author: FOTI, J.

text:
    LISA NAGY SHEPPARD v. STEVENS C. SHEPPARD
    (AC 22568)
    Lavery, C. J., and Foti and DiPentima, Js.

      Argued September 16
    officially released November 18, 2003

      Edward Kanowitz, for the appellant (plaintiff).

      George J. Markley, with whom was Susan S. Lewis, for the appellee (defendant).
   Opinion

FOTI, J.

The plaintiff, Lisa Nagy Sheppard, appeals from the trial court’s judgment on her motion for post-judgment modification of child support. On appeal, the plaintiff claims that the court (1) failed to find that the parties’ child was autistic when ruling on the motion to modify child support, (2) improperly determined what constituted medical expenses for purposes of calculating the child support order, (3) failed to modify the child support obligation to continue until the child reaches the age of twenty-one, (4) improperly calculated the amount of child support and (5) failed to award the plaintiff attorney’s fees in connection with her defense of a contempt motion. In his cross appeal, the defendant, Stevens C. Sheppard, claims that the court improperly (1) found that he was responsible for paying certain expenses for the child, (2) found that he was in contempt for his failure to pay certain expenses for the child and (3) awarded attorney’s fees to the plaintiff in connection with the contempt finding. We affirm in part and reverse in part the judgment of the trial court.

The court found the following facts. The plaintiff and the defendant were married on December 22,1990, and divorced by a dissolution judgment dated February 22, 1999. Prior to the dissolution, the parties adopted a child who was bom on July 26, 1997. The separation agreement, which was incorporated into the dissolution judgment, granted joint legal custody of the child with residential custody to the plaintiff mother and “liberal and reasonable visitation” to the defendant father. The court also ordered that the defendant pay child support in the amount of $150 per week.

The child has special needs, which both parties were aware of at the time of the dissolution. The child has serious food allergies, some sensory issues and some alleged physical problems. The plaintiff insists that the child is autistic, but the defendant disagrees, and the court stated that it could not make such a finding absent proper medical testimony.

On March 10, 2000, the plaintiff filed a postjudgment motion to modify child support, claiming that the defendant’s financial situation and the child’s medical condition had changed since the dissolution judgment. The plaintiff further claimed that the defendant was not paying child support in accordance with the agreement and filed a motion for contempt on June 28, 2000. In its memorandum of decision, dated August 24, 2001, the court ordered the defendant to pay (1) child support in the amount of $250 per week, (2) half of all unreim-bursed and uninsured medical expenses incurred until the child reaches the age of nineteen or graduates from high school, whichever occurs first, and (3) $7500 in attorney’s fees as a sanction for a finding of contempt for his “wilful failure” to pay half of the child’s unreim-bursed or uninsured medical costs. This appeal and cross appeal followed. Additional facts will be set forth as necessary.

APPEAL

We begin by setting forth our standard of review for claims challenging a child support order. “The well settled standard of review in domestic relations cases is that this court will not disturb trial court orders unless the trial court has abused its legal discretion or its findings have no reasonable basis in the facts. ... In determining whether there has been an abuse of discretion, the ultimate issue is whether the court could reasonably conclude as it did.” (Internal quotation marks omitted.) Gilberts v. Gilbert, 73 Conn. App. 473, 480, 808 A.2d 688 (2002).

I

The plaintiff first claims that the court improperly failed to find that the child was autistic, which she argues would constitute an adequate change in circumstances pursuant to General Statutes § 46b-86 to allow for a greater modification of the child support order. Specifically, the plaintiff argues that (1) the doctrine of collateral estoppel should apply because the issue of autism was decided in a prior hearing and (2) alternatively, sufficient evidence was presented in the hearing on the postjudgment motion to modify child support to support a finding that the child is autistic. We do not agree.

The following additional facts underlie those issues. On March 30, 2000, the defendant filed a motion for contempt, claiming that the plaintiff denied him visitation on several occasions, including a scheduled visit in which he was to take the child to an out-of-state family reunion. The plaintiffs defense to that motion was that the child was autistic and unable to fly to, or take part in, the family reunion. The court ordered that the defendant not take the child to the reunion, but, as an alternative, provided the defendant with extra visitation.

A

The plaintiff first claims that the court, in ruling on the defendant’s motion for contempt, found that the child is autistic and that under the doctrine of collateral estoppel, the court hearing the postjudgment motion to modify child support was required by law to find the same. We do not agree.

Collateral estoppel “prohibits the relitigation of an issue when that issue was actually litigated and necessarily determined in a prior action.” (Internal quotation marks omitted.) Carnemolla v. Walsh, 75 Conn. App. 319, 325, 815 A.2d 1251, cert. denied, 263 Conn. 913, 821 A.2d 768 (2003). We do not agree with the plaintiffs claim because the court, in ruling on the defendant’s motion for contempt, never made an explicit finding that the child is autistic. The court merely ordered that the defendant not take the child to the scheduled family reunion. As such, absent an actual ruling on the issue by the court, we cannot conclude that the doctrine of collateral estoppel applies under those facts.

B

Alternatively, the plaintiff claims that she presented sufficient evidence to the court hearing her postjudgment motion to modify child support to support a finding that the child is autistic. We do not agree.

“When a topic requiring special experience of an expert forms a main issue in the case, the evidence on that issue must contain expert testimony or it will not suffice.” (Internal quotation marks omitted.) Monterose v. Cross, 60 Conn. App. 655, 658, 760 A.2d 1013 (2000). Furthermore, expert medical testimony is “generally required in proving the condition from which a person claims to be suffering . . . .” State v. Orsini, 155 Conn. 367, 372, 232 A.2d 907 (1967).

Here, the plaintiff did not provide expert medical evidence to support her claim that the child is autistic. The plaintiff argues, however, that expert testimony is not required where the medical condition is obvious or common in everyday life and cites State v. Orsini, supra, 155 Conn. 367, in support. Although the plaintiff cites the correct law, we do not find that the facts presented here coincide with the situations contemplated in Orsini. In Orsini, the court considered “obvious” or “common” medical conditions to include, for example, pregnancy or amputation. Id., 372. Autism, however, does not fall into that category because a layperson would not be able to make such a determination, as could be done with a pregnant woman or an amputee. The court, therefore, properly declined to conclude that the child was autistic absent expert testimony.

II

The plaintiff next claims that the court improperly construed the meaning of “medical expenses” under the separation agreement in determining what expenses the defendant must pay. Specifically, the plaintiff argues that the court set forth no definable or reasonable standard for its conclusions. We do not agree.

The plaintiffs argument centers on the notion that the court did not understand the purpose of certain expenditures. Specifically, the plaintiff contends that because the court did not find that the child is autistic, it incorrectly determined that the defendant did not have to pay for certain expenses. For the reasons previously set forth as to why the court was not incorrect in declining to find that the child is autistic, we conclude that the plaintiffs argument that the defendant should pay for certain expenses must fail. The plaintiff provided no expert medical testimony as to the child’s condition and what expenses were needed to treat that condition. We therefore conclude that the court did not abuse its discretion in determining what constituted medical expenses pursuant to the separation agreement.

III

The plaintiff next claims that the court failed to modify the child support obligation pursuant to General Statutes § 46b-84 (c) to continue until the child reaches the age of twenty-one. Specifically, the plaintiff again contends that the court should have found that her child is autistic, thus satisfying § 46b-84 (c). Alternatively, the plaintiff argues that even if an actual finding of autism is not made, she has presented sufficient evidence to prove that the child has a mental or physical disability, as defined in General Statutes § 46a-51 (15) and required by § 46b-84 (c). We do not agree.

For the same reasons previously discussed as to why the plaintiff did not proffer the proper evidence to support her claim regarding the child’s medical condition, we cannot say that she has satisfied § 46b-84 (c). The plaintiff did not provide expert medical testimony to support her claim that the child suffers from autism or from any other medical condition satisfying § 46b-84 (c). Without such evidence to support her claim, we cannot conclude that the court was incorrect in not modifying the child support obligation to continue until the child reaches the age of twenty-one.

IV

The plaintiff next claims that the corut improperly calculated the amount of child support. Specifically, the plaintiff argues that the court, in calculating the child support, (1) improperly allowed the defendant to deduct for travel expenses, (2) did not consider the defendant’s potential investment income and (3) improperly excluded trust income from the defendant’s gross income. We will discuss each of the plaintiffs arguments in turn.

A

The plaintiff first claims that the court improperly included travel expenses in calculating the defendant’s gross income for purposes of the child support guidelines. We do not agree.

The child support guidelines provide for deductions for extraordinary parental expenses, including “job-related unreimbursable employment expenses of individuals who are not self-employed . . . .” Regs., Conn. State Agencies § 46b-215a-3 (b) (3) (B). The defendant, in his financial affidavit and child support guidelines worksheet, deducted travel expenses from his gross income for travel from his home in Connecticut to his job in New York City. Although travel expenses are not always an allowable deduction under the child support guidelines, we cannot conclude that the court abused its discretion in allowing that deduction under the particular facts of this case when the defendant worked in New York, but lived closer to his child in Connecticut.

B

The plaintiff next claims that the court improperly excluded the defendant’s potential earnings from the child support calculation. Specifically, she argues that the defendant could have had a greater return on his investment account by reinvesting the funds. In support of her contention, the plaintiff presented the testimony of an alleged expert to testify as to the earning potential of the defendant’s funds. The court did not find that testimony credible and consequently did not find sufficient evidence to support the plaintiffs claim that the defendant could earn a greater return on his money. The plaintiff now claims that the court improperly disregarded the witness’ testimony and consequently reached an inaccurate conclusion. We do not agree.

“The acceptance or rejection of the opinions of expert witnesses is a matter peculiarly within the province of the trier of fact and its determinations will be accorded great deference by this court. . . In its consideration of the testimony of an expert witness, the trial court might weigh, as it sees fit, the expert’s expertise, his opportunity to observe the defendant and to form an opinion, and his thoroughness. It might consider also the reasonableness of his judgments about the underlying facts and of the conclusions which he drew from them. ... It is well settled that the trier of fact can disbelieve any or all of the evidence proffered . . . .” (Internal quotation marks omitted.) Evans v. Taylor, 67 Conn. App. 108, 113, 786 A.2d 525 (2001).

Here, the court stated that the “witness was not licensed in this state as an investment adviser and considered only one financial affidavit and two years’ tax returns. ” As a result, the court was well within its discretion to accept or reject the witness’ testimony as the truth. We therefore do not conclude that the court was incorrect in not modifying the child support obligation to reflect the defendant’s alleged potential income.

C

The plaintiff next argues that the court improperly excluded the defendant’s trust income from the child support calculation. The following additional facts are relevant to our resolution of that issue. Under the June 3,1971 will of the defendant’s mother, Jane S. Sheppard, a trust was established for the defendant. The uncontro-verted evidence reveals that there had been no distribution of accumulated income in the trust fund from Jane Sheppard’s death until March 11, 1999, at which time the defendant’s interest was $143,047. Atrustee testified that the defendant had no control over the trust. In fact, the will gave the trustees absolute discretion to distribute the trust funds. The plaintiff now claims that the court improperly excluded the trust income from the defendant’s gross income, which was used in the child support calculation. We do not agree.

The child support guidelines define gross income in relevant part as the “average weekly earned and unearned income from all sources before deductions . . . .” Regs., Conn. State Agencies § 46b-215a-l (11). Although the guidelines further provide that gross income includes “estate or trust income;” id., § 46b-215a-l (11) (A) (xiii); we cannot conclude that all funds derived from an estate or trust qualify under that definition. That is especially true when the income stream is not regular or predictable. Here, the court found that the distributions under the trust were irregular in their amounts and in their timing, and were beyond the defendant’s control. Furthermore, the language of the will provides that the trustees are empowered to make distributions at their “absolute discretion.” It is improper, therefore, to include those funds in the defendant’s gross income, which could result in higher support payments, when those funds may not actually be distributed.

Furthermore, the separation agreement provides that the “parties hereby and forever mutually agree to waive their individual claims, rights, and interests by way of alimony, and or property distribution to any inheritance received or to be received in the future by the other party.” Although the plaintiff is asking the court to include the trust funds in the defendant’s gross income and not claiming an actual interest in the trust, to include the funds in gross income would appear to achieve the same goal that the separation agreement clearly forbids. The parties intended not to have an interest in each other’s inheritance, and we must uphold that intent. See Bonhotel v. Bonhotel, 64 Conn. App. 561, 564, 781 A.2d 318, cert. denied, 258 Conn. 918, 782 A.2d 1241 (2001).

For the reasons previously discussed, we conclude that the corut did not abuse its discretion in determining that the trust income need not be included in the defendant’s gross income for purposes of calculating the child support order.

V

The plaintiff last claims that the court did not rule on her claim for attorney’s fees in connection with the defendant’s motion for contempt, filed March 30, 2000. Specifically, she argues that she is entitled to attorney’s fees in what she claims to be a successful defense of the defendant’s motion for contempt.

“It is the appellant’s burden to provide an adequate record for review. ... It is, therefore, the responsibility of the appellant to move for an articulation or rectification of the record where the trial court has failed to state the basis of a decision ... to clarify the legal basis of a ruling ... or to ask the trial judge to rule on an overlooked matter.” (Citation omitted; internal quotation marks omitted.) State v. Collic, 55 Conn. App. 196, 209, 738 A.2d 1133 (1999).

. Here, the court’s memorandum of decision does not specifically address the plaintiffs claim for attorney’s fees with respect to the defendant’s motion for contempt. If the plaintiff believed that the court did not address that claim, she could have filed a motion for articulation; see Practice Book § 66-5; but she failed to do so. The appellant bears the burden of furnishing this court with an adequate record to review her claim. Practice Book § 61-10. Accordingly, because the plaintiff failed to make such a motion, we must take the court’s decision as properly defining the scope of the claims she presented. “Without the necessary factual and legal conclusions furnished by the trial court . . . any decision made by us . . . would be entirely speculative.” (Internal quotation marks omitted.) State v. Collic, supra, 55 Conn. App. 209. We therefore decline to review that claim.

CROSS APPEAL

On cross appeal, the defendant claims that the court improperly (1) found that he was responsible for paying certain expenses for the child, (2) found that he was in contempt for his wilful failure to pay certain expenses and (3) awarded attorney’s fees to the plaintiff in connection with the contempt finding.

The following additional facts are necessary for our resolution of those issues. Under the parties’ separation agreement, the defendant is responsible for half of all unreimbursed or uninsured costs incurred for the benefit of the child after the date of dissolution. The agreement further provides that “no psychiatric or psychological or orthodontia or occupational therapist, allergist, nutritionist or physical therapist expenses or elective surgery or treatment shall be incurred without the prior mutual consent of the parties, which consent shall not be unreasonable withheld.”

In its memorandum of decision, the court found the defendant in contempt for his “wilful” failure to pay various “medical expenses,” including those for Neo-cate, the child’s milk substitute. The court further found that the plaintiff was “not required to obtain the defendant’s prior consent before incurring the ‘elective’ expense of an occupational therapist . . . .” Despite the clear language of the separation agreement requiring such consent, the court stated that “to impose upon the plaintiff the burden of securing his consent to incur such expenses as are reasonably medically necessary for [the child’s] care and treatment is antagonistic to [the child’s] well-being and is potentially fatal.”

I

The defendant first claims that the court improperly found that he was responsible for paying certain expenses for the child. Specifically, the defendant argues that the court (1) improperly found that the plaintiff could incur certain expenses without his consent, despite the terms of the separation agreement and (2) improperly found that the cost of Neocate was a medical expense.

A

The defendant claims that the court improperly found that the plaintiff could incur certain expenses for the child without his consent, despite the terms of the separation agreement. We agree.

“The agreement of the parties executed at the time of the dissolution was incoiporated into the judgment and is a contract of the parties. . . . The construction of a contract to ascertain the intent of the parties presents a question of law when the contract or agreement is unambiguous within the four comers of the instrument. . . . [T]he constmction of a written contract is a question of law for the court. . . . The scope of review in such cases is plenary.” (Citations omitted; internal quotation marks omitted.) Amodio v. Amodio, 56 Conn. App. 459, 470, 743 A.2d 1135, cert. granted on other grounds, 253 Conn. 910, 754 A.2d 160 (2000) (appeal withdrawn September 27, 2000).

Here, the separation agreement, which was incorporated into the dissolution judgment, clearly and unambiguously stated that “no psychiatric or psychological or orthodontia or occupational therapist, allergist, nutritionist or physical therapist expenses or elective surgery or treatment shall be incurred without the prior mutual consent of the parties, which consent shall not be unreasonably withheld.” Despite that language, the court made a finding that the defendant’s consent is not required before incurring the expense of an occupational therapist. That conclusion is in direct conflict with the clear language of the separation agreement. “[Although one may sympathize with the position in which the plaintiff finds himself the fact remains that by the separation agreement he made his bed and now must lie in it.” (Internal quotation marks omitted.) Greenburg v. Greenburg, 26 Conn. App. 591, 598-99, 602 A.2d 1056 (1992). Consequently, we conclude that the clear language of the separation agreement requiring the defendant’s consent and prohibiting the unreasonable withholding of that consent must prevail. We therefore reverse the court’s decision that consent need not be obtained prior to incurring such expenses.

B

The defendant next argues that the court improperly found that he was responsible for half of the unreim-bursed or uninsured cost of Neocate. We do not agree.

“We accept the general principle . . . that, in order to determine whether certain expenses are medical in nature, the court must decide whether the services rendered are a necessary part of the overall treatment of the child. That conclusion comports with the established concept that the practice of medicine is an expansive one. Medicine is [t]he science of diagnosing, treating, or preventing disease or other damage to the body or mind.” (Internal quotation marks omitted.) Bucy v. Bucy, 23 Conn. App. 98, 101, 579 A.2d 117 (1990). Furthermore, “[t]he term ‘medical expense,’ as used in dissolution decrees, must be interpreted broadly because such decrees generally provide for the maintenance of the former wife and children.” Id., 102.

Here, the court found, from the record before it, that the child suffers from potentially fatal allergies, and that Neocate is essential to the child’s growth, sustenance, development and well-being. Consequently, the court concluded that despite the fact that Neocate is not a prescription drug, it is still a “reasonably necessary medical expense” under the terms of the separation agreement. In light of the evidence, we conclude that the court correctly found that Neocate is a medical expense covered under the separation agreement.

Additionally, it is clear from the language of the separation agreement, which provides for partial payment of “medical expenses,” that the parties intended the defendant to be financially responsible for the health problems that may arise with the child. We therefore conclude that the record in this case supports the court’s determination that the defendant is responsible for half of the unreimbursed or uninsured cost of Neocate.

H

Last, the defendant claims that the court improperly found him in contempt for his failure to pay child support and improperly award the plaintiff attorney’s fees in connection with the contempt finding. We agree.

“To constitute contempt, a party’s conduct must be wilful. . . . Noncompliance alone will not support a judgment of contempt.” (Internal quotation marks omitted.) Prial v. Prial, 67 Conn. App. 7, 14, 787 A.2d 50 (2001). A finding of contempt “must be established by sufficient proof that is premised upon competent evidence presented to the trial court .... We will reverse that finding only if we conclude the trial court abused its discretion.” (Internal quotation marks omitted.) Detels v. Detels, 79 Conn. App. 467, 470, 830 A.2d 381 (2003).

Here, the facts do not support a finding that the defendant’s conduct was wilful. As previously discussed, we conclude that not only was the defendant’s failure to pay certain expenses not wilful, but he also was correct in his contention that the plaintiff could not incur certain expenses without his consent. Furthermore, even though we are holding that the defendant is responsible for half of the unreimbursed or uninsured cost of Neocate, we cannot conclude that he wilfully failed to pay for the Neocate. Because Neocate was not expressly listed in the separation agreement, nor is it a “prescription drug,” the court could not reasonably have concluded that the defendant’s failure to pay that expense was wilful. The defendant had a legitimate, although not successful, dispute relative to his responsibility for the cost of Neocate. We conclude that the court improperly found the defendant in contempt and, therefore, improperly awarded attorney’s fees to the plaintiff in connection with that finding.

The judgment is reversed on the cross appeal only as to the findings that the defendant’s consent need not be obtained prior to incurring certain medical expenses, that he was in contempt and as to the award of attorney’s fees in connection with the plaintiffs motion for contempt. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

      The August 24, 2001 memorandum of decision also addressed other motions that are not the subject of this appeal.

       “General Statutes § 46b-86 governs the modification of a child support order after the date of a dissolution judgment. ... [A] child support order cannot be modified unless there is (1) a showing of a substantial change in the circumstances of either party or (2) a showing that the final order for child support substantially deviates from the child support guidelines [in § 46b-215a-l et seq. of the Regulations of Connecticut State Agencies] absent the requisite findings. . . . The party seeking modification bears the burden of showing the existence of a substantial change in the circumstances.” (Citation omitted; internal quotation marks omitted.) Syragakis v. Syragakis, 79 Conn. App. 170, 173-74, 829 A.2d 885 (2003).

       The plaintiff also argues that the finding of autism was implicit in the court’s ruling because it was her defense to the motion for contempt. Our review of the record, however, reveals no evidence that the court based its decision on such a fact, implicit or otherwise, and, therefore, the plaintiffs argument is without merit.

       General Statutes § 46b-84 (c) provides in relevant part: “The court may make appropriate orders of support of any child with ... a mental disability or physical disability, as defined in subdivision (15) of section 46a-51, who resides with a parent and is principally dependent upon such parent for maintenance until such child attains the age of twenty-one. . . .”

       General Statutes § 46a-51 (15) defines “physically disabled” in relevant part as “any individual who has any chronic physical handicap, infirmity or impairment, whether congenital or resulting from bodily injury, organic processes or changes or from illness, including, but not limited to, epilepsy, deafness or hearing impairment or reliance on a wheelchair or other remedial appliance or device

       The defendant is not self-employed.

       The plaintiff also argues that the court allowed an improper calculation of the defendant’s income tax and social security expenses. In support of that claim, the plaintiff provided the testimony of the same alleged expert witness who testified relative to her claim regarding the defendant’s investment account. As already discussed, the court did not find that testimony credible. As a result, the court reasonably could have found that the calculations were correct. Consequently, for the same reasons previously set forth, we cannot conclude that the court abused its discretion in calculating the defendant’s income tax and social security tax expenses.

       The defendant does not challenge the timeliness of the claim.

       The defendant’s motion for contempt, filed March 30, 2000, claimed that the plaintiff was in violation of the separation agreement by not allowing the child to attend an out-of-state family reunion with the defendant.

       Those expenses include “reasonably necessary medical, optical, surgical, or hospital care, treatment which shall include any occupational therapist, allergist, nutritionist or physical therapist and the cost of prescriptive drugs (“Medical Expenses”) and dental and orthodontia expenses . . . .”

       The defendant also contends that several expenses, which the court found he was required to pay, were in fact paid by 1he defendant. The plaintiff originally had given the defendant a credit of only $166.57 for medical expenses, but she later confirmed that the credit should have been $1668.57. The defendant argues that the court based its finding of contempt partially on that misinformation. We conclude that (his further supports our decision to reverse the court’s judgment holding the defendant in contempt.

       The plaintiff asserts that the defendant’s failure to pay an allergist’s bill and co-pays further support the court’s conclusion that the defendant was in contempt. For the reasons previously set forth, including the language of the separation agreement and the defendant’s legitimate, although not successful, contentions relative to his obligations, we conclude that the defendant’s conduct was not wilful and, therefore, does not support a finding of contempt.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE OF CONNECTICUT v. STEPHEN IOVANNA
    (AC 23469)
    Dranginis, Bishop and McLachlan, Js.
    Argued September 23
    officially released November 18, 2003

      Norman A. Pattis, with whom, on the brief, was David G. Toro, for the appellant (defendant).

      Margaret Gaffney Radionovas, senior assistant state’s attorney, with whom, on the brief, were Michael

      Dearington, state’s attorney, and Dow Therkildsen, Jr., deputy assistant state’s attorney, for the appellee (state).
   Opinion

PER CURIAM.

The defendant, Stephen Iovanna, appeals from the judgment of the trial court revoking his probation and committing him to the custody of the commissioner of correction for six months, execution suspended after thirty days, and one year of probation. The defendant claims that his due process rights were violated because the state sought, at the hearing, to proceed on the basis of a new theory, a criminal mischief charge, in addition to the disorderly conduct and criminal trespass charges on which he had been arrested while on probation. We affirm the judgment of the trial court.

On August 22, 2001, the defendant entered a plea under the doctrine of North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970), to three counts of harassment in the second degree in violation of General Statutes § 53a-183 and three counts of breach of the peace in violation of General Statutes § 53a-181. The total effective sentence imposed was twenty-seven months, execution suspended, with two years of probation. Among the conditions of probation was a special condition that he have no contact with the victim.

On April 8, 2002, an arrest warrant for violation of probation was issued, which set forth the following facts. The victim indicated that the defendant had driven into her driveway, walked to the front door and ripped down a large American flag that was hanging there. The victim’s son called the police to report that the defendant was on the victim’s property. The probation officer’s affidavit in support of the warrant indicated that he believed there was probable cause to issue the warrant because the defendant had violated the court imposed special condition of no contact. Thereafter, a separate arrest warrant was issued on the basis of the same incident in which the defendant was charged with criminal trespass in the first degree in violation of General Statutes § 53a-107 and disorderly conduct in violation of General Statutes § 53a-182. The defendant turned himself in to the police and was arraigned on those charges.

On June 19, 2002, at the commencement of the violation of probation hearing, the state filed a substitute information charging that the defendant had violated his probation by committing the offense of criminal mischief, in addition to the previously charged criminal trespass and disorderly conduct counts. The defendant acknowledges, in his brief, that he had adequate notice of the charges that he committed the offenses of disorderly conduct and criminal trespass. The defendant sought to dismiss the violation of probation charge, claiming he had not been given prior notice of the criminal mischief charge as required by General Statutes § 53a-32 (a). The court found that the defendant had been afforded due process and had been given adequate notice of the charges against him. We agree.

In State v. Repetti, 60 Conn. App. 614, 617, 760 A.2d 964, cert. denied, 255 Conn. 923, 763 A.2d 1043 (2000), the defendant claimed “the laws he was found to have violated were different from those cited in his violation of probation warrant.” This court disagreed. As we explained: “Here, the defendant’s violation of probation warrant fully described the June 30, 1999 incident, which ultimately was a basis for the court’s finding a violation of probation. . . . From the warrant and the substitute information, the defendant was aware that he was accused of violating specific criminal laws of this state because of his actions at [the victim’s] residence. . . . Under those circumstances, it is clear that the defendant received notice of the ways in which he was ultimately found to have violated his probation.” Id., 618. In this case, the warrant with which the defendant was served detailed the specific facts of the incident in question, encompassing the necessary elements of a criminal mischief charge. In light of the warrant and the substitute information, the defendant was provided adequate notice as to that charge.

The terms of the defendant’s probation included the condition that he not violate any criminal law. Moreover, “[w]here criminal activity forms the basis for the revocation of probation, the law imputes to the probationer the knowledge that further criminal transgressions will result in a condition violation and the due process notice requirement is similarly met.” State v. Reilly, 60 Conn. App. 716, 728, 760 A.2d 1001 (2000). At the conclusion of the violation hearing, the court found that the state had satisfied its burden of proving that the defendant violated the conditions of his probation: “[T]he violation is based solely on the court’s finding by a preponderance of a violation of a criminal offense, in this case, three criminal offenses, stemming from the same incident.”

On the basis of our review of the record, the defendant received adequate notice of the grounds on which he ultimately was found to have violated his probation. See State v. Maye, 70 Conn. App. 828, 839, 799 A.2d 1136 (2002); State v. Pierce, 64 Conn. App. 208, 214-15, 779 A.2d 233 (2001). We therefore conclude that the defendant’s due process rights were not violated.

The judgment is affirmed.

       The violation of probation information was based on the claimed breach of the special condition of probation of no contact with the victim.

       General Statutes § 53a-32 (a) in relevant part mandates that “upon an arrest by warrant as herein provided, the court shall cause the defendant to be brought before it without unnecessary delay for a hearing on the violation charges. At such hearing the defendant shall be informed of the manner in which such defendant is alleged to have violated the conditions of such defendant’s probation or conditional discharge . . . .”


author: McLACHLAN, J.

text:
    STATE OF CONNECTICUT v. STEVEN CLARK
    (AC 22677)
    West, DiPentima and McLachlan, Js.
    Argued September 18
    officially released November 18, 2003

      Auden Grogins, special public defender, for the appellant (defendant).

      James A. Killen, senior assistant state’s attorney, with whom, on the brief, were Matthew C. Gedansky, state’s attorney, and Paul E. Murray, former state’s attorney, for the appellee (state).
   Opinion

McLACHLAN, J.

The defendant, Steven Clark, appeals from the judgment of conviction, rendered after a jury trial, of one count of interfering with an officer in violation of General Statutes § 53a-167a, one count of assault of public safety personnel in violation of General Statutes § 53a-167c (a) (1), one count of possession of narcotics in violation of General Statutes § 21a-279 (b), one count of possession of narcotics with intent to sell in violation of General Statutes § 21a-278 (b), one count of operation of a drug factory in violation of General Statutes § 21a-277 (c) and one count of criminal mischief in the second degree in violation of General Statutes § 53a-116 (a) (1).

The defendant’s sole claim on appeal is that the court improperly denied his motion to suppress evidence seized from his residence as “fruit of the poisonous tree” because it was obtained as a result of an allegedly unlawful search. Specifically, the defendant claims that his consent to the search was not voluntary, but was obtained under police coercion. We affirm the judgment of the trial court.

The court reasonably could have found the following facts. On April 6, 2000, Scott Kupis, an investigator with the department of children and families, was informed by the statewide narcotics task force that Brenda Gresko, the mother of two minor children, then age seven and two, had been arrested on drug charges. In view of Gresko’s arrest, Kupis was requested to check on the well-being of the two minor children who, following the arrest of their mother, had reportedly been taken to the home of the defendant’s mother, where the defendant also resided. The defendant is the biological father of the two year old, but has no biological or legal custodial relationship with the seven year old.

The check on the children required Kupis to visit them at the defendant’s residence to assure their safety and the appropriateness of their environment. Due to a previous incident with the defendant in which the defendant exhibited belligerent behavior, Kupis decided to have a police officer accompany him to the defendant’s residence. After stopping at the Coventry police department to pick up Officer Christopher Fiore, Kupis proceeded to the defendant’s residence. Upon arrival, Kupis and Fiore observed the defendant standing outside of the home on its deck. Kupis, who stood in the driveway with Fiore, explained to the defendant the purpose of his visit. During the conversation, Kupis observed through a window a young child, whom he believed to be the two year old, inside the house. At several points during the conversation, the defendant went inside the house, claiming that he “had to go inside and check on his two and seven year old.” Kupis asked the defendant if he could see the two year old to ascertain his well-being. The defendant agreed, retrieved the child from the house and brought him outside where Kupis could see him. After ascertaining that the two year old was all right, Kupis asked the defendant if the seven year old could also be brought outside. The defendant stated that the seven year old was not in the house, but had been taken to school earlier that morning. The defendant then informed Kupis and Fiore that the seven year old to whom he had earlier referred was not Gresko’s child, but was the cousin of the two year old. In an attempt to corroborate the defendant’s explanation as to the whereabouts of Gresko’s seven year old, Kupis telephoned the child’s elementary school and was told by school officials that he was not there.

A second police officer from the Coventry police department, Lieutenant Nancy Gillon, arrived at the defendant’s residence. Gillon stayed in the driveway with Kupis and Fiore while the defendant continued to remain on the deck. At approximately that time, the defendant’s mother arrived at the residence. She denied taking Gresko’s seven year old to school that morning and indicated that she believed he was still inside the house. The defendant then admitted to Kupis, Fiore and Gillon that he had lied about another child being in the house and that in fact, no seven year old, not even the cousin, was inside. The defendant then agreed to permit Kupis, Fiore and Gillon to enter the residence and to search for Gresko’s seven year old.

Kupis, Fiore and Gillon each testified at trial as to the circumstances surrounding the defendant’s consent to the search. Gillon testified that before she, Kupis and Fiore entered the house, the defendant first went inside, allegedly to secure his dogs. Gillon testified that when the defendant returned, he stated that he had “secured the dogs, and it was safe for us to now go in the house and look for [the child].” Gillon further testified that the defendant stated that “there [is] no seven year old in the house. ... I lied about all that, made it up, and you guys are free to come in and look around . . . .”

Kupis testified similarly that the defendant first went into the house to purportedly secure his dogs and then stated “that we could come in and check the home, to feel free to check around the home to see if [the seven year old] was there.” Flore consistently testified that after the defendant admitted to lying about the presence of a seven year old, the defendant indicated that he needed to go in the house to relocate his dogs so that Fiore, Kupis and Gillon “could go in the house without being attacked by the dogs.” Flore further testified that after the defendant purportedly had secured the dogs, he returned and said “[s]omething to the effect of, ‘Fine; go ahead. You can look for him.’ ” At that point, Kupis, Flore and Gillon entered the home through the front door, accompanied by the defendant.

Once inside the house, Kupis, Flore and Gillon began searching for the seven year old. As they searched, the defendant made various comments such as, “maybe you should look in the fireplace; maybe he’s hiding in the chimney.” At one point, the defendant commented that “he might be hiding in the attic” and proceeded to pull the attic stairwell down for Gillon to climb. As the officers searched, the defendant continued walking around, calling the child’s name, making comments such as, “Oh, maybe you should check in the fireplace. Maybe he’s hiding in the chimney. Maybe you should check here; check there.” The defendant stated that “[y]ou’re free to come look, there’s no kid here,” and then proceeded to call the child’s name, telling him to come out.

During a search of one of the rooms, Fiore observed a bag containing a substance he believed to be marijuana. Subsequently, Gillon came upon the defendant’s bedroom where she detected the strong odor of marijuana and observed five marijuana plants growing. On the basis of their plain view observations, the officers applied for and obtained a search warrant for the house. Upon executing the search warrant, officers discovered a large number of live marijuana plants in various stages of maturity, large garbage bags full of marijuana, various fertilizers, growing mediums, growing lights and fixtures, potting soil, seeds, packing materials, a bag sealing machine, a triple beam scale, bowls, bongs, rolling papers and a shotgun.

In a six count amended information, the defendant was charged with interfering with an officer, assault of public safety personnel, possession of narcotics, possession of narcotics with intent to sell, operation of a drug factory and criminal mischief in the second degree. At trial, the defendant filed a motion to suppress the items seized from his residence, asserting that the search had been conducted without a warrant and without his voluntary consent, and, therefore, that anything seized was the tainted fruit of an illegal search and seizure. The court denied the motion and, on October 4, 2001, the jury returned a guilty verdict on all six counts. On November 29, 2001, the court imposed a total effective sentence of six years incarceration, followed by two years special parole. The defendant now appeals from the judgment of conviction on the ground that the court improperly denied his motion to suppress.

It has long been recognized that searches and seizures inside a home without a warrant are presumptively unreasonable. See Payton v. New York, 445 U.S. 573, 586, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980). It is also recognized, however, that “[a] search ... is not unreasonable under . . . the fourth amendment to the constitution of the United States ... if a person with authority to do so has freely consented .... Schneckloth v. Bustamonte, 412 U.S. 218, 248, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973) . . . .” (Citation omitted; internal quotation marks omitted.) State v. Zarick, 227 Conn. 207, 226, 630 A.2d 565, cert. denied, 510 U.S. 1025, 114 S. Ct. 637, 126 L. Ed. 2d 595 (1993). “When the entry is justified on the basis of consent, the state has the additional burden of showing that the consent was voluntarily given. ... To be voluntary, consent must be the free and unconstrained choice ... of the one giving it, and it cannot be obtained by duress or coercion, express or implied.” (Citations omitted; internal quotation marks omitted.) State v. Delgado, 13 Conn. App. 139, 147, 535 A.2d 371 (1987). “The voluntariness of the consent is normally decided by the trial court based on the evidence it deems credible along with the reasonable inferences that can be drawn therefrom.” (Internal quotation marks omitted.) State v. Martinez, 49 Conn. App. 738, 743, 718 A.2d 22, cert. denied, 247 Conn. 934, 719 A.2d 1175 (1998). “Whether there was valid consent to a search is a factual question that will not be lightly overturned on appeal.” State v. Zarick, supra, 226. The conclusions of the court will stand on appeal unless they are clearly erroneous. State v. Ortiz, 17 Conn. App. 102, 104, 550 A.2d 22, cert. denied, 209 Conn. 828, 552 A.2d 1216 (1988).

The court’s finding that the defendant voluntarily consented to the search is amply supported by the record. The testimony of three credible witnesses establishes that the defendant’s consent was free from coercive influence by the police. Kupis, Fiore and Gillon all testified that they remained in the driveway of the house while conversing with the defendant, who was situated on the deck at all relevant times. There is no evidence that the officers removed the defendant from the deck or attempted to confront him on the deck. See United States v. Erwin, 155 F.3d 818, 823 (6th Cir. 1998), cert. denied, 525 U.S. 1123, 119 S. Ct. 906, 142 L. Ed. 2d 904 (1999). The record is devoid of any evidence that the officers drew their weapons or touched the defendant in a threatening way. See id. Ftirthermore, the police did not enter the defendant’s home and roust him out of bed in the night; cf. Harless v. Turner, 456 F.2d 1337, 1338 (10th Cir. 1972); or break down his door; cf. United States v. Mapp, 476 F.2d 67, 77-78 (2d Cir. 1973); or use threatening language or tone in their conversations with him. Cf. Ex parte Tucker, 667 So. 2d 1339, 1344 (Ala.), cert. denied, 516 U.S. 944, 116 S. Ct. 382, 133 L. Ed. 2d 305 (1995). The record also does not reflect that there was an overwhelming police presence at the defendant’s home. Cf. United States v. Mapp, supra, 78 (noting presence of five or six officers in finding consent not voluntary); see also Ex parte Tucker, supra, 1344 (finding that otherwise coercive environment magnified by presence of five uniformed police officers). In short, the record reveals nothing coercive about the manner in which the police encountered or interacted with the defendant and that the defendant could have, at any time, refused to consent to the search.

Moreover, the defendant, through his words, acts and conduct, demonstrated that his consent was given freely. See United States v. Deutsch, 987 F.2d 878, 883 (2d Cir. 1993) (stating that voluntariness of consent can be found in words, acts or conduct of defendant). The defendant invited Kupis, Fiore and Gillon into his home through the front door after reassuring them he had secured his dogs and that they could search for the child safely. Once the officers were inside the home and actively searching for the child, the defendant walked around the house making numerous remarks about locations where he might be hiding and sarcastically calling out to the child to come out from where he was hiding. The defendant pulled down the attic stairs for Gillon and suggested that the child could be hiding in the attic. The defendant’s remarks to the police and his conduct throughout the search do not indicate that he was under any coercive influence and, to the contrary, support the conclusion that his consent was voluntary.

The defendant appears to predicate his claim of coercion on the mere presence of police officers at his home. Beyond his bare assertion that “[the police] were showing — [making a] show of force at my front door”; however, the defendant has failed to detail any specific behavior by the officers that corroborates his contention. In contrast, our review of the record reveals that the officers did not engage in any coercive measures or otherwise create an environment of duress sufficient to vitiate the defendant’s voluntary consent. To the extent that the defendant asks us to hold that the mere presence of two police officers at this home is inherently coercive so as to vitiate consent, we specifically decline to do so. That the defendant believed he had no choice but to let Kupis, Fiore and Gillon enter his home to search for the child is not itself demonstrative of coercive influence by the police, but a result of the defendant’s having ensnared himself in a series of lies regarding the child’s whereabouts.

We find that the testimony adduced at the hearing on the motion to suppress more than adequately supported the court’s determination that the defendant voluntarily consented to the search. We accordingly conclude that the court properly denied the defendant’s motion to suppress.

The judgment is affirmed.

In this opinion the other judges concurred.

       The motion also sought to suppress certain admissions made by the defendant during the search of his residence.

       Our Supreme Court has explained that “the fruit of the poisonous tree doctrine . . . requires courts to exclude evidence that is the product or fruit of police conduct in violation of the fourth amendment.” (Internal quotation marks omitted.) State v. Ostroski, 201 Conn. 534, 545, 518 A.2d 915 (1986).


author: PETERS, J.

text:
    DONALD CHARETTE ET AL. v. CITY OF WATERBURY ET AL.
    (AC 23408)
    Foti, Dranginis and Peters, Js.

      Argued September 17
    officially released November 18, 2003

      Elaine M. Skoronski, for the appellants (named defendant et al.).

      Dana B. Lee, for the appellees (plaintiffs).
   Opinion

PETERS, J.

Pursuant to a collective bargaining agreement between a city and its unionized firefighters, firefighters who retire as a result of a disability are entitled to disability pensions measured as a percentage of their base pay at the time of retirement. They are also entitled to service pensions reflecting their years of service. Although the collective bargaining agreement expressly limits service pensions to reflect a base pay cap, the agreement does not expressly limit disability pensions. In this case, the city’s retirement board decided that the firefighters’ disability pension awards should be recalculated to correct prior pension payments that, in error, had failed to apply a base pay cap. The firefighters filed an administrative appeal to contest these recalculations, and the trial court sustained their appeal. We affirm the judgment of the court.

The principal focus of the administrative appeal filed by the plaintiff firefighters of the city of Waterbury (city) was the absence of evidentiary support of record for the decision of the Waterbury retirement board (board) to recalculate their disability pension benefits by subjecting those benefits to a pay cap. They also claimed that, as a matter of law, the board’s decisions misconstrued the terms of the agreement with respect to this cap. The defendants, the city, various city officers, and the board and its commissioners, defended the decisions of the board in both respects. The court sustained the plaintiffs’ administrative appeal because of the absence of an evidentiary foundation for the board’s recalculation of the plaintiffs’ pensions.

In their appeal from this adverse judgment, the defendants have raised four issues. They argue that the court improperly ignored (1) the factual and legal underpinnings of the decision of the board, (2) the board’s reasonable interpretation of the collective bargaining agreement, (3) the testimony of the city’s pension administrator about the proper interpretation of the agreement and (4) the plaintiffs’ burden of proving, as a matter of fact, that the city’s interpretation of the agreement was incorrect. We are not persuaded. Because each of the issues raises a question of law, our review is plenary. DeLeo v. Nusbaum, 263 Conn. 588, 593, 821 A.2d 744 (2003).

I

The underlying facts are undisputed. Each of the plaintiffs is a retired firefighter who is presently collecting a pension in accordance with the collective bargaining agreement between their union and the city for the years 1995 to 1999. Each became entitled to retire on the ground of disability under General Statutes § 7-433c, commonly referred to as the Heart and Hypertension Act. For a number of years, each of them received disability pension benefits greater than their base pay at the time of retirement.

On March 2, 2001, the city pension administrator informed them of the reduction of their disability pensions to take account of the base pay cap. On April 17, 2001, the board held a public meeting to consider the validity of the recalculation of the plaintiffs’ disability pensions. On the record of the public meeting, the city presented no factual evidence to the board in favor of the recalculations. There has been no representation that the board received any such evidence in its subsequent executive session. At the conclusion of the executive session, without discussion on the record, the board approved the recalculation of the plaintiffs’ disability benefits to reflect the applicability of the base pay cap. The plaintiffs then filed their administrative appeal in the trial court.

The underlying disagreement about the proper calculation of the plaintiffs’ disability pensions is easily identified. It stems from two provisions of the 1995-1999 collective bargaining agreement between the city and its firefighters. One set of provisions describes the calculation of service pensions, while a different provision describes the calculation of disability pensions. For retirees like the plaintiffs, who elected to have then-service benefits calculated according to a so-called “Option One,” service benefits were subject to a base pay cap. When these plaintiffs subsequently became eligible for disability retirement, they became eligible for disability pensions under a different section of the agreement, which did not expressly subject disability benefits to such a base pay cap. The recalculation of the plaintiffs’ disability pensions reflects a change in the defendants’ interpretation of the agreement. Nothing else had changed.

After deciding that the plaintiffs had standing to pursue their appeal, the court concluded that the collective bargaining agreement was ambiguous about the applicability of the base pay cap to disability pensions. In light of that ambiguity, the court held that the board should not have recalculated the plaintiffs’ retirement pay without evidence of record that, as a matter of fact, the agreement had been intended to impose such a pay cap. Finding none, the court sustained the plaintiffs’ appeal.

II

ADMINISTRATIVE FINDINGS OF FACT

In their appeal to this court, the defendants challenge the validity of the trial court’s appraisal of the administrative record that, in their view, supported the decision of the board that the collective bargaining agreement had always been intended to subject disability pensions to a base pay cap. The plaintiffs, however, urge us to affirm the court’s judgment that the administrative record did not afford a substantial basis of fact for the board’s reinterpretation of the agreement.

It is now common ground that the agreement was ambiguous with respect to the relationship between the provisions in the collective bargaining agreement that describe Option One service pension benefits on the one hand and disability pension benefits on the other. The parties also agree that it was proper for the court to attempt to resolve this ambiguity by searching the administrative record for evidence about the intent of the contracting parties. See Regency Savings Bank v. Westmark Partners, 70 Conn. App. 341, 345, 798 A.2d 476 (2002).

After the court examined the board’s proceedings to determine whether evidence of record before the board supported its recalculation of the plaintiffs’ disability pensions, the court stated, in its memorandum of decision, that it had found no such evidence. The court therefore sustained the plaintiffs’ administrative appeal. The defendants have appealed to this court from the judgment of the trial court.

A

The defendants argue that the judgment should be reversed because the court overlooked documentary evidence that was provided to the board by corporation counsel and explained by the city pension and benefits administrator. In addition, they maintain that the board conducted an investigation of its own. The administrative record does not support these contentions.

We have no reason to doubt that the board had access to the information described by the defendants. On the record, however, the board did not base its decision on that information. The fact that the pension and benefits administrator testified about her calculations in the trial court does not provide evidence, on the record, that she had presented such evidence to the board. The record does not document the defendants’ claim that the board independently investigated the plaintiffs’ claims.

Indeed, the administrative record, sparse as it is, strongly suggests that the board did not act on the basis of factual findings of any kind. At the public meeting, the board informed those present that the board would hear testimony opposing the disability pension recalculations. Nevertheless, despite a subpoena from the plaintiffs seeking the testimony of the pension and benefits administrator, the board did not permit her to be questioned about the basis for the recalculations. Counsel for the city simply informed the board that the city had the legal right to recalculate pensions that inadvertently had failed to reflect a contractual cap on disability pension payments. In response, the chairman of the board stated: “[On] behalf of the city, I feel an obligation to follow the advice of my lawyer, and my lawyer is [counsel for the city] represented here . . . .” He told counsel for the plaintiffs to pursue “legal recourses to do what you will.”

Although the chairman permitted counsel for the plaintiffs to address the board, no member of the board responded in any fashion to counsel’s presentation. Neither the plaintiffs nor the defendants assert that counsel’s statements were evidence of record.

As the court found, this administrative record does not contain any factual evidence of any kind. The record is, however, entirely consistent with the candid statement of the chairman of the board, that the board, acting on behalf of the city, felt itself obligated to accept the legal conclusion of the assistant corporation counsel that the collective bargaining agreement authorizes recalculation of the plaintiffs’ pension benefits. We may infer that the board recognized that it had no special expertise to evaluate the merits of a novel issue of law. The board did not need factual evidence to support the legal conclusion that it had been asked to endorse.

Even if, as the defendants assert, the administrative record were deemed to incorporate information supporting the recalculations supplied to the board by corporation counsel, that evidence would not suffice. The evidence on which the defendants rely did not purport to document the intent of the parties when they agreed upon the terms of the collective bargaining agreement. As the court aptly noted in its memorandum of decision, no one presented any evidence, on or off the record, before the board or to the court, about the intent of those who negotiated the agreement on behalf of the city.

Interpretation of the agreement by the present corporation counsel does not fill this evidentiary gap. As the plaintiffs note, corporation counsel did not assert that he had any knowledge, direct or indirect, about the city’s 1995 negotiation posture with respect to disability pensions. Further, counsel did not explain why his current interpretation of the contract was more rehable, as a matter of fact, than the earlier interpretation of the contract by prior city agents at the time when the plaintiffs’ disability pensions were calculated without a base pay cap. Presumably, the intent of the negotiating parties was more readily ascertainable then than in 2001.

B

The defendants also argue that the decision of the board did not need to be supported by factual evidence of record because “[t]he defendant city is a party to the contract, not the individual parties here, and it is clear that its intention was that the pay cap apply.” In effect, they argue that, whether the intent of the contracting parties is viewed as a question of law or of fact, manifestation of the city’s present intent is disposi-tive. We disagree.

From the vantage point of a question of law, the record reveals that the city and the plaintiffs take disparate views of the meaning of the collective bargaining agreement. The defendants do not maintain, and have not established, that their revised reading of the agreement is one in which the union concurs. “The traditional rule requiring that courts consider the intentions of both parties in construing a contract is well settled. . . . This rule allows parties to enter into contractual arrangements with the confidence that they subsequently will not find themselves legally bound to unknown or unanticipated obligations.” (Citations omitted.) Grigerik v. Sharpe, 247 Conn. 293, 311, 721 A.2d 526 (1998). “In contracts, other than purely unilateral contracts of donation that have never been acted upon by the donee, there are always at least two parties whose intention and understanding must be considered.” 3 A. Corbin, Contracts (1960) § 538, pp. 56-57. The city’s interpretation does not, therefore, resolve ambiguities in the agreement.

Viewed as a question of fact, the defendants’ argument about the relevance of the city’s intention is no more than a variation of their other arguments about the sufficiency of the factual record. Those arguments we have already addressed and rejected.

c

In the absence of a factual administrative record supporting the city’s recalculation of the plaintiffs’ pensions, the defendants maintain that the plaintiffs cannot prevail because they failed to satisfy their own burden of proof. According to the defendants, the plaintiffs were required to present affirmative factual evidence of intent different from that expressed by coiporation counsel at the public meeting of the board. We disagree.

An administrative appeal properly may challenge an administrative decision that is not supported by evidence of record. See, e.g., JSF Promotions, Inc. v. Administrator, Unemployment Compensation Act, 265 Conn. 413, 417, 828 A.2d 609 (2003); Szewczyk v. Dept. of Social Services, 77 Conn. App. 38, 50, 822 A.2d 957, cert. granted on other grounds, 265 Conn. 903, 829 A.2d 421 (2003). We know of no cases, and the defendants have cited none, that require an administrative appellant to supply evidence in support of a different administrative result.

D

We conclude, therefore, that the trial court properly examined the administrative record of the proceedings before the board to inquire whether that record contained factual evidence of the intent of the parties who negotiated the terms of the collective bargaining agreement. Furthermore, we concur in the court’s determination that the administrative record contained no such evidence.

Ill

INTERPRETATION OF THE CONTRACT AS A MATTER OF LAW

In the absence of evidence establishing the intent of the drafters of the collective bargaining agreement as a matter of fact, we turn to interpretation of the agreement as a matter of law. The defendants urge us to acquiesce in the decision of the board for two reasons. They maintain that we owe deference to the board’s interpretation of the agreement and that, even read independently, the agreement imposes pay caps on disability pensions. We are not persuaded.

A

The defendants argue that the board’s interpretation of the collective bargaining agreement, viewed as a conclusion of law, was entitled to deference by the trial court and this court. We disagree.

Our law does not command universal judicial deference to administrative conclusions of law. In MacDermid, Inc. v. Dept. of Environmental Protection, 257 Conn. 128, 778 A.2d 7 (2001), a case on which the defendants rely, our Supreme Court recently reviewed the applicable ground rules. “Even as to questions of law, [t]he 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. . . . Conclusions of law reached by the administrative agency must stand if the court determines that they resulted from a correct application of the law to the facts found and could reasonably and logically follow from such facts. . . . Ordinarily, this court affords deference to the construction of a statute applied by the administrative agency empowered by law to carry out the statute’s purposes. . . . Cases that present pure questions of law, however, invoke a broader standard of review than is ordinarily involved in deciding whether, inlight of the evidence, the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion. . . . Furthermore, when . . . [an] agency’s determination of a question of law has not previously been subject to judicial scrutiny . . . the agency is not entitled to special deference.” (Citations omitted; emphasis added; internal quotation marks omitted.) Id., 137. Like the defendants, we think it irrelevant, for present purposes, that the court was addressing an interpretation of a statute rather than a contract.

Applying MacDermid, Inc., to this case, we are persuaded that the court was not required to defer to the board’s interpretation of the pensions provisions of the collective bargaining agreement. As far as the record shows, the board was deciding “a pure question of law” on an issue that had “not previously been subject to judicial scrutiny.” Our analysis of the agreement is similarly de novo.

B

“In determining whether a contract is ambiguous, the words of the contract must be given their natural and ordinary meaning. ... [A] contract is ambiguous if the intent of the parties is not clear and certain from the language of the contract itself. . . . The contract must be viewed in its entirety, with each provision read in light of the other provisions . . . and every provision must be given effect if it is possible to do so. . . . If the language of the contract is susceptible to more than one reasonable interpretation, the contract is ambiguous.” (Citations omitted; internal quotation marks omitted.) United Illuminating Co. v. Wisvest-Connecticut, LLC, 259 Conn. 665, 670-71, 791 A.2d 546 (2002).

Our point of departure is the conceded ambiguity in the terms of the collective bargaining agreement with respect to the relationship between two kinds of pensions to which a firefighter might be entitled. Article XXXIII of the agreement does not state, with clarity and certainty, whether disability pensions, like service pensions, are subject to a base pay cap.

Under these circumstances, we review the agreement in accordance with the customary rules of contract interpretation. “We do so mindful of the fact that, in the present case, we have a contract formed between two parties of relatively equal bargaining power. Under . . . well established principles, [a] contract must be construed to effectuate the intent of the parties, which is determined from the language used inteipreted in the light of the situation of the parties and the circumstances connected with the transaction. . . . [T]he intent of the parties is to be ascertained by a fair and reasonable construction of the written words and . . . 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.” (Internal quotation marks omitted.) Poole v. Waterbury, 266 Conn. 68, 87-88, 831 A.2d 211 (2003).

As with any issue of contract interpretation, we look first to the language of article XXXIII of the collective bargaining agreement. The relevant provisions are to be found in §§ 8 and 9, on the one hand, and in § 11 on the other.

Under §§ 8 and 9, service pension benefits could be calculated according to one of two options. For retired firefighters like the plaintiffs in this case, who elected Option One, § 8 prescribed that “the maximum amount of a service pension shall be ... an amount not to exceed said BASE PAY per the formulation set forth ... in Section 9 hereof.” In § 9, ¶ 375e, the term “base pay” is defined as salary, longevity pay, holiday pay and regular drivers pay at the time of retirement. The pensions administrator testified that, in practice, the base pay cap was 100 percent of base pay.

With respect to disability pensions under § 11 (also denominated ¶ 378), the agreement unambiguously provides for disability benefits measured by a percentage of base pay, unrelated to years of service, with a “maximum ... of seventy-six percent (76%) of BASE PAY.” Nowhere in § 11 does the agreement allude to a pay cap of any kind.

The ambiguity presented by the agreement is the textual linkage between §§ 9 and 11 in that part of § 11 that defines base pay by reference to “the provisions of Section 9 hereof . . . .” The defendants maintain that this cross-reference was intended to incorporate all of § 9, including the base pay cap that § 9 unambiguously imposed on service pensions. The plaintiffs maintain, to the contrary, that the absence of an express cross-reference to a base pay cap was intended to indicate that disability pensions would not be subject to such a cap. We agree with the plaintiffs.

In our view, the text of article XXXIII, read as a whole, supports the award of disability benefits without a pay cap. Most important, we agree with the plaintiffs that we should attach significance to the absence of an express reference to a pay cap in § 11. The specificity with which article XXXIII spells out pension benefits cautions against judicial interpolation of language that the agreement does not contain. The agreement demonstrates that the drafters had no difficulty in spelling out pension caps when they wanted to impose them. It is not likely that they intended to impose pension caps by implication. Additionally, under ¶¶ 375a and 375b, the formula for calculation of Option One service pension benefits and the formula for calculation of the pension pay cap both took into account a firefighters’ years of service. Years of service are not as directly relevant to a calculation of a disability pension benefit under § 11.

We are persuaded, furthermore, that our interpretation of the text of article XXXIII is consistent with the dictates of public policy. At first blush, it seems anomalous to suppose that the agreement would have contemplated the possibility that disability benefits, because uncapped, might sometimes exceed 100 percent of base pay, which is the measure of the pay cap. Upon further analysis, however, this discrepancy may simply reflect the fact that future job opportunities for retired firefighters may be considerably more constricted for those who retire on the ground of disability than for those who retire in good health. Taking account of the long-term consequences of disability is good public policy.

We conclude, therefore, that the trial court properly sustained the plaintiffs’ appeal. Once the court determined that the collective bargaining agreement was ambiguous with respect to the calculation of disability pension benefits, the court properly examined the administrative record to determine whether it contained substantial factual evidence to resolve this ambiguity. As the plaintiff firefighters contended, the record did not contain such evidence. Furthermore, principles of contract interpretation support the plaintiffs’ contention that, as a matter of law, the agreement entitled them to disability pension benefits without a pension pay cap.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendants at trial were the city of Waterbury, Palma Brustat (city pension and benefits administrator), Richard Russo (city director of finance), the city of Waterbury retirement board and its commissioners, and former Mayor Philip Giordano. The action was dismissed as against two of the commissioners, Jennie Pica and Genevieve Cavallerano, and Mayor Giordano due to untimely service of process, and they are not involved in this appeal. We refer in this opinion to the remaining defendants as the defendants.

       General Statutes § 7-433c provides in relevant part: “[I]n the event a uniformed member of a paid municipal fire department or a regular member of a paid municipal police department who successfully passed a physical examination on entry into such service, which examination failed to reveal any evidence of hypertension or heart, disease, suffers either off duty or on duty any condition or impairment of health caused by hypertension or heart disease resulting in his death or his temporary or permanent, total or partial disability, he or his dependents, as the case may be, shall receive from his municipal employer compensation and medical care in the same amount and the same manner as that provided under chapter 568 if such death or disability was caused by a personal injury which arose out of and in the course of his employment and was suffered in the line of duty and within the scope of his employment, and from the municipal or state retirement system under which he is covered, he or his dependents, as the case may be, shall receive the same retirement or survivor benefits which would be paid under said system if such death or disability was caused by a personal injury which arose out of and in the course of his employment, and was suffered in the line of duty and within the scope of his employment. . .

       In the absence of the bargaining agreement, the plaintiffs’ disability benefits under the Heart and Hypertension Act might have been modifiable. Gauger v. Frankl, 252 Conn. 708, 713, 752 A.2d 1077 (2000).

       The defendants have not renewed their challenge to 1he plaintiffs’ standing in their appeal to this court.

       The defendants acknowledge that the retirement board is an administrative tribunal.

       Counsel for the plaintiffs protested the recalculations on both procedural and substantive grounds. He maintained that the city improperly had modified pension rights before any such action had been taken by the retirement board. He represented that he had not had sufficient time to fully examine the documents that the city had provided to him and that some of the documentation was inaccurate. He argued that the city could not modify pensions retrospectively because each of the plaintiffs, when deciding whether to retire, had been given a pension worksheet prepared by the city that reflected the city’s original position that disability pensions were not subject, to base pay caps.
      The appendix to the plaintiffs’ appellate brief contains actual pension worksheets that support counsel’s position. The worksheets were divided into three parts, “OPTION ONE PER ELECTION FORM UP TO JUNE 30, 1998 ONLY,” “OPTION TWO,” and “DISABILITY PENSION.” The part of the form entitled “DISABILITY PENSION” had one line for “ANNUAL PAY (EITHER OPTION ONE OR TWO)” and a second line for “PERCENTAGE DETERMINED BY BOARD.”

       Even if evidence of the city’s intent had been available, it would not have sufficed. “In contracts, other than purely unilateral contracts of donation that have never been acted upon by the donee, there are always at least two parties whose intention and understanding must be considered.” See 3 A. Corbin, Contracts (1960) § 538, pp. 56-57.

       At oral argument in this court, the defendants reminded us that the trial court had not undertaken the task of interpreting the agreement as a matter of law. They urged us to do likewise. They maintained that an administrative appeal did not authorize this court to undertake independent analysis of an ambiguous collective bargaining agreement.
      At trial, however, they recognized that the judicial role is not so limited. In their motion asking the court to permit the presentation of evidence supplemental to that presented to the retirement board, they stated: “The additional evidence will materially aid the court in its administrative review, promote justice and insure that the court has all relevant information before it that the [board] had when it made its determination rejecting Plaintiffs’ claimed interpretation of the applicability of the pay cap provision. The underlying claim by the plaintiffs in this matter is more akin to a breach of contract than to a typical administrative review of a board’s decision granting or denying benefits.” Indeed, in their oral argument at trial, they urged the court to interpret the agreement in a manner consistent with application of the pay cap to disability pensions. They were right the first time.
      If a court concludes that an administrative ruling of law is mistaken, the court has the responsibility to address the merits of the legal issue with which it is confronted. See, e.g., Connecticut Light & Power Co. v. Texas-Ohio Power, Inc., 243 Conn. 635, 644, 708 A.2d 202 (1998). Were it otherwise, the issue would have to be relitigated in some other forum. The dictates of judicial economy counsel against following such a course.

       Although the defendants resist this characterization of § 9 benefits, § 9 is introduced, in ¶ 373, as follows: “An employee with twenty (20) or more years of service is entitled to retire and receive a service pension regardless of his age.” (Emphasis added.)

       Section 11 disability pension payments are subject to offsets for statutory pensions that a firefighter might receive under the Workers’ Compensation Act, General Statutes § 31-275 et seq., or the Heart and Hypertension Act. Offsets are not an issue in the circumstances of this case.

       The plaintiffs’ entitlement to the maximum awards of 76 percent of their base pay is not an issue in this case.