text:
    ANNE M. BIJUR v. PETER I. BIJUR
    (AC 22428)
    Foti, SchaUer and Mihalakos, Js.

      Argued December 4, 2002
    officially released October 7, 2003

      Andrew P. Nemiroff, with whom, on the brief, was Eric R. Posmantier, for the appellant (defendant).

      Samuel V. Schoonmaker III, with whom was Samuel V. Schoonmaker TV, for the appellee (plaintiff).
   Opinion

SCHALLER, J.

The defendant, Peter I. Bijur, appeals from the judgment of the trial court issuing certain postjudgment orders sought by the plaintiff, Anne M. Bijur, in her postjudgment motion for contempt and order. On appeal, the defendant claims that the court improperly ordered him to resume making alimony payments on the basis of a misinterpretation of the language in article IV of the parties’ separation agreement (agreement). In the alternative, the defendant claims that even if the court properly interpreted the language of article IV, a retirement plan distribution was made to him and, therefore, the court should have found that he had reached his “retirement date” and no longer was required to make alimony payments pursuant to article IV of the agreement. Finally, the defendant claims that a determination by this court that he was in fact retired under the agreement mandates a disgorgement of an alleged overpayment of alimony. We affirm in part and reverse in part the judgment of the trial court.

On February 23, 2000, the court dissolved the marriage of the parties and incorporated into the judgment the provisions of the parties’ February 23, 2000 agreement. From the date of dissolution through February, 2001, the defendant paid periodic alimony to the plaintiff.

The defendant retired from his position at Texaco, Inc. (Texaco), on February 4, 2001. At that time, the defendant became eligible to receive retirement benefits and considered himself “retired,” as that term is used within the parties’ agreement. Consequently, the defendant ceased making periodic alimony payments after February 4, 2001.

On or about August 14, 2001, the defendant filed a motion for an order postjudgment seeking to have the plaintiff return to him an alleged periodic alimony overpayment. On or about September 13, 2001, the plaintiff filed a postjudgment motion for contempt and for orders, claiming that the defendant had failed to comply with the agreement by not providing alimony payments for the period of March through August, 2001. A hearing on the two motions was held on October 1, 2001, at which time both parties testified.

The court issued its memorandum of decision regarding the plaintiffs motion on October 5, 2001, in which it determined that the defendant had failed to satisfy the requirements for retirement eligibility pursuant to the agreement. The court ordered the defendant to resume payments of alimony, to pay the accumulated arrears of periodic alimony within thirty days and to pay the plaintiff for legal expenses and disbursements.

The defendant, on October 29, 2001, filed a motion for an articulation of the court’s order, arguing that the court had not issued its decision on his motion for order postjudgment. On November 13, 2001, the court issued its memorandum of decision regarding the defendant’s motion for articulation, in which the court denied the defendant’s motion for order and adopted its reasoning from its October 5,2001 memorandum of decision. The defendant appealed.

I

The defendant claims that the court improperly granted the plaintiffs postjudgment motion for order and improperly ordered him to resume making alimony payments on the basis of a misinterpretation of the language in article IV of the agreement.

The following additional facts are relevant to the defendant’s claim. Article IV of the agreement concerns the defendant’s obligation to pay periodic alimony to the plaintiff. Article IV, paragraph 4.1, provides that the defendant’s obligation to pay alimony expires upon the defendant’s death, the plaintiffs death or the defendant’s “retirement date.” The agreement defines the term “retirement date” within paragraph 4.1 c as “the date HUSBAND ceases to be an employee of Texaco and becomes eligible to receive benefits in the Texaco retirement plans, subject to the plan provisions as to benefit commencement dates.”

In its memorandum of decision, the court found that the defendant had retired from Texaco on February 4, 2001. The court also found that on February 4, 2001, the defendant became eligible to receive benefits in the Texaco retirement plans.

Concluding that the defendant had failed to satisfy the definition of “retirement date” under the agreement, the court focused its attention on article IV, paragraphs 4.1 and 4.1 c. With respect to the phrase “subject to the plan provisions as to benefit commencement dates,” which is contained in paragraph 4.1c, the court interpreted the phrase to mean that the “retirement date” shall be set when the defendant “shall have disbursements made to him from the plans.” The court determined that actual retirement disbursements had not yet been made. Consequently, the court concluded that the defendant had failed to satisfy the retirement date requirements, and, therefore, was not retired. Having concluded that the defendant was not retired within the meaning of the agreement, the court also concluded that the defendant wrongfully had withheld alimony payments. The court did not, however, find the defendant in contempt because his failure to pay was not a wilful violation of a court order.

We must first set forth the appropriate standard of review. “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.) Prial v. Prial, 67 Conn. App. 7, 9-10, 787 A.2d 50 (2001).

In the present case, the agreement was incorporated by reference into the dissolution decree. “In a marriage dissolution action, an agreement of the parties executed at the time of the dissolution and incorporated into the judgment is a contract of the parties.” (Internal quotation marks omitted.) Sullivan v. Sullivan, 66 Conn. App. 501, 504, 784 A.2d 1047 (2001). The defendant’s claim, therefore, involves the interpretation of a contract.

“A contract is to be construed as a whole and all relevant provisions will be considered together. . . . In giving meaning to the terms of a contract, we have said that a contract must be construed to effectuate the intent of the contracting parties. ... In ascertaining intent, we consider not only the language used in the contract but also the circumstances surrounding the making of the contract, the motives of the parties and the purposes which they sought to accomplish. . . . The intention of the parties to a contract is to be determined from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction. The question is not what intention existed in the minds of the parties but what intention is expressed in the language used. . . . This is so where the parties have their agreement in writing. ... In interpreting contract items, we have repeatedly stated that the intent of the parties is to be ascertained by a fair and reasonable construction of the written words and that the language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract. . . . Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms. A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity and words do not become ambiguous simply because lawyers or laymen contend for different meanings.” (Citations omitted; internal quotation marks omitted.) Barnard v. Barnard, 214 Conn. 99, 109-10, 570 A.2d 690 (1990).

“The interpretation of a contract term that is not so clear as to render its interpretation a matter of law is a question of fact, subject to the clearly erroneous standard of review. . . . We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached. Rather, we focus on the conclusion of the trial court, as well as the method by which it arrived at that conclusion, to determine whether it is legally correct and factually supported.” (Citations omitted; internal quotation marks omitted.) Larson v. Jacobson, 38 Conn. App. 186, 189, 659 A.2d 753 (1995).

To identify and to apply the appropriate standard of review, we must, therefore, initially determine whether the agreement, specifically article IV, was unambiguous. A word is ambiguous when it is “capable of being interpreted by reasonably well-informed persons in either of two or more senses. ” (Internal quotation marks omitted.) Federal Aviation Administration v. Administrator, 196 Conn. 546, 554, 494 A.2d 564 (1985). Ambiguous also means “unclear or uncertain .... [or] that which is susceptible of more than one interpretation” or understood in more ways than one. (Citation omitted; internal quotation marks omitted.) Lopinto v. Haines, 185 Conn. 527, 538, 441 A.2d 151 (1981).

The subject provision is ambiguous because it is subject to two reasonable interpretations. The defendant argues that paragraph 4.1c hinges on only two elements, retirement and eligibility, and that the “subject to” language merely indicates that eligibility is subject to internal Texaco retirement plan requirements. In support of his argument, the defendant identifies three additional agreement provisions that also incorporate similar “subject to” language. On the basis of his reading of those provisions in light of the subject paragraph, the defendant argues that the “subject to” language is used only to alert the parties to the fact that nothing in the agreement is intended to vary or to alter any retirement plan requirement.

On the other hand, the plaintiff argues that paragraph 4.1 c requires the same two elements, plus the element of distribution, and that the “subject to” language ensures that she receives an uninterrupted stream of income after the defendant retires. That is, although the defendant retired, she is assured of income in the form of alimony payments until he receives retirement distributions. At that point, the plaintiff argues, the alimony payments would end because she would be receiving a stream of income in the form of retirement benefits.

Both parties offer reasonable interpretations of the provision. The fact that paragraph 4.1 c can be interpreted reasonably in two equally compelling ways is evidence that the provision is inherently ambiguous. See Coscina v. Coscina, 24 Conn. App. 190, 193-94, 587 A.2d 159 (1991).

Because we have determined that the relevant contract language is ambiguous, “[t]he determination of the intent of the parties to a contract ... is a question of fact subject to review under the clearly erroneous standard.” (Internal quotation marks omitted.) Rund v. Melillo, 63 Conn. App. 216, 221, 772 A.2d 774 (2001). This court has stated frequently that “[a] finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence in the record to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. . . . While conducting our review, we properly afford the court’s findings a great deal of deference because it is in the unique [position] to view the evidence presented in a totality of circumstances, i.e., including its observations of the demeanor and conduct of the witnesses and parties, which is not fully reflected in the cold, printed record which is available to us.” (Internal quotation marks omitted.) Tulisano v. Schonberger, 74 Conn. App. 101, 105, 810 A.2d 806 (2002). Having thoroughly reviewed the briefs, record and transcripts, we conclude that the court’s determination was not clearly erroneous.

The language of the subject provision does not explicitly indicate that to satisfy the agreement’s definition of “retirement date,” Texaco had to distribute retirement benefits to the defendant. The court, concluding that the distribution of benefits was a prerequisite to satisfying the definition of “retirement date,” therefore, must have determined that the provision was ambiguous. Yet, the court stated that “[w]hen the language is clear and unambiguous, it is to be given effect according to its terms” and immediately thereafter concluded that the defendant was not retired within the meaning of article IV. That outcome indicates that the court, while determining that the language was clear and unambiguous, inconsistently treated it as if it were ambiguous. The defendant correctly points out that this analysis was improper. That inconsistent treatment alone does not, however, make the court’s conclusion clearly erroneous because the decision was both legally and factually supported by the record.

In its memorandum of decision, the court gave meaning to the phrase “subject to plan provisions as to benefit commencement dates.” Although the court did not explicitly state as such, it could have reached the decision it did only by determining that the “subject to” language modified the phrase “eligible to receive.” In other words, the court neither considered nor treated the “subject to” language as superfluous. “The law of contract interpretation militates against interpreting a contract in a way that renders a provision superfluous.” United Illuminating Co. v. Wisvest-Connecticut, LLC, 259 Conn. 665, 674, 791 A.2d 546 (2002). Although the defendant cites to three additional occurrences of the “subject to” language in the agreement, absent from those specific occurrences are the words “as to benefit commencement dates.” The defendant himself states that he was eligible to receive pension benefits from Texaco on February 4, 2001, but added that although he is eligible, “[t]he benefits are subject to the provisions of the plan . . . and they are paid under the plan in January of the year after [an employee] retire[s].” By his own statements, the defendant gives meaning to the phrase “as to benefit commencement dates.”

On the basis of a review of the facts, the court’s conclusion that the parties’ use of the subject phrase was intended to require a distribution of plan benefits was not clearly erroneous, and, therefore, not an abuse of discretion.

II

The defendant claims that even if the court properly interpreted article IV, it improperly ordered him to resume making alimony payments in light of the fact that he received a retirement plan distribution on March 1, 2001. More specifically, the defendant argues that when he rolled moneys over from Texaco retirement plan number 020136 into an individual retirement account (IRA), that act constituted a retirement distribution. In response, the plaintiff argues that (1) the agreement requires distribution from all retirement plan benefits, and (2) because the court did not articulate whether the IRA rollover was characterized as a distribution, it was incumbent on the defendant to seek further articulation from the court. We agree with the defendant that the IRA rollover satisfied the disbursement requirement of paragraph 4.1 c.

The following additional facts are relevant to the defendant’s claim. On March 1, 2001, the defendant received a lump sum payment from the Vanguard Fiduciary Trust Company (Vanguard) in reference to Texaco retirement plan number 020136. The defendant rolled the entire distribution over into an IRA.

We note that the underlying facts as found by the court are subject to the clearly erroneous standard of review. Whether the moneys received by the defendant from Texaco retirement plan number 020136, however, constituted a distribution under paragraph 4.1 c is a question of law. Mixed questions of fact and law call for plenary review. Bortner v. Woodbridge, 250 Conn. 241, 263-64, 736 A.2d 104 (1999)..

During the hearing on the motions, the court listened to testimony from the defendant indicating that he had received a distribution from his retirement plans held at Vanguard. Moreover, the defendant introduced, as exhibits, Vanguard confirmation of assets transfers and benefit elections forms. On the basis of that evidence and the court’s memorandum of decision, it is clear that to reach its decision, the court had to conclude that the moneys used in the IRA rollover transaction did not constitute a retirement distribution.

“A ‘retirement distribution’ is an amount distributed under an individual retirement plan or under a qualified employer plan. See [26 U.S.C. § 402 (a)].” Powell v. C.I.R., 129 F.3d 321, 323 (4th Cir. 1997). Funds paid out of a qualified retirement plan “to a ‘distributee’ must be included in the distributee’s gross income for that year. [26 U.S.C. §] 402 (a). Although neither the [Internal Revenue] Code nor the applicable Treasury Regulations define the term ‘distributee’ as that term is used in section 402 (a) (1), the general rule is that the ‘distributee’ of funds from a [qualified retirement] plan is the participant or beneficiary who is entitled to receive the distribution under the terms of the plan. See Darby v. Commissioner, [97 T.C. 51, 58 (1991)].” Hawkins v. C.I.R., 86 F.3d 982, 987 (10th Cir. 1996). “In order to avoid the tax bite of a plan distribution, the distributee may ‘roll over’ the amount of the distribution into another eligible plan within sixty days. 26 U.S.C. § 402 (a) [(1)-(3)].” Hawkins v. C.I.R., supra, 985 n.1.

An IRA is “a savings account in which a person may deposit up to a stipulated amount each year with the deposits deductible from taxable income and both deposits and interest taxable alter the person’s retirement.” Merriam-Webster’s Collegiate Dictionary (10th Ed. 1999). “In general, IRAs allow persons to deduct limited contributions to their IRA . . . and defer recognition of gains accruing to the IRA until its distribution.” (Citations omitted.) In re Dubroff v. First National Bank of Glens Falls, 119 F.3d 75, 77 (2d Cir. 1997); see also 26 U.S.C. § 408. “As its name implies, a ‘rollover’ is [a] . . . tax-deferred method of moving [qualified retirement plan] assets from one [qualified retirement] plan to another or to an IRA.” Frank v. Aaronson, 120 F.3d 10, 12 (2d Cir. 1997). An IRA rollover of a lump sum payment from a retirement plan does not, therefore, inherently change the original classification of those moneys to a nonretirement distribution. See Boggs v. Boggs, 520 U.S. 833, 836, 117 S. Ct. 1754, 138 L. Ed. 2d 45 (1997) (benefits from employment retirement plans, rolled over into IRA characterized as retirement distribution). The money used in the rollover came from an employee retirement plan. Therefore, because an IRA rollover does not change the nature of the funds, the money is, as a matter of law, a retirement distribution.

Consequently, we conclude that the court improperly concluded that the moneys used in the IRA rollover were not retirement distributions.

Ill

Finally, the defendant claims that the court improperly denied the relief requested, repayment of the alleged overpayment, in his motion for order. Specifically, he argues that if this court determines that he complied with the requirements of article IV, then his payment of periodic alimony for the month of his retirement should be disgorged from the plaintiff on a per day, pro rated basis for the part of the month following his retirement. We disagree.

“It is well settled that in a dissolution of marriage action, the distribution of assets rests within the sound discretion of the court . . . .” Olson v. Olson, 71 Conn. App. 826, 832, 804 A.2d 851 (2002). To conclude that the court abused its discretion by refusing to order the plaintiff to refund the money, we must determine whether the court either incorrectly applied the law or could not reasonably have concluded as it did. See Clark v. Clark, 66 Conn. App. 657, 668, 785 A.2d 1162, cert. denied, 259 Conn. 901, 789 A.2d 990 (2001).

Periodic alimony is a type of permanent alimony paid at scheduled intervals. The purpose of periodic alimony is primarily to continue the duty to support the recipient spouse. Grosso v. Grosso, 59 Conn. App. 628, 631, 758 A.2d 367, cert. denied, 254 Conn. 938, 761 A.2d 761 (2000). “[Tjhe right to enforce each periodic payment accrues on each payment as it matures.” (Emphasis added.) 24A Am. Jur. 2d, Divorce and Separation § 754 (1998). The periodic alimony payment matures when it becomes due.

According to article IV, paragraph 4.1 a, the defendant was required to pay the plaintiff alimony each month “[bjeginning on the first of the month following the date of the dissolution of the parties’ marriage . . . payable on the first of the month, in advance . . . .’’In other words, the alimony for the month of February accrued and matured on February 1, 2001. It does not, as the defendant argues, accrue on a day-to-day basis for the month of February. Moreover, because we determined in part II that the termination of the defendant’s alimony obligation did not occur until March 1 upon the disbursement of retirement proceeds, even if we were to accept the defendant’s per diem theory of accrual, his obligation for February would not be affected. Accordingly, the court’s denial of the defendant’s requested relief was not an abuse of discretion.

The judgment is reversed only insofar as it orders the defendant to resume alimony payments and to pay the accumulated arrears of periodic alimony payments and those orders are vacated. In all other respects, the judgment is affirmed.

In this opinion the other judges concurred.

       We note that although the plaintiffs September 13, 2001 motion was labeled a motion for contempt, the plaintiff should have labeled the motion a motion for contempt and for order. Despite the inaccurate label, the court properly considered the substance of relief sought in the subject motion, which requested, in addition to an order for contempt, postjudgment orders for payment of an arrearage, attorney’s fees and costs. See Drahan v. Board of Education, 42 Conn. App. 480, 489, 680 A.2d 316 (when case requires court to determine nature of pleading, court not required to accept precise label affixed to that pleading), cert. denied, 239 Conn. 921, 682 A.2d 1000 (1996). Because the court did not make a finding of contempt, we recognize that the defendant specifically appealed from the granting of the underlying relief sought in the plaintiffs motion for order.

       Article IV of the parties’ separation agreement states in relevant part:
      “4.1 The HUSBAND shall pay to the WIFE, during his lifetime, until her death or his ‘retirement date’ from Texaco, whichever event shall first occur, as alimony and separate maintenance payments, the following:
      “a. Beginning on the first of the month following the date of the dissolution of the parties’ marriage . . . per month, payable on the first of the month, in advance;
      “b. Beginning after the date of execution of this Agreement, additional alimony of ... of any cash bonus from HUSBAND’S employment at Texaco [Inc.] received by HUSBAND, up to a maximum bonus of . . . annually. WIFE’S maximum alimony from the provisions of this Paragraph 4.1.b. shall be . . . annually. Additional alimony payments shall be made to WIFE immediately upon the receipt by HUSBAND of such bonus, if any. HUSBAND’S cash bonus shall include any cash bonus amounts available to HUSBAND but which he voluntarily defers.
      “c. The HUSBAND’S ‘retirement date’ from Texaco for purposes of this Paragraph 4.1 shall be defined as the date HUSBAND ceases to be an employee of Texaco and becomes eligible to receive benefits in the Texaco retirement plans, subject to the plan provisions as to benefit commencement dates.
      “4.2 The alimony provided for in this Agreement shall be non-modifiable as to both term and amount by either party.
      “4.3 All payments made to the WIFE pursuant to this Article IV shall be deductible by the HUSBAND from his income, and shall be included by the WIFE in her income for tax purposes in the year in which payment is made by the HUSBAND. The HUSBAND shall lumish to WIFE a statement of the alimony to be deducted by him on his tax returns within a reasonable time after the end of each calendar year. If WIFE does not object, in writing, within thirty days, to HUSBAND’S statement of alimony, it shall be presumed that such amount as reported by HUSBAND to WIFE shall be the alimony amount reported on both parties’ respective income tax returns.”

       The Texaco retirement pension plans include the following: Texaco retirement plan; Texaco supplemental pension plan; Texaco supplemental bonus retirement plan; Texaco employee’s thrift plan; and Texaco director and employee referral plan.

       See footnote 1.

       In her motion, the plaintiff specifically requested that the court (1) find the defendant in contempt of court, (2) fix an arrearage for the months of March through August, 2001, (3) fix an arrearage pursuant to paragraph 4.1 b of the agreement and (4) order the defendant to pay her attorney’s fees and costs.

       In its memorandum of decision, the court noted that it decided the defendant’s motion for order after deciding the plaintiffs motion. The court also noted that the findings, reasoning and conclusions stated in its October 5, 2001 memorandum of decision, regarding the plaintiffs motion, were incorporated as the basis for denying the defendant’s motion for order. Because the October 5,2001 memorandum of decision ordered the defendant to resume making alimony payments, the defendant’s motion for a refund of alimony was denied.

       Specifically, the court stated that it did not find the defendant in contempt because of the “resourceful but unsuccessful arguments advanced by his counsel.”

       Because the court did not find the defendant in contempt, for purposes of our review, we are limited to reviewing the granting of the plaintiffs motion to compel resulting in postjudgment orders seeking the payment of an arrearage, attorney’s fees and costs.

       Article III, paragraph 3.1 C, of the agreement states in relevant part: “Henceforth WIFE shall solely control all investment and distribution decisions with respect to her segregated accounts, subject to the provisions of the Supplemental I Thrift Plan and the Deferred Compensation Plan. . . .”
      Article ID, paragraph 3.2 D, of the agreement states in relevant part: “WIFE shall be entitled to elect the manner in which she shall receive her distributions from such plans, subject to the provisions of the respective plans. . . .”
      Article III, paragraph 3.2 D, of the agreement states in relevant part: “To the extent permitted under the relevant plan, WIFE’S beneficiary (or estate) shall also have the right to exercise any stock options which she beneficially owns, subject to the provisions of the respective plans.”

       We recognize that ignoring the “subject to” language does not render meaningless all of article IV. It does, however, render almost meaningless, nearly a third of paragraph 4.1 c.

       Although the plaintiff argues that the agreement required distributions from “all” of the defendant’s retirement plans, the specific language of the agreement states that he is only required to be “eligible to receive benefits in the Texaco retirement plans.” It does not, as the plaintiff argues, explicitly require eligibility in all of the plans.

       We conclude that the court held that the moneys used in the IRA rollover were not retirement distributions and, therefore, the defendant did not need to file a motion for articulation.


source: Caselaw Access Project

author: MCDONALD, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. DAVID ABRAHAMS
    (AC 22671)
    Flynn, Mihalakos and McDonald, Js.

      Argued May 7
    officially released October 7, 2003

      Lisa J. Steele, special public defender, for the appellant (defendant).

      Margaret Gaffney Radionovas, senior assistant state’s attorney, with whom, on the brief, were Walter D. Flanagan, state’s attorney, and David R. Shannon, assistant state’s attorney, for the appellee (state).
   Opinion

MCDONALD, J.

The defendant, David Abrahams, appeals from the judgment of conviction, rendered after a jury trial, of attempt to commit murder in violation of General Statutes §§ 53a-49 and 53a-54a (a), assault in the first degree in violation of General Statutes § 53a-59 (a) (1) and criminal possession of a firearm in violation of General Statutes § 53a-217. The defendant was also charged with the commission of a class A, B or C felony with a firearm in violation of General Statutes § 53-202k. On appeal, the defendant claims that his constitutional rights to due process and to a fair trial were violated as a result of prosecutorial misconduct. We disagree and affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The defendant and the victim, Jacqueline Peton, were involved in a sometimes volatile, live-in relationship from December, 1994, until August, 2000, during which time they had a child. Prior to the relationship ending, the victim called the Danbury police in August, 2000, claiming that the defendant had violated the restraining order that she had obtained against him living with her. At that time, to give the victim “a taste of her own medicine,” the defendant called her employer and reported that she was stealing cleaning products at work and selling them.

On November 1, 2000, the defendant went to the victim’s apartment to see his son. When the victim did not allow him into her apartment, the defendant threatened to kill her and stated that he was going to report her to the department of children and families for child abuse. During the early evening hours of November 3, 2000, the defendant and the victim had an argument during a telephone conversation. After the victim hung up, the defendant repeatedly called her telephone number. Despite the defendant’s objections, she went out that night with Ricky Cordiero. At approximately 5 a.m. on November 4, 2000, the victim returned to her apartment complex and observed the defendant sitting in his vehicle, a black Chrysler sedan with custom wheel rims. As the victim walked toward her building, the defendant ran to her with a gun in his hand and grabbed her. When she escaped, the defendant circled her and fired a series of shots at her, wounding her in the leg, elbow and buttocks. After the defendant’s gun jammed, as he left the scene, he told the victim, “I’m going to get you. I’m going to have somebody Peking kill you.”

The defendant was convicted after a jury trial. This appeal followed. On appeal, the defendant claims that the prosecutor engaged in misconduct by improperly referring to an absent witness, beyond the scope of the court’s order as to what could be stated in closing argument to the jury about that witness, by making unnecessary reference to the defendant’s postarrest incarceration, by giving unsworn testimony about matters not in the record and by asking the defendant to comment on the veracity of a witness.

The defendant failed to preserve his claim at trial and now seeks review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), or the plain error doctrine. See Practice Book § 60-5. Because the record is adequate for review and a claim of prosecutorial misconduct affecting the fairness of the trial in violation of a fundamental right is of constitutional magnitude, we will review the defendant’s claim under Golding. See State v. Santiago, 73 Conn. App. 205, 212, 807 A.2d 1048 (2002), cert. granted on other grounds, 262 Conn. 939, 815 A.2d 673 (2003).

“To prove prosecutorial misconduct, the defendant must demonstrate substantial prejudice. ... In order to demonstrate this, the defendant must establish that the trial as a whole was fundamentally unfair and that the misconduct so infected the trial with unfairness as to make the conviction a denial of due process. . . . Prosecutorial misconduct may occur in the course of cross-examination of witnesses .... Moreover, prosecutorial misconduct of constitutional proportions may arise during the course of closing argument, thereby implicating the fundamental fairness of the trial itself .... In determining whether prosecutorial misconduct was so serious as to amount to a denial of due process, this court, in conformity with courts in other jurisdictions, has focused on several factors. . . . Included among those factors are the extent to which the misconduct was invited by defense conduct or argument . . . the severity of the misconduct . . . the frequency of the misconduct . . . the centrality of the misconduct to the critical issues in the case . . . the strength of the curative measures adopted . . . and the strength of the state’s case. . . .

“As is evident upon review of these factors, it is not the prosecutor’s conduct alone that guides our inquiry, but, rather, the fairness of the trial as a whole. . . . We are mindful throughout this inquiry, however, of the unique responsibilities of the prosecutor in our judicial system. ... If the accused be guilty, he [or she] should none the less be convicted only after a fair trial, conducted strictly according to the sound and well-established rules which the laws prescribe. While the privilege of counsel in addressing the jury should not be too closely narrowed or unduly hampered, it must never be used as a license to state, or to comment upon, or to suggest an inference from, facts not in evidence, or to present matters which the jury have no right to consider.” (Citations omitted; internal quotation marks omitted.) State v. Singh, 259 Conn. 693, 699-702, 793 A.2d 226 (2002).

“[W]hether a new trial or proceeding is warranted depends, in part, on whether defense counsel has made a timely objection to any of the prosecutor’s improper remarks. When defense counsel does not object, request a curative instruction or move for a mistrial, he presumably does not view the alleged impropriety as prejudicial enough to jeopardize seriously the defendant’s right to a fair trial. . . . [S]ee also State v. Andrews, 248 Conn. 1, [20], 726 A.2d 104 (1999) (failure of defense counsel to object to prosecutor’s rebuttal argument suggested that ‘defense counsel did not believe that it was unfair in light of the record of the case at the time’); State v. Robinson, [227 Conn. 711, 746, 631 A.2d 288 (1993)] (failure to object to closing arguments indicated that defense counsel ‘did not regard . . . remarks as seriously prejudicial at the time they were made’).” (Citation omitted.) State v. Reynolds, 264 Conn. 1, 165, 836 A.2d 224 (2003). With those principles in mind, we will first examine whether the prosecutor’s actions were improper. If we find the conduct to be improper, we must then determine whether the impropriety deprived the defendant of a fair trial.

I

The defendant claims that the prosecutor improperly referred to an absent witness, beyond the scope of the court’s order as to what the prosecutor could state to the jury in closing argument about that witness. The defendant claims that the prosecutor exceeded the court’s order by commenting on the absence of Eddie Lynch during closing argument. We disagree.

The following facts and procedural history are relevant to our resolution of that issue. During the defendant’s testimony, he denied having shot the victim and claimed that at the time of the shooting, he was with Lynch and Lynch’s girlfriend, Olga Lopez. On cross-examination, the state asked the defendant why there was a call placed from the defendant’s cellular phone to Lopez’s house shortly after 5 a.m., when he had testified on direct examination that he was at Lopez’s house at that time. The defendant responded that he had awoken to use the bathroom, and, while he was running to the bathroom, he tripped over Lopez’s telephone cord. To be sure that he did not damage Lopez’s telephone, the defendant testified, he used his cellular phone to call Lopez’s number. Following his testimony, the defendant inquired of the court as to whether it would allow the state to comment to the jury on why Lynch and Lopez were not called to testily.

The court, after hearing from the state’s investigator that he was able to locate and to speak to Lopez, stated: “I’m going to allow the state to make the appropriate comments as indicated in State v. Malave, 250 Conn. 722, 737 A.2d 442 (1999) (en banc), cert. denied, 528 U.S. 1170, 120 S. Ct. 1195, 145 L. Ed. 2d 1099 (2000). The state can make an argument about the absence of Olga Lopez. And that the defendant didn’t — hasn’t asserted sufficient credible evidence to support his alibi, but the state is ordered not to directly exhort the jury to draw an adverse inference by virtue of that witness’ absence.”

During closing argument, the prosecutor stated: “[At] 5:10,5:10 in the morning, right after the shooting, there’s a call on the defendant’s cell phone bill to Olga Lopez’s house, the place he [is] supposed to be . . . according to his own testimony. [At] 5:34, look at the bill, there’s another call to the same number, Olga Lopez’s house. I’m arguing the reasonable inference is he’s calling there, he’s not there.” The prosecutor at that time made no reference to the defendant’s failure to call alibi witnesses.

During the defendant’s closing argument, his attorney stated: “The state, I know, will raise the issue of Olga Lopez. The state’s going to indicate that [the defendant’s] alibi is [himself], there’s no other witnesses, we didn’t call any other alibi witnesses and that you should think about. And I simply point out that the state also has those witnesses available to discredit. We can use them, [and] the state can use them to discredit if they so choose. And I simply point out, because this is my last opportunity to speak to you, that neither side called these witnesses.”

In response, the prosecutor, in rebuttal, stated: “[The defendant] took the [witness] stand. He chose to testily. And he told you he was with two other people. And he told you he was with Eddie Lynch, who is a Mend of his, and Olga Lopez, [who] has a child with Eddie Lynch. He is the only one telling you that. The evidence of his alibi defense is solely from him. He’s the only person we heard it through. And [his attorney] is correct, we both have subpoena power, but he’s not my witness, he’s the defendant’s Mend. Why would I bring him here?”

It is the defendant’s claim that the prosecutor’s comments in regard to Lynch were improper because those comments went beyond the scope of the court’s ruling by commenting on the absence of Lynch. In support of his claim, the defendant relies on our Supreme Court’s holding in State v. Malave, supra, 250 Conn. 722.

In Malave, our Supreme Court held that “we do not prohibit counsel from making appropriate comment, in closing arguments, about the absence of a particular witness, insofar as that witness’ absence may reflect on the weakness of the opposing party’s case. . . . [Such comment is allowed as] long as counsel does not directly exhort the jury to draw an adverse inference by virtue of the witness’ absence . . . .” Id., 739.

We do not find the prosecutor’s comments improper. During closing argument, the prosecutor’s only mention of Lynch was in a single comment that defense counsel “is correct, we both have subpoena power, but he’s not my witness, he’s the defendant’s friend. Why would I bring him here?” The state’s comments regarding Lynch were in response to defense counsel’s closing argument, which concerned the defendant’s alibi and possible alibi witnesses, who were available to both the state and the defendant.

Moreover, the prosecutor did not argue to the jury that it should draw an adverse inference by virtue of the witness’ absence. See State v. Reynolds, supra, 264 Conn. 199. Furthermore, the defendant did not object to the prosecutor’s comments at trial, and “defense counsel’s failure to object to the allegedly improper argument when it was made indicates that counsel did not consider it to be unfair or seriously prejudicial in light of the record of the case at the time.” Id., 176. Accordingly, we do not find that the prosecutor’s comments were improper.

II

The defendant claims that the prosecutor made unnecessary references about the defendant’s incarceration after his arrest while questioning the defendant and during closing argument. We disagree.

The defendant claims that there were three instances in which the prosecutor asked him questions that indicated to the jury that he was incarcerated while awaiting trial. During cross-examination of the defendant, the prosecutor asked about a letter that the defendant had sent to the victim from jail while he was awaiting trial. The defendant objected to the question on the ground of relevancy and, after a sidebar- conference, the prosecutor rephrased the question, omitting the reference to incarceration. Later, during the prosecutor’s examination of the defendant, the prosecutor indicated to the court that he was going to “ask that question now because I think it is relevant now,” an apparent reference to the question that led to the sidebar conference. Defense counsel then stated, “I thought about it, [I] don’t have an objection.” The prosecutor then asked the defendant two questions, without objection, relating to a letter sent during the defendant’s pretrial incarceration. During closing argument, the prosecutor alluded to the defendant’s incarceration, stating: “Do you think when you’re in jail you can’t make phone calls, talk to people? ... He admitted in the letters, I asked him, he admitted writing, ‘when I get out of jail, if you’re still with Ricky I’m going to do what he did to us, interfere.’ ”

We do not find the prosecutor’s references to incarceration improper. The defendant first objected and explicitly informed the court later that he had no objection. The defendant also failed to object to the prosecutor’s comments during closing argument. See id. Furthermore, “[n]ot every reference to a defendant’s pretrial incarceration is grounds for a mistrial.” (Internal quotation marks omitted.) State v. Tucker, 226 Conn. 618, 628, 629 A.2d 1067 (1993). Moreover, the defendant fails to state how the prosecutor’s comments were improper other than merely to state that the comments were “unnecessary and inappropriate.” “Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly.” (Internal quotation marks omitted.) State v. Sinvil, 76 Conn. App. 761, 765 n.4, 821 A.2d 813, cert. granted on other grounds, 264 Conn. 916, 826 A.2d 1160 (2003). We conclude that the prosecutor’s comments regarding the defendant’s incarceration were not improper under the circumstances.

Ill

The defendant’s next claim relates to comments that the prosecutor made about matters that were not in evidence. On direct examination, the defendant testified that he had called the victim’s employer and reported that she was stealing cleaning supplies from her employer and selling them to people “on the street.” In closing argument, the prosecutor stated: “She depended on [the paycheck she received from her job], and [the defendant] threatened her livelihood by calling her place of employment and accusing her of stealing cleaning supplies and selling them on the street. Well, if she had been fired, certainly it would have helped the defendant control her because now she would need him for his financial support. But it didn’t work, they didn’t fire her. Now, I don’t know — the defendant testified she was selling these cleaning supplies on the street. I don’t know, and I’ve been a prosecutor not a long time, but I’ve never seen a case of selling Lysol on the street. I wasn’t aware there was a hot market for cleaning products on the street. There is no evidence, but for what the defendant said, that this really happened.”

It is the defendant’s contention that those comments by the prosecutor, when there was no evidence introduced, amounted to misconduct. “It is well settled that [a] prosecutor, in fulfilling his duties, must confine himself to the evidence in the record. ... [A] lawyer shall not . . . [a]ssert his personal knowledge of the facts in issue, except when testifying as a witness. . . . Statements as to facts that have not been proven amount to unsworn testimony, which is not the subject of proper closing argument.” (Internal quotation marks omitted.) State v. Ancona, 69 Conn. App. 29, 37-38, 797 A.2d 1138, cert. granted on other grounds, 260 Conn. 928, 798 A.2d 970 (2002).

We agree that the prosecutor made comments about facts not in evidence from his personal knowledge. We conclude that the prosecutor’s comments were improper. See State v. Wickes, 72 Conn. App. 380, 396, 805 A.2d 142, cert. denied, 262 Conn. 914, 811 A.2d 1294 (2002).

IV

The defendant also claims that the prosecutor committed misconduct by asking the defendant to comment on the credibility of another witness.

During the state’s case-in-chief, the prosecutor called Brian Lamp as a witness. Lamp lived at the same apartment complex as did the victim and knew the defendant. Lamp testified that on November 3, 2000, at approximately 11:30 p.m., he drove into the apartment complex. He testified that it was only after he left his vehicle that he first saw the defendant sitting in a car parked by the curb, talking on a cellular phone. Lamp approached the defendant’s vehicle and asked him if he wanted to get something to drink. The defendant declined and replied that he was going to Bridgeport. As Lamp went into the apartment complex, the defendant exited the parking lot.

While cross-examining the defendant, the prosecutor and the defendant had the following colloquy:

“[The Prosecutor]: Brian Lamp testified that you were — you pulled in the parking lot after him, didn’t you?
“[The Defendant]: I don’t remember, but I was already there.
“[The Prosecutor]: Okay. So, you’re sure you were already there when Brian Lamp pulled in?
“[The Defendant]: Positive, because he was getting out of his truck when he saw me on the phone.
“[The Prosecutor]: So, if he testified that your car wasn’t there when he pulled in and he noticed it after he got out of his car, then that’s not accurate?
“[The Defendant]: I don’t remember what he said. He could have said he doesn’t remember. I don’t remember what his testimony was.
“[The Prosecutor]: If that was his testimony, that he arrived before you, would that be inaccurate if that was his testimony?
“[The Defendant]: I mean, if he didn’t see me, he just didn’t see me. I don’t know.
“[The Prosecutor]: Mr. Abrahams, it’s really a question that can be answered in a yes or no fashion.
“[The Defendant]: I mean, if he said that he was there before I was, then that’s his testimony. That’s his testimony. But I know in fact that I was there first.
“[The Prosecutor]: So, the answer is, his testimony would be inaccurate?
“[The Defendant]: Basically, yes.”

It is the defendant’s contention that this line of inquiry improperly required him to comment on the credibility of Lamb. In support of that claim, he relies principally on State v. Singh, supra, 259 Conn. 693. In Singh, our Supreme Court addressed the “well established evidentiary rule that it is improper to ask a witness to comment on another witness’ veracity.” Id., 706. “[A]s a general rule, [such] questions have no probative value and are improper and argumentative because they do nothing to assist the jury in assessing witness credibility in its fact-finding mission and in determining the ultimate issue of guilt or innocence.” (Internal quotation marks omitted.) Id., 707-708. Further, asking witnesses to comment on the veracity of another witness’ testimony can create a situation in which the jury may conclude “that, in order to acquit the defendant, it must find that the witness has lied.” Id., 708.

The state argues that the prosecutor used the word “lying” in Singh, while in this case, the prosecutor used the word “inaccurate.” If we were to adopt the state’s view, we would create a distinction without a difference. Moreover, our Supreme Court in Singh rejected the contention that a different rule should apply when the prosecutor uses the word “wrong” as opposed to “lying.” Id., 712 n.16. We therefore see no reason why it would be proper for a prosecutor to ask a witness to characterize another witness’ testimony as inaccurate when it is improper to ask a witness to characterize another’s witness’ testimony as “wrong.” “[Questions that ask a defendant to comment on another witness’ veracity invade the province of the jury.” Id., 707. It was improper for the prosecutor to ask the defendant to comment on the credibility of Lamb’s testimony. Unlike the situation in Singh, however, the prosecutor did not, in essence, argue that to acquit the defendant, the jury would have to find that Lamp had lied.

V

Having concluded that the prosecutor’s comments during closing argument about facts not in evidence and his questioning of the defendant to elicit comment on the credibility of a witness were improper, we now must address whether “the trial as a whole was fundamentally unfair and that the misconduct so infected the trial with unfairness as to make the conviction a denial of due process.” (Internal quotation marks omitted.) Id., 723. That determination requires us to consider several factors: The extent to which the misconduct was invited by defense conduct or argument, the severity of the misconduct, the frequency of the misconduct, the centrality of the misconduct to the critical issues in the case, the strength of the curative measures adopted and the strength of the state’s case. Id., 700-701. After weighing those factors, we conclude that the defendant was not deprived of a fair trial.

The prosecutor’s comments regarding the lack of a market for stolen cleaning supplies were brief, were not emphasized and did not pertain to the critical issue in the case. The comment concerned the defendant’s testimony that he did call the victim’s employer and reported that she was stealing the employer’s cleaning supplies and selling them to people she met. The issue central to the case, however, was whether the defendant was so unhappy with the breakup of his relationship with the victim that he shot her. The defendant’s attempt to adversely affect the victim’s employment was itself evidence of his unhappiness with the victim, whether his report was true or not. See State v. Moody, 77 Conn. App. 197, 218, 822 A.2d 990, cert. denied, 264 Conn. 918, 827 A.2d 707 (2003).

We also note that the prosecutor’s questioning of the defendant regarding the credibility of Lamp was not elevated during closing argument to require that the jury had to find Lamp to be a liar to acquit the defendant. See State v. Reynolds, supra, 264 Conn. 184. Additionally, the dispute between Lamp and the defendant was far removed from the center of the case, as it involved whether the defendant was in the victim’s parking lot when Lamp arrived there five hours before the shooting or whether the defendant had followed Lamp into that lot at that time. In both instances, the defendant did not object to the prosecutor’s conduct at the time that it occurred. That, our Supreme Court has stated, “indicates that counsel did not consider it to be unfair or seriously prejudicial in light of the record of the case at the time.” Id., 176.

Moreover, the case against the defendant was very strong. The jury heard the victim, who lived with the defendant for four to five years before the incident and had had a child with him, positively identify the defendant as the individual who had approached and shot her repeatedly. Additionally, several witnesses saw a vehicle similar to the defendant’s dark Chrysler sedan with custom rims leaving the scene of the crime shortly after hearing gunshots. There also was evidence that the defendant had attempted to call the victim twelve times between 8 p.m. and 9:40 p.m. on the evening of November 3, 2000. On the basis of the overwhelming evidence of the defendant’s guilt, the fact that the defendant did not object to the prosecutor’s comments when they were made and the nature of the prosecutor’s improprieties, we conclude that the defendant’s trial, as a whole, was not fundamentally unfair.

Our Supreme Court and this court repeatedly have stated that it is improper for a prosecutor to make statements of personal belief, to imply or to claim knowledge of facts not in evidence and to ask a witness to comment on the truth of another witness’ testimony. Our Supreme Court also has made clear that we must place other factors in the balance to determine if the defendant nonetheless received a fair trial. See id., 164. If the defendant had not received a fair trial, a new trial would be required, with all that it attends; see State v. Pouncey, 241 Conn. 802, 699 A.2d 901 (1997); something that should be of concern to the division of criminal justice, which has the responsibility to train state’s attorneys.

The defendant also seeks review under the plain error doctrine. “Plain error review is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. . . . Plain error is a doctrine that should be invoked sparingly. ... A party cannot prevail under plain error unless it has demonstrated that the failure to grant relief will result in manifest injustice.” (Internal quotation marks omitted.) State v. Saez, 76 Conn. App. 502, 508, 819 A.2d 927, cert. denied, 264 Conn. 914, 826 A.2d 1158 (2003). As we have concluded, the prosecutor’s improper comments did not rise to a level that infringed on the defendant’s right to a fair trial and did not result in manifest injustice. Accordingly, plain error review is not warranted.

The judgment is affirmed.

In this opinion the other judges concurred.

       “Pursuant to State v. Golding, supra, 213 Conn. 233, a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. . . . The first two questions relate to whether a defendant’s claim is reviewable, and the last two relate to the substance of the actual review.” (Citation omitted; emphasis in original; internal quotation marks omitted.) State v. Santiago, 73 Conn. App. 205, 212 n.10, 807 A.2d 1048 (2002), cert. granted on other grounds, 262 Conn. 939, 815 A.2d 673 (2003).

       Practice Book § 60-5 provides in relevant part: “The court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The court may in the interests of justice notice plain error not brought to the attention of the trial court. . . .”

       See, e.g., State v. Reynolds, supra, 264 Conn. 163; State v. Singh, supra, 259 Conn. 706; State v. Pouncey, 241 Conn. 802, 811, 699 A.2d 901 (1997); State v. Moody, supra, 77 Conn. App. 213; State v. Sinvil, supra, 76 Conn. App. 769; State v. Young, 76 Conn. App. 392, 404, 819 A.2d 884, cert. denied, 264 Conn. 912, 826 A.2d 1157 (2003); State v. Ashe, 74 Conn. App. 511, 524, 812 A.2d 194, cert. denied, 262 Conn. 949, 817 A.2d 108 (2003); State v. Guzman, 73 Conn. App. 683, 690, 809 A.2d 526 (2002), cert. denied, 262 Conn. 937, 815 A.2d 137 (2003); State v. Rogelstad, 73 Conn. App. 17, 29-30, 806 A.2d 1089 (2002); State v. Wickes, supra, 72 Conn. App. 393.


author: SCHALLER, J.

text:
    JOANNA BEE v. RUDOLPH BEE
    (AC 21741)
    Lavery, C. J., and Schaller and Bishop, Js.

      Argued March 28
    officially released October 7, 2003

      Steven R. Dembo, with whom were Kelly L. Babbitt and, on the brief, P. Jo Anne Burgh, for the appellant (defendant).

      Kenneth J. Bartschi, with whom were Kimberly A. Knox and, on the brief, Eliot J. Nerenberg, for the appellee (plaintiff).
   Opinion

SCHALLER, J.

The defendant, Rudolph Bee, appeals from the judgment of the trial court dissolving his marriage to the plaintiff, Joanna Bee. On appeal, the defendant claims that the court improperly (1) ordered him to pay child support in an amount that deviated from the child support guidelines, (2) ordered him to pay the plaintiff $25,000 in attorney’s fees, (3) ordered him to maintain his present life insurance for the benefit of the parties’ minor children, (4) ordered him to provide dental insurance for the minor children and (5) determined that it would retain jurisdiction over issues with respect to the property division. At oral argument, we ordered the parties to file supplemental briefs addressing whether, pursuant to Broaca v. Broaca, 181 Conn. 463, 435 A.2d 1016 (1980), the court lacked subject matter jurisdiction to order the defendant to make the minor children irrevocable beneficiaries of his life insurance. We affirm the judgment of the trial court.

The following facts are relevant to the defendant’s appeal. The plaintiff and the defendant were married on March 26, 1976. The plaintiff commenced an action on December 19, 1998, seeking dissolution of the marriage on the ground of irretrievable breakdown. Neither party filed a child support guidelines worksheet as required by Practice Book § 25-30 (e). The court rendered judgment of dissolution on February 7, 2001. At the time of the dissolution, the parties had three minor children, aged seventeen, fifteen and twelve. The court found that the defendant’s infidelity, bizarre behavior and indifference to the needs of both the plaintiff and the children caused the breakdown of the marriage. The court ordered, inter alia, that the defendant provide health insurance, including dental coverage, for the children and maintain his life insurance for their benefit. The court further ordered the defendant to name the “minor children” as irrevocable beneficiaries of his life insurance and to provide the plaintiff, on an annual basis, with evidence that the insurance is effective. In addition, the court ordered the defendant to pay to the plaintiff $400 per week in child support as well as $25,000 in attorney’s fees. The court also ordered the defendant to transfer to the plaintiff 50 percent of two individual retirement accounts (retirement accounts). Additional facts will be set forth as necessary.

I

The defendant claims that the court improperly ordered him to pay child support in an amount that deviated from the child support guidelines. In support of his claim, the defendant argues that the court improperly (1) failed to make findings, including the amount of each party’s gross income and the health insurance premiums paid by the defendant, that he asserts were necessary to the calculation of the presumptive amount of child support under the guidelines promulgated pursuant to General Statutes § 46b-215b, (2) failed to determine the presumptive amount of child support and (3) failed to find that the presumptive amount of child support was inequitable pursuant to the factors set forth in the guidelines. In response, the plaintiff argues, inter alia, that the defendant’s failure to file a child support guidelines worksheet with the court should preclude the defendant from complaining that the court failed to adhere to the guidelines. We agree with the plaintiff and, accordingly, decline to review the defendant’s claim.

Our Supreme Court has emphasized that a court’s adherence to the procedures set forth in the child support guidelines is necessary to facilitate appellate review. See Favrow v. Vargas, 231 Conn. 1, 29, 647 A.2d 731 (1994). Specifically, when a court deviates from the presumptive amount of support under the guidelines, it must first make a specific finding on the record as to the presumptive amount to “enable an appellate court to compare the ultimate order with the guideline amount and make a more informed decision on a claim that the amount of the deviation, rather than the fact of a deviation, constituted an abuse of discretion.” Id.

When, as in the present case, the parties fail to file the required worksheets, the problem is compounded, as both the trial court and the reviewing court lack the guidance necessary to determine what the guidelines require in the particular case. The worksheets are specifically designed to provide an orderly mechanism for the presentation and calculation of the relevant information under the guidelines. Requiring the parties to use the worksheets ensures that all of the relevant information is provided in a format that facilitates and expedites the court’s considerable task of applying the detailed requirements of the guidelines. Without that information in the form prescribed by the guidelines, the court is likely to be severely impaired in its task of determining the presumptive amount of support, as well as determining whether any factors might justify deviation from that amount and, if so, to what extent. Thus, the parties’ failure to comply with Practice Book § 25-30 (e) necessarily has a tendency to cause what the defendant claims has occurred in the present case, that is, a lack of the detailed findings that our Supreme Court has held are necessary for our appellate review. See id.

We conclude that a party who has failed to submit a child support guidelines worksheet as required by Practice Book § 25-30 (e) cannot complain of the court’s alleged failure to comply with the guidelines. Accordingly, we decline to review the defendant’s claim that the court did not follow the guidelines in the present case.

II

The defendant next claims that the court improperly ordered him to pay the plaintiff $25,000 in attorney’s fees. Specifically, the defendant argues that the court abused its discretion in ordering the attorney’s fees because (1) it failed to make an explicit finding that denying the award would undermine the integrity of the court’s other financial orders or that the plaintiff was unable to pay her fees, (2) he presented evidence that he already had paid $35,000 of the plaintiffs attorney’s fees, and (3) the order was inconsistent with the court’s findings that his health had deteriorated and that his income level was unlikely to be as high in the future as it had been in the past. There is no merit to the defendant’s claim.

The following additional facts are relevant to the defendant’s claim. At trial, the plaintiff testified that she had paid one of her attorneys $3000 and had paid another attorney $7500, which she had borrowed from her parents. In addition, she testified that at the time of trial, she owed an additional $14,500 in legal fees for a total of $25,000. The plaintiff testified further that the defendant previously had paid her attorneys $35,000 to cover additional legal costs. The defendant also submitted documentation regarding the $35,000 payment.

In its memorandum of decision, the court found that the defendant, a licensed ophthalmologist, had earned an average net income of $70,000 to $80,000 per year, but that the defendant’s health had “deteriorated to the point where his employment as an ophthalmologist is doubtful, at least on a full-time basis.” The court concluded that the defendant was unlikely to “earn in the future at the same level as he has in the past . . . .” The court also stated, however, that “to a large extent, [the defendant’s] high spending levels have been underwritten by withdrawals from marital assets.”

The court found that the plaintiffs employment prospects had been limited by her low level of education. The plaintiff had worked for the defendant throughout the parties’ marriage, in both a full-time and part-time capacity, performing secretarial and bookkeeping services as well as other tasks such as cleaning the defendant’s office. The plaintiff remained employed by the defendant until 1995, and the defendant had not always compensated her for her work which, the court noted, resulted in a lowering of her social security benefits. After 1995, the plaintiff had worked at other low paying jobs, but had never earned a weekly wage of more that $250. The court found that “[b]ecause of [the plaintiffs] lack of education and work skills, it is unlikely that she will be able to earn more that $400 per week in the near future.”

The court, in its financial orders, essentially divided the assets equally between the parties. In addition to its other financial orders, the court ordered the defendant to pay the plaintiff $25,000 for her attorney’s fees. The court stated that in fashioning its orders, it took into account the fact that the defendant previously had committed numerous violations of the court’s automatic orders concerning the dissipation of assets. In a subsequent motion for articulation, the defendant asked the court to articulate the factual and legal basis for the court’s award of $25,000 in attorney’s fees. The court provided the following articulation: “The evidence clearly indicated that the defendant had expended well over $70,000 for legal fees prior to the case being tried. Payment of the fees came from assets subject to distribution between the parties. The order of $25,000 payment to the plaintiff would still leave her with substantially less in legal fees that those incurred by the defendant.”

“General Statutes § 46b-62 governs the award of attorney’s fees in dissolution proceedings.” Bornemann v. Bornemann, 245 Conn. 508, 542, 752 A.2d 978 (1998). That section provides in part that “the court may order either spouse ... to pay the reasonable attorney’s fees of the other in accordance with their respective financial abilities and the criteria set forth in section 46b-82. . . .” General Statutes § 46b-62. “The criteria set forth in § 46b-82 are ‘the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties and the award, if any, which the court may make pursuant to [General Statutes §] 46b-81, and, in the case of a parent to whom the custody of minor children has been awarded, the desirability of such parent’s securing employment.’ In making an award of attorney’s fees under [§ 46b-62], ‘[t]he court is not obligated to make express findings on each of these statutory criteria.’ Weiman v. Weiman, 188 Conn. 232, 234, 449 A.2d 151 (1982).” Bornemann v. Bornemann, supra, 542.

“Courts ordinarily award counsel fees in divorce cases so that a party . . . may not be deprived of [his or] her rights because of lack of funds. . . . Where, because of other orders, both parties are financially able to pay their own counsel fees they should be permitted to do so. ... An exception to th[is] rule . . . is that an award of attorney’s fees is justified even where both parties are financially able to pay their own fees if the failure to make an award would undermine [the court’s] prior financial orders .... Whether to allow counsel fees [under §§ 46b-62 and 46b-82], and if so in what amount, calls for the exercise of judicial discretion. . . . An abuse of discretion in granting counsel fees will be found only if [an appellate court] determines that the trial court could not reasonably have concluded as it did.” (Internal quotation marks omitted.) Lopiano v. Lopiano, 247 Conn. 356, 378, 752 A.2d 1000 (1998).

The defendant argues that the court’s award of attorney’s fees was improper because the court failed to make an explicit finding that denying the award would undermine the integrity of its other financial orders or that the plaintiff was unable to pay her fees. Contrary to the defendant’s argument, our Supreme Court has specifically held that such findings do not have to be explicit as long as the record would support a finding that the party to whom the award of attorney’s fees is made lacks sufficient liquid assets with which to pay his or her attorney’s fees or that the failure to award such fees would undermine the court’s other financial orders. Bornemann v. Bornemann, supra, 245 Conn. 544-45.

In the present case, the defendant acknowledges in his brief that the judgment essentially divided the marital assets evenly between the parties. The court’s articulation reveals its concern that the defendant previously had paid more than $70,000 of his legal fees out of assets that otherwise would have been subject to distribution between the parties. It therefore appears that the court viewed its award of $25,000 in attorney’s fees to the plaintiff as a method of preventing the undermining of what it intended to be an even distribution of the marital assets between the parties. In other words, the court appears to have preserved the integrity of its other financial orders by ordering the defendant to pay $25,000 of the plaintiffs attorney’s fees, thereby compensating for his previous use of marital assets to pay his attorney’s fees.

The court reasonably could have concluded that the failure to award the plaintiff $25,000 in legal fees would have undermined the court’s other financial orders, which essentially sought to achieve a fifty-fifty distribution of the marital property. Moreover, such a distribution was entirely reasonable in light of the court’s findings regarding the defendant’s responsibility for the breakdown of the marriage, the parties’ relative education, skills, employability and earning capacities, and the defendant’s dissipation of the parties’ assets. The fact that the defendant previously had paid $35,000 of the plaintiffs legal fees does not change that conclusion. As stated, the plaintiffs testimony indicated that the $35,000 represented legal fees that the plaintiff incurred in addition to the $25,000 represented by the court’s award. See footnote 3. Furthermore, contrary to the defendant’s argument, his declining health and decreased earning capacity were only two of the many factors that the court was bound to consider in making its determination. See General Statutes §§ 46b-62 and 46b-82. The court was not required to view those isolated factors as dispositive. Consequently, the award of attorney’s fees did not constitute an abuse of the court’s discretion.

Ill

The defendant claims that the court improperly ordered him to maintain his present Ufe insurance for the benefit of the minor children. Specifically, the defendant argues that the court’s order was improper in light of his testimony that he expected the cost of his insurance to increase. We are not persuaded.

The following additional facts are relevant to that issue. At trial, the defendant testified that he had two life insurance policies with the children as his beneficiaries. The defendant testified that to the best of his understanding, the premiums on both policies would increase in three years.

“Our standar d of review in a domestic relations case is well settled. We will not substitute our judgment for that of the trial court and will not disturb an order of the trial court absent an abuse of discretion or findings lacking a reasonable basis in the facts. . . . An order for life insurance is very often an appropriate and necessary component of a judgment of dissolution of marriage. . . . Such an order, however, must have a reasonable basis in the evidence.” (Citations omitted; internal quotation marks omitted.) Quindazzi v. Quindazzi, 56 Conn. App. 336, 338, 742 A.2d 838 (2000).

The sole authority cited by the defendant in support of his claim is Quindazzi v. Quindazzi, supra, 56 Conn. App. 336. In that case, we concluded that the trial court improperly had ordered a party to a dissolution action to maintain life insurance for his children because “[t]here was no evidence that the defendant had a life insurance policy at the time of the dissolution, nor was there any evidence of his insurability or the cost of the insurance as of that time.” Id., 338; see also Papa v. Papa, 55 Conn. App. 47, 50-51, 737 A.2d 953 (1999).

The present case is distinguishable from Quindazzi and Papa because the defendant’s testimony established that he had life insurance at the time of the dissolution. We have held that where a life insurance policy is in existence as the time of the judgment, the court has available to it all of the information necessary to craft an appropriate order regarding such insurance. Porter v. Porter, 61 Conn. App. 791, 805, 769 A.2d 725 (2001).

The defendant nevertheless asserts that the court’s order was unreasonable because of his testimony that he expected his insurance premiums to increase in the years following the dissolution. The defendant’s argument fails to recognize that “[i]n a case tried before a court, the trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony and, therefore, is free to accept or reject, in whole or in part, the testimony offered by either party.” (Internal quotation marks omitted.) DiVito v. DiVito, 77 Conn. App. 124, 138, 822 A.2d 294, cert. denied, 264 Conn. 921, 828 A.2d 617 (2003). The court was not required to believe the defendant’s testimony regarding future increases in the cost of his life insurance. In light of the undisputed fact that the defendant had life insurance at the time of the dissolution, the court did not abuse its discretion when it ordered him to maintain that insurance for the benefit of the children, notwithstanding his speculation that the cost might increase in the future.

IV

The defendant claims that the court improperly ordered him to provide dental insurance for the minor children. Specifically, the defendant claims that the order was improper because there was no evidence regarding the availability and cost of such insurance. We disagree.

The following facts are relevant to that claim. At trial, the defendant testified that he had maintained dental insurance for the family for fifteen to twenty years until he canceled it in 1999. He had obtained the insurance through the Hartford County Medical Association, of which he was a member. He testified that if he had continued the dental coverage instead of canceling it, it would have cost him $1800 per year to cover the entire family, including the plaintiff and the children. In addition, the defendant testified that he was still a member of the Hartford County Medical Association because he had to keep that membership active to remain eligible for his medical insurance.

The defendant relies on Lake v. Lake, 49 Conn. App. 89, 91, 712 A.2d 989, cert. denied, 246 Conn. 902, 719 A.2d 1166 (1998), for the proposition that it is improper for a court to order such insurance without evidence of the cost or availability of such insurance. Lake is distinguishable, however, because in the present case, there was evidence from which the court could have concluded that dental insurance was available and affordable. The court had before it evidence that the defendant previously had maintained dental insurance for the family through the medical association of which he was still a member at the time of trial. The defendant also testified as to the cost of such insurance if he had continued it. The defendant does not cite any evidence suggesting that the insurance subsequently had become unavailable or unaffordable, other than his testimony that he canceled the insurance in 1999 after the commencement of the dissolution action. Consequently, the court had an evidentiary basis for its factual determination that dental insurance was available and affordable, and the court’s order requiring the defendant to obtain and to maintain such insurance for the children did not constitute an abuse of discretion.

V

The defendant claims that the court improperly determined that it would retain jurisdiction over issues with respect to the property division. We find no merit in that claim.

The court, in its memorandum of decision, ordered the defendant to transfer 50 percent of two retirement accounts to the plaintiff by way of a qualified domestic relations order. With regard to each of the ordered transfers, the court stated: “The court shall retain jurisdiction.” In addition, after listing several items of personal property to be retained by the defendant and ordering him to remove those items from the parties’ home, the court stated: “The court shall retain jurisdiction in the event that the parties are in disagreement as to the distribution of the items specified above.”

The defendant bases his claim that the court improperly retained jurisdiction on the Supreme Court’s holding in Smith v. Smith, 249 Conn. 265, 752 A.2d 1023 (1999). In Smith, the court held that the Superior Court has statutory authority to retain continuing jurisdiction over orders for the periodic payment of permanent alimony, but not over lump sum alimony or property distributtons pursuant to § 46b-81. Id., 273. Accordingly, the trial court in that case improperly attempted to retain continuing jurisdiction in order to divide the plaintiffs interest in a certain trust if ever he were to be found to hold such an interest. Id., 276.

In the present case, by contrast, the court did not attempt to retain jurisdiction to make any future orders regarding property division. With regard to the retirement accounts, the court merely retained jurisdiction to ensure the proper execution of qualified domestic relations orders, the purpose of which was to effectuate the court’s orders dividing the accounts evenly, which orders the court entered at the time of dissolution. Similarly, with regard to the items of personal property that the court ordered the defendant to remove from the marital home, the court clearly stated that it retained jurisdiction only “in the event that the parties are in disagreement as to the distribution of the items . . . .” Thus, the court’s retention of jurisdiction was simply for the limited purpose of effectuating the orders rendered at the time of dissolution. The court did not attempt to retain jurisdiction to make any additional orders regarding the division of property in the future. Consequently, the court’s limited retention of jurisdiction did not run afoul of Smith and was not improper.

VI

Finally, we address the issue on which we ordered the parties to submit supplemental briefs, namely, whether the trial court lacked subject matter jurisdiction to order the defendant to make the minor children irrevocable beneficiaries of his life insurance. Specifically, we sought clarification on whether the court lacked subject matter jurisdiction, pursuant to Broaca v. Broaca, supra, 181 Conn. 463, because the order constituted an impermissible order of postmajority support. We conclude that the court did not order postmajority support.

We first note that we may address the issue although the defendant did not raise it in his principal brief. “[A] subject matter jurisdictional defect may not be waived . . . [or] conferred by the parties, explicitly or implicitly. . . . [T]he question of subject matter jurisdiction is a question of law [which may be] raised, either by a party or by the court itself . . . .” (Citations omitted; internal quotation marks omitted.) Rayhall v. Akim Co., 263 Conn. 328, 337, 819 A.2d 803 (2003).

As stated, the court ordered the defendant to name the “minor children” as irrevocable beneficiaries of his life insurance and to provide the plaintiff, on an annual basis, with evidence that the insurance is effective. Our Supreme Court held in Broaca v. Broaca, supra, 181 Conn. 463, that a trial court exceeds its subject matter jurisdiction when it makes an order of support requiring a parent to name the parties’ children as irrevocable beneficiaries of a life insurance policy. That conclusion was based on the language of General Statutes § 46b-84, pursuant to which the parental duty of support extends only to a “minor child.” See id., 465-66.

We conclude that the present case is distinguishable from Broaca because the order in the present case, when viewed in its entirety, is not an order of postmajority support. On the contrary, we conclude that the court’s order, when read in its entirety, requires the defendant to maintain each child as an irrevocable beneficiary of his life insurance only until such time as that child reaches the age of majority. In that respect, we note that “[t]he construction of a judgment is a question of law for the court. ... As a general rule, judgments are to be construed in the same fashion as other written instruments. . . . The determinative factor is the intention of the court as gathered from all parts of the judgment.” (Internal quotation marks omitted.) Emerick v. Emerick, 28 Conn. App. 794, 806, 613 A.2d 1351, cert. denied, 224 Conn. 915, 617 A.2d 171 (1992). Furthermore, “[i]n determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged.” (Internal quotation marks omitted.) Rayhall v. Akim Co., supra, 263 Conn. 339.

The court’s memorandum of decision specifically orders the defendant to “maintain his present life insurance for the benefit of the minor children . . . .” (Emphasis added.) That language may reasonably be interpreted to mean that the defendant was required to maintain his life insurance for the benefit of each child only as long as that child is a minor. Such a reading is supported by the second sentence of the court’s life insurance order, which provides that the defendant “shall, on an annual basis, provide the plaintiff with evidence that the insurance is effective.” We are not persuaded that the court intended to require the defendant to provide the plaintiff with proof of insurance every year, even after the children are adults and the parties’ duty to provide support has terminated, because such an order would serve no purpose. The more sensible construction of the order is that the defendant has a duty to provide life insurance with respect to each individual child only while that child is a minor. That construction, by precluding the court’s order from running afoul of Broaca, also effectuates the principle that we indulge every presumption in favor of the court’s jurisdiction. See id.

We conclude that the court’s order requires the defendant to maintain his life insurance for the benefit of the children only until each child reaches the age of majority. The court’s order therefore did not constitute an impermissible order of postmajority support.

The judgment is affirmed.

In this opinion the other judges concurred.

       The child support guidelines worksheet is set forth in § 46b-215a-5a of the Regulations of Connecticut State Agencies.

       Practice Book § 25-30 (e) provides: “Where there is a minor child who requires support, the parties shall file a completed child support and arrearage guidelines worksheet at the time of any court hearing concerning child support; or at the time of a final hearing in an action for dissolution of marriage, legal separation, annulment, custody or visitation.”

       The plaintiff testified as follows:
      “[The Plaintiffs Counsel]: And this past spring, did I get some additional money?
      “[The Plaintiff]: Yes.
      “[The Plaintiffs Counsel]: How much did I get and from whom?
      “[The Plaintiff]: You got $10,000.

        “[The Plaintiffs Counsel]: From your husband?
      “[The Plaintiff]: Yes.
      “[The Plaintiffs Counsel]: And this past summer did Judge Dranginis order [that] I receive an additional $25,000 retainer?
      “[The Plaintiff]: Yes."

       See Practice Book § 25-5.

       The defendant testified as follows:
      “[The Defendant]: In one of [the policies], I’m not sure whether it’s Midland or Transamerica, when I be — in three years it will go up to [$12,000]— $13,000 a year.
      “[The Defendant’s Counsel]: In three years?
      “[The Defendant]: Yeah.
      “[The Defendant’s Counsel]: Now, how about the other? Is there any increase in the other policy?
      “[The Defendant]: The other, I think at seventy it will do the same.
      “[The Defendant’s Counsel]: Okay, so there would be—
      “[The Defendant]: It would go up to like, [$15,000 to $20,000] to $25,000 a year.”
      “[The Defendant’s Counsel]: And the policies show that?
      “[The Defendant]: Yes.”

       “A [qualified domestic relations order (QDRO)] is the exclusive means by which to assign to a nonemployee spouse all or any portion of pension benefits provided by a plan that is governed by the Employee Retirement Income Security Act, 29 U.S.C. § 1001 et seq. See 29 U.S.C. § 1056 (d) (3) (b) for the requirements of a valid QDRO.” Krafick v. Krafick, 234 Conn. 783, 786 n.4, 663 A.2d 365 (1995).

       Specifically, the court ordered: “The defendant shall maintain his present life insurance for the benefit of the minor children and name them as irrevocable beneficiaries. He shall, on an annual basis, provide the plaintiff with evidence that the insurance is effective.”