that the agreement was fair and reasonable and asked the court to incorporate the agreement into the judgment of dissolution. Second, by now asking that the court refuse to enforce the provision, the [defendant] is taking a position clearly inconsistent with his previous position. Third, if the [defendant] were allowed to ask the court to invalidate this particular provision of the agreement that entitles the [plaintiff] to a substantial sum of money as interest for the [defendant’s] failure to make a timely payment under the agreement, the [defendant] would derive an unfair advantage from this change of position.” Id., 374—75.

       In its memorandum of decision, the trial court concluded that the 2004 dissolution judgment complied with the child support guidelines at the time, and it cited Battersby v. Battersby, 218 Conn. 467, 471-72, 590 A.2d 427 (1991), as the controlling law when the support order was entered. The trial court found that the court, in 2004, entered a support determination in accordance with the plaintiffs submission, which provided that the parties’ income exceeded the maximum weekly net income of the child support guidelines and provided two grounds on which deviation was appropriate. The court further found that both parties were canvassed at length about the separation agreement and that both parties’ affidavits were scrutinized by the court prior to rendering the dissolution judgment. The court concluded that “[tjhere is no evidence that [the court that rendered the 2004 dissolution judgment] failed to properly apply the guidelines.”
      The court also noted that the defendant did not submit a child support guidelines worksheet at the time of the dissolution. “[A] party who fails to submit a child support guidelines worksheet is precluded from complaining of the alleged failure of the trial court to comply with the guidelines and ... we will not review such a claim.” (Internal quotation marks omitted.) Gentile v. Carneiro, 107 Conn. App. 630, 655, 946 A.2d 871 (2008).

       The plaintiff does not address this claim in her appellate brief.

       “[T]he common law rule in Connecticut, also known as the American Rule, is that attorney’s fees and ordinary expenses and burdens of litigation are not allowed to the successful party absent a contractual or statutory exception. . . . One such statutory exception, codified at General Statutes § 46b-62, provides in relevant part that the court may order either spouse ... to pay the reasonable attorney’s fees of the other in accordance with their respective financial abilities and the criteria set forth in [General Statutes §] 46b-82. Section 46b-82, in turn, permits the court to take into consideration such factors as the length of the marriage, the causes for the . . . dissolution of the marriage . . . the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties and the award, if any, which the court may make pursuant to [General Statutes § 46b-81],
      “We interpreted these statutory provisions in Maguire v. Maguire, 222 Conn. 32, 608 A.2d 79 (1992), to mean that an award of attorney’s fees in a marital dissolution case is warranted only when at least one of two circumstances is present: (1) one party does not have ample liquid assets to pay for attorney’s fees; or (2) the failure to award attorney’s fees will undermine the court’s other financial orders. ... In the present case, the trial court made no finding that the plaintiff either lacked ample liquid assets to pay for attorney’s fees, or that failure to award attorney’s fees [would] undermine the court’s other financial orders. Therefore, § 46b-62 is not implicated in this appeal.” (Citations omitted; internal quotation marks omitted.) Berzins v. Berzins, 306 Conn. 651, 657-58, 51 A.3d 941 (2012).

       The standard definition of bad faith is the absence of good faith. Habetz v. Condon, 224 Conn. 231, 236-37, 618 A.2d 501 (1992).


source: Caselaw Access Project

author: LAVINE, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. RAFAEL ANTONIO RODRIGUEZ
    (AC 32393)
    Lavine, Keller and Bishop, Js.

      Argued April 8
    officially released September 24, 2013

      Pamela S. Nagy, assigned counsel, for the appellant (defendant).

      Robert J. Scheinblum, senior assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, and Anthony J. Spinella, assistant state’s attorney, for the appellee (state).
   Opinion

LAVINE, J.

The defendant, Rafael Antonio Rodriguez, appeals from the judgment of conviction, rendered after a trial to the jury, of assault in the third degree in violation of General Statutes § 53a-61 (a) (1) and threatening in the second degree in violation of General Statutes § 53a-62. On appeal, the defendant claims that the court (1) improperly denied his motion to open the evidence and (2) abused its discretion in concluding that Oscar Caamano was not an unavailable witness pursuant to § 8-6 (4) of the Connecticut Code of Evidence. The defendant also claims that there was insufficient evidence for the jury to have found him guilty of threatening in the second degree. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. While Jenesis Vega (Vega) was living in Florida, she met the defendant. During their brief romantic relationship, she became pregnant, and the two of them terminated their relationship dining her pregnancy. Shortly after Vega gave birth to a daughter, who was eighteen months old at the time of the incident at issue in this appeal, she became romantically involved with Caamano, whom she had met when she was in high school in Connecticut. When Vega decided to return to her parents’ home in Connecticut, she and the defendant became embroiled in a legal dispute over custody of their daughter. Eventually, they agreed to joint custody of their daughter.

When Vega returned to Connecticut, she met the defendant every other Sunday at the home of her mother, Zoraida Vega, in East Hartford, to transfer physical custody of their daughter for one week. Prior to the incident at issue, Caamano accompanied Vega and her daughter, but never participated in the transfer. On September 28, 2008, the defendant arrived at Zoraida Vega’s house before Vega. He telephoned Vega, who informed him that she was “right around the comer” and would arrive shortly. The defendant stated in response, “give me my fucking daughter. I just want my daughter.” When Vega arrived, the defendant was visibly upset. As Vega was getting her daughter’s things from the vehicle, the defendant pushed Vega into her vehicle, injuring her arm. He repeatedly stated, “[G]et my fucking daughter out of the car.” Vega told the defendant to relax and that she would not let him take their daughter when he was upset.

The defendant opened the rear passenger door and attempted to remove his daughter from her car safety seat without first unbuckling the shoulder harness. Caa-mano interceded by positioning himself between the defendant and the vehicle. Vega then closed the vehicle door and locked it with a remote key.

Caamano also told the defendant to relax and that Vega would get the child out of the vehicle. Caamano testified that he wanted to calm the situation and to make sure that no one got hurt. The defendant told Vega that she needed to get her boyfriend away from him. Caamano continued to tell the defendant to relax. The defendant turned and punched Caamano. Caamano fell to the ground, bleeding from a deep cut on his chin that left a scar. The two men wrestled on the ground and punched one another. At one point, the defendant pinned Caamano against a fence in front of Zoraida Vega’s house. Caamano tried to hold the defendant, who was swinging at him. He let the defendant go when the police arrived. The defendant stated to Caamano, “[I]t’s not over and [I’m] going to get [you] real good.”

Vega called 911 and called for the defendant to stop. The defendant told Vega, “[S]hut the fuck up, I’m going to get you.” During the altercation, Zoraida Vega came out of her home. She observed that the defendant had Caamano pinned against the fence and was hitting him. She tried to stop the fighting. The defendant was aggressive toward her, so she took the defendant’s daughter into her home.

Officer Jeffrey Otis of the East Hartford Police Department responded to 33 Comstock Place in East Hartford to investigate a domestic disturbance. When he arrived, he spoke with Vega, Caamano, and the defendant. Otis observed a cut on Caamano’s lip and an injury to his chin. The defendant told Otis that he had gone to the house to pick up his daughter and exchanged words with Caamano. The defendant claimed that Caa-mano threw the first punch and that he defended himself. Otis did not observe any injuries on the defendant’s face or body where he claimed to have been struck by Caamano. On the basis of his investigation, Otis arrested the defendant for having assaulted Caamano. In December, 2008, Vega and Caamano went to the police station to provide written statements.

The defendant was charged with two counts of assault in the third degree in violation of § 53a-61 (a) (1), two counts of threatening in the second degree in violation of § 53a-62, and one count of risk of injury to a child in violation of General Statutes § 63-21. The charges against the defendant were tried in April, 2010. The defense theory was that Vega and Caamano initiated the fight in an effort to sever the defendant’s relationship with his daughter. The defendant testified that, as a result of his arrest, the family court reduced his time with his daughter from every other week to every other weekend. The jury found the defendant guilty of the assault and threatening charges pertaining to Caamano, but found him not guilty of the charges related to Vega and his daughter. The court imposed a total effective sentence of one year in prison, execution suspended after eight months, followed by two years of probation. Further facts and procedural history are set forth as necessary.

I

The defendant claims that the court abused its discretion and deprived him of his constitutional right to a fair trial and to present a defense by denying his motion to open the evidence to present newly discovered evidence. We are unable to review the defendant’s claim because he failed to make an offer of proof to create an adequate record for review. The defendant therefore cannot prevail on this claim.

The following additional facts underlie the defendant’s claim. The state presented its case on the first day of trial and rested. As part of its case, the state presented testimony from Caamano. On the second day of trial, the defendant called his sister, Jessica Ortiz, among others, to testify. Later in the day, defense counsel stated to the court that, although Ortiz did not know who Caamano was or what he looked like, Ortiz had overheard an individual in the lobby of the courthouse make “some admissions regarding his conduct during the [subject] incident to an acquaintance . . . .” Defense counsel stated that the defense presumed that the individual Ortiz overheard was Caamano. The defendant requested a continuance to investigate the matter. The court denied the defendant’s request for a continuance on the ground that it had already instructed the jury as to the trial schedule. The court also instructed defense counsel that “if your witnesses are here tomorrow, the court will take an offer of proof as to what your witnesses intend to say.” The defendant continued to present his case until court recessed for the day.

On the third day of trial, defense counsel stated that she intended to call Caamano and to recall Ortiz. Caa-mano was not present, and a lengthy colloquy ensued regarding his absence. Outside the presence of the jury, defense counsel called defense investigator Courtney Ennis to testify about having served Caamano with a subpoena. A copy of the subpoena was marked as a court exhibit. Following additional colloquy among the court, the prosecutor, and defense counsel, the court found that Caamano was under subpoena from the defendant, and that he was not unavailable as a witness.

The jury returned to the courtroom, and the defendant recalled Ortiz to the witness stand. Ortiz testified that, following her testimony the previous day, she left the courtroom and was in the courthouse lobby where she overheard a conversation between two men. One of the men was the man depicted in state’s exhibit 3, which is a photograph of Caamano, whom she had not previously seen. Defense counsel asked Ortiz what she heard the man she identified as Caamano state. The state objected on the ground of hearsay, and defense counsel responded that Ortiz’ testimony was admissible as either a statement against penal interest on the ground that Caamano was unavailable to testify, in light of § 8-6 (4) of the Connecticut Code of Evidence, or as a prior inconsistent statement. The court rejected both of defense counsel’s proffered grounds for admission of Ortiz’ testimony and sustained the state’s objection on the ground that the court previously had found that Caamano was not an unavailable witness, as § 8-6 (4) requires. The court, however, denied the state’s motion to strike Ortiz’ testimony. The defendant then rested his case. After hearing the state’s offer of proof regarding the testimony of a rebuttal witness, the court denied the state’s request to present rebuttal evidence.

Defense counsel then stated to the court that the defense investigator “apparently [has] been able to locate Mr. Caamano and has told me that he’s coming back.” The court stated: “Mr. Caamano will not be allowed to testify. The court has already ruled [on] that.” The defense failed to request that it be permitted to make an offer of proof as to the substance of Caa-mano’s testimony and made no offer of proof.

On appeal, the defendant acknowledges that he did not preserve his claim that the court’s refusal to open the evidence violated his constitutional right to a fair trial and to present a defense, but he claims that this court should review the claim pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). We agree that an unpreserved claim of constitutional magnitude can be reviewed on appeal if, and only if, the record is adequate for review, which is the first of the four Golding prongs. See State v. Kitchens, 299 Conn. 447, 466-67, 10 A.3d 942 (2011) (first two prongs of Golding concern reviewability).

We conclude that the record here is inadequate for review because the defendant failed to make an offer of proof outside the presence of the jury as to the substance of Ortiz’ testimony regarding the conversation she allegedly overheard between Caamano and another man in the courthouse. In his brief, the defendant argues that evidence should not be excluded from the fact finder as long as it is relevant and mitigates a crime charged. See State v. Brocuglio, 56 Conn. App. 514, 521, 744 A.2d 448, cert. denied, 252 Conn. 950, 748 A.2d 874 (2000). Without a transcript of Ortiz’ proffered testimony, however, we are unable to determine whether her testimony about Caamano was in fact relevant and would have mitigated against the crimes with which the defendant was charged. The defendant concedes that “it is unknown how Caamano would have testified . . . .” Because the record is inadequate for our review, the defendant’s claim fails.

II

The defendant claims that the court improperly determined that Caamano was not an unavailable witness. Even if we were to agree that the court improperly determined that Caamano was not an unavailable witness, the defendant cannot prevail on his claim because he cannot demonstrate prejudice.

To utilize the statement against penal interest exception to the rule against hearsay, the proponent of the evidence must demonstrate that the declarant is unavailable. See State v. Schiappa, 248 Conn. 132, 141, 728 A.2d 466, cert. denied, 528 U.S. 862, 120 S. Ct. 152, 145 L. Ed. 2d 129 (1999). “In light of the fact-bound nature of the inquiry, [t]he trial court has broad discretion in determining whether the proponent has shown a declarant to be unavailable. A trial court’s determination of the unavailability of a witness will be overturned only if there has been a clear abuse of discretion.” (Internal quotation marks omitted.) Id. Moreover, overturning such an evidentiary ruling requires “a showing by the defendant of substantial prejudice or injustice.” State v. Lopez, 254 Conn. 309, 314, 757 A.2d 542 (2000).

Even if we assume, but by no means decide, that the court abused its discretion in finding that Caamano was not an unavailable witness, the defendant cannot demonstrate that the court’s ruling prejudiced him. Defense counsel’s amorphous representations regarding a conversation that Ortiz allegedly overheard in the courthouse between two men, one of whom who was presumed to be Caamano, does not elevate the defendant’s claim beyond the realm of speculation. The record fails entirely to reflect the substance of what Ortiz’ testimony would have been, and the defendant therefore cannot meet his burden of showing that the court’s evidentiary ruling regarding Caamano’s availability prejudiced him. See id.

Ill

The defendant claims that the evidence was insufficient to support his conviction of threatening in the second degree in violation of § 53a-62. Specifically, he argues that the record lacks evidence from which the jury reasonably could have found that his words caused Caamano to fear any serious physical injury, as Caa-mano did not flee the scene, nor did he testify that he was fearful of the defendant. The state contends that the evidence that the defendant threatened Caamano by stating that “[I’m] going to get you real good” is sufficient to sustain the jury’s verdict. We agree with the state.

At the conclusion of the state’s case, the defendant made an oral motion for a judgment of acquittal. The court denied the motion. We review the relevant legal standards. “A defendant who asserts an insufficiency of the evidence claim bears an arduous burden. We first review the evidence in a light most favorable to sustaining the verdict and then must decide whether the jury reasonably could have concluded as it did.” State v. Hopkins, 62 Conn. App. 665, 669-70, 772 A.2d 657 (2001).

Section 53a-62 (a) provides in relevant part: “A person is guilty of threatening in the second degree when: (1) By physical threat, such person intentionally places or attempts to place another person in fear of imminent serious physical injury . . . .” General Statutes § 53a-3 (4) provides: “ ‘Serious physical injury’ means physical injury which creates a substantial risk of death, or which causes serious disfigurement, serious impairment of health or serious loss or impairment of the function of any bodily organ . . . .”

The circumstances surrounding a threat may be considered when determining whether the jury reasonably could infer that “the defendant had placed the victim in fear of imminent serious physical injury . . . .” (Internal quotation marks omitted.) State v. Gibson, 75 Conn. App. 103, 124, 815 A.2d 172 (2003), rev’d in part on other grounds, 270 Conn. 55, 850 A.2d 1040 (2004). “[T]he law does not equate imminent with immediate. A threat does not require immediate menace of violence or acts showing a present ability and will to execute the threat. ... A threat imports the expectation of bodily harm, thereby inducing fear and apprehension in the person threatened. A threat, unlike an assault, is not limited by time or distance.” (Internal quotation marks.) Id., 123-24.

Our review of the record discloses that on the date in question, the defendant was upset when Vega arrived at the location where she was to transfer physical custody of her daughter to the defendant. The defendant pushed Vega and tried to take his daughter from her car seat without removing the shoulder harness. When Caamano tried to get between the defendant and the open car door, the defendant pushed him. After the defendant told Vega to get her “man out of [his] face,” he turned and punched Caamano in the face, causing a deep cut that left a scar. Caamano grabbed the defendant’s arms to restrain him and to keep him from swinging at him. The defendant pinned Caamano against the fence and bit his shoulder.

When asked what his intention was in the scuffle, Caamano stated, “Just basically so [the daughter] wouldn’t get harmed, and also [I] had already seen him pushing [Vega] against the fence and everything. I knew that, you know, he’s obviously upset, and no telling what’s going to happen next. I just wanted to make sure that nothing happened to [the daughter].” Caa-mano testified that the defendant “said that it’s not over and [the defendant is] going to get me real good.”

When viewed in the light most favorable to sustaining the verdict, we conclude that the jury reasonably could have inferred from the evidence that the defendant intentionally placed or attempted to place Caamano in fear of imminent serious physical injury. The defendant told Vega to get her man “out of my face,” and then immediately struck Caamano in the face, causing a deep wound that left a scar. The defendant continued to wrestle and punch Caamano. The defendant’s behavior and acts lent credence to his threat that “it’s not over” and that he was “going to get [Caamano] real good.” In addition, Caamano testified that he was apprehensive of what the defendant was going to do: “[The defendant was] obviously upset, and no telling what’s going to happen next.” The defendant demonstrated a then present ability to harm Caamano. See State v. Gibson, supra, 75 Conn. App. 124.

The facts of the present case are analogous to those in cases previously decided by this court. In Gibson, this court found sufficient evidence to uphold the conviction of threatening. In Gibson, the defendant stated to the victim that “when [I get] out of jail, it is going to be just [you and me]. From that statement, and the factors surrounding it, namely, the victim’s age, her knowledge of the defendant’s prior assaults against her sister J, her telling her grandmother and sisters, and the force used against her so that she would listen to the threat, it was reasonable for the jury to infer that this encompassed a threat of serious physical injury . . . .” (Internal quotation marks omitted.) Id., 123.

Like the defendant in this case, the defendant in State v. Snead, 41 Conn. App. 584, 677 A.2d 446 (1996), claimed that the state had failed to show that he placed or attempted to place the victim in fear of imminent physical injury. Id., 591. The defendant had grabbed the victim from behind, “placed an object against her throat and demanded her money.” Id., 586. After the victim gave the defendant her purse, he shoved her to the ground and took her wallet. Id. “Later that day, the victim received a telephone call at home, threatening that if she went to the police, she would be ‘as good as dead.’ ” Id. Although the victim did not personally testify as to her fear, this court concluded that there was sufficient evidence to prove that the defendant had placed the victim in fear of imminent physical injury. Id., 594.

Here, although Caamano did not testify that he was placed in fear of the defendant, the defendant’s violent acts of aggression toward Caamano and threat of getting Caamano “real good” provided sufficient evidence for the jury reasonably to infer that the defendant had placed Caamano in fear of imminent physical injury. We therefore conclude that there was sufficient evidence to support the jury’s finding the defendant guilty of threatening in the second degree.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant’s conviction pertains to his conduct toward Oscar Caa-mano. The jury found the defendant not guilty of one count of assault in the third degree in violation of § 53a-61 (a) (1) and one count of threatening in the second degree in violation of § 53a-62 with respect to alleged conduct toward Jenesis Vega The jury also found the defendant not guilty of risk of injury to a child in violation of General Statutes § 53-21 (a) (1).

       The transcript reveals the following colloquy:
      “[The Prosecutor]: . . . Oscar Caamano is not here. He indicated to me this morning he never received a subpoena to be here, and he’s not coming.
      “The Court: Well, is he under a defense subpoena?
      “[Defense Counsel]: He is, Your Honor. . . .
      “The Court: When was it served?
      “[Defense Counsel]: It was served the week before the evidence started last week. We called him up and notified him that we were going to require him here.
      “[The Prosecutor]: He indicates, Judge, he never received a subpoena from the defense. That it was indicated to him yesterday he was released, which I know is a fact because I asked defense counsel when he was walking past me. And he doesn’t intend to show. He says he never got a subpoena by the defense.
      “The Court: Well, first the court will take up whether—the defense, yesterday, indicated to Mr. Caamano that he was released from the subpoena.
      “[Defense Counsel]: Your Honor, we did not, absolutely did not, release Mr. Caamano from the subpoena. I mean, that is not my recollection at all. I—Your Honor had indicated you wouldn’t ask . . . Mr. Caamano to testily as to an offer of proof. And I indicated to the state that I thought that he could leave. I didn’t think he needed to wait around.
      “The Court: Well, did Mr. Caamano receive a subpoena from an investigator in your office?
      “[Defense Counsel]: He did, Your Honor, here in the courthouse.
      “The Court: And what would have to happen in this matter is this: You would have to call your investigator as a witness, not in the evidentiary portion of the trial but at this time. Mr. Caamano is not here. If your investigator states that he served the subpoena personally, in hand, then Mr. Caamano has not responded to the subpoena. Therefore, [he] becomes unavailable. And, therefore, possibly you may be able to proceed under the statement against penal interest provision of the code. But let’s not get ahead of ourselves.”

       The court made the following findings: “Based on the short inquiry that the court has just conducted, Mr. Caamano was under a defense subpoena. He did not, perhaps, understand that he had to appear for the defense case today, but neither did the public defender’s office make diligent efforts to secure his appearance today. . . .
      “There was no message left in the office of the state’s attorney that Mr. Caamano should report, under the defense subpoena, to the courtroom today. Such an effort would have constituted a minimal diligent effort to secure the appearance of Mr. Caamano under the defense subpoena. That effort was not made. Mr. Caamano may have, in good faith, understood that he was released from any subpoena and did not have to return to testify. As such, the court cannot make a finding, prospectively, that Mr. Caamano was unavailable as a witness.
      “And if Mr. Caamano is unavailable as a witness, the defense still had to make a certain showing concerning whether the statement [was] against penal interest, but the threshold showing of unavailability cannot be made. So, counsel, you may call the witness which you have, and the state is free to exercise any objection. . . .
      “The court has already heard from counsel, as officers of the court, that there was no personal contact made with Mr. Caamano last night or today. Any representation as to what Mr. Caamano believed may simply be conjecture. When Mr. Caamano was here in the courthouse, in the state’s attorney’s office, there was no representation made to the court today that the defense, through any agent of defense counsel's office, indicated to the office of the state’s attorney that Mr. Caamano was to remain in the building for purposes of appearing under the defense subpoena today. Those are the court’s findings.”

         Section 8-6 of the Connecticut Code of Evidence provides in relevant part: “The following are not excluded by the hearsay rule if the declarant is unavailable as a witness ... (4) Statement against penal interest. A trustworthy statement against penal interest that, at the time of its making, so far tended to subject the declarant to criminal liability that a reasonable person in the declarant’s position would not have made the statement unless the person believed it to be true. In determining the trustworthiness of a statement against penal interest, the court shall consider (A) the time the statement was made and the person to whom the statement was made, (B) the existence of corroborating evidence in the case, (C) the extent to which the statement was against the declarant’s penal interest. ...”

       When the court returned to the bench following a short recess, it stated that it “essentially denied defense counsel’s motion to reopen the defense case and call Mr. Caamano. The defense, as the court recalls, had rested and then indicated that Mr. Caamano was in the building. And the court denied or did not permit Mr. Caamano to testify, essentially, implicitly, denying a defense motion to reopen its case after resting.”

       The state points out that according to the record, including the trial court docket, the defendant did not file a motion for a new trial to present newly discovered evidence.

       Pursuant to Golding, “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. The appellate tribunal is free, therefore, to respond to the defendant’s claim by focusing on whichever condition is most relevant in the particular circumstances. The defendant bears the responsibility for providing a record that is adequate for review of his claim of constitutional error.” (Emphasis in original; footnote omitted.) State v. Golding, supra, 213 Conn. 239-40.

       In the alternative, the defendant claims that the court abused its discretion by failing to open the evidence. This claim fails as weE due to an inadequate record. “[T]he reopening of a criminal case either to present omitted evidence or to add further testimony after either of the parties has rested is within the sound discretion of the Trial Court. ... If the trial court finds that inadvertence or some other compelling circumstance . . . justifies a reopening and no substantial prejudice wiE occur, it is vested with the discretion to reopen the case. ... It must be shown, however, that the proffered evidence was of such importance to the achievement of a just result that the need for admitting it overrides the presumption favoring enforcement of the state’s usual trial procedures.” (Citations omitted; internal quotation marks omitted.) State v. Anderson, 209 Conn. 622, 634-35, 553 A.2d 589 (1989). Without an adequate record, the defendant cannot make the required showing.

       See footnote 3 of this opinion.

       Whether the state has proved that a victim suffered serious physical injury when the victim sustains a facial scar is a question for the jury to determine. See State v. Nival, 42 Conn. App. 307, 678 A.2d 1008 (1996). When the jury has an opportunity to see the scars on the victim’s face, the court properly may conclude that the “jury reasonably could have found that the evidence of the scars on the victim’s face constituted serious, permanent disfigurement.” State v. Anderson, 74 Conn. App. 633, 644, 813 A.2d 1039, cert. denied, 263 Conn. 901, 819 A.2d 837 (2003).

       The defendant relies on two New York cases to support his claim. See In the Matter of Davonte B., 44 App. Div. 3d 763, 844 N.Y.S.2d 68 (2007); People v. Peterkin, 245 App. Div. 2d 1050, 1051, 667 N.Y.S.2d 559 (1997), leave to appeal denied, 91 N.Y.2d 1011, 698 N.E.2d 968, 676 N.Y.S.2d 139 (1998). We conclude that those cases are distinguishable legally and factually. Most importantly, the text of the New York statute at issue in the cases relied upon by the defendant is dissimilar to our threatening statute, to wit: “[a] person is guilty of menacing in the third degree when, by physical menace, he or she intentionally places or attempts to place another person in fear of death, imminent serious physical injury or physical injury.” N.Y. Penal Law § 120.15 (McKinney 2009). Compare General Statutes § 53a-62 (a). Moreover, as a factual matter, neither of the complainants in the New York cases suffered an injury caused by a defendant prior to having been threatened.