author: BISHOP, J.

text:
    MEI CAMILLE PAGLIARO v. HUW RICHARD JONES
    (AC 22067)
    Selialler, Mihalakos and Bishop, Js.

      Argued November 18, 2002
    officially released March 25, 2003

      Kenneth A. Votre, with whom was Seth Klaskin, for the appellant-appellee (defendant).

      Max F. Brunswick, for the appellee-appellant (plaintiff).
   Opinion

BISHOP, J.

The defendant, Huw Richard Jones, appeals from the trial court’s judgment awarding child support and attorney’s fees to the plaintiff, Mei Camille Lee. Specifically, he claims that the court improperly (1) awarded child support retroactively to May 15,1995, when the minor child, Winston, was supported during that time by his presumed father, (2) failed to recognize the existence and effect of custody and support orders issued in Texas, (3) failed to deviate from the mandatory child support guidelines and (4) awarded attorney’s fees. The plaintiff cross appeals, claiming that the court improperly (1) refused to issue support orders for the payment of arrearages for three years prior to the filing of the first paternity action, pursuant to the accidental failure of suit statute, (2) refused to open the evidence prior to the issuance of its memorandum of decision, (3) ordered a downward deviation from the child support guidelines due to contributions allegedly made by the plaintiffs ex-spouse, but did not order an upward deviation on account of certain medical expenses incurred by her for the child and (4) found that the plaintiff had an earning capacity of $700 a week as of September, 1999. We affirm in part and reverse in part the judgment of the trial court.

This case has a procedural history matched in complexity by the parties’ family dynamics. The court found the following facts. The parties met when both worked for the same law firm in Washington, D.C.; the plaintiff as a paralegal and the defendant as an attorney. During portions of May, June and July, 1992, the plaintiff, who was then married to Lance Pagliaro, maintained a sexual relationship with the defendant at his residence in the District of Columbia. Although the plaintiff remained nominally married to Pagliaro until 2000, Pagliaro left the Washington, D.C., area for Houston, Texas, in or about April, 1992.

When the plaintiff reported to the defendant in July, 1992, that she might be pregnant, he asked her to leave his apartment. The plaintiff then called Pagliaro, who offered that she could join him in Texas where they would raise the child as their own. The plaintiff then relocated to Texas where the child, Winston, was bom on April 8, 1993. Pagliaro thereafter represented to the world that the child was his own. Additionally, he tried to persuade the defendant that the child was bom of the marriage and, thus, was not the defendant’s son.

While in Texas, the plaintiff attended law school and has since become a member of the Texas bar. She also gave birth to another child, Albert, whose father is Robert Kelso, a law school professor. At the time, the plaintiff was still married to Pagliaro.

In 1996, two relevant legal actions were commenced. In Connecticut, the plaintiff filed a paternity action against the defendant regarding the child Winston. In Texas, a marital dissolution action was commenced in Texas between the plaintiff and Pagliaro. The Texas court stayed the dissolution action pending a resolution of the paternity action in Connecticut.

In Connecticut, the initial paternity action was dismissed on the 1998 dormancy list for failure to prosecute with reasonable diligence. The plaintiff subsequently filed a second paternity petition in Connecticut on May 15, 1998, and on November 22, 1999, the court, McLachlan, J., adjudicated the defendant to be the child’s father. The defendant did not appeal from the paternity judgment. The marriage between the plaintiff and Pagliaro was dissolved in Texas on April 18, 2000.

The plaintiff subsequently filed the present action, seeking an order for current and past due child support from the defendant. On June 7,2001, the court, Alander, J., ordered the defendant (1) to pay current child support of $226 weekly, (2) to pay, over time, an arrearage of child support in the amount of $75,933, including a lump sum payment of $20,000, (3) to maintain medical and dental coverage for the child if and when Pagliaro no longer is obligated to provide such coverage, (4) to be responsible for 56 percent of any unreimbursed medical expenses that exceed $100 each year and (5) to pay, over time, the plaintiffs reasonable attorney’s fees in the amount of $20,000, including a lump sum payment of $10,000. This appeal followed. Additional facts will be set forth as necessary.

I

THE APPEAL

A

The first issues raised in the defendant’s appeal are his claims that the court incorrectly calculated the child support arrearage. In support of his claim, the defendant asserts that the court incorrectly ordered him to pay support for time periods when the child was not in the care of the plaintiff. Additionally, the defendant claims that the court did not give proper deference to various orders issued by the Texas court, including the orders associated with the marital dissolution action, and that the court failed to deviate from the mandatory child support guidelines.

At the child support hearing, the plaintiff sought child support retroactive to May 15,1995, pursuant to General Statutes (Rev. to 1993) § 46b-160 (a). The court found that during the three year retroactive period and thereafter, the following events took place in Texas.

From the child’s birth until June 2, 1996, the child resided with the plaintiff and Pagliaro, with Pagliaro providing the sole financial support of the family. After a marital separation on June 2,1996, until June 23,1996, the child lived solely with Pagliaro. On June 24, 1996, Pagliaro was made sole temporary managing conservator of the child by the Texas court, and the child returned to five with him. In July, 1996, Kelso was made sole managing conservator of the child, and the child lived with him until September, 1996, when Pagliaro was once again made sole managing conservator of the child. The child then resided with Pagliaro from September, 1996, until July 17, 1997. In April, 1997, the plaintiff, Pagliaro and Kelso were made temporary joint managing conservators of the child, with Pagliaro retaining physical custody of the child. On July 17,1997, the plaintiff, Pagliaro and Kelso entered into an agreement in the Texas court under which each remained temporary joint managing conservator of the child and physical custody of the child was split equally, with each obligated to support the child financially while in his or her respective care. That arrangement continued in effect until November 22,1999. Since then, the child has resided primarily with the plaintiff. The Texas final decree of divorce, entered on April 18, 2000, appointed the plaintiff, Pagliaro and Kelso as joint managing conservators and designated the child’s primary residence with the plaintiff, with Pagliaro and Kelso being awarded specified visitation rights.

The court, Alander, J., awarded past child support to the plaintiff for the years 1995 through the date of the hearing pursuant to § 46b-160. In its comprehensive and thoughtful memorandum of decision, the court first determined the presumptive amount of child support for the applicable time periods. The court then assessed the defendant’s claim that he should be entitled to a downward deviation from the guidelines for those periods in which the child was not primarily in the plaintiffs care. The court found that for the time period May, 1995, through June 2,1996, the plaintiff and child resided with her then husband, Pagliaro, who was the family’s sole source of support. On the basis of that finding, the court did, in fact, make a downward adjustment in the support order.

The court declined, however, to order a downward deviation for the time period subsequent to June, 1996, when the plaintiff and Pagliaro were separated. In its discussion of that time period, the court noted its inability from the paucity of evidence to make the findings necessary to warrant a deviation from the presumptive amount of child support. Additionally, the court noted its inability to determine the nature and legal effect of the various Texas orders. Specifically, the court was unable to discern whether any of the Texas orders operated to relieve the defendant of his presumptive obligation to support the child.

The defendant’s arguments regarding past due child support are intertwined. He claims that the court failed to make factual findings regarding the plaintiffs living circumstances and need for support. Additionally, he asserts that the court failed to give proper deference to various Texas orders issued in the then pending marital dissolution action. Because those arguments are interrelated, we assess them together.

We review the defendant’s claims regarding past due support orders by determining whether the court abused its discretion in its support orders. “As has been repeatedly stated by this court, judicial review of a trial court’s exercise of its broad discretion in domestic relations cases is limited to the questions of whether the [trial] court correctly applied the law and could reasonably have concluded as it did. . . . Our function in reviewing such discretionary decisions is to determine whether the decision of the trial court was clearly erroneous in view of the evidence and pleadings in the whole record.” (Citation omitted; internal quotation marks omitted.) Unkelbach v. McNary, 244 Conn. 350, 366, 710 A.2d 717 (1998).

In the case of support, however, the parameters of the court’s discretion have been somewhat limited by the factors set forth in the child support guidelines. “Arrearage payments are addressed at length and in extensive detail in the guidelines, and as a result the trial court’s discretion in setting arrearage payments is closely circumscribed by the breadth of the law that it must apply.” Id., 367.

General Statutes § 46b-215b (a) provides in relevant part: “The child support and arrearage guidelines . . . shall be considered in all determinations of child support amounts and payment on arrearages and past due support within the state. In all such determinations there shall be a rebuttable presumption that the amount of such awards which resulted from the application of such guidelines is the amount of support or payment on any arrearage or past due support to be ordered. . . .” The court assessed an arrearage using the child support guidelines set forth in § 46b-215a-l et seq. of the Regulations of Connecticut State Agencies.

On the basis of the record provided to us, we find no fault in the court’s refusal to deviate from the presumptive amounts of child support as set forth in the child support guidelines. In its memorandum of decision, the court stated: “The defendant contends that he should not be ordered to pay child support for those periods of time when Pagliaro had the child living with him. I am unable to determine whether a deviation from the presumptive child support amount is appropriate or equitable on such a basis without knowing the nature of the controlling court orders issued by the Texas court. At trial, the only Texas court orders, other than the final divorce decree, that were submitted as evidence were the court orders entitled ‘Additional Temporary Orders,’ which were entered by the Texas court on July 17, 1997. I was not provided with the Texas court orders that governed the period of time from the filing of the divorce in June, 1996, through July 17,1997. I do not know the extent of the rights and obligations, including those related to custody and support, given the various parties that were appointed conservators of Winston at various times during the proceedings. See, e.g., Tex. Family Code Ann. §§ 153.134 (Vernon 1996) (which provides for the designation of rights by the court amongst joint conservators) and 153.371 (which specifies the rights of a nonparent appointed as sole managing conservator ‘unless limited by court order’). I also do not know whether possessory conservators were appointed or the extent of their rights as specified by the court. See Tex. Family Code Ann. § 153.006 (Vernon 1996).”

The only documents from Texas entered into evidence were the April 18, 2000 final decree of divorce between the plaintiff and Pagliaro, and the July 17, 1997 temporary joint managing conservator agreement between thé plaintiff, Pagliaro and Kelso. Although the defendant apprised the court of the existence of those orders in the Texas divorce proceedings, the record discloses that the legal meaning and practical import of those orders was not made known to the court. Pursuant to General Statutes § 52-164, “[t]he reports of the judicial decisions of other states and countries may be judicially noticed by the courts of this state as evidence of the common law of such states or countries and of the judicial construction of the statutes or other laws thereof.” The provisions of that legislation, however, are not self-enforcing. That is, if a party wants the court to take judicial notice of foreign law, it is that party’s responsibility not only to bring the statutory law to the attention of the court in the proper manner, but also to inform the court, through proper means, of the meaning or construction of the law by courts of that foreign jurisdiction. “Matter which it is claimed the court should judicially notice should be called to its attention by the party seeking to take advantage of the matter so that, if there is ground upon which it may be contradicted or explained, the adverse party will be afforded an opportunity to do so.” (Internal quotation marks omitted.) Wood v. Wood, 165 Conn. 777, 780-81, 345 A.2d 5 (1974); see also Heating Acceptance Corp. v. Patterson, 152 Conn. 467, 475, 208 A.2d 341 (1965). “Where another jurisdiction’s law is applicable, it is the duty of counsel to supply the court with a clear understanding of that foreign law.” (Internal quotation marks omitted.) Ritcher v. Childers, 2 Conn. App. 315, 318, 478 A.2d 613 (1984). Here, the defendant’s claim fails because he simply provided the court with a court order and a bare reference to particular sections of the Texas family law without any further explication of their meaning or relevance to their application to the deviation criteria in our child support guidelines. Under those circumstances, we conclude that the discretionary application of the child support guidelines by the court was not clearly improper and was not inequitable on the basis of the evidence before the court.

B

The defendant’s next claim is that the award of attorney’s fees in this case was inappropriate. We disagree.

General Statutes (Rev. to 1993) § 46b-171 (a) authorizes the award of attorney’s fees in child support actions. In a paternity action, the court has broad discretion in determining the reasonable amount of attorney’s fees to which a successful plaintiff is entitled. See Donato v. Corrado, 22 Conn. App. 583, 585-86, 578 A.2d 161 (1990). The defendant’s reliance on General Statutes § 46b-62 and its reference to criteria set forth in General Statutes § 46b-82 is misplaced because the basis of the court’s exercise of discretion is § 46b-171 and not § 46b-62. Unlike § 46b-62, § 46b-171 does not require a court to consider specific statutory factors in fashioning awards, but merely requires that exercise of the court’s broad discretion be reasonable.

The court determined that the award of attorney’s fees was appropriate, finding, on the basis of the financial affidavits, that the plaintiff lacked the financial wherewithal to pay her attorney’s fees while the defendant possessed substantial income and assets. We find that conclusion to be reasonable and not an abuse of discretion.

II

THE CROSS APPEAL

In her cross appeal, the plaintiff asserts that the court improperly failed to award arrearage payments for the three years prior to the filing of the initial paternity action and to open the evidence prior to the issuance of its memorandum of decision. The plaintiff claims also that the court improperly ordered a deviation from the support guidelines due to the earnings of Pagliaro while she and the child resided with him and refused to award an upward deviation for the child’s claimed medical expenses that she incurred. Finally, the plaintiff claims that the court incorrectly determined her earning capacity to be $700 a week starting in September, 1999. We review each claim in turn.

A

The plaintiffs first verified paternity petition was filed in Connecticut on July 8, 1996. That petition was dismissed in early 1998 for failure to prosecute with reasonable diligence. The plaintiff refiled her paternity petition on May 15, 1998.

The accidental failure of suit statute, General Statutes § 52-592 (a), provides in relevant part: “If any action, commenced within the time limited by law, has failed one or more times to be tried on its merits because of . . . unavoidable accident or the default or neglect of the officer to whom it was committed . . . the plaintiff . . . may commence a new action . . . for the same cause at any time within one year after the determination of the original action . . . .”

General Statutes § 46b-160 (a) provides in relevant part: “Such petition [for child support] may be brought at any time prior to the child’s eighteenth birthday, provided liability for past support shall be limited to the three years next preceding the date of the filing of any such petition. ...”

The plaintiff argues that pursuant to the accidental failure of suit statute, “the three years next preceding the date of the filing of any such petition”; General Statutes § 46b-160 (a); should be the three year period preceding the date of the filing of the first petition; i.e., July 8, 1996. The court ruled that the accidental failure of suit statute did not extend the three year limitation imposed by § 46b-160, and, therefore, the plaintiffs claim for retroactivity was limited to May 15,1995, three years prior to the filing of the present petition. We agree with the court.

“Statutory interpretation is a matter of law over which this court’s review is plenary. ... In construing statutes, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature.” (Internal quotation marks omitted.) Quigley-Dodd v. General Accident Ins. Co. of America, 256 Conn. 225, 232, 772 A.2d 577 (2001); see also State v. Courchesne, 262 Conn. 537, 577, 816 A.2d 562 (2003) (en banc).

The accidental failure of suit statute is remedial in nature and was enacted to avoid the hardships arising from an unbending enforcement of statutes of limitation. See Gallo v. G. Fox & Co., 148 Conn. 327, 329, 170 A.2d 724 (1961). The express language of § 52-592 (a) allows a plaintiff to “commence a new action” if a prior action has been dismissed, as long as she does so within one year of the dismissal of the initial action. The statute does not allow a plaintiff to revive an old action; it allows a plaintiff only to commence a new action to avoid the statute of limitations.

In the present case, the plaintiffs claim never was in danger of being defeated by the statute of limitations because she could have brought the action at any time until the child’s eighteenth birthday. The three year retroactivity provision of § 46b-160 is not a statute of limitations, but is a statutory allowance for past child support. As such, § 52-592 does not apply, and the court properly concluded that the three year retroactivity provision of § 46b-160 relates to the time of the filing of the present petition, May 15, 1998.

B

The plaintiff next claims that the court improperly refused to open the evidence prior to the issuance of its memorandum of decision. We disagree.

At the time of the evidentiary hearing to determine the amount of support, present and past due, the defendant had not provided his W-2 form for the year 2000. He had submitted only a form 1040 showing his and his wife’s combined income. Thereafter, two weeks after the close of evidence, the defendant supplied his W-2 form to the plaintiff, who thereupon filed a motion to open the evidence. The court denied the motion and issued its memorandum of decision. The plaintiff claims that because the W-2 demonstrates that the defendant’s gross earnings were $147,606.70 and not $115,875.24, as he had testified at the hearing, he underreported his income by approximately 22 percent.

“Whether or not a trial court will permit further evidence to be offered after the close of testimony in the case is a matter resting within its decision. ... In the ordinary situation where a trial court feels that, by inadvertence or mistake, there has been a failure to introduce available evidence upon a material issue in the case of such a nature that in its absence there is serious danger of a miscarriage of justice, it may properly permit that evidence to be introduced at any time before the case has been decided.” (Internal quotation marks omitted.) Gilliard v. Van-Court Property Management Services Ltd., 63 Conn. App. 637, 641, 111 A.2d 745 (2001).

The court acted within its discretion in denying the plaintiffs motion to open the evidence. The record does not demonstrate that the information regarding the defendant’s gross earnings for the year 2000 was made unavailable to the plaintiff by the defendant prior to trial or by its conclusion, nor does the record reveal whether the plaintiff had sought that information through pretrial discovery. Under those circumstances, we find no abuse of discretion by the court in refusing to open the evidence.

C

The plaintiff next claims that the court improperly ordered a downward deviation in the defendant’s support obligation for contributions allegedly made by the plaintiffs former husband while she and the child resided with him. We disagree.

The presumptive child support amounts prescribed by the guidelines may be rebutted by a specific finding that such amounts would be inequitable or inappropriate in a particular case. Section 46b-215a-3 (b) (1) of the Regulations of Connecticut State Agencies contains a deviation criteria for other financial resources available to a parent. Specifically, it provides a deviation for “the regularly recurring contributions or gifts of a spouse or domestic partner, but only if it is found that the parent has reduced his or her income or has expertenced an extraordinary reduction of his or her Uving expenses as a direct result of such contributions or gifts.” Regs., Conn. State Agencies § 46b-215a-3 (b) (1) (D).

Specifically, the plaintiff challenges the determination by the court to order a downward deviation in support from May 15,1995, through June 2, 1996, while the plaintiff and the child resided with Pagliaro, who was then the family’s sole source of support. The court made a specific determination that it would be inequitable and inappropriate to require the defendant to pay the presumptive past due child support for that time period when the plaintiff and the child were completely supported by the plaintiffs then husband. Pursuant to General Statutes § 46b-215b, the presumptive support amount may be rebutted by a specific finding on the record that the application of the guidelines would be inappropriate or inequitable. On the basis of our review of the record, the court’s determination was not clearly improper. For the relevant time period, the court found that the plaintiff had no income of her own, and that Pagliaro had paid all the expenses of her and her child. The court found that the plaintiff had experienced, during that time period, an extraordinary reduction in her living expenses as a result of those financial contributions, and, as such, allowed the defendant a downward deviation for that time period pursuant to § 46b-215a-3 (b) (1) (D) of the regulations.

Also challenged by the plaintiff was the finding by the court that Pagliaro paid the monthly mortgage of $1300 on the marital home where the plaintiff resided from June 2, 1996, through Februaiy, 2000. The court found that the plaintiff had experienced an extraordinary reduction in her living expenses as a direct result of that financial contribution.

“The standard of review in family matters is that this court will not disturb the trial court’s orders unless it has abused its legal discretion or its findings have no reasonable basis in fact. . . . [T]he factual findings of a trial court on any issue are reversible only if they are clearly erroneous. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Kiniry v. Kiniry, 71 Conn. App. 614, 623, 803 A.2d 352 (2002).

Our review of the record reveals no evidence that would make those findings clearly improper. The court properly made deviations from the child support guidelines in response to findings that the contributions by Pagliaro caused an extraordinary reduction in the plaintiffs living expenses and that, under those circumstances, it would be inequitable and inappropriate not to order a downward deviation. In that determination, the court did not act incorrectly.

D

The plaintiff next claims that the court acted improperly in not ordering an upward deviation for medical expenses she had incurred on behalf of the child. Because she neither briefed nor argued her claim, we treat it as abandoned and decline to afford it review. “[W]e are not required to review issues that have been improperly presented to this court through an inadequate brief. . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly. . . . We will not review claims absent law and analysis.” (Internal quotation marks omitted.) Legnos v. Legnos, 70 Conn. App. 349, 355, 797 A.2d 1184, cert. denied, 261 Conn. 911, 806 A.2d 48 (2002).

E

The plaintiffs final claim on her cross appeal is that the court’s order for past due support for 1999 and 2000 was based, in part, on its improper determination that she had an earning capacity of $700 per week from September, 1999, when the evidence established that it should have been from September, 2000. We agree.

In its memorandum of decision, the court found that for the calendar year 1999, the plaintiff had a gross income of $10,444 from employment as a web site consultant and that commencing in October, 1999, she had the capacity to earn a weekly net income of $705 as an attorney. A review of the record reveals, however, that the plaintiff testified that she opened her law office and started practicing in October, 2000, approximately one year later. The parties stipulated that from that point, the plaintiffs income was approximately $700 per week. A fair reading of the transcript demonstrates that the court based its findings on the plaintiffs earnings as a lawyer, the start of which was October, 2000, and not October, 1999. Despite that evidence, the court found that the plaintiffs earning capacity was $700 per week from September, 1999.

“A factual finding is clearly erroneous when it is not supported by any evidence in the record or when there is evidence to support it, but the reviewing court is left with the definite and firm conviction that a mistake has been made. . . . Simply put, we give great deference to the findings of the trial court because of its function to weigh and interpret the evidence before it and to pass upon the credibility of witnesses.” (Internal quotation marks omitted.) State v. Santiago, 73 Conn. App. 205, 234, 807 A.2d 1048 (2002), cert. granted on other grounds, 262 Conn. 939, 815 A.2d 673 (2003).

Our review of the record reveals no evidence on which the court could have based its finding that the plaintiff had an earning capacity of $700 a week commencing in September, 1999. The evidence regarding the plaintiffs earnings in 1999 and 2000 consisted of her testimony and tax filings for both years. None of that evidence warrants the determination that the plaintiff had an earning capacity of $700 per week starting in September, 1999. As such, the court’s finding is incorrect. Because the court’s orders for past due support for 1999 and 2000 were based, in part, on that faulty predicate, they must be reversed.

On the defendant’s appeal, the judgment is affirmed. On the plaintiffs cross appeal, the judgment is reversed only as to the determination of past due support for 1999 and 2000 and the case is remanded for a redetermination of the past due support for 1999 and 2000 on the basis of the relevant evidence pertaining to those years.

In this opinion the other judges concurred.

       The plaintiff changed her last name from Pagliaro to Lee after a final decree of divorce issued in Texas on April 18, 2000, dissolving her marriage to Lance Pagliaro.

       In his reply brief, the defendant appears to assert, for the first time, that the court’s orders for the lump sum payment of past due child support and attorney’s fees were improper. That specific claim was not raised in the defendant’s principal brief. We will not consider issues raised for the first time in a reply brief. Segreto v. Bristol, 71 Conn. App. 844, 847 n.4, 804 A.2d 928, cert. denied, 261 Conn. 941, 808 A.2d 1132 (2001).

       The plaintiff, her children, Pagliaro and Kelso continue to reside in Texas. The defendant was residing in Connecticut as of the institution of the Connecticut proceedings, but has since moved to Arizona. No jurisdictional issues have been raised, and the parties agreed that Connecticut law should govern the proceedings.

       General Statutes (Rev. to 1993) § 46b-160 (a) provides in relevant part:
      “Proceedings to establish paternity of a child bom or conceived out of lawful wedlock, including one bom to, or conceived by, a married woman but begotten by a man other than her husband, shall be instituted by a verified petition of the mother or expectant mother .... Such petition may be brought at any time prior to the child’s eighteenth birthday, provided liability for past support shall be limited to the three years next preceding the date of the filing of any such petition. . . .”

       Tex. Family Code Ann. § 153.371 (Vernon 2002) delineates the rights of a nonparent appointed as sole managing conservator.

       Tex. Family Code Ann. § 153.134 (Vernon 2002) provides for the designation of rights by the court among joint conservators.

       General Statutes (Rev. to 1993) § 46b-171 (a) provides in relevant part: “If the defendant is found to be the father of the child, the court or family support magistrate shall order him to stand charged with the support and maintenance of such child . . . [and] shall order him to pay the amount thereof to the complainant . . . together with a reasonable attorney’s fee


source: Caselaw Access Project

author: FLYNN, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. DON M. JOHNSON
    (AC 22098)
    Flynn, West and Hennessy, Js.

      Argued November 19, 2002
    officially released March 25, 2003

      Sharon Guy and Anthony Parent, certified legal interns, with whom was Martin Zeldis, senior assistant public defender, for the appellant (defendant).

      Bruce R. Lockwood, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Eugene Calistro, assistant state’s attorney, for the appellee (state).
   Opinion

FLYNN, J.

The defendant, Don M. Johnson, appeals from the judgment of the trial court revoking his probation and imposing a three year term of incarceration. On appeal, the defendant claims that the court improperly (1) determined that the office of adult probation had the authority, pursuant to General Statutes § 53a-30 (b), to include a curfew as a condition of his probation without a court hearing and a showing of good cause, (2) found that there was sufficient evidence to establish that he had violated his probation and (3) revoked his probation and ordered him to serve the entire three year suspended portion of his sentence. Additionally, in his supplemental brief, the defendant also claims that he was entitled to refuse to sign the conditions of probation form without penalty and that the office of adult probation had no authority to eliminate the specific court-ordered condition of probation, i.e., that he possess no weapons. We affirm the judgment of the trial court finding the defendant to be in violation of his probation, but we set aside the sentence imposed and remand the case for resentencing on the basis of the irregularity found in the record, of which the trial court was not made aware.

The following facts and procedural history are relevant to our resolution of the defendant’s appeal. The defendant originally was sentenced to five years incarceration, execution suspended after two years, with three years probation, following his guilty plea to carrying a pistol without a permit in violation of General Statutes § 29-35. The court attached two special conditions to the defendant’s probation period, namely, that he have no contact with codefendants William Denby and Dennis Williams and that he possess no weapons during the period of his probation. Significantly, there was no court-ordered special condition that prohibited the use or possession of narcotics or controlled drugs, although later documents that the defendant was requested to sign erroneously included that prohibition as a court-ordered special condition.

On September 20, 2000, the defendant was interviewed by Bail Commissioner Teresa Dallas while imprisoned and asked to review and sign a supervision notification form and a conditions of probation form, both of which he refused to sign, stating that he was “not going through all this probation stuff.” The defendant was released from prison on October 13, 2000, and began serving the probationary portion of his sentence. On October 24, 2000, the defendant was seen by Probation Officer Michael Fernandez of the intake, assessment and referral unit, where the defendant, again, refused to sign the conditions of probation form. On October 30, 2000, Probation Officer Thomas W. Pleckaitis was assigned as the defendant’s probation supervisor, and he left a letter for the defendant at what Pleckaitis believed to be the defendant’s home requesting that he report to Pleckaitis the next day. When the defendant did not report to Pleckaitis on October 31, 2000, Pleckaitis issued a violation notice to the defendant, which stated, in part, that if the defendant failed to report to the office of adult probation on November 6, 2000, a warrant would be issued for his arrest. The defendant and Pleckaitis, however, met at the New Haven office of adult probation on November 1 or 2, 2000, where Pleckaitis advised the defendant that he was being placed on intensive supervision with special conditions.

Along with the special conditions preprinted on the intensive supervision form, Pleckaitis imposed three additional handwritten conditions on the defendant, requiring him to adhere to a 7 p.m. to 7 a.m. curfew, to stay out of bars and nightclubs and to refrain from possessing pagers or beepers. The defendant told Pleckaitis that he would not comply with the curfew condition and refused to sign the intensive supervision conditions form, offering no explanation for his refusal. Pleckaitis advised the defendant that his refusal to comply with the curfew placed him in violation of his probation, and Pleckaitis gave the defendant one week to reconsider his position. Pleckaitis and the defendant met again on November 7, 2000, and the defendant, again, told Pleckaitis that he would not comply with the curfew condition. Pleckaitis informed the defendant that he was now in violation and that he would be pursuing a warrant for his arrest. Pleckaitis also testified that he informed the defendant that he would be conducting a home visit that would result in a violation if the defendant were not at home during the time of his curfew.

On or about November 8, 2000, Pleckaitis filed a violation of probation motion, form JD-CR-59, and an arrest warrant application, which were denied by the court. Following this denial, Pleckaitis, in the company of a police officer, on November 10, 2000, went to the defendant’s apartment at approximately 8:30 p.m. Pleckaitis knocked loudly on the door, which went unanswered. He also reported that he heard no noise and saw no lights ihuminating from the apartment. On November 13, 2000, Pleckaitis refiled the violation motion and prepared another arrest warrant application, which was approved on November 17, 2000, after which the defendant was arrested. The reasons for seeking a violation of probation for the defendant, as stated in the violation motion, were: “Defendant refuses to comply with the Conditions of Probation in general and a 7 p.m. curfew imposed by the Probation Officer.”

At his arraignment, the defendant denied the alleged probation violation, and an evidentiary hearing commenced on May 3, 2001. On May 4, 2001, the court granted the state’s motion for a violation of probation, finding that the state had established said violation. The court stated that “the state [had] established to [the court’s] satisfaction [by] a preponderance of the evidence that in fact by failing to oblige the special condition of the curfew, both by stating orally that he would not obey the curfew and, secondly, the proof established on November 10 that he was not in fact at his residence . . . after the hours of the curfew, 7 p.m. to 7 a.m., that in fact he is in violation of his probation.” Taking into consideration the defendant’s refusal to abide by the curfew and his refusal to sign the conditions of probation form, the court ordered the defendant to serve the entire unexecuted portion of his sentence, which amounted to three years. The defendant now appeals from the judgment of the trial court. Additional facts will be recited where necessary.

I

The defendant first claims that the court improperly determined that the office of adult probation had the authority, pursuant to § 53a-30 (b), to include, as a condition of probation, a curfew without a court hearing and a showing of good cause. He argues that § 53a-30 (c) requires a hearing and a showing of good cause before any additions or enlargements can be made to his conditions of probation. In the alternative, the defendant argues that even if Pleckaitis had the authority to add this condition, he did not have the authority to add it at the start of the defendant’s probation because it was not included as part of the defendant’s plea agreement, which the court accepted. We do not agree.

Initially, we set forth our standard of review where the essence of the defendant’s claim involves the proper inteipretation of § 53a-30 (b) and (c) and the authority the statute bestows on the office of adult probation. “Statutory construction presents a question of law.” State v. Marro, 68 Conn. App. 849, 855, 795 A.2d 555 (2002). Generally, “[i]n construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In seeking to discern that intent, we look to the words of the statute itself, 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. Parra, 251 Conn. 617, 622, 741 A.2d 902 (1999).

General Statutes (Rev. to 1997) § 53a-30 (b) provides: “When a defendant has been sentenced to a period of probation, the Office of Adult Probation may require that the defendant comply with any or all conditions which the court could have imposed under subsection (a) which are not inconsistent with any condition actually imposed by the court.” General Statutes § 53a-30 (c) provides: “At any time during the period of probation or conditional discharge, after hearing and for good cause shown, the court may modify or enlarge the conditions, whether originally imposed by the court under this section or otherwise, and may extend the period, provided the original period with any extensions shall not exceed the periods authorized by section 53a-29. The court shall cause a copy of any such order to be delivered to the defendant and to the probation officer, if any.”

The defendant claims that the office of adult probation cannot add conditions under § 53a-30 (b) without a hearing and a showing of good cause because to do so would give that office more authority than that given to the court. We find no merit to this claim.

“Generally, no part of a legislative enactment is to be treated as insignificant and unnecessary, and there is a presumption of purpose behind every sentence, clause or phrase .... Insofar as it is possible, the entire enactment is to be harmonized, each part made operative.” (Internal quotation marks omitted.) State v. Thorp, 57 Conn. App. 112, 119, 747 A.2d 537, cert. denied, 253 Conn. 913, 754 A.2d 162 (2000). We have previously held that § 53a-30 (b) and (c) are not in conflict and that the requirements of subsection (c) need not be impressed on subsection (b). See State v. Mobley, 33 Conn. App. 103, 633 A.2d 726 (1993), cert. denied, 228 Conn. 917, 636 A.2d 849 (1994).

Our analysis of the terms of § 53a-30 (b) and (c) reveals that the General Assembly dealt expressly with two distinct kinds of special conditions of probation. First, § 53a-30 (c) deals with special conditions of probation “originally imposed by the court under this section or otherwise . . . .” Under this subsection, any change that would “modify or enlarge” the conditions that the court originally imposed as part of its sentence must be done by the court itself “after hearing and for good cause shown . . . .” (Emphasis added.)

On the other hand, § 53a-30 (b) permits the office of adult probation, once a defendant has been sentenced, to “require that the defendant comply with any or all conditions which the court could have imposed” under § 53a-30 (a) that are not inconsistent with any condition imposed by the court. (Emphasis added.) The defendant urges that we should read into the requirements of § 53a-30 (b) the same requirements of prior notice and hearing as exist for modifications or enlargements of original conditions of probation as are found in § 53a-30 (c). We decline to do so.

Conditions authorized to be enlarged or modified under § 53a-30 (c) are part of a judgment imposed by the sentencing court and, therefore, are more appropriately the subject of notice and prior hearing before any such modification becomes effective. Postjudgment conditions imposed by adult probation are not a modification or enlargement of some condition already imposed by the court, but are part of an administrative function that subsection (b) expressly authorizes as long as it is not inconsistent with any previously court-imposed condition.

“Section 53a-30 (b) expressly allows the office of adult probation to impose reasonable conditions on probation. . . . [I]n determining whether a condition of probation [is proper] a reviewing court should evaluate the condition imposed under our Adult Probation Act in the following context: The conditions must be reasonably related to the purposes of the [Probation] Act. Consideration of three factors is required to determine whether a reasonable relationship exists: (1) the purposes sought to be served by probation; (2) the extent to which constitutional rights enjoyed by law-abiding citizens should be accorded to probationers; and (3) the legitimate needs to law enforcement.” (Citations omitted; internal quotation marks omitted.) State v. Thorp, supra, 57 Conn. App. 116-17.

The office of adult probation required the defendant in the present case to comply with the terms of his intensive probation, particularly his curfew restriction. The probation office “may require that the defendant comply with any or all conditions which the court could have imposed under [§ 53a-30] (a) which are not inconsistent with any condition actually imposed by the court.” General Statutes § 53a-30 (b).

The purpose of probation, as an alternative to incarceration, is to reform the defendant and to preserve the safety of the public. State v. Cyr, 57 Conn. App. 743, 747, 751 A.2d 420, cert. denied, 254 Conn. 905, 755 A.2d 883 (2000). “To a greater or lesser degree, it is always true of probationers . . . that they do not enjoy the absolute liberty to which every citizen is entitled, but only . . . conditional liberty properly dependent on observance of special [probation] restrictions. . . . These restrictions are meant to assure that the probation serves as a period of genuine rehabilitation and that the community is not harmed by the probationer’s being at large.” (Internal quotation marks omitted.) State v. Misiorski, 250 Conn. 280, 288, 738 A.2d 595 (1999). A curfew restriction is clearly consistent with the purposes of probation; see generally Ramos v. Vernon, 254 Conn. 799, 832, 761 A.2d 705 (2000) (juvenile curfew rationally related to government interest in protecting community); State v. Misiorski, supra, 288; State v. Cyr, supra, 747; and such a restriction certainly could have been imposed by the sentencing court. See General Statutes (Rev. to 1997) § 53a-30 (a) (12), now (15).

Furthermore, the curfew restriction in this case was not inconsistent with the special conditions imposed by the sentencing court, which related to an order of no contact and a weapons restriction. For the new condition to be inconsistent, it would have to be “[in]compatible with another fact or claim . . . .” See Merriam-Webster’s Collegiate Dictionary (10th Ed. 1993) p. 589. The imposition of a curfew is not incompatible or inconsistent with a restriction on weapons and the prohibition of personal contact.

Accordingly, we conclude that the office of probation had the authority to include a curfew restriction on the defendant at the start of his probationary period without a court hearing and a showing of good cause, and that such a condition was not inconsistent with the purposes of probation.

II

The defendant next claims that the court improperly found that there was sufficient evidence to establish that he had violated his probation. He argues that (1) his assertion to Pleckaitis that he could not comply with the curfew condition does not constitute a violation of probation, (2) the single visit to the defendant’s apartment where no one answered the door is insufficient to prove that he violated his probation, and (3) even if he was not at home at the time of Pleckaitis’ visit, this one time transgression was not sufficient to establish a violation of probation. The defendant also argues that when Pleckaitis advised the defendant that he was in violation of his probation, that advisement relieved the defendant of the obligation to adhere to his conditions because he was on notice that he was in violation of probation and subject to arrest. We are not persuaded by these arguments.

Before assessing the defendant’s claims, we set forth our well settled standard of review in probation revocation cases. “The [probation revocation] hearing itself involves two distinct components. Initially, the court conducts an adversarial evidentiary hearing to determine whether the defendant has indeed violated a condition of probation. State v. Davis, 229 Conn. 285, 289, 641 A.2d 370 (1994); State v. Gaston, 56 Conn. App. 125, 129, 741 A.2d 344 (1999). The state must establish a violation of probation by a fair preponderance of the evidence. State v. Davis, supra, 295. That is to say, the evidence must induce a reasonable belief that it is more probable than not that the defendant has violated a condition of his or her probation. Id., 302. This court will not disturb a trial court’s factual determination that a violation has occurred unless that determination is clearly erroneous. State v. Treat, 38 Conn. App. 762, 769, 664 A.2d 785, cert. denied, 235 Conn. 920, 665 A.2d 907 (1995); State v. Scott, 31 Conn. App. 660, 668, 626 A.2d 817 (1993).” (Internal quotation marks omitted.) State v. Chambers, 61 Conn. App. 781, 786-87, 767 A.2d 1215, cert. denied, 256 Conn. 903, 772 A.2d 597 (2001).

The evidence adduced at the defendant’s violation of probation hearing established that the defendant, after being assigned to Pleckaitis, was placed on intensive supervision and was ordered to adhere to a 7 p.m. to 7 a.m. curfew, among other conditions. The defendant not only refused to sign the intensive supervision form but also refused to comply with the curfew. After giving the defendant additional time to agree to comply with his curfew condition and being informed by the defendant that he still would not comply, Pleckaitis went to the defendant’s apartment to determine whether he was home during his curfew hours. No one answered the defendant’s door and no lights were illuminating the apartment. The defendant provided no explanation as to his refusal to sign the intensive supervision form or to adhere to the curfew restriction.

After carefully considering the evidence, the court found the defendant to be in violation of his probation, concluding that the state had established to the court’s satisfaction that “by failing to oblige the special condition of the curfew, both by stating orally that he would not obey the curfew and, secondly, the proof established on November 10 that he was not in fact at his residence . . . after the hours of the curfew, 7 p.m. to 7 a.m., that in fact he is in violation of his probation.”

The defendant’s conjecture that his refusal to sign the intensive supervision form was insufficient to support a finding that he violated his probation is unavailing. The court did not base its finding solely on the defendant’s refusal to sign this form. The court specifically found that the defendant was not at home during the hours of his curfew. Additionally, the defendant’s contention that there may have been innocent explanations for his failure to answer the door during curfew hours is also unavailing. There is nothing in the record to suggest that he offered any explanations to Pleckaitis or to the trial court as to why he did not answer the door if he were, in fact, at home.

The additional argument presented by the defendant, that his failure to adhere to the curfew restriction was only “one minor transgression” that was insufficient to establish a violation of probation also lacks merit. “A critical element of probation is the supervisory role of the state. . . . That role cannot be diluted by a claim that one or more of the conditions were not substantial. All of the conditions at issue related to the state’s interest in supervising the defendant, and were not, therefore, mere technical violations.” (Citation omitted.) State v. Navikaukas, 12 Conn. App. 679, 683, 533 A.2d 1214 (1987), cert. denied, 207 Conn. 804, 540 A.2d 74 (1988). Accordingly, we are unwilling to hold that one violation of a condition of probation is merely a “minor transgression.”

The defendant also argues that “[w]hen a probationer is formally in violation status, and awaiting a revocation hearing, the conditions of probation do not apply.” Therefore, the defendant argues, once Pleckaitis informed him that he was in violation, he had no obligation to adhere to the curfew by application of General Statutes § 53a-31 (b). We find no merit to the argument that a defendant is excused from complying with conditions of probation once a probation officer informs him that he is in violation of that probation.

General Statutes (Rev. to 1997) § 53a-31 (b) provides that the “[issuance of a warrant or notice to appear for violation pursuant to section 53a-32, shall interrupt the period of the sentence as of the date of such issuance until a final determination as to the violation has been made by the court. . . .”

In this case, there was no warrant issued at the time the defendant failed to comply or refused to comply with his curfew. The defendant informed Pleckaitis on November 1, 2000, and again on November 7, 2000, that he would not comply with the curfew. Pleckaitis informed him that this was a violation of probation and that he would be conducting a home visit to ensure that the defendant was in compliance. Pleckaitis did not tell the defendant that he was relieved of the obligation to adhere to his conditions of probation. In fact, he informed the defendant that he would be conducting a home visit and that if the defendant were not at home during curfew hours, he would be in violation of his probation. On November 10, 2000, such a visit took place, and the defendant was not at home during his curfew. A warrant was issued on November 17, 2000, on the basis of this curfew violation.

If, as the defendant argues, the issuance of a warrant, in accordance with § 53a-31 (b), relieves a probationer from complying with his conditions of probation, such an argument would be meritless in a case, such as this one, where the acts perpetrated in violation of probation were committed before the warrant issued.

Furthermore, even if the violation occurred after the warrant had issued, we still would find no merit to the defendant’s argument that the conditions no longer applied. The plain language of § 53a-31 (b) provides that the period of the sentence is interrupted by the issuance of a warrant, referring to a tolling of the time remaining on a defendant’s sentence. This ensures that if a defendant has a six month suspended sentence, for example, and a violation of probation warrant is issued and the violation hearing is not concluded for one year that the defendant still has six months remaining on the sentence. We find it illogical and unsupported that any conditions attached to the probation also would be tolled and that the defendant would be relieved from further compliance with those orders of the court solely because a warrant was issued on the basis of his violating one or more of those orders. After a careful review of the statute, we find no support for the defendant’s contention that once a warrant issues on a violation of probation, the probationer’s conditions no longer apply.

We conclude, on the basis of the record before us, that the court’s finding that the defendant violated the terms of his probation by refusing to comply and by failing to comply with the curfew restriction imposed by the office of probation was not clearly erroneous.

Ill

The defendant also claims that the court improperly revoked his probation and ordered him to serve the entire three year suspended portion of his sentence. We do not reach the merits of this claim because we set aside the sentence imposed on the defendant and remand the case for resentencing on the basis of the irregularity discovered in the conditions of probation form for which we requested supplemental briefs.

The defendant argues, and we agree, that he should not be penalized for his refusal to sign a binding document that improperly exemplified the orders of the court. Specifically, the defendant argues: “From the court’s own words, it was the defendant’s initial unwillingness/refusal to sign the [conditions of [p]robation that in substantial part led the court to impose . . . the entire three years ‘owed’ by the defendant.”

In considering the effect of this irregularity, we invoke plain error review. “[P]lain error [review] is properly reserved for those extraordinary situations where the error is so obvious that the fairness and integrity of and public confidence in the judicial process would be impaired were we to fail to address an issue that was not raised or preserved at trial.” (Internal quotation marks omitted.) State v. Jones, 67 Conn. App. 25, 27, 787 A.2d 43 (2001).

We begin our examination of this irregularity by recalling the court’s reasons for revoking the defendant’s probation and sentencing him to serve the entire three year suspended portion of his sentence. During the sentencing phase of the defendant’s violation of probation proceeding, the court specifically stated that “it is evident to me that if you [the defendant], in fact, had abided by the curfew that we might not even, in fact, be here today, yet there is a reason for the violation because up to that point you had refused to sign the conditions, which alone might have well constituted a violation of your probation.” (Emphasis added.) This statement indicates that the court took into consideration, with much emphasis, the defendant’s continued refusal to sign the conditions of probation form.

After thoroughly reviewing the record, however, we discovered an error in the conditions of probation form as well as in the supervision notification form that the defendant was asked to sign and which he refused to sign. When the defendant was sentenced on the underlying charge of carrying a pistol without a permit, the court specifically ordered, as conditions of probation, “[n]o possession of any weapons during the period of probation [and] no contact with the codefendants Denby and Williams.” The order of probation, form JD-CR-66, prepared by the assistant clerk, contained the two special conditions that were ordered by the court. The conditions of probation form, JD-AP-110, prepared by the office of adult probation, contained the standard conditions of probation and contained two “court-ordered special conditions.” According to this form, the court-ordered special conditions were incorrectly stated as “no contact with person [and] no use/possess drugs.” (Emphasis added.) The supervision notification form contained the same error. These forms clearly failed to express the proper orders of the court and were, in fact, undeniably wrong.

Because the court in the revocation proceeding specifically mentioned and took into consideration the defendant’s repeated refusal to sign these forms, which incorrectly exemplified the court’s own order, we have no way of determining whether the court, in exercising its discretion, would have imposed the same sentence if the defendant had, in fact, signed those forms or if they were not an issue in the proceeding. We do not make light of the defendant’s poor attitude or his apparent unwillingness to cooperate with the office of adult probation. Nevertheless, whatever the defendant’s subjective attitude in refusing to sign these forms, he could not objectively have been required to sign something that was clearly wrong in expressing, as a court-ordered condition of probation, something that the court had not ordered and by eliminating something that the court had, in fact, ordered. The error by the office of adult probation in the exemplification of the original sentence and conditions is obvious. The fairness, integrity and public confidence in the judicial process would be undermined if we left it unaddressed.

“It is axiomatic that this court is vested with the authority to remand a case for resentencing. See, e.g., State v. Hanson, 210 Conn. 519, 556 A.2d 1007 (1989); State v. Carpenter, 19 Conn. App. 48, 562 A.2d 35, cert. denied, 213 Conn. 804, 567 A.2d 834 (1989). In doing so, however, it is not this court’s function to prescribe the new sentence. Miller v. Commissioner of Correction, 29 Conn. App. 773, 780, 617 A.2d 933 (1992); State v. Schaeffer, 5 Conn. App. 378, 390, 498 A.2d 134 (1985). The appropriate disposition is a remand to the trial court with direction to resentence the defendant.” State v. Dennis, 30 Conn. App. 416, 426, 621 A.2d 292, cert. denied, 226 Conn. 901, 625 A.2d 1376 (1993). In exercising its discretion, and “[o]n the basis of its consideration of the whole record, the trial court may continue or revoke the sentence of probation . . . [and] . . . require the defendant to serve the sentence imposed or impose any lesser sentence.” (Internal quotation marks omitted.) State v. Jones, supra, 67 Conn. App. 28.

The judgment is reversed only as to the sentence imposed and the case is remanded with direction to resentence the defendant. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       The defendant frames the issues on appeal as follows: (1) “Whether this probation officer had the authority to extrajudicially impose additional conditions of probation?” (2) “Whether the [office of adult] probation had the authority to extrajudicially impose additional conditions of probation at the outset of the probationary period?” (3) “Whether a probation officer had the authority to impose truly additional conditions of probation when there is no nexus between the additional conditions and the underlying crime?” (4) “Whether the defendant’s assertion at the outset of his probation that he could not comply with a condition of intensive probation — specifically, a 7 p.m. to 7 a.m. curfew — constituted a violation of probation when such condition was not part of the original plea agreement or sentence of the court?” (5) “Whether the evidence was sufficient to prove that the defendant violated the curfew?” (6) “Whether the defendant’s one-time curfew violation is sufficient to establish a violation of probation?” (7) “Whether the court erred in the disposition phase of this violation of probation hearing when it sentenced the defendant to the entire three year suspended portion of his original sentence?” We have combined these issues where appropriate.

       All parties agree that neither they, nor the court, were aware of this error. Upon our discovery of the error in the record, which was in the original conditions of probation form generated by the office of adult probation, we asked the parties to submit supplemental briefs on the effect of that error. Specifically, we asked the parties to brief the following:
      “1. What, if any, is the effect of a mistake in the exemplification of the original court-ordered condition of probation, that the defendant possess no weapons, where the office of adult probation incorrectly recorded this condition of probation as no possession/use of drugs on forms that it required the defendant to sign, and the court, without knowledge of the error, considered his refusal to sign the incorrect forms when imposing sentence?
      “2. What, if any, is the effect of the office of adult probation’s elimination of a court-ordered condition of probation (no use possession of weapons), which was imposed by the original sentencing judge, in light of the language in General Statutes § 53a-30 (b) giving that office the authority to ‘require that the defendant comply with any or all conditions which the court could have imposed . . . which are not inconsistent with any condition actually imposed by the court’?
      “3. What is the effect, if any, of State v. Widlak, 74 Conn. App. 364 [812 A.2d 134] (2002), and State v. Holmes, 70 Conn. App. 4 [796 A.2d 561] (2002), on the present case?”
      We fully discuss the issue in part III.

       We recognize that the conditions of probation form includes several standard preprinted conditions that apply to all probationers, including a prohibition against violating any law of the state of Connecticut. Additionally, in cases of certain felony convictions, such as the defendant’s, an additional standard condition of probation is a prohibition against the possession of any firearm or dangerous instrument.
      Nevertheless, pursuant to our statutes, a firearm is limited to those weapons “from which a shot may be discharged;” General Statutes § 53a-3 (19); and a dangerous instrument is limited to “any instrument, article or substance which ... is capable of causing death or serious physical injury . . . .” General Statutes § 53a-3 (7).
      The standard condition that prohibits the use or possession of any firearm or dangerous instrument is not a special court-ordered condition, and it is not the equivalent of a court-ordered prohibition against the possession of any weapon, whether capable of causing death or serious physical injury or not. In this instance, the court’s prohibition against the possession of any weapons was far more expansive than that provided by the statutory definitions because it prohibited carrying those weapons from which a shot could not be fired or which were incapable of causing death or serious injury.

       In fact, to cite one example, in State v. Jones, 67 Conn. App. 25, 26, 787 A.2d 43 (2001), the defendant was arrested on September 26, 1999, and charged with a violation of probation for violating the laws of the state of Connecticut. The state later filed a second information charging the defendant with an additional violation of probation for violating Connecticut law on September 28, October 9 and October 14, 1999. All of these additional offenses occurred after the initial arrest for violating probation. After an April 18,2000 hearing, the court found the defendant in violation of probation on both informations. Id. If, as the defendant argues, the conditions of probation cease to apply after a warrant issues, then a defendant could never be charged with subsequent violations after being arrested for one violation. The defendant provides no convincing support for this argument and we find it without merit.

       See footnote 2.

       See footnote 3.

       We find this case distinguishable from two of our recent cases, State v. Widlak, 74 Conn. App. 364, 370-71, 812 A.2d 134 (2002), and State v. Holmes, 70 Conn. App. 4, 5 n.2, 796 A.2d 561 (2002), in which we declined to address inadequately briefed claims regarding the sentencing phase of the violation proceeding, leaving open the question of whether a conclusion that the trial court had considered erroneous information in the sentencing of the defendant would permit a remand for resentencing. The present case is further distinguishable because, here, we are faced with an error in the exemplification of a court order setting forth an erroneous condition of probation that the defendant refused to sign.


author: HENNESSY, J.

text:
    MARINA L. LEFEBVRE v. JEFFREY A. LEFEBVRE
    (AC 22323)
    Flynn, West and Hennessy, Js.
    Argued November 19, 2002
    officially released March 25, 2003

      Jeffrey A. Lefebvre, pro se, the appellant (defendant).

      Richard F. Paladino, for the appellee (plaintiff).
   Opinion

HENNESSY, J.

The defendant, Jeffrey A. Lefebvre, appeals from the postdissolution judgment of the trial court denying his motion for a reduction of child support payments and granting the motion of the plaintiff, Marina L. Lefebvre, to increase his child support payments. The defendant claims that the court improperly (1) found a substantial change in circumstances warranting a modification increasing child support payments and (2) denied him a deviation from the child support guidelines. We affirm the judgment of the trial court.

The following facts are relevant to the defendant’s appeal. The marriage of the parties was dissolved on December 15, 1994, on the basis of irretrievable breakdown. An agreement between the parties was incorporated and made part of the judgment of dissolution. The agreement stated that the parties would share joint legal custody of their two minor children and provided a visitation schedule for the defendant. In addition, the defendant was ordered to pay $200 each week as support for the two children.

On June 5, 2001, the defendant filed a motion to modify, requesting a decrease in the amount of the child support order. On July 16, 2001, the parties reached an agreement concerning a new visitation schedule, and that agreement was ordered by the court. The parties still disagreed on child support payments, and on July 16, 2001, the plaintiff filed a motion to modify, requesting that the support payments be brought into conformity with child support guidelines and any applicable deviations. The plaintiffs motion was granted, and the child support payment was modified to $296 per week. The defendant’s motion was denied and this appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the court improperly found a substantial change in circumstances warranting an increase in child support. “General Statutes § 46b-86 governs the modification or termination of an alimony or support order after the date of a dissolution judgment.” Borkowski v. Borkowski, 228 Conn. 729, 734, 638 A.2d 1060 (1994). Pursuant to § 46b-86, the disputed order may be modified on a showing of a substantial change in the circumstances of the parties.

“A trial court is endowed with broad discretion in domestic relations cases. Our review of such decisions is confined to two questions: (1) whether the court correctly applied the law, and (2) whether it could reasonably have concluded as it did.” (Internal quotation marks omitted.) Denley v. Denley, 38 Conn. App. 349, 351, 661 A.2d 628 (1995).

On July 16, 2001, the court was presented with evidence, including financial affidavits and child support guidelines worksheets, as submitted by the parties. The worksheets were based on the child support and arrearage guidelines (guidelines) prepared by the state of Connecticut commission for child support guidelines (commission). See General Statutes § 46b-215a.

The court found that from December 15, 1994, when the parties’ marriage was dissolved and the initial support orders were rendered, to July 16, 2001, the date the latest financial affidavits were submitted to the court, there was a significant change in the financial circumstances of the parties. The court found that the plaintiffs net weekly income had risen from $430.33 to $545 and that the defendant’s net weekly income had risen from $778.34 to $1093. The court further found that the plaintiffs weekly expenses had risen from $739.19 to $1077.25 and that the defendant’s expenses had risen from $569.43 to $866. Under the circumstances as found by the court, the plaintiffs net income rose $114.67 per week and her weekly expenses rose $338.06, while the defendant’s weekly net income rose $314.66 and his weekly expenses rose $296.57. We conclude that the court did not abuse its discretion in finding that there had been a substantial change in circumstances allowing the court to modify the support orders.

The parties also submitted to the court a child support guidelines worksheet in connection with the requirements of General Statutes § 46b-215b. The parties agreed that the child support award to the plaintiff for the two minor children under the guidelines would be $283 per week plus an additional $13 for day care expenses for a total of $296 per week. That would result in the plaintiffs receiving an increase in child support of $96 per week and would be the presumptive support amount under the guidelines. The defendant claims, however, that the plaintiff submitted to the court a child support guideline sheet containing significant errors that resulted in the improper calculation of support obligations.

If the defendant’s assumptions and calculations are correct, the plaintiff was entitled to a variety of credits and deductions that would have resulted in less income tax being paid, thereby resulting in the plaintiffs having more available income for support of the children. In addition, the defendant claims that he incorrectly overstated his net income on the guidelines worksheet submitted to the court. He claims that the combination of those errors changes significantly the respective child support obligations of the two parties.

Specifically, the defendant claims that any income from the plaintiffs yearly tax return should be considered when calculating net income for the purposes of determining child support payments.

It is well settled that a court must utilize net income of the parties, not gross income, to determine the amount of child support payments. See Morris v. Morris, 262 Conn. 299, 306, 811 A.2d 1283 (2003). According to § 46b-215a-l (17) of the Regulations of Connecticut State Agencies, net income is “gross income minus allowable deductions.” Allowable deductions include “federal, state, and local income taxes, based upon all allowable exemptions, deductions and credits . . . .” (Emphasis added.) Regs., Conn. State Agencies § 46b-215a-l (1) (A). The defendant has not alleged that the plaintiff is claiming deductions, exemptions or credits that are not allowed.

The defendant urges this court to use its discretion to correct the previously mentioned errors and that the respective support obligations of the parties be adjusted accordingly.

“An appellate court will not disturb a trial court’s orders in domestic relations cases unless the court has abused its discretion or it is found that it could not reasonably conclude as it did, based on the facts presented. ... In determining whether a trial court has abused its broad discretion in domestic relations matters, we allow every reasonable presumption in favor of the correctness of its action.” (Internal quotation marks omitted.) Morris v. Morris, supra, 262 Conn. 305.

The plaintiff argues that the defendant waived his argument concerning the child support calculation when he agreed that $296 per week was the correct figure according to the guidelines. Even if the defendant’s claim was not waived, he cannot prevail. Absent an allegation of an effort to manipulate her income tax situation to minimize her weekly net income for the purposes of determining child support payments, a deviation from the guidelines’ definition of net income is not appropriate. In this case, the parties submitted the child support guidelines worksheets, and both agreed that under the guidelines, the child support payment would be $283 per week plus $13 for child care, thereby equaling $296 per week. That finding is supported by the facts, and the court reasonably could have found that the parties’ calculations, which were based on the guidelines, were correct. This court will not change the orders of the court on the basis of the defendant’s assumptions, calculations and omissions.

II

The defendant next claims that the court improperly failed to grant him a deviation from the child support guidelines. Section 46b-215a-3 (a) of the Regulations of Connecticut State Agencies provides that the support and child care contribution amounts calculated under the child support guidelines “are presumed to be the correct amounts to be ordered. . . .” Those amounts may be rebutted, however, “by a specific finding on the record that such an amount would be inequitable or inappropriate in a particular case. . . .” Regs., Conn. State Agencies § 46b-215a-3 (a). The commission has stated that “[t]he quantitative guidance consists of a requirement that a finding of shared physical custody be made only where the noncustodial parent exercises visitation or physical care and control of the child for periods substantially in excess of a normal visitation schedule. . . . The intent of this definitional change, therefore, is to permit deviation from presumptive support amounts only when the noncustodial parent exercises visitation or physical care and control of the child for periods that substantially exceeds this typical schedule.” Child Support and Arrearage Guidelines (1999) preamble, § (h) (4), p. viii. According to the guidelines, atypical visitation schedule consists of “two overnights on alternate weekends; alternate holidays: some vacation time; and other visits of short duration, which may occasion an overnight stay during the week.” Id. According to the visitation schedule agreement reached by the parties and ordered by the court, the defendant is allowed four nights visitation during the first week and two nights visitation during the second week.

The defendant alleges that the new visitation schedule warrants a finding of shared physical custody. The court rejected that claim and stated that “the defendant’s visitation schedule does not substantially exceed the typical schedule.” The commission has stated that the guidelines “avoided a ’bright-line’ definitional test as well as a formula approach to shared custody situations to discourage disputes over time-sharing as a means of impacting support amounts. The commission believes that the approach adopted in these regulations leaves sufficient room for the exercise of judicial discretion while at the same time providing a measure of predictability for the parties.” Id. This court will not establish a bright line standard for deviation from the guidelines and will reverse the court’s determination only when that determination constitutes an abuse of discretion. Although the trial court arrived at a liberal interpretation of the regulation when it found that the defendant’s parenting time was not substantially in excess of a normal visitation schedule, we cannot say that the court abused its broad judicial discretion.

In addition, the defendant is required to prove more than shared physical custody. The defendant is required to demonstrate a visitation schedule that exceeds the typical visitation rights, and the defendant would be required to prove that a deviation from the guidelines would be warranted. Section 46b-215a-3 (b) (6) (A) of the Regulations of Connecticut State Agencies provides that a deviation is warranted only when the arrangement substantially increases or decreases a parent’s financial obligation.

The commission’s commentary on visitation in the regulations states: “Under this new definition of shared physical custody, courts and other officials will continue to determine what precise level of sharing is sufficient to warrant a deviation from presumptive support amounts.” Child Support and Arrearage Guidelines (1999) preamble, § (h) (4), p. viii. The court found that the defendant’s visitation schedule does not substantially exceed the typical schedule and, therefore, a deviation was not appropriate.

In addition, the court found that the increased visitation schedule the parties agreed on does not substantially reduce the plaintiffs expenses for the children, nor does it substantially increase the expenses for the defendant. The defendant argues that the court’s ordering him to pay child support as required under the guidelines means that the plaintiff would receive more money, thereby substantially reducing her expenses for the children. We do not find his argument persuasive.

The increase in child support came about as a result of a substantial change in the financial circumstances of the parties, thereby requiring an application of the guidelines, and not as a result of increased expenses resulting from a change in visitation that was substantially in excess of normal visitation. The defendant did not present evidence that the plaintiffs expenses were reduced other than to make a general assertion that more time spent in the defendant’s home would result in decreased expenses for the plaintiff. The defendant even testified that it appeared that the plaintiffs expenses had not decreased since the original agreement. We conclude that the court properly denied the defendant a deviation from the child support guidelines.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 46b-86 (a) provides in relevant part: “Unless and to the extent that the decree precludes modification . . . any final order for the periodic payment of permanent alimony or support or an order for alimony or support pendente lite may at any time thereafter be continued, set aside, altered or modified by said court upon a showing of a substantial change in the circumstances of either party . . . .”

       General Statutes § 46b-215b (a) provides in relevant part: “The child support and arrearage guidelines . . . issued . . . shall be considered in all determinations of child support amounts .... In all such determinations there shall be a rebuttable presumption that the amount of such awards which resulted from the application of such guidelines is the amount of support ... to be ordered. . . .”

       That argument was presented by the defendant as the third issue in the statement of issues in his principal brief. That issue states: “Whether the child support guideline worksheet submitted to the trial court by the plaintiff contained significant errors that resulted in the improper calculation of support obligations?” We will address it in this section of our opinion because it involves facts found by the court, in determining whether there was a significant change in financial circumstances.

       Section 46b-215a-3 (a) of the Regulations of Connecticut State Agencies provides in relevant part: “The current support, health care coverage contribution, and child care contribution amounts calculated . . . under section 46b-215a-4a of the Regulations of Connecticut State Agencies, are presumed to be the correct amounts to be ordered. The presumption regarding each such amount may be rebutted by a specific finding on the record that such amount would be inequitable or inappropriate in a particular case. Any such finding shall state the amount that would have been required under such sections and include a justification for the variance. Only the deviation criteria described in this section establish sufficient bases for such findings.”

       The agreement provides: “Week One — Father shall have visitation from Friday at 9:00 a.m. until Tuesday at 9:00 a.m.;
      “Week Two — Father shall have visitation from Sunday at 6:00 p.m. through Tuesday at 9:00 a.m. This schedule shall alternate from week to week except as provided in the ‘Holiday Schedule’ outlined in the judgment dated December 15, 1994.”
      The parties’ original agreement dated December 15, 1994, provides in relevant part: “The husband shall have visitation from Friday at 9:00 a.m. until Sunday at 5:00 p.m. during week one and shall have visitation from Sunday at 5:00 p.m. through Tuesday at 9:00 a.m.”

       The guidelines provide for numerous other circumstances and exceptions, absent a shared physical custody situation, that would allow a deviation, such as extraordinary expenses for the care and maintenance of the child. See Regs., Conn. State Agencies § 46b-215a-3. The defendant has not cited any of those exceptions as applicable to his claim for a deviation from the guidelines and, therefore, we address only the exception warranted under shared physical custody situation.

       Section 46b-215a-3 (b) (6) (A) of the Regulations of Connecticut State Agencies provides: “When a shared physical custody arrangement exists, deviation is warranted only when:
      “(i) Such arrangement substantially reduces the custodial parent’s, or substantially increases the noncustodial parent’s, expenses for the child; and
      “(ii) Sufficient funds remain for the parent receiving support to meet the basic needs of the child after deviation.”

       The new visitation agreement provides that the defendant will have approximately one full day and two evenings every two weeks in addition to those visitation hours that were stated in the original agreement. See footnote 5.