author: PER CURIAM.

text:
    PRISCILLA DICKMAN v. OFFICE OF STATE ETHICS, CITIZEN’S ETHICS ADVISORY BOARD
    (AC 33867)
    Gruendel, Alvord and Mihalakos, Js.

      Argued November 14, 2012
    officially released February 19, 2013

      John F. Geida, for the appellant (plaintiff.

      Brian J. 0 ’Dowd, deputy general counsel, with whom was Barbara Eletha Housen, for the appellee (defendant).
   Opinion

PER CURIAM.

The plaintiff, Priscilla Diekman, appeals from the judgment of the Superior Court dismissing her appeal from the decision of the defendant citizen’s ethics advisory board (board), a division of the office of state ethics. The board determined that the plaintiff, who had been employed by the state of Connecticut as a medical technologist at the University of Connecticut Health Center (health center), violated the Code of Ethics for Public Officials (ethics code), General Statutes § 1-79 et seq. In this appeal, the plaintiff claims that the court should have concluded that (1) the board’s action was invalid because two of its members were ineligible to participate in this enforcement action, (2) the board’s decision should be vacated because the board members deliberated in private, (3) the allegations of the ethics complaint needed to be proved by a standard greater than the preponderance of the evidence standard, (4) the board erroneously construed General Statutes § 1-84 (c) to find that she had violated its provisions and (5) the board’s decision was not articulated sufficiently because the board failed to provide factual references to support its findings. We disagree and, accordingly, affirm the judgment of the Superior Court.

The following facts and procedural history are relevant to this appeal. The plaintiff, a state employee, worked at the health center from 1978 until her retirement in the fall of 2005. In 2007, the office of state ethics filed a complaint against her that alleged she had violated the ethics code during her employment. Specifically, the complaint, which was amended in 2009, alleged that she violated § 1-84 (c) by using her position and state resources to conduct a jewelry business and to provide services as a travel agent for financial gain for herself or for abusiness with which she was associated. Hon. William L. Wollenberg, judge trial referee, determined that probable cause existed to find violations of the statutory provisions identified in the amended complaint, and the board then held a hearing to determine whether the alleged violations had occurred. See General Statutes § 1-82 (b).

Hon. James G. Kenefick, Jr., judge trial referee, presided over the eight day hearing. On January 12, 2010, the last day of the hearing, counsel gave closing arguments and the judge trial referee charged the board members on the law that they were required to apply. The board issued its finding, memorandum and order on January 15, 2010, in which it determined that the plaintiff had violated § 1-84 (c) as alleged and imposed a civil penalty totaling $15,000. The vote was unanimous.

The plaintiff appealed from the board’s decision to the Superior Court pursuant to General Statutes §§ 4-183 and 1-87. The Superior Court dismissed her appeal,, and this appeal followed. Additional facts will be discussed where relevant to the claims on appeal.

I

The plaintiffs first claim is that the Superior Court should have determined that the board’s action was invalid because two of the seven voting members, Shawn T. Wooden and G. Kenneth Bernhard, were ineligible to participate in this enforcement action. Specifically, she argues that Bernhard was appointed to the board illegally because he had held elective office within three years of his appointment, which constitutes a violation of General Statutes § 1-80 (b). With respect to Wooden, the plaintiff claims that he had been a delegate to the Democratic National Convention in 2008, and, therefore, his appointment to the board violated the eligibility requirements of § 1-80.

The issue of Wooden’s appointment is not properly before this court. The plaintiffs operative complaint, dated October 5, 2010, is devoid of any allegation addressed to Wooden’s eligibility to sit on the board. Her complaint alleged that the board’s action was invalid because of Bernhard’s ineligibility: “[T]he actions of the [bjoard [must] be reversed due to the illegality of Mr. Bernhard sitting on the [b]oard, and in judgment of [the plaintiff] . . . .” Despite the lack of an allegation that Wooden was ineligible for an appointment to the board, the court did refer to Wooden in its memorandum of decision. The court, however, was constrained to decide the matter as the issues had been pleaded by the parties.

“Pleadings have an essential purpose in the judicial process. . . . The purpose of pleading is to apprise the court and opposing counsel of the issues to be tried .... For that reason, [i]t is imperative that the court and opposing counsel be able to rely on the statement of issues as set forth in the pleadings.” (Citations omitted; internal quotation marks omitted.) Somers v. Chan, 110 Conn. App. 511, 528, 955 A.2d 667 (2008). “[A]ny judgment should conform to the pleadings, the issues and the prayers for relief” (Emphasis added; internal quotation marks omitted.) Journal Publishing Co. v. Hartford Courant Co., 261 Conn. 673, 686, 804 A.2d 823 (2002). “The [trial] court is not permitted to decide issues outside of those raised in the pleadings.” (Internal quotation marks omitted.) Gaffey v. Gaffey, 91 Conn. App. 801, 804 n.1, 882 A.2d 715, cert. denied, 276 Conn. 932, 890 A.2d 572 (2005). Accordingly, the claim with respect to Wooden was not properly before the Superior Court and is not properly before this court.

With respect to Bernhard, the following additional facts are necessary for the resolution of this claim. When Bernhard was first appointed to the board on November 15, 2007, he was ineligible for that appointment because he had held public office as a state representative until January 5, 2005, which was within three years of the appointment date. See General Statutes § 1-80 (b). On September 1, 2009, the plaintiffs counsel sent a letter to the board’s general counsel requesting that Bernhard be removed as a member because his appointment violated § 1-80 (b). That letter was copied to Representative Lawrence F. Cafero, Jr., who initially had appointed Bernhard to the board. On September 9, 2009, which was two days before the plaintiffs hearing was scheduled to commence, Representative Cafero appointed Bernhard to the board “to commence serving on the [b]oard immediately and through September 30, 2011.”

The plaintiff claims that the court erroneously agreed with the board’s conclusion that Bernhard’s initial appointment was void and of no effect and that, therefore, Bernhard’s subsequent appointment did not violate the provisions of § 1-80 that prohibit an individual from being appointed to more than one four year term. We conclude that the initial appointment of Bernhard to the board was void and that the subsequent appointment was valid under § 1-80.

Bernhard’s initial appointment was void because Bernhard was not eligible at that time to be a board member. See Furtney v. Zoning Commission, 159 Conn. 585, 271 A.2d 319 (1970). In Furtney, our Supreme Court discussed the rule detailing the circumstances under which an officer not legally qualified will be found to be an officer de facto. One of the circumstances described an individual who performed the duties of the office “under color of a known . . . appointment,” which appointment was “void because the officer was not eligible.” (Emphasis added.) Id., 596. The court noted that it had adopted that rule many years ago, citing the decision in State v. Carroll, 38 Conn. 449, 471-72 (1871).

By the time of Bernhard’s subsequent appointment on September 9,2009, more than three years had passed since his term ended as state representative, and he was, therefore, eligible to be appointed to the board. His term did not exceed the four year limit set forth in § 1-80. We therefore conclude that the subsequent appointment was a valid appointment, and there was no impediment to Bernhard’s participation in the hearing and decision on the matter.

II

The plaintiffs next claim is that the court erroneously failed to vacate the board’s decision on the ground that its members deliberated in private instead of in public as she had requested. The plaintiff argues that the board’s refusal to conduct its deliberations in public at the conclusion of the evidentiary portion of the hearing violated the provisions of the Uniform Administrative Procedure Act (UAPA), General Statutes § 4-166 et seq., and § 1-82 (b) that require all hearings to be open to the public.

The following additional facts and procedural history are necessary for the resolution of this claim. After the board deliberated in private and issued its decision, a newspaper and its reporter filed a complaint with the freedom of information commission (commission) claiming that the board violated the open meeting provisions of the Freedom of Information Act (act). The plaintiff did not participate as a joint complainant. The commission agreed that the board violated the act and decided in favor of the newspaper and the reporter. In its final decision, the commission ordered the board not to violate the act “[h]enceforth” and to create, file and post on the board’s website minutes of the deliberation portion of their January 12, 2010 meeting. The commission did not impose a civil penalty nor did it void the board’s orders in the enforcement action against the plaintiff.

The plaintiff did not raise the issue of the board’s deliberations in private in the operative complaint filed in her appeal to the Superior Court. Instead, in her administrative trial brief, she claimed that there were several grounds on which to reverse the board’s decision, including, inter alia, that “the [b]oard committed two [freedom of [Information violations . . . .” The heading of her argument in that brief addressed to the claim is “Violation of the Freedom of Information Act.” The court’s August 31, 2011 memorandum of decision referenced the freedom of information complaint and the commission’s decision, the failure of the commission to void the board’s orders against the plaintiff and the plaintiffs failure to participate as a joint complainant with the newspaper and the reporter. Then, citing case law, it rejected the plaintiffs argument.

The Superior Court did not address the plaintiffs claim made during oral argument before this court. The plaintiff argues that § 1-82 (b) requires that all enforcement action hearings before the board must be open and that § 1-92-31 (g) of the Regulations of Connecticut State Agencies defines a hearing to include the deliberations of the board.

We will not address the merits of the plaintiffs claim for several reasons. First, as discussed in part I of this opinion, the claim was not in the plaintiffs complaint and should not, absent an amendment to the complaint to include it, have been considered by the Superior Court in the plaintiffs administrative appeal. See Gaffey v. Gaffey, supra, 91 Conn. App. 804 n.1. Second, the Superior Court did not rule on the claim as it has now been presented to this court. Our review of the court file and transcript reveals that the plaintiff never referenced the state regulation on which she now relies. “[A] party cannot present a case to the trial court on one theory and then seek appellate relief on a different one.” (Internal quotation marks omitted.) Ingels v. Saldana, 103 Conn. App. 724, 730, 930 A.2d 774 (2007). “For this court to . . . consider [a] claim on the basis of a specific legal ground not raised during trial would amount to trial by ambuscade, unfair both to the [court] and to the opposing party.” (Internal quotation marks omitted.) Gilbert v. Beaver Dam Assn. of Stratford, Inc., 85 Conn. App. 663, 680, 858 A.2d 860 (2004), cert. denied, 272 Conn. 912, 866 A.2d 1283 (2005).

m

The plaintiff’s next claim is that the board’s decision should be vacated because the presiding judge trial referee erroneously instructed the board that the allegations of the ethics complaint needed to be proved by the preponderance of the evidence standard. The plaintiff argued that the allegations against her required proof beyond a reasonable doubt or, at a minimum, proof by clear and convincing evidence. The Superior Court agreed with the board that the preponderance of the evidence standard, rather than the clear and convincing evidence standard, was the appropriate standard for the board’s factual findings in this enforcement action against the plaintiff.

“When a party contests the burden of proof applied by the court, the standard of review is de novo because the matter is a question of law.” (Internal quotation marks omitted.) Barber v. Skip Barber Racing School, LLC, 106 Conn. App. 59, 75, 940 A.2d 878 (2008). In the present case, we conclude that the plaintiff’s claim is controlled by our Supreme Court’s decision in Goldstar Medical Services, Inc. v. Dept. of Social Services, 288 Conn. 790, 955 A.2d 15 (2008). In Goldstar Medical Services, Inc., the plaintiff appealed from the trial court’s dismissal of its administrative appeal from a five year suspension from the state medicaid program and an order of restitution issued by the department of social services (department). Id., 794. The appeal from the department’s decision was taken pursuant to the UAPA, and one of the plaintiffs claims was that the trial court improperly concluded that the preponderance of the evidence standard, rather than the clear and convincing evidence standard, was appropriate for the factual findings of fraud. Id., 799.

Our Supreme Court first noted that the plaintiff had failed to cite any relevant statute or regulation that required the clear and convincing standard of proof to be applied in situations involving medicaid fraud at the administrative level. Id., 820-21. The court then held: “In the absence of state legislation prescribing an applicable standard of proof, we conclude that the preponderance of the evidence standard is the appropriate standard of proof in administrative proceedings, including those in which a determination of fraud may be made.” Id., 821. Here, as in Goldstar Medical Services, Inc., we have neither been presented with nor found any statutory authority requiring the clear and convincing standard of proof to be applied in enforcement proceedings before the board. Accordingly, the plaintiffs claim fails.

IV

The plaintiffs next claim is that the Superior Court failed to conclude that the board erroneously construed § 1-84 (c) to find that she had violated its provisions. Section 1-84 (c) provides in relevant part: “[N]o . . . state employee shall use his . . . position ... to obtain financial gain for himself, his spouse, child, child’s spouse, parent, brother or sister or a business with which he is associated.” The plaintiff argues that the statutory language does not include the plaintiffs conduct because “in order to be in violation of [§] 1-84 (c), the actions on the part of the state employee must in some way relate to the job duties, obligations and responsibilities particular to that employment.” In other words, the plaintiff maintains that there must be a nexus between her objectionable conduct and the duties, obligations and responsibilities that she had as a state employed microbiologist in order to find a violation of § 1-84 (c).

We begin with the applicable standard of review. “[J]udicial review of an administrative agency’s action is governed by the Uniform Administrative Procedure Act (UAPA), General Statutes § 4-166 et seq., and the scope of that review is limited. . . . When reviewing the trial court’s decision, we seek to determine whether it comports with the [UAPA].” (Internal quotation marks omitted.) Merchant v. State Ethics Commission, 53 Conn. App. 808, 812, 733 A.2d 287 (1999). “[RJeview of an administrative agency decision requires a court to determine whether there is substantial evidence in the administrative record to support the agency’s findings of basic fact and whether the conclusions drawn from those facts are reasonable. . . . Neither this court nor the trial court may retry the case or substitute its own judgment for that of the administrative agency on the weight of the evidence or questions of fact.” (Internal quotation marks omitted.) Goldstar Medical Services, Inc. v. Dept. of Social Services, supra, 288 Conn. 833. “Conclusions of law reached by the administrative agency must stand if . . . they resulted from a correct application of the law to the facts found and could reasonably and logically follow from such facts. . . . The court’s ultimate duty is only to decide whether, in light of the evidence, the [agency] has acted unreasonably, arbitrarily, illegally, or in abuse of [its] discretion.” (Internal quotation marks omitted.) Merchant v. State Ethics Commission, supra, 812.

The plaintiffs claim presents a matter of statutory construction, whichis a question of law. See Cornelius v. Rosario, 138 Conn. App. 1, 8, 51 A.3d 1144, cert. denied, 307 Conn. 934, 56 A.3d 713 (2012). “Cases that present pure questions of law . . . traditionally invoke a broader standard of review than ordinarily is involved in deciding whether, in light of the evidence, the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion. . . . We have determined, therefore, that we will defer to an agency’s interpretation of a statutory term only when that interpretation of the statute previously has been subjected to judicial scrutiny or to a governmental agency’s time-tested interpretation and is reasonable.” (Citation omitted.) Board of Selectmen v. Freedom of Information Commission, 294 Conn. 438, 446, 984 A.2d 748 (2010).

As noted by the Superior Court in its August 31, 2011 memorandum of decision, “[a]t least five times between 1998 and 2005, the board’s predecessor ruled that obtaining financial gain through the use of state work time or facilities (e-mail, computer website and storage, telephone) while holding a position of a state employee violated § 1-84 (c).” At oral argument before this court, the plaintiff did not dispute the Superior Court’s finding that the statutory provision at issue previously had been interpreted administratively in the manner claimed by the board. Instead, she argues that there is no appellate case law construing § 1-84 (c), and, therefore, no deference should be accorded the board’s interpretation. The plaintiff, however, misinterprets the holding in Board of Selectmen v. Freedom of Information Commission, supra, 294 Conn. 446. We will defer to an agency’s interpretation when “that interpretation of the statute previously has been subjected to judicial scrutiny or to a governmental agency’s time-tested interpretation and is reasonable.” (Emphasis added.) Id. The court found that the board’s interpretation was time-tested, and we do not disagree with that determination.

The next inquiry is whether the board’s interpretation was reasonable. The Superior Court found the board’s interpretation to be reasonable, and we conclude that the court’s finding is supported by the statutory language of § 1-84 (c), its legislative history and our case law. The statute prohibits the use of the state employee’s position to obtain financial gain. Here, the board found that the plaintiff used state computers and telephones, as well as the time for which she was paid by the state to perform her duties as a microbiologist, to conduct a jewelry business and to provide services as a travel agent. The plaintiffs access to the state equipment was made possible because of her position as a state employee at the health center. Even if the statutory language could be deemed ambiguous, the legislative history supports the board’s interpretation. Representative Patricia T. Hendel stated that the intent of the proposed bill was “to pass a stronger code of ethics bill this year. I think it’s important that we help to increase public trust and improve the total image of our state government .... The strength of this bill lies in the oversight powers that will rest with a new ethics commission.” 20 H.R. Proc., Pt. 15, 1977 Sess., pp. 6417-18.

Although there is no Connecticut appellate case law directly on point, this court’s decision in Merchant v. State Ethics Commission, supra, 53 Conn. App. 808, is supportive of the board’s interpretation. In Merchant, the plaintiff, employed by the state as consumer counsel for the office of consumer counsel, was found by the state ethics commission (commission) to have violated § 1-84 (c) by improperly certifying his state attendance records to include hours when he was out of state at golf tournaments. Id., 810-12. In challenging, inter alia, the determination of the Superior Court that the commission had jurisdiction to hear his matter, this court stated that “[t]he plaintiffs alleged activity [of claiming work time when out of the state on personal business] clearly falls within the jurisdiction of the commission under the ethics code.” Id., 813. For the foregoing reasons, we conclude that the Superior Court did not improperly conclude that the board’s interpretation was time-tested and reasonable.

V

The plaintiffs final claim is that the Superior Court improperly failed to conclude that the board’s decision was not articulated sufficiently because it did not provide factual references to support its findings. Specifically, the plaintiff argues that the board’s decision “consist[ed] of broadly worded statements” and that “[t]he lack of facts makes it impossible for a reviewing court to determine whether the decision was arbitrary or based on a reasonable interpretation of the evidence.”

The board set forth the following factual findings in reaching its determination that the plaintiff had violated § 1-84 (c): (1) by virtue of her employment at the health center, the plaintiff had access to state resources, including computers, printers, the e-mail system, telephones and Internet websites; (2) the plaintiff owned and operated a private jewelry business; (3) the plaintiffs jewelry business was operated for profit; (4) on multiple occasions, the plaintiff used her access to state resources in furtherance of her jewelry business; (5) specifically, the plaintiff used state computers, printers, telephones, Internet access and the e-mail system in furtherance of her private jewelry business; (6) the plaintiff accessed and used the health center’s e-mail system from remote locations to conduct her private jewelry business; (7) the jewelry business did not own its own computer in 2004 and 2005 and relied on the state’s computers to operate the business; (8) the plaintiff was a registered travel consultant and agent in 2004 and 2005; (9) the plaintiff was an owner of the travel consulting business and that business was conducted for profit; (10) during state time, the plaintiff used the health center’s telephones and e-mail system in furtherance of her travel consulting business; (11) the previously described conduct constituted a use of the plaintiffs position within the meaning of § 1-84 (c); (12) the plaintiff engaged in such conduct to obtain financial gain and such conduct resulted in financial gain for the plaintiff; (13) the plaintiff obtained financial gain from a variety of sources, including, inter alia, revenues from her businesses, commissions, cash sources, tax benefits and the avoidance of costs that she would have incurred had she not availed herself of the state resources in furtherance of her private businesses; (14) the plaintiff continued to engage in such conduct after having been advised that such conduct was prohibited; and (15) the plaintiff knowingly acted in her own financial interest and received financial advantage by engaging in the acts and course of conduct as described.

The plaintiff claims that the factual findings set forth by the board are insufficient as a matter of law to support its determination that she violated § 1-84 (c). Pursuant to § 1-82 (b), the board was required to “publish its finding and a memorandum of the reasons therefor” no later than fifteen days from the conclusion of the public hearing. In this case, as previously noted, the hearing was conducted over a period of eight days, commencing September 11, 2009, and concluding on January 12, 2010. The statutes contain no further direction as to the contents of the board’s required memorandum. There are no requirements that testimony or exhibits be referenced, or that references to transcripts be provided.

The plaintiff cites no relevant statutes or case law that require a more detailed decision than the board’s “finding, memorandum and order” issued on January 16, 2010. It is the function of the reviewing court to search the entire record to determine whether there is substantial evidence to support a board’s determination that there has been a violation of the ethics code. “In accordance with the [UAPA], we review an administrative agency’s decision for abuse of discretion to determine whether there is substantial evidence in the administrative record to support the agency’s findings of basic fact and whether the conclusions drawn from those facts are reasonable.” (Internal quotation marks omitted.) Connecticut Motor Cars v. Commissioner of Motor Vehicles, 300 Conn. 617, 621-22, 15 A.3d 1063 (2011). “The [UAPA] . . . prescribes that review of an administrative adjudicative decision should be on the whole record. . . . Substantial evidence exists if the administrative record affords a substantial basis of fact from which the fact in issue can be reasonably inferred. ... If, therefore, the specific evidence cited in support of an administrative officer’s ultimate factual finding is inadequate to support that ultimate factual conclusion, a reviewing court should search the record of the entire proceedings to determine whether it does in fact contain substantial evidence from which the ultimate factual finding could reasonably be inferred.” (Emphasis in original; internal quotation marks omitted.) Murphy v. Commissioner of Motor Vehicles, 60 Conn. App. 526, 530-31, 760 A.2d 510 (2000). Accordingly, if the administrative record provides substantial evidence on which the board reasonably could have based its finding that the plaintiff used her position as a state employee to obtain financial gain for herself or for her businesses, the board’s decision must be upheld. See id., 531.

The Superior Court, following applicable case law, concluded: “There is clearly substantial evidence that the plaintiff was making use of state resources for her private financial gain. There were e-mails in the record relating to gem orders from her supplier, confirming jewelry orders and pickups, transmittal of photos of jewelry to clients, and confirming payment by clients. . . . Similarly there are e-mails relating to travel packages and quotes for clients. . . . The plaintiff also accessed state e-mail when out of the office. . . . Finally, she also made use of state telephones for jewelry and travel business.” (Citations omitted.) Further, “[t]he record shows that there was a link between the plaintiffs use of state facilities and her financial gain in both her jewelry business and her travel business.” Our own independent review of the record supports the Superior Court’s determination that the board’s findings and conclusions were based on substantial evidence. For these reasons, we conclude that the Superior Court properly determined that the board did not act illegally, arbitrarily, unreasonably or in abuse of its discretion when it found that the plaintiff violated § 1-84 (c) of the state ethics code, and, therefore, it properly dismissed the plaintiffs administrative appeal.

The judgment is affirmed.

       In this appeal, the plaintiff additionally claims that the fine imposed by the board was excessive. That claim, however, was not raised before the Superior Court, and we decline to address it. “For this court to . . . consider [a] claim on the basis of a specific legal ground not raised during trial would amount to trial by ambuscade, unfair both to the [court] and to the opposing party.” (Internal quotation marks omitted.) Gilbert v. Beaver Dam Assn. of Stratford, Inc., 85 Conn. App. 663, 680, 858 A.2d 860 (2004), cert. denied, 272 Conn. 912, 866 A.2d 1283 (2005).

       The complaint additionally alleged that the plaintiff violated § 1-84 (b) by accepting other employment that impaired her independence of judgment as to her official duties. The board did not find a violation of that statutory provision.

       The violation of the ethics code at issue was limited to the plaintiffs conduct in 2004 and 2005. Section 1-82 (d) provides: “No complaint may be made under this section later than five years after the violation alleged in the complaint has been commited.”

       When the hearing commenced on September 11, 2009, the board consisted of nine members. The terms of two of those members expired during the course of the eight day hearing, and, accordingly, only seven members were present for the duration of the hearing and voted on the matter. See General Statutes § 1-82 (b).

       General Statutes § 1-82 (b) provides in relevant part: “The board shall find no person in violation of any provision of this part . . . except upon the concurring vote of six of its members present and voting. . . .”

       General Statutes § 1-80 (b) provides in relevant part: “No member or employee of such board shall (1) hold or campaign for any public office; (2) have held public office or have been a candidate for public office for a three-year period prior to appointment; (3) hold office in any political party or political committee or be a member of any organization or association organized primarily for the purpose of influencing legislation or decisions of public agencies . . . .” (Emphasis added.)

       The court’s memorandum of decision states in relevant part: “The plaintiff also contends that another board member who participated in the public hearing, Shawn T. Wooden, also should have been disqualified. The plaintiffs basis for disqualification is not elaborated upon, other than to state that Wooden was a delegate to the Democratic National Convention in 2008. This analysis is inadequate for further discussion by the courts. Courts ‘are not required to review issues that have been improperly presented . . . through an inadequate brief.’ In re Jorden R., 293 Conn. 539, 555 n.14, 979 A.2d 469 (2009).”

       General counsel requested an advisory opinion on the validity of Bern-hard’s appointment. The board issued advisory opinion 2009-9 on September 24, 2009, in which it concluded: (1) Bernhard’s original appointment to the board was void because he was not eligible for appointment at that time by virtue of § 1-80 (b) (2); (2) Bernhard’s subsequent appointment on September 9, 2009, was valid; and (3) Bernhard was a de facto officer prior to his subsequent appointment, and his actions taken prior to the subsequent appointment were valid and legally binding on those affected by them.

       Representative Cafero, in Ms letter dated September 9, 2009, wrote: “To the extent that any defect may exist with respect to Ms appointment, I am, today, appointing G. Kenneth Bernhard to the Citizen’s EtMcs Advisory Board to commence serving on the [b]oard immediately and through September 30, 2011.”

       The plaintiff also argues that Bernhard’s actions cannot be deemed valid as the acts of a de facto officer. Because we conclude that Bernhard’s subsequent appointment on September 9,2009, was valid, and the plaintiffs hearing commenced after Ms subsequent appointment, all of Bernhard’s actions at issue in tMs appeal were taken as a validly appointed member of the board. The plaintiffs analysis of cases pertaining to de facto officers is, therefore, irrelevant under the circumstances of this case.

       As further support for the conclusion that the initial appointment was void, see Brown v. O’Connell, 36 Conn. 432 (1870). In Brown, our Supreme Court discussed de facto officers and referenced a case in which a minor was treated as an officer de facto even though his appointment was void because his age rendered him ineligible to serve. Id., 450.

       It is uncontested that the plaintiff was a state employee at the time of the alleged misconduct. She claims, however, that even assuming that the board’s factual findings are supported by the record, the statute does not apply to her conduct.

       To clarify her position, the plaintiff gave the following example of conduct that she believed would constitute a violation of § 1-84 (c). According to the plaintiff, if she, as a microbiologist, had furnished a laboratory report prepared on state time to a physician for private compensation, she then would have violated that statutory provision.

       The office of state ethics is the successor agency to the state ethics commission. Council 4, AFSCME, AFL-CIO v. State Ethics Commission, 304 Conn. 672, 672 n.1, 41 A.3d 656 (2012).

       The Superior Court additionally cited an Oregon Supreme Court decision as being supportive of the board’s interpretation. In Davidson v. Oregon Government Ethics Commission, 300 Or. 415, 712 P.2d 87 (1985), the state-employed plaintiff was found to have obtained an automobile for himself at a discounted price as an “add-on” to a state fleet purchase order. The court stated: “The broad policy of the ethics laws is to ensure that government employees do not gain personal financial advantage through their access to the assets and other attributes of government.” Id., 422.


source: Caselaw Access Project

author: PETERS, J. LAVINE, J.,

license: Public Domain

text:
    WILBERT LAWRENCE v. STATE BOARD OF EDUCATION ET AL.
    (AC 33583)
    Lavine, Sheldon and Peters, Js.

      Argued October 31, 2012
    officially released February 19, 2013

      Vincent F. Sabatini, for the appellant (plaintiff).

      Robert J. Deichert, assistant attorney general, with whom were Nancy A. Brouillet, assistant attorney general, and, on the brief, George Jepsen, attorney general, and Jane R. Rosenberg, assistant attorney general, for the appellees (named defendant et al.).
   Opinion

PETERS, J.

“Sovereign immunity is invoked as a shield by the sovereign defendant against suits from parties allegedly injured by its wrongful conduct or that of its agents.” (Internal quotation marks omitted.) State v. Lombardo Bros. Mason Contractors, Inc., 307 Conn. 412, 429, 54 A.3d 1005 (2012). The principal issue in this case is whether sovereign immunity bars the action of a former state employee to rescind his severance agreement with the state. The trial court sustained the defendants’ plea of sovereign immunity because the former employee has not obtained the permission of the claims commissioner to bring his action, and dismissed the plaintiffs suit for lack of subject matter jurisdiction. We affirm the judgment of the court.

On August 4, 2010, the plaintiff, Wilbert Lawrence, served a four count complaint against the defendants, the state board of education, the state department of education, the state technical high school system, and Mark K McQuillan, the commissioner of the state board of education and the state department of education, to challenge the validity of a stipulated agreement that terminated the plaintiffs employment as a state vocational school teacher. The complaint sought rescission of the agreement, a declaratory judgment and monetary relief. The court granted the defendants’ motion to dismiss the complaint on the ground of sovereign immunity. The plaintiff has appealed from the judgment of the court in favor of the defendants.

The relevant procedural history is undisputed. From 1997 through 2010, the plaintiff was employed as a teacher for the state vocational school system and, as such, was a member of the State Vocational Federation of Teachers (union). In 2010, in response to a charge by the state that he had engaged in misconduct, the plaintiff and the union, acting on his behalf, entered into settlement negotiations with the state. Accordingly, on April 9, 2010, the plaintiff signed a “stipulated agreement,” which provided that “[the plaintiff] will resign from his position with the [s]tate of Connecticut effective the close of business on July 1, 2010 in lieu of termination for his misconduct.” The plaintiff agreed, furthermore, that he would “not apply or accept any teaching positions with the [sjtate of Connecticut, including positions within the adult programs or substituting.”

The plaintiff alleges that, during the settlement negotiations, the defendants represented to him that, if he entered into the stipulated agreement, any and all actions and charges pending against him would be terminated and he would be able to pursue other employment with the state in the form of administrative positions. The plaintiff further alleges that these representations were false because the defendants knew or should have known that other state agencies were investigating him at that point in time, or that they had charges pending against him. Finally, he alleges that these misrepresentations induced him to sign the stipulated agreement.

On June 23, 2010, the plaintiff, through counsel, sought rescission of the stipulated agreement because, in his view, he had been treated unfairly. Because the defendants declined to allow rescission of the agreement, the plaintiff filed the present lawsuit.

The plaintiffs appeal challenges the propriety of the court’s dismissal of his claims for “injunctive and declaratory relief, particularly in the form of rescission of the [stipulated agreement].” Although he acknowledges that neither the legislature nor the claims commissioner has authorized his suit, the plaintiff claims, for two reasons, that his claim for rescission does not implicate sovereign immunity. First, he maintains that the state would be unaffected fiscally by a judgment of rescission in his favor. Second, he hypothesizes that, because his complaint alleges that “the defendants violated his constitutional rights and engaged in wrongful conduct to promote an illegal purpose,” his rescission action is justiciable pursuant to Columbia Air Services, Inc. v. Dept. of Transportation, 293 Conn. 342, 349-50, 977 A.2d 636 (2009). We are not persuaded.

We first set forth the applicable standard of review. “The standard of review of a motion to dismiss is . . . well established. In ruling upon whether a complaint survives a motion to dismiss, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader. ... A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction. . . .

“Sovereign immunity relates to a court’s subject matter jurisdiction over a case, and therefore presents a question of law over which we exercise de novo review. ... In so doing, we must decide whether [the trial court’s] conclusions are legally and logically correct and find support in the facts that appear in the record. . . . The principle that the state cannot be sued without its consent, or sovereign immunity, is well established under our case law. ... It has deep roots in this state and our legal system in general, finding its origin in ancient common law. ... Not only have we recognized the state’s immunity as an entity, but [w]e have also recognized that because the state can act only through its officers and agents, a suit against a state officer concerning a matter in which the officer represents the state is, in effect, against the state. . . . Exceptions to this doctrine are few and narrowly construed under our jurisprudence. . . .

“[A] litigant that seeks to overcome the presumption of sovereign immunity must show that (1) the legislature, either expressly or by force of a necessary implication, statutorily waived the state’s sovereign immunity . . . or (2) in an action for declaratory or injunctive relief, the state officer or officers against whom such relief is sought acted in excess of statutory authority, or pursuant to an unconstitutional statute. ... In making this determination, this court has recognized the well established principle that statutes in derogation of sovereign immunity should be strictly construed. . . . Where there is any doubt about their meaning or intent they are given the effect which makes the least rather than the most change in sovereign immunity.” (Citation omitted; internal quotation marks omitted.) DaimlerChrysler Corp. v. Law, 284 Conn. 701, 711-12, 937 A.2d 675 (2007).

I

The plaintiff claims that his action for rescission does not implicate sovereign immunity because rescission of the stipulated agreement “would not affect the state’s fiscal concerns.” He hypothesizes, without further elaboration, that “injunctive and declaratory relief in the form of rescission of the contract, as well as reinstatement . . . can be tailored effectively in order to minimize any interference with state functions, thereby making consent to suit or waiver of sovereign immunity unnecessary.” The defendants question the accuracy of this financial snapshot. We agree with the defendants.

The plaintiff has offered no guidance about how a remedy in rescission could be fashioned without implicating the state’s fiscal resources. The plaintiffs complaint sought not only reinstatement but also back pay. Although in his reply brief, the plaintiff seems to abandon the latter claim, if the plaintiff were to prevail in his claim for relief, at the very least he would be entitled to reinstatement in his former teaching position and to payment of the present and future salary and benefits appurtenant thereto. In the likely absence of unfilled vacancies, his reinstatement would require severance payments to the person presently occupying the plaintiffs former position. None of these actions could take place without significant administrative intervention and the costs associated therewith. We agree, therefore, with the defendants’ contention that the plaintiffs claim has adverse implications for the state’s fiscal well-being and is barred by the state’s sovereign immunity.

II

Alternatively, the plaintiff alleges that sovereign immunity does not bar his rescission action because his allegations of misconduct by the defendants “clearly demonstrate an incursion upon constitutionally protected interests.” (Emphasis added; internal quotation marks omitted.) Columbia Air Services, Inc. v. Dept. of Transportation, supra, 293 Conn. 350. We agree with the court that the plaintiffs allegation that the defendants failed to disclose other pending charges of misconduct did not satisfy this burden of pleading.

For his constitutional argument, the plaintiff principally relies on Shay v. Rossi, 253 Conn. 134, 189, 749 A.2d 1147 (2000), overruled in part by Miller v. Egan, 265 Conn. 301, 325, 828 A.2d 549 (2003). This reliance is misplaced. In Shay, the defendants allegedly persisted with a claim that the defendants knew to be factually unjustified. Id., 182. The plaintiff has made no such allegations in this case.

We note, furthermore, that the record here is barren of any identification of the specific charges of misconduct that the defendants allegedly should have disclosed to the plaintiff. The plaintiff alleges that, during the negotiations leading to his resignation of his teaching position, the defendants represented to him that if he entered into the stipulated agreement, “any and all actions and/or charges pending against him would be terminated and ... he would be able to pursue other employment with the [s]tate in the form of administrative positions.” The plaintiff further alleges that these representations were false because the defendants knew or should have known that other state agencies were then investigating him or had charges pending against him. In effect, the plaintiff maintains that the defendants’ failure to inform him of charges that other agencies had not yet filed against him should be considered tantamount to a knowing and false representation that no state agency was considering administrative action that would tarnish the plaintiffs good name, reputation, honor or integrity. We know of no authority for such a broad reading of the law of misrepresentation, and the plaintiff has cited none.

In his reply brief, the plaintiff refocuses his constitutional argument into a claim that the defendants have deprived him of a property interest in employment without due process of law. He emphasizes the fact that the stipulated agreement, while precluding him from accepting teaching positions in the state, did not preclude him from accepting nonteaching positions. Accordingly, he maintains that the agreement gave him a “property interest in employment” and that, in his complaint, he properly alleged that the defendants had impaired this property interest without due process of law by failing to inform him of adverse proceedings then pending in other state agencies.

We disagree with the plaintiffs contention in both form and substance. Procedurally, an argument that is advanced for the first time in a reply brief need not be considered by this court because the defendants have not had an opportunity to address it in their own brief. See Williams Ford, Inc. v. Hartford Courant Co., 232 Conn. 559, 593 n.26, 657 A.2d 212 (1995). Substantively, we are not persuaded that the terms of the settlement agreement reasonably can be construed to confer on the plaintiff a constitutionally cognizable property interest in employment that the defendants were required to honor. The stipulated agreement provided only that the plaintiff was not precluded from seeking state employment other than as a teacher. The agreement did not purport, in any fashion, to establish the plaintiffs eligibility for any vacant nonteaching position with the state government. The plaintiff has cited no authority for the proposition that the right to apply for an unspecified government position is a cognizable property interest that has constitutional implications.

Furthermore, the plaintiff has not alleged that any of the defendants had a contractual, statutory or constitutional duty to inform him of pending proceedings in other state agencies with which he might seek employment. Indeed, he has not alleged that these preliminary proceedings ever matured into formal charges against him. On the basis of the record before us, we agree with the court that the plaintiff has failed clearly to allege an incursion upon a constitutionally protected interest that would preclude the defendants from invoking their sovereign immunity.

In sum, we agree with the defendants that the plaintiff has failed to allege facts that support his contention that (1) if he were to prevail in his rescission action, the required remedy would have no significant adverse impact on the state’s financial resources and (2) the defendants deprived him of a constitutionally protected property interest dining the negotiation of his settlement agreement by failing to inform him of adverse proceedings then pending in other state agencies. Accordingly, the court properly concluded that the doctrine of sovereign immunity barred the plaintiffs claims for relief.

The judgment is affirmed.

In this opinion SHELDON, J., concurred.

LAVINE, J.,

concurring. I concur with the majority opinion, however, I write separately to note the limits of our ruling.

Exceptions to the doctrine of sovereign immunity “are few and narrowly construed under our jurisprudence.” C. R. Klewin Northeast, LLC v. Fleming, 284 Conn. 250, 258, 932 A.2d 1053 (2007). Connecticut has a common-law exception to sovereign immunity for claims in “an action for declaratory or injunctive relief [if] the state officer or officers against whom such relief is sought acted in excess of statutory authority, or pursuant to an unconstitutional statute.” (Emphasis added; internal quotation marks omitted.) DaimlerChrysler Corp. v. Law, 284 Conn. 701, 712, 937 A.2d 675 (2007).

In this case, the plaintiff, Wilbert Lawrence, seeks rescission of a contract. The trial court found that the state did not waive its sovereign immunity or consent to this suit through the claims commissioner. The court stated that “[e]ven if this court were to assume that the plaintiff is seeking declaratory relief in the form of rescission of a contract, the plaintiff has failed to meet his pleading requirements” because he “has failed to clearly allege an incursion upon a constitutionally protected interest” and because he “has failed to substantially allege that [the defendant Mark K. McQuillan], in his official capacity, engaged in wrongful conduct to achieve an illegal purpose in excess of his statutory authority.”

I emphasize that the trial court assumed — but did not decide — that the plaintiff was seeking declaratory relief in the form of rescission. The majority neither endorses nor rejects that assumption; it does not address it. In my opinion, therefore, the majority opinion does not stand for the proposition that, in this jurisdiction, an action seeking rescission is the equivalent of an action for declaratory relief for purposes of sovereign immunity analysis, nor should it be cited as authority for that proposition, nor used as a means to bypass the claims commissioner.

       The plaintiff also alleged a fifth count of breach of contract by the State Vocational Federation of Teachers, the plaintiffs union. As the defendant union did not join the other defendants in filing the motion to dismiss, which is the subject of this appeal, we do not consider this claim on appeal.

       The record before us does not disclose the nature of the alleged misconduct or the nature of any charges pending against the plaintiff at the time he signed the stipulated agreement.

       The stipulated agreement also provided that the plaintiff would be entitled to “use three (3) accrued personal leave days and then sick leave accruals from April 6, 2010 to the end of the 2009-2010 school year” and that the plaintiff would not “file or pursue any legal action against the [s]tate of Connecticut, the [department of [ejducation, its representative, its employees and [his union], in any forum as a result of this agreement, except to enforce the terms of this Agreement.”

       The letter seeking rescission states that “the underlying facts supporting the so-called termination are totally unsupported. In addition, there are pending matters involved in this matter which were not resolved prior to [the plaintiffs] termination. . . . He did not have proper representation and advice during this process.”

       The plaintiff concedes that counts two and three of his complaint, which charge the defendants with intentional misrepresentation and unfair trade practices, are barred by the doctrine of sovereign immunity.


author: BEACH, J. ALVORD, J.,

text:
    CHARLOTTE MALPESO v. PASQUALE J. MALPESO
    (AC 33858)
    Beach, Alvord and Borden, Js.
    Argued December 6, 2012
    officially released February 19, 2013

      Barbara M. Schellenberg, with whom, on the brief, was Richard L. Albrecht, for the appellant (defendant).

      Charles T. Busek, with whom, on the brief, was Bet-tina Grob, for the appellee (plaintiff).

      Elizabeth T. Sharpe, for the minor children.
   Opinion

BEACH, J.

In this postjudgment marital dissolution matter, the defendant, Pasquale J. Malpeso, appeals from the judgment of the trial court sustaining in part the objection filed by the plaintiff, Charlotte Malpeso, to the defendant’s motion for modification of child support that sought to decrease the amount of alimony and child support to be paid to the plaintiff under the separation agreement. We reverse the judgment of the trial court.

The trial court rendered a judgment of dissolution of marriage in June, 2004, which incorporated the parties’ separation agreement (agreement). Article 3 of the agreement was entitled “Alimony and Child Support.” (Emphasis added.) Paragraph 3.1 of the agreement provided in relevant part: “During the lifetime of the [defendant] until the death, remarriage or cohabitation of the [plaintiff], whichever event shall first occur, the [defendant] shall pay to the [plaintiff] as alimony, or separate maintenance for the support of the minor children the sum of $20,000 per month.” Paragraph 3.2 provided in relevant part: “The amount and term of alimony shall be modifiable only under the following circumstances: (a) Upon a court of competent jurisdiction’s determination that the [defendant] has become disabled as defined by the Social Security Administration or in the event that the economy of New York State undergoes a substantial change as a result of a catastrophic event (such as 9/11) . . . (b) After July 1, 2012, upon a court of competent jurisdiction’s determination that there has been a substantial change of circumstances as provided for in . . . General Statutes § 46b-84a [and] ... (d) Only under the circumstances set forth in this paragraph 3.3 shall the [defendant’s] obligation to pay alimony pursuant to paragraph 3.1 be modifiable during the first eight years.” (Emphasis added.) Paragraph 3.3 provided: “The parties shall endeavor to negotiate child support if alimony terminates while any child or children are minors. If they are unable to agree, the amount of child support to be paid by the [defendant] shall be determined by a court of competent jurisdiction. Child support payments shall be retroactive to the last day on which alimony was paid.”

After the defendant filed a motion to modify child support, to which the plaintiff objected, in August, 2011, the defendant filed an amended motion for modification of alimony and child support on the following grounds: (1) the parties’ two youngest children had reached the age of majority and had graduated from high school; and (2) the economy of New York had undergone a substantial change as a result of a catastrophic event. Following a hearing, the court determined that the language in article 3 of the agreement was clear and unambiguous and that the amount of monthly alimony and child support could be modified only pursuant to the terms of paragraph 3.2. The court determined that the only rationale for modification that was permissible under the terms of paragraph 3.2 was a substantial change in the economy of New York due to a catastrophic event. The court, therefore, sustained the plaintiff s objection as to all other grounds for modification. This appeal followed.

The defendant argues that the court erred in concluding that the agreement precludes modification. He argues that the agreement lacks clear language precluding modification of child support and thus should be interpreted to permit modification. We agree.

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 . . . may, at any time thereafter, be . . . modified by the court upon a showing of a substantial change in the circumstances of either party or upon a showing that the final order for child support substantially deviates from the child support guidelines established pursuant to section 46b-216a . . . .” Our Supreme Court has interpreted § 46b-86 (a) generally “to [provide] the trial court with continuing jurisdiction to modify support orders after the date of a final judgment of dissolution. ... It permits the court to modify alimony and child support orders if the circumstances demonstrate that: (1) either of the parties’ circumstances have substantially changed; or (2) the final order of child support substantially deviates from the child support guidelines. The statute, however, expressly stipulates that the court may exercise this authority [u]nless and to the extent that the decree precludes modification .... Thus, by its terms, § 46b-86 (a) clearly contemplates that, in certain cases, the parties can, by agreement, restrict the trial court’s power to modify alimony or support even when a substantial change in circumstances or a substantial deviation from the child support guidelines has occurred.” (Citations omitted; internal quotation marks omitted.) Tomlinson v. Tomlinson, 305 Conn. 539, 547-48, 46 A.3d 112 (2012).

“Despite the language of ... § 46b-86 (a), [our Supreme Court has] treated ambiguous orders regarding alimony to be modifiable. . . . This presumption favoring modifiability should apply with equal if not greater force with respect to orders for child support, given the broad grant of power to make and modify child support orders expressed in General Statutes § 46b-56. Thus, although ... § 46b-86 (a) does permit a court to limit or preclude modification of support in a divorce decree, it must express its intention to do so in clear and unambiguous terms.” (Citations omitted.) Guille v. Guille, 196 Conn. 260, 268 n.2, 492 A.2d 175 (1985).

“It is well established that a separation agreement, incorporated by reference into a judgment of dissolution, is to be regarded and construed as a contract. . . . Accordingly, our review of a trial court’s interpretation of a separation agreement is guided by the general principles governing the construction of contracts. . . . A contract must be construed to effectuate the intent of the parties, which is determined from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction. . . . If a contract is unambiguous within its four comers, the determination of what the parties intended by their contractual commitments is a question of law. . . . When the language of a contract is ambiguous, [however] the determination of the parties’ intent is a question of fact, and the trial court’s interpretation is subject to reversal on appeal only if it is clearly erroneous.” (Citations omitted; internal quotation marks omitted.) Remillard v. Remillard, 297 Conn. 345, 354-55, 999 A.2d 713 (2010). Because a determination as to whether a contract is ambiguous is a question of law, our review is plenary. See Electric Cable Compounds, Inc. v. Seymour, 95 Conn. App. 523, 529, 897 A.2d 146 (2006).

Paragraph 3.1 of the agreement provides that until certain conditions are met, the defendant shall pay the plaintiff $20,000 per month “as alimony, or separate maintenance for the support of the minor children . . . .” The only plausible inteipretation of this clause is that it provides for unallocated alimony and child support. Paragraph 3.2 expressly limits only the modifi-ability of alimony. The agreement is silent as to the modifiability of child support. In light of the presumption favoring the modifiability of child support; see Guille v. Guille, supra, 196 Conn. 268 n.2; the agreement must be construed to permit the modification of child support. Accordingly, we must reverse the trial court’s judgment sustaining in part the plaintiffs objection to the defendant’s motion for modification of child support on the ground that payments for child support were subject to the nonmodification clauses of paragraph 3.2.

The judgment is reversed and the case is remanded for further proceedings according to law.

In this opinion BORDEN, J., concurred.

ALVORD, J.,

concurring. I concur with the majority opinion and only write separately to highlight the possible tax consequences of this decision and to distinguish this case from Tomlinson v. Tomlinson, 305 Conn. 539, 46 A.3d 112 (2012). In Tomlinson, our Supreme Court held that “[u]nder the particular circumstances of [that] case” an unallocated support order could be modified with regard to child support when a change in custody occurred during the minority of the children. Id., 542, 557. In the present case, the plaintiff, Charlotte Malpeso, and the defendant, Pasquale J. Malpeso, have an older son and two daughters who were both bom on June 9, 1993. The plaintiff filed a motion for modification of his support payment to $0 on the basis that his daughters reached the age of eighteen on June 9, 2011. His daughters’ eighteenth birthday was one year prior to the date that, under the terms of the separation agreement, he would have been able to seek to modify alimony and child support payments pursuant to General Statutes § 46b-84a.

The parties, with the assistance of counsel, had entered into a separation agreement, which was incorporated into their divorce decree. The agreement states in relevant part: “During the lifetime of the [defendant] and until the death, remarriage or cohabitation of the [plaintiff], whichever event shall first occur, the [defendant] shall pay to the [plaintiff] as alimony, or separate maintenance for the support of the minor children the sum of $20,000 per month.” It later states: “The amount and term of alimony shall be modifiable only . . . [a]fter July 1, 2012, upon a court of competent jurisdiction’s determination that there has been a substantial change in circumstances as provided for in . . . § 46b-84a.’

The deductibility of unallocated alimony and support payments is governed by 26 U.S.C. § 216, which provides in relevant part: “[A]n individual . . . shall be allowed as a deduction an amount equal to the alimony or separate maintenance payments paid during such individual’s taxable year. . . . [T]he term ‘alimony or separate maintenance payment’ means any alimony or separate maintenance payment (as defined in section 71 [b]) which is includable in the gross income of the recipient under section 71.” Child support, labeled as such, is not deductable to the payor; a tax deduction “shall not apply to that part of any payment which the terms of the divorce or separation instrument fix (in terms of an amount of money or a part of the payment) as a sum which is payable for the support of children of the payor spouse.” 26 U.S.C. § 71 (c) (1). Further, if the maintenance agreement reduces the payment amounts either “on the happening of any contingency specified within the instrument relating to a child (such as attaining a specified age, marrying, dying, leaving school, or a similar contingency), or ... at a time which can clearly be associated with [such] a contingency ... an amount equal to the amount of such reduction will be treated as an amount fixed as payable for the support of children of the payor spouse.” 26 U.S.C. § 71 (c) (2).

Although Tomlinson permits the allocation of a contractually unallocated support order, its holding is limited to its facts, namely, a custody change during the minority of the children. The facts of the present case are inapposite. I concur that the child support pursuant to this agreement can be modified because the restriction on modification within the agreement refers only to alimony, but not because of the precedent created by Tomlinson about modifying nonmodifiable child support agreements in the event of a custody change.

Where Tomlinson is instructive to this set of facts, is in its directive that a trial court attempting to modify only the child support portion of an unallocated order “must determine what part of the original decree constituted modifiable child support and what part constituted nonmodifiable alimony.” (Emphasis added.) Tomlinson v. Tomlinson, supra, 305 Conn. 558. Such a determination would alter the nature of the unallocated support order because it would allocate a fixed sum as child support and, therefore, risk removing that fixed sum from the preferential tax treatment of 26 U.S.C. § 71 (b). Likewise, if a modification is granted on the basis of a substantial change of circumstances pertaining to the happening of a contingency relating to a child — namely, the youngest child reaching the age of majority — such a determination would seemingly implicate tax consequences under 26 U.S.C. § 71 (c) (2). Whether the potential tax consequences of a modification made under these circumstances would be retroactive to the date of the initial decree would, to my knowledge, present an issue of first impression for the taxing authority of this state.

       The defendant represents in his brief to this court that this ground had been -withdrawn. This ground is not at issue in this appeal.

       The plaintiffs two page brief advanced no discemable argument in opposition.

       Our Supreme Court has recognized some restrictions on provisions providing for nonmodification of child support. See Guille v. Guille, 196 Conn. 260, 266, 492 A.2d 175 (1985) (in enacting § 46b-86 [a], legislature did not intend to depart from common-law rule rendering contracts between parents regarding child support ineffective to limit children’s right to parental support); Favrow v. Vargas, 231 Conn. 1, 22, 647 A.2d 731 (1994) (“a parent cannot, at least without court approval, contract away [his or] her obligation of support for minor children”); Tomlinson v. Tomlinson, supra, 305 Conn. 546 (facially nonmodifiable child support order modifiable due to change in custody of minor children). These restrictions are not at issue in this case because the agreement does not contain a clear provision providing for nonmodifiable child support.

       The agreement lists two circumstances that would allow for a modification of alimony before July 1, 2012, neither of which is alleged to have occurred.

       Section 71 (b) of title 26 of the United States Code provides in relevant part: “(1) . . . The term ‘alimony or separate maintenance payment’ means any payment in cash if — (A) such payment is received by (or on behalf of) a spouse under a divorce or separation instrument, (B) the divorce or separation instrument does not designate such payment as a payment which is not includable in gross income under this section and not allowable as a deduction under section 215, (C) in the case of an individual legally separated from his spouse under a decree of divorce or of separate maintenance, the payee spouse and the payor spouse are not members of the same household at the time such payment is made, and (D) there is no liability to make any such payment for any period after the death of the payee spouse and there is no liability to make any payment (in cash or property) as a substitute for such payments after the death of the payee spouse. (2) . . . The term ‘divorce or separation instrument’ means — (A) a decree of divorce or separate maintenance or a written instrument incident to such a decree, (B) a written separation agreement, or (C) a decree (not described in subparagraph (A)) requiring a spouse to make payments for the support or maintenance of the other spouse.”


author: PETERS, J.

text:
    MICHELLE SAGALYN v. CHRISTOPHER PEDERSON
    (AC 34172)
    DiPentima, C. X, and Lavine and Peters, Js.

      Argued December 3, 2012
    officially released February 19, 2013

      Edward Kanowitz, for the appellant (plaintiff).

      A. Reynolds Gordon, with whom, on the brief, was Frank A. Denicola, Jr., for the appellee (defendant).
   Opinion

PETERS, J.

General Statutes § 46b-86 (a) provides in relevant part: “Unless and to the extent that the decree [dissolving a marriage] precludes modification ... an order requiring either party to maintain life insurance for the other party or a minor child of the parties may, at any time thereafter, be continued, set aside, altered or modified by the court upon a showing of a substantial change in the circumstances of either party . . . .’’In this case, the trial court terminated the defendant’s obligation to maintain term life insurance for the benefit of his children because he could no longer afford it. The plaintiff maintains that the court improperly held that the terms of the parties’ dissolution decree permitted such a modification and that the court improperly found that the defendant could no longer afford to comply with the terms of the separation agreement. We affirm the judgment of the trial court.

On June 6,2006, the marriage of the plaintiff, Michelle Sagalyn, and the defendant, Christopher Pederson, was dissolved by a judgment incorporating a separation agreement between the parties dated May 24, 2006. Article XI of the separation agreement obligated each party “to maintain a life insurance policy for the benefit of the minor children in the amount of $400,000.00 for each child until the youngest child reaches 23 years of age.”

On August 27, 2010, the plaintiff filed a motion for contempt and for an order to compel the defendant to comply with his article XI life insurance obligation. In response, on January 24, 2011, the defendant filed a motion for modification of the dissolution judgment, seeking (1) a modification of his financial obligation for child support because he had become the custodial parent of one of the parties’ two minor children, and (2) the termination of the parties’ life insurance obligations, as stated in article XI of their separation agreement, because he could no longer afford the only insurance coverage for which he currently was eligible. After an evidentiary hearing, the court denied the plaintiffs motion for contempt and granted the defendant’s motion for modification on both grounds. The court thereafter denied the plaintiffs motion for reargument.

The plaintiffs appeal challenges, on two grounds, the propriety of the court’s decision to deny her motion for contempt and to grant the defendant’s motion to terminate the parties’ life insurance obligations under article XI of their separation agreement. As a matter of law, the plaintiff maintains that the court lacked jurisdiction to modify article XI because that provision amounted to a property division. As a matter of fact, she contends that the court improperly found that the defendant could no longer afford to comply with article XI. We are not persuaded.

I

The plaintiffs principal contention in this appeal is that the court improperly denied her motion for contempt because, under the terms of the separation agreement that was incorporated into the parties’ dissolution decree, the court lacked subject matter jurisdiction to modify the defendant’s life insurance obligation. In her view, the insurance provision was not modifiable because it was part of the parties’ property division. See Billings v. Billings, 54 Conn. App. 142, 148-49, 732 A.2d 814 (1999) (holding that trial court did not have authority to modify property assignment entered pursuant to dissolution judgment). We disagree.

We begin by setting forth the applicable standard of review. “It is well established that a separation agreement, incoiporated by reference into a judgment of dissolution, is a contract between the separating parties. . . . Accordingly, our review of a trial court’s interpretation of a separation agreement is guided by the general principles governing the construction of contracts. ... If a contract is unambiguous within its four comers, intent of the parties is a question of law requiring plenary review. . . . When the language of a contract is ambiguous, the determination of the parties’ intent is a question of fact, and the trial court’s interpretation is subject to reversal on appeal only if it is clearly erroneous.” (Citations omitted; internal quotation marks omitted.) Tomlinson v. Tomlinson, 119 Conn. App. 194, 200-201, 986 A.2d 1119 (2010), rev’d on other grounds, 305 Conn. 539, 46 A.3d 112 (2012). Here, article XI of the separation agreement is clear and unambiguous, and thus our review of the court’s interpretation is plenary.

The separation agreement that was incorporated into the parties’ dissolution judgment provided in article XI: “The Husband shall be obligated to maintain a life insurance policy for the benefit of the minor children in the amount of $400,000.00 for each child until the youngest child reaches 23 years of age. The Wife shall be obligated to maintain a life insurance policy for the benefit of the minor children in the amount of $400,000.00 for each child until the youngest child reaches 23 years of age.” The court held that article XI was a modifiable personal obligation of each parent for the benefit of the minor children. The plaintiff disagrees with this characterization of article XI.

Since its amendment in 2001, § 46b-86 (a) expressly permits a court to set aside an order requiring a parent to maintain life insurance for a minor child “[u]nless and to the extent that the decree [dissolving a marriage] precludes [such] modification . . . .” The plaintiff emphasizes the fact that, organizationally, the separation agreement contains no other modifiable provisions such as alimony or child support after article VI, but instead consists of terms that deal with the nonmodifiable disposition of property issues. She asks us to infer that article XI implicitly incorporates a similar understanding. By contrast, the defendant emphasizes that article XI expressly states that the insurance it mandates is intended to benefit the children of the parties “until the youngest child reaches 23 years of age.”

For support of the position that article XI is not modifiable, the plaintiff relies on Crowley v. Crowley, 46 Conn. App. 87, 98, 699 A.2d 1029 (1997), and Billings v. Billings, supra, 54 Conn. App. 148. In both cases, this court held that a life insurance provision in a dissolution decree that named one of the former marital partners as its beneficiary was intended as a property settlement, and therefore was not modifiable. For two reasons, we are persuaded that these precedents do not govern in this case.

First, both cases were decided before the 2001 amendment of § 46b-86, which now expressly authorizes modification of life insurance orders in marital dissolution decrees. The plaintiff has cited no post-2001 case that supports her position.

Second, both cases deal with life insurance provisions for the benefit of one of the former marital partners, and thus reasonably could be found to be part of their property settlement. That characterization is not appropriate in this case, in which the contested insurance provision deals with the parties’ continuing non-delegable duty to support their children and expressly designates the former partners’ children as the intended beneficiaries. As the defendant aptly observes, “[a]ssets get divided between husband and wife, not [between] husband and children.”

Although the defendant has not cited any law specifically addressing the proper characterization of an obligation to provide life insurance for the benefit of the children after the dissolution of their parents’ marriage, he reminds us that this court has addressed similar issues in cases involving separation decrees that included provisions for insurance to underwrite alimony obligations. In Sabrowski v. Sabrowski, 105 Conn. App. 49, 57-58, 935 A.2d 1037 (2007), this court upheld the trial court’s modification of a plaintiffs obligation to pay his former wife’s unreimbursed medical bills and to maintain medical insurance on her behalf. Similarly, in Carasso v. Carasso, 80 Conn. App. 299, 310, 834 A.2d 793 (2003), cert. denied, 267 Conn. 913, 840 A.2d 1174 (2004), this court upheld the trial court’s modification of a party’s medical insurance obligation in light of a provision in the parties’ dissolution judgment describing the defendant’s payments of such insurance premiums as “ ‘additional alimony.’ ” See also Damon v. Damon, 23 Conn. App. 111, 115, 579 A.2d 124 (1990) (“[a]n order to provide medical coverage for the duration of the time that periodic alimony is due ... is as modifiable as the award of the periodic alimony” [citation omitted]).

It is true that these precedents arguably are distinguishable because, in this case, article XI did not expressly describe the parties’ insurance obligations as additional child support. This distinction, however, is not dispositive. Even if the provision of article XI is ambiguous, and, thus, “the determination of the parties’ intent is a question of fact, and the trial court’s inteipre-tation is subject to reversal on appeal only if it is clearly erroneous”; (internal quotation marks omitted) Honulik v. Greenwich, 293 Conn. 698, 711, 980 A.2d 880 (2009); the court in this case resolved the ambiguity in favor of the defendant, finding that “the obligation to maintain insurance is clearly for the benefit of the children for their well-being and support.” We are not persuaded that this finding is clearly erroneous. Indeed, we cannot discern, and the plaintiff has not suggested, any purpose other than child support that the parties in this case might have intended article XI to serve.

II

Alternatively, the plaintiff maintains that her motion for contempt should have been granted even if the court properly construed the parties’ settlement agreement to permit modification of the defendant’s article XI obligation. In her view, the court improperly found, as a matter of fact, that the defendant could no longer afford to pay for insurance for the benefit of his children. The plaintiff concedes, and we agree, that our review of the court’s finding and of its underlying evidentiary rulings is limited to an inquiry into whether the court’s actions were clearly erroneous. See Ahmadi v. Ahmadi, 294 Conn. 384, 397-98, 985 A.2d 319 (2009). We are not persuaded that the plaintiff has made such a showing.

The court found credible the defendant’s testimony that, after the expiration of the group life insurance policy that had covered his insurance obligation at the time of the parties’ separation, the defendant had access only to individual insurance that cost $9500 a year. The court further found that, in light of the assets then available to the defendant, this replacement insurance was not affordable. In making that finding, the court declined to count, among the defendant’s available assets, his deferred right to access vested pension benefits and social security benefits. Although the plaintiff has vigorously voiced her disagreement with this analysis of the defendant’s assets, she has cited no authority to establish that the court’s finding was clearly erroneous, and we are aware of none.

In sum, we conclude that the trial court properly decided that it had the ability to modify the life insurance provision in the settlement agreement that was incorporated into the decree dissolving the marriage of the parties. As a matter of law, the court properly concluded that it had the authority to consider the modi-fiability of this provision. The designation of the parties’ children as beneficiaries of the insurance manifested the parties’ intent to consider the insurance as part of their obligations for child support and the provision was, therefore, modifiable. As a matter of fact, the court’s finding that the plaintiff failed to establish that the defendant’s noncompliance with the provision as written was a contempt of court was not clearly erroneous. In its consideration of this motion and of the defendant’s motion for modification, the court properly focused its analysis on the financial resources then available to the defendant. It is worth noting, finally, that nothing in this case diminishes, or indeed has any bearing on, the defendant’s continued obligation to support the parties’ two children in all respects other than the obligation to provide life insurance for their benefit.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiffs appeal does not challenge the propriety of the court’s holding that, because of a change in the custodial arrangements for the parties’ older child, the defendant was entitled to a reduction in his obligation for child support.

       The plaintiff cites testimony of the defendant in response to the question by the plaintiffs counsel: “Is your obligation to maintain the life insurance an independent obligation in this agreement?,” to which the defendant replied: “I believe it is.” We are not persuaded that the defendant, who is not an attorney, should be presumed to have understood the legal significance of this question and of his answer.

       The plaintiff’s reliance on Dougan v. Dougan, 301 Conn. 361, 21 A.3d 791 (2011), is misplaced. That case did not address the modifiability of a provision for life insurance for the benefit of the former marital partners’ children.

       The defendant testified, without contradiction, that the group insurance had cost $205 a month, or $2460 a year, and that, for reasons of health and age, he no longer was eligible for such insurance.

       The defendant was sixty-two years of age at the time of the hearing and would be eligible to receive a pension and social security benefits when he became sixty-five.