source: Caselaw Access Project

author: ROBINSON, J.

license: Public Domain

text:
    KENJI A. HARRIS v. TASHANA HAMILTON
    (AC 33731)
    Gruendel, Robinson and Schaller, Js.

      Argued October 12, 2012
    officially released March 12, 2013

      Eric D. Coleman, for the appellant (plaintiff).

      Tashana A. Hamilton, pro se, the appellee (defendant).
   Opinion

ROBINSON, J.

The plaintiff, Kenji A. Harris, appeals from the judgment of the trial court granting the defendant, Tashana Hamilton, sole custody of the parties’ minor child and denying his motion for contempt that was filed on March 4, 2011. The plaintiff claims that the trial court (1) violated his federal and state constitutional due process rights by concluding the hearing prior to the plaintiffs completing his case-in-chief, (2) erred in limiting testimony and evidence to matters subsequent to the parties’ August 14, 2008 agreement, except as they related to the defendant’s credibility, (3) improperly awarded sole custody to the defendant and (4) improperly found that there was no motion for contempt to sustain the court’s factual findings. We affirm, in part, and reverse, in part, the judgment of the trial court.

The following facts and procedural history are relevant to this appeal. On October 7, 2005, the plaintiff filed a custody application. The parties reached an agreement, which was approved by the court on January 30, 2006, that provided for joint custody of the minor child, primary residence with the defendant and visitation for the plaintiff. After a number of motions were filed by both parties, a guardian ad litem was appointed on May 8, 2006. Over the next two years, the parties filed frequent motions for contempt, orders and custody that required several court orders and court approved agreements to create more specific conditions that would address the issues between the parties. The operative agreement, approved by the court on August 14, 2008, and amended on February 10, 2009, set up routine parenting time for the plaintiff with the minor child every Wednesday afternoon and every other weekend, specified how parenting time exchanges were to occur, required the parties to communicate through Our Family Wizard, an online program, required the parties to recommence with the Families in Transition (mediation) program at the Children’s Law Center, allocated holidays and vacations between the parties and established a procedure for rescheduling parenting time in the case of events.

The defendant filed a postjudgment motion to modify custody on August 26, 2009. The court initially scheduled a three day hearing to commence on September 20, 2010, and to end on September 23, 2010. In addition to the defendant’s motion to modify custody, the court also agreed to hear testimony for seven outstanding motions that had been filed by the defendant and two motions that had been filed by the plaintiff.

The plaintiff had not commenced his case-in-chief by the end of September 23,2010, so two more days, March 28 and 29, 2011, were scheduled to complete testimony. When the hearing recommenced on March 28, the court agreed to hear three additional motions for contempt that had been filed in the interim period between the hearing dates, two motions by the plaintiff and one motion by the defendant. At the end of the day on March 29, the court agreed to schedule two additional days, on May 10 and 17, 2011, to hear testimony. At the end of the day on May 17, however, the court granted the parties an additional half day, which occurred on May 19, 2011, to hear testimony from the guardian ad litem. When the guardian ad litem’s testimony had not concluded at the end of the allotted time, the court granted the parties one additional hour, on June 21, 2011, to complete her testimony.

In its memorandum of decision, the court granted the defendant’s motion for modification of custody and denied or dismissed all other motions still outstanding. It found that there had been a material change in circumstances that warranted a modification of the custody orders, including “the plaintiffs failure to employ the scheduling features of Our Family Wizard despite court orders to do so and his inability to consider the minor child’s best interests and needs in making his parental decisions . . . .’’It further found that it was in the best interests of the minor child to change the custody orders previously issued by the court and for “the defendant to be responsible for the scheduling of [the minor child’s] activities both academic and recreational as well as taking responsibility for the child’s physical and mental health . . . This appeal followed. Additional relevant facts will be set forth as necessary.

I

The plaintiff first claims that the court violated his federal and state constitutional due process rights when it concluded the hearing before the completion of his case-in-chief. He maintains that his testimony and the testimony of additional witnesses, as well as the introduction of photographs of himself with the minor child, and Our Family Wizard communications would have called into question the defendant’s present fitness to be the custodial parent of the minor child. We conclude that the plaintiff did not preserve his claim at the hearing and did not seek review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), or under the plain error doctrine. See Practice Book § 60-5. Accordingly, we decline to address this unpreserved claim.

The following additional facts and procedural history are necessary to resolve this claim. At the end of the fifth day of the hearing, on March 29, 2011, the court inquired as to how much time the parties would need to complete their cases. The defendant’s counsel indicated that he did not have any additional witnesses to testify with the exception of the guardian ad litem, Rhonda Morra, whom he intended to call as a rebuttal witness. The plaintiffs attorney indicated that he had at least six witnesses that he wanted to testify and that the two additional days granted by the court should be sufficient. The court noted that it would not definitely limit testimony to the additional days but that its inclination was not to continue the case any more days.

When the hearing resumed on May 10,2011, the plaintiffs counsel indicated that he had not completed his cross-examination of the defendant, but that he desired to call two police officers to testify in his case-in-chief. The court allowed him to do so. After the testimony of the police officers, the plaintiffs counsel continued his cross-examination of the defendant, examined the defendant’s significant other, then further resumed his cross-examination of the defendant.

On May 17, 2011, the plaintiffs counsel completed his cross-examination of the defendant. The testimony of the guardian ad litem was interrupted by the testimony of Sharon Vance, a family relations officer, so the court allowed additional time on May 19, 2011, and June 21, 2011, to hear only her testimony. When the plaintiffs counsel asked on May 17, 2011, if the plaintiff could testify, the court refused. The plaintiff raised the issue in his written closing argument, asserting that the court had concluded the hearing on June 21, 2011, without allowing the plaintiff to testify and to offer evidence of photographs of the minor child or communications from Our Family Wizard in support of allegations of two of the plaintiffs motions. For the first time on appeal, the plaintiff identifies two additional witnesses who would have testified about the defendant’s behavior.

“ [I]f a defendant fails to preserve a claim for appellate review, we will not review the claim unless the defendant is entitled to review under the plain error doctrine or the rule set forth in State v. Golding, [supra, 213 Conn. 239-40].” (Internal quotation marks omitted.) State v. Cutler, 293 Conn. 303, 324, 977 A.2d 209 (2009). Furthermore, “it is not appropriate to engage in a level of review that is not requested.” (Internal quotation marks omitted.) Bruno v. Geller, 136 Conn. App. 707, 731, 46 A.3d 974, cert. denied, 306 Conn. 905, 52 A.3d 732 (2012).

In neither instance when he raised the issue with the court did the plaintiff argue that ending the hearing was a denial of his due process rights. Moreover, the argument that two additional witnesses would have supported the plaintiffs case was not raised before the trial court. Thus, we conclude that the plaintiff did not preserve his constitutional claim of due process.

In his main brief, the plaintiff does not state that an extraordinary level of review is requested, does not refer to Golding either in name or in substance and does not address the issue of the adequacy of the record. The plaintiff does not present an analysis that, if the claim was not properly preserved, it nevertheless should be reviewed. See State v. Elson, 125 Conn. App. 328, 356, 9 A.3d 731 (2010), cert. granted, 300 Conn. 904, 12 A.3d 572 (2011). Moreover, the plaintiff did not request that we review this claim pursuant to the plain error doctrine nor did he adequately brief the claim. See Pestey v. Cushman, 259 Conn. 345, 373, 788 A.2d 496 (2002). Accordingly, we decline to review this claim.

II

The plaintiff next claims that the court erred in limiting testimony and evidence to matters subsequent to the parties’ August 14, 2008 agreement, except as they related to the defendant’s credibility. He argues that the factors to be considered when determining the best interests of the child contemplate the past behavior of the parties and that the court abused its discretion by limiting testimony to events after the August 14, 2008 agreement. We disagree.

The standard of review of an evidentiary challenge is well established. “We review the trial court’s decision to admit evidence, if premised on a correct view of the law . . . for an abuse of discretion.” State v. Saucier, 283 Conn. 207, 218, 926 A.2d 633 (2007). “The trial court has wide discretion in determining the relevancy of evidence . . . and [e]very reasonable presumption should be made in favor of the correctness of the court’s ruling in determining whether there has been an abuse of discretion.” (Internal quotation marks omitted.) State v. Golodner, 305 Conn. 330, 347, 46 A.3d 71 (2012).

The court first addressed the admissibility of testimony regarding events prior to the August 14, 2008 agreement on the first day of the hearing. When the plaintiffs counsel attempted to question the plaintiff regarding events prior to 2008, the defendant objected, arguing that the questioning did not comply with a previous court order to limit testimony to events after August 14, 2008. The court agreed stating “we have an agreement entered in [2008], establishing a joint custody order. So, unless there’s some . . . clear proffer that . . . there’s been ... an effort on the part of the [the defendant] to deny [the plaintiff] contact, and that . . . those efforts even predate the [2008] order, I’m not going to allow it. If there’s . . . blocking now, and then, you can show through a proffer that the blocking has a long history, I’ll allow that. But other than that, my order stands.” The court subsequently allowed testimony and evidence regarding a physical altercation between the parties in January, 2007, and a department of children and families case referral for an incident that occurred in June, 2008. The court also allowed the plaintiffs counsel to cross-examine the defendant on her credibility, specifically referring to orders and documents that she had fabricated prior to 2008 in order to prevent the plaintiff from having access to and information about the minor child and to induce the court to order him to pay childcare costs.

The guardian ad litem also testified about her impressions of the parties both before and after the August 14, 2008 agreement. Specifically, she noted that the defendant “has made progress in parenting issues. When I became involved, she was obviously very angry, very hostile, and was of the position that. . . she could do whatever she needed to do to protect her daughter. At that point, [the plaintiff] was frustrated with the . . . legal process, as well as the process of a [guardian ad litem], but was . . . more willing to enter most agreements to get this moving, so that he could have access with his daughter. Over the past five years, I believe that [the defendant] has made strides. She’s gone to the [mediation] program. She’s complied, as far as I’m concerned, with the Our Family Wizard requirement by posting information. She has taken a look at herself individually, as well as, as part of a parenting unit and has made changes that I believe benefit [the minor child]. [The plaintiff], in my opinion, has become more entrenched in his position . . . because of his lack of trust of [the defendant], and goes through the motions, as far as the [mediation] program, but doesn’t reach agreements, or actually refuses to even consider reaching agreements.” She continued, noting that “[t]he end result is that five years ago, it was my position that [the defendant] was the . . . parent that was standing in the way of the parties coparent-ing their child. My position today is that [the plaintiff] is . . . the parent . . . standing in the way of the parties coparenting . . . .”

In its memorandum of decision, the court referenced some of the testimony, noting that the “plaintiff submitted a number of pieces of evidence and elicited the defendant’s testimony regarding her past attempts to fabricate evidence and misrepresent events to the court. She admitted those past lies and forgeries and did not attempt to minimize the seriousness of those facts.” It also noted that the “plaintiff argues strenuously in his closing argument that all of the defendant’s former bad acts should not be forgotten and her present behavior must be viewed through the microscope of that past behavior. His counsel just does not believe a word that she utters. The plaintiff has also formed a very firm opinion that the court-appointed [guardian ad litem] is biased against him. . . . The court does not share the plaintiffs view and can find no convincing evidence to support his view. . . . The court appreciates the information and perspective that a [guardian ad litem] can offer in difficult cases generally; this particular [guardian ad litem] has done considerable work with these parties and her ward for a very long time . . . .”

General Statutes § 46b-56 provides trial courts with the statutory authority to modify an order of custody or visitation. When making that determination, however, a court must satisfy two requirements. First, “modification of a custody award [must] be based upon either a material change of circumstances which alters the court’s finding of the best interests of the child . . . or a finding that the custody order sought to be modified was not based upon the best interests of the child.” (Internal quotation marks omitted.) Kelly v. Kelly, 54 Conn. App. 50, 55, 732 A.2d 808 (1999). Second, “the court shall consider the best interests of the child, and in doing so may consider” several factors. General Statutes § 46b-56 (c).

“Before a court may modify a custody order, it must find that there has been a material change in circumstance since the prior order of the court, but the ultimate test is the best interests of the child.” (Internal quotation marks omitted.) Hibbard v. Hibbard, 139 Conn. App. 10, 21, 55 A.3d 301 (2012). When considering the best interests of the child, § 46b-56 (c) identifies several factors that the court can consider in making its determination, including “the willingness and ability of each parent to facilitate and encourage such continuing parent-child relationship between the child and the other parent as is appropriate, including compliance with any court orders . . . .” General Statutes § 46b-56 (c) (6). Our Supreme Court has also determined that other factors the court may consider include parental character as it relates to the wilful disobedience of court-ordered visitation; see Hall v. Hall, 186 Conn. 118, 124, 439 A.2d 447 (1982); credibility, and past behavior as it relates to parenting ability. A. Rutkin et a!., 8 Connecticut Practice Series: Family Law and Practice with Forms (2010) § 42:28, pp. 570-71. “[0]nce a material change in circumstances has been shown, the court may then consider past conduct; not because a party’s parental fitness in the past is relevant per se, but because that past conduct bears on the present character of the parent and suitability of that parent as a custodian of the child.” Id., § 44:5, p. 665.

Because the decision as to whether a modification is warranted is limited to circumstances that have occurred since the last order, the court properly limited evidence to events subsequent to the August 14, 2008 agreement when making that determination. Turning to the court’s determinations on the best interests of the child, the record does not support the plaintiffs assertions that the court only allowed evidence of events that occurred prior to the August 14, 2008 agreement as it related to the defendant’s credibility.

On the first day of the hearing, the court indicated that it would allow evidence of the defendant’s blocking the minor child’s access to the plaintiff occurring prior to August 18, 2008. It then heard testimony about the guardian ad litem’s impressions of the parties since she became involved in 2006, a department of children and families’ referral from June, 2008, and a physical altercation that occurred between the parties in January, 2007. Additionally, the court not only allowed the plaintiff to cross-examine the defendant about fabricated court orders and documents submitted to the court, but also allowed the documents to be admitted as full exhibits. While it may not have been as extensive as the plaintiff desired, the record reflects that the court allowed testimony and evidence of relevant events prior to the August 14, 2008 agreement when considering the best interests of the child. Moreover, the plaintiff has not identified which events prior to the August 14, 2008 agreement were not allowed and how the failure to allow that evidence prejudiced him. Accordingly, we conclude that the court did not abuse its discretion.

III

The plaintiff claims that the court erred in awarding sole custody to the defendant because the factual findings do not support the court’s conclusion that there was a material change in circumstances. The plaintiff first challenges the court’s factual findings that he is unable to consider the best interests of the child, that he failed to use the scheduling features of Our Family Wizard and that the parties failed to engage in coparent-ing counseling. He also maintains that even if those facts were true, they do not support the court’s legal conclusion that there was a material change in circumstances. We are not persuaded.

“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. ... As has often been explained, the foundation for this standard is that the trial court is in a clearly advantageous position to assess the personal factors significant to a domestic relations case .... [W]hether the best interests of the [child] dictate a change ... is left to the broad discretion of the trial court. ... A mere difference of opinion or judgment cannot justify the intervention of this court. Nothing short of a conviction that the action of the trial court is one which discloses a clear abuse of discretion can warrant our interference. . . . When the factual basis of the trial court’s decision [also] is challenged on appeal, the role of this court is to determine whether the facts set out in . . . the decision . . . are clearly erroneous. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Hibbard v. Hibbard, supra, 139 Conn. App. 21-22.

The following additional facts are relevant to our review. Over the nine days of the hearing, the court heard testimony from seven witnesses, including the plaintiff and the defendant, regarding conflicts over parenting time and exchanges. The court also heard testimony about the parties’ use of Our Family Wizard, their failure to complete court-ordered mediation and their disputes over activities, appointments and tutoring for the minor child. Four police officers testified about allegations that the defendant had made against the plaintiff as well as altercations that had occurred. Two social workers from the department of children and families testified about the mostly unsubstantiated referrals that the defendant had made against the plaintiff. The minor child’s dance teacher and third grade teacher, as well as the sports and recreation director at the YMCA where she plays basketball, also testified regarding the parties’ involvement in the minor child’s educational and extracurricular activities. Additionally, the parties submitted police reports, e-mail and log-in information regarding Our Family Wizard, as well as employment and financial information. The guardian ad litem and the family relations officer also submitted their recommendations.

Based on all of the evidence and testimony before it, the court found that “both parents were less than completely credible in their testimony. The plaintiff was not being truthful to the court when he testified that his girlfriend, Monique Biggs, never responded for him to e-mails from the defendant via Our Family Wizard .... The evidence was very clear that Ms. Biggs did log on to the site as the plaintiff on a number of occasions including one time when the plaintiff was actually in the courtroom participating in this hearing. . . . The court also found his testimony about why the parties were terminated from the [mediation program] not to be credible.”

With respect to the defendant, the court stated that the “defendant’s testimony on a number of issues also was very troubling to the court.” It was troubled by the order of events that prevented the defendant from returning the minor child to the plaintiff on July 16, 2010, noting that the defendant only submitted discharge notes from her hospital visits, that her significant other did not know that the minor child was scheduled to be with the plaintiff on July 16, and that the defendant and the child attended a wedding ceremony on July 18, where the child was the flower girl. The court stated, “[i]t may have all just worked out that way, but the court finds the events troubling given the history of the parties and their ongoing exchange issues.”

The court further stated that notwithstanding the defendant’s actions, “she seems to have made a reasonable effort to improve her relations with the plaintiff for the benefit of the minor child since the August, 2008 orders. The plaintiff has not made such an effort. In the last almost three years, the defendant has made a meaningful and timely effort to communicate with the plaintiff via [Our Family Wizard] as ordered by the court. She has also done much better than the plaintiff in supporting [the minor child’s] activities as arranged by the father than he has done for the activities arranged by the mother. . . . His response, on the other hand, is usually not to respond and then complain when she makes plans without his input. The plaintiff has made it clear in his communications with the defendant, the [guardian ad litem] and the [f]amily [s]ervices evaluator that he did not want his parenting time to be used for anything that he did not plan. Such a position is not what is necessarily best for the child and is not the attitude of a cooperative parent with joint legal custody.”

In ordering that sole custody be granted to the defendant, the court noted that “[b]oth the guardian ad litem and [f]amily [s]ervices have recommended the continuation of a joint legal custody order with some degree of limitation such as final decision making authority. The court, however, cannot condone the pretense that these parents can share custody if that charade will continue to cause psychological harm to their child. As this decision has attempted to portray, neither parent is without serious flaws, but at this time the defendant is better able to carry out the orders of the court. [The minor child] is still rather young and there is no reason to think that the plaintiff cannot, with time and effort, rehabilitate his parental role sufficiently to seek a return to joint custody in the future. It just is not working at this time.”

Based on the nine days of testimony and exhibits submitted by both parties, we conclude that there was ample evidence to support the court’s factual findings, including the plaintiffs failure to properly use Our Family Wizard, the plaintiffs insistence that he could do what he wanted with the minor child during his parenting time, the plaintiffs failure to provide timely notification when he was taking the child out of town, the plaintiffs unwillingness to engage in good faith negotiations during mediation, the plaintiffs failure to bring the minor child to dance class during his parenting time and the plaintiffs unwillingness to make accommodations. Given the extensive testimony and exhibits, the court had before it evidence on which it could base its findings and, thus, was not clearly erroneous in its findings of facts.

Moreover, the court observed the parties and witnesses, weighed the evidence and assessed credibility, all actions appropriately within the realm of the court. See In re Aziza S.-B., 138 Conn. App. 639, 658-59, 53 A.3d 1001 (2012) C“[i]t is the exclusive province of the trier of fact to weigh the conflicting evidence, determine the credibility of witnesses and determine whether to accept some, all or none of a witness’ testimony” [internal quotation marks omitted]). Based on its factual findings and the substantial evidence to support such findings, the court did not abuse its discretion in determining that the actions of the parties represented a material change in circumstances that warranted granting the defendant sole custody of the minor child.

IV

Finally, the plaintiff claims that the court improperly denied his motion for contempt that was filed on March 4,2011. Specifically, he argues that the court improperly denied the motion after making factual findings that the defendant had wilfully disobeyed a clear court order when she interfered with the plaintiffs parenting time during the February, 2011 school vacation. We agree with the plaintiff.

“The abuse of discretion standard applies to a trial court’s decision on a motion for contempt. ... A finding of contempt is a question of fact, and our standard of review is to determine whether the court abused its discretion in [finding] that the actions or inactions of the [party] were in contempt of a court order.” (Citation omitted; internal quotation marks omitted.) Gravius v. Klein, 123 Conn. App. 743, 748, 3 A.3d 950 (2010).

When the hearing resumed on March 28, 2011, the court indicated that it would hear additional motions for contempt that had been filed by the parties since the last day of the hearing. It agreed to hear the plaintiffs motion for contempt, filed on March 4,2011, which alleged, among other things, that the defendant had interfered with the plaintiffs parenting time on February 24,2011. The plaintiffs counsel noted, and the court agreed, that paragraph six of the motion alleged an interference with parenting time by the defendant on February 24, 2011.

The plaintiff called two witnesses, Biggs and Latasha Johnson, a friend of Biggs, to testify regarding an incident that occurred between the defendant and Biggs on February 24, when Biggs attempted to pick up the minor child from dance practice that day. The plaintiff and the defendant also testified about the incident that occurred on February 24.

In its memorandum of decision, the court stated that the defendant’s “account of why she interfered with Ms. Biggs picking the child up from dance class during the February, 2011 school vacation lacked credibility and seemed to reflect more her dislike of the plaintiffs significant other than any allegations that Ms. Biggs had been drinking.” Accordingly, the court found that the “defendant interfered with the plaintiffs parenting access to the minor child by not allowing the child to be picked up from her dance class by the plaintiffs significant other during the February school vacation in 2011 causing the minor child to experience distress and inconvenience to the plaintiff. Her actions were a wilful disobedience of a clear court order but the court cannot find a motion filed by the plaintiff addressing said behavior in the court file . . . .” The court subsequently denied the plaintiffs motion for contempt.

The record shows that when the hearing resumed on March 28, 2011, the court agreed to hear the plaintiffs motion for contempt that had been filed on March 4, 2011, the plaintiffs counsel specifically directed the court’s attention to the paragraph that related to the allegations that the defendant interfered with the plaintiffs parenting time on February 24, 2011, and the court heard testimony from four witnesses, including the plaintiff and the defendant, regarding the events that took place on February 24. Nevertheless, the court concluded that there was no motion addressing the February 24, 2011 incident and denied the plaintiffs motion for contempt. Such actions were an abuse of discretion as there was a pending motion before the court, the plaintiff specifically directed the court’s attention to the specific allegation, there was evidence supporting the plaintiff’s allegations and the court made factual findings that the defendant had wilfully violated a court order.

The judgment is reversed only with respect to the plaintiffs March 4, 2011 motion for contempt and the case is remanded for further proceedings in accordance with this opinion on that motion; the judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       The court also granted the defendant’s motion to dismiss the plaintiffs motion for contempt, filed August 13, 2010.

       The court noted that several motions had either been resolved during the trial or were not adequately argued and, thus, were not subject to the order. It stated, however, that the “decision ... is meant to resolve all motions pending as of the time of the hearing . . . .”

       The colloquy was as follows:
      “The Court: All right. I will authorize the gentleman to go to [f]amily— [cjaseflow and get a half day only for the purposes of the guardian ad litem testifying. I’m not going to allow any other witnesses, including rebuttal witnesses.
      “[The Plaintiffs Counsel]: Would you allow [the plaintiff] to testify?
      “The Court: No, I will not.
      “[The Plaintiffs Counsel]: Okay.
      “The Court: You had one day and you manage it the way you want to. I will — I—I want to hear the guardian’s testimony.
      “[The Plaintiffs Counsel]: Before we recess, Your Honor—
      “The Court: Sure? Oh, we have the camp issue.
      “[The Defendant’s Counsel]: Yes.
      “[The Plaintiffs Counsel]: There are some — there are some issues that need to be — particularly with respect to motions for contempt that [the plaintiff] has to respond to.

        “The Court: I said one day. I heard from him ad nauseum. I heard from both of them ad nauseum. I can’t believe that there’s any other information that I’m going to get from them that I haven’t already heard.
      “[The Plaintiffs Counsel]: At least the denial of . . .
      “The Court: I presume the denial.
      “[The Plaintiffs Counsel]: Okay. Thank you.

       In order to receive review under Golding, the plaintiff need not explicitly refer to the doctrine. Rather, “a party must affirmatively request review pursuant to Golding in its main brief.” State v. Elson, 125 Conn. App. 328, 346, 9 A.3d 731 (2010), cert. granted, 300 Conn. 904, 12 A.3d 572 (2011). “[W]e . . . define an affirmative request for review pursuant to Golding as ... an explicit assertion and analysis in a party’s main brief that explains that, if the reviewing court deems a particular claim to be unpreserved, that claim nonetheless is reviewable on appeal because the record is adequate to review the claim and it is a claim of constitutional magnitude.” Id., 354-55.

       We note that even if we could have reached the plaintiffs claim, he would not have prevailed as he could not have satisfied the third prong of Golding. “A fundamental premise of due process is that a court cannot adjudicate any matter unless the parties have been given a reasonable opportunity to be heard on the issues involved .... Generally, when the exercise of the court’s discretion depends on issues of fact which are disputed, due process requires that a trial-like hearing be held, in which an opportunity is provided to present evidence and to cross-examine adverse witnesses. . . . It is a fundamental tenet of due process of law as guaranteed by the fourteenth amendment to the United States constitution and article first, § 10, of the Connecticut constitution that persons whose property rights will be affected by a court’s decision are entitled to be heard at a meaningful time and in a meaningful manner. . . . Where a party is not afforded an opportunity to subject the factual determinations underlying the trial court’s decision to the crucible of meaningful adversarial testing, an order cannot be sustained.” (Citations omitted; internal quotation marks omitted.) Szot v. Szot, 41 Conn. App. 238, 241-42, 674 A.2d 1384 (1996). “[A] party’s constitutionally protected right to present evidence [however] is not unbounded.” Eilers v. Eilers, 89 Conn. App. 210, 219, 873 A.2d 185 (2005). “To the contrary, we previously have determined that the court reasonably may limit the time allowed for an evidentiary hearing.” Id., 218.
      Our careful review of the record reveals that that court gave great latitude to the plaintiff. It allowed the plaintiff to take witnesses out of order and clearly indicated on March 29, that the plaintiff would have two days to present his case when the hearing resumed in May. The plaintiff was given a reasonable opportunity to testify, to enter evidence and to call other witnesses. He chose to spend a full day of the hearing presenting testimony on his motion for contempt. Although the plaintiff did not testify in his case-in-chief or call the two additional witnesses that he now argues were important for his case, he had an opportunity to do so. See Bruno v. Bruno, 132 Conn. App. 339, 351, 31 A.3d 860 (2011) (no violation of due process rights in ordering defendant to pay expert witness fees where defendant had opportunity to be heard but failed to offer evidence).

       The parties and the court apparently discussed this issue prior to trial, but we do not have any transcript reflecting the discussion or order. Accordingly, the first time that the issue was raised on the record before us was the first day of trial.


text:
    MAURICE J. CUNNIFFE v. SUSAN O’HARA CUNNIFFE
    (AC 33056)
    Robinson, Espinosa and Sheldon, Js.

      Argued November 15, 2012
    officially released March 12, 2013

      David V. DeRosa, for the appellant (defendant).

      John F. Lambert, for the appellee (plaintiff).
   Opinion

ROBINSON, J.

The defendant in this summary process action, Susan O’Hara Cunniffe, also known as Susan O’Hara, appeals from the trial court’s judgment of possession rendered in favor of the plaintiff, Maurice J. Cunniffe. The dispositive issue on appeal is whether the court improperly denied the defendant’s motion for continuance to allow for production, pursuant to a properly served subpoena duces tecum, of a trust document bearing critically upon the plaintiffs standing to prosecute this action. We reverse the judgment of the trial court.

The following facts and procedural history are relevant to this appeal. On August 25, 2010, the plaintiff served the defendant with a notice to quit possession of the premises located at 65 John Street in Greenwich (property) on the grounds of (1) termination of her original right of privilege to occupy the premises, (2) lapse of time and (3) unauthorized occupancy. On September 3, 2010, the plaintiff commenced this summary process action in his personal capacity on the ground of lapse of time. The defendant filed an answer, denying the plaintiffs claims against her. She also pleaded as a special defense that the plaintiff lacked standing to evict her from the property in his personal capacity because the property was owned by a trust whose beneficiary and equitable owner was Mark C. Cunniffe, the plaintiffs son and defendant’s husband.

Prior to the summary process trial, the defendant served on the plaintiff a subpoena duces tecum that required him to produce the “Jane M. Cunniffe Irrevocable Trust Instrument.” The trial began on November 9, 2010, and the plaintiff testified on his own behalf. On direct examination, the plaintiff testified that he and his late wife, Jane Cunniffe, jointly acquired the property in 1974, but that approximately one week before her death, which occurred on October 30, 2008, he quitclaimed his interest in the property to his wife. He explained that “we moved the property into a trust so that I would get the benefit of the tax step-up when she did pass away.” The plaintiff submitted as evidence a copy of his wife’s will, the deed transferring his interest in the property to his wife and a copy of his appointment as executor of his wife’s estate. After the deed was admitted as an exhibit, the court asked why the plaintiff referred to a trust. The plaintiffs counsel stated, “I don’t know why he did that” and “[h]e’s rather mistaken, but I just wanted to straighten that out.”

Shortly after the defendant’s counsel began to cross-examine the plaintiff, the court halted the proceedings and asked the parties to submit briefs on the issue of whether the plaintiff had standing to bring this summary process action in his personal capacity as devisee under his wife’s will or whether he could only bring the action in his representative capacity as executor of the estate. It then rescheduled the trial to resume on December 23,2010. On December 23,2010, the court initially heard argument from both parties as to whether the plaintiff could bring the action in his personal capacity. It ultimately concluded that it was “satisfied that [the plaintiff] is the title owner and therefore had a right to bring the eviction action in his personal name.”

After the court’s ruling, the defendant’s counsel resumed his cross-examination of the plaintiff. During cross-examination, the plaintiff gave conflicting testimony as to the ownership of the property, stating, variously, that he did not know if the property was in a trust or in the estate, that the property might have been transferred into a trust, that the property was not in a trust and that, in a prior hearing, he had testified that he did not know if the property had been transferred into the Jane M. Cunniffe Irrevocable Trust. Between both days of his cross-examination, the defendant’s counsel elicited from the plaintiff that he was the trustee for many trusts, that no inventory of the estate had been completed, that he was unaware of whether a certificate of devise had been issued and that he had not yet filed a tax return with respect to the property.

When the defendant’s counsel sought to mark the subpoena duces tecum as an exhibit, the court began to question both counsel and the plaintiff regarding the contents of and service of the subpoena. After the plaintiff testified that he did not receive the subpoena, the defendant’s counsel asked for a continuance so that the plaintiff could provide the trust document to the court. The court then asked the defendant for evidence that the Jane M. Cunniffe Irrevocable Trust existed. After the defendant’s counsel provided the court with a document that confirmed the existence of the trust, the court twice asked how that document related to the property. When the defendant’s counsel explained that the document proffered was in response to the court’s request for evidence that the trust existed, the court stated, “I don’t want you to demonstrate a document that has no relevance or pertinence to the property in question,” and asked for the trust document. The defendant’s counsel then explained that the trust document was the record that he had subpoenaed. He continued, stating that he was “just trying to look at the document. And maybe it will determine, it would be of some benefit to my client because we are under the impression [that] this property is in a trust. We stand by that position and that will be our position at the end of this case. Your Honor can rule against us, but it is . . . our position that this property is in a trust and that . . . [the defendant] has exclusive possession and [is] the beneficiary of the property. It’s [the plaintiffs] son. And [the defendant] therefore has a right to remain on the property.” The court responded that it was “a very nice statement” and that “if it’s supported by evidence, then it would be relevant.”

When questioned about how the defendant knew that the trust contained the property, the defendant’s counsel explained that the defendant, based on knowledge gained after ten years of marriage to the plaintiff’s son, believed that the property was in the trust and that counsel needed to subpoena the document because “trusts are private documents. . . . There’s no public record of these documents outside of [the defendant’s] knowledge.” The court then questioned the plaintiff about whether he knew if his wife had placed the property into a trust. When the plaintiff answered in the negative, the court refused to grant the continuance. After the defendant’s counsel completed his cross-examination of the plaintiff, the defendant testified and both parties made closing arguments.

In its memorandum of decision, the court found that the plaintiff was the sole owner of the property, having become the owner when his wife died in October, 2008. In support of that finding, the court noted that “the defendant failed to prove that the property is owned or held in trust by any other person. Furthermore, the defendant failed to show [that] anyone has an equal or superior interest in the property to the plaintiff.” Determining that the “service of the notice to quit on August 25, 2010 was the only notice [the plaintiff] was required to provide to the [defendant],” the court, accordingly, rendered “judgment for possession in favor of the plaintiff on the ground of lapse of time.” This appeal followed.

In her appeal to this court, the defendant claims that the court erred when it failed to grant the motion for continuance to allow the plaintiff to comply with the subpoena duces tecum. She maintains that the court acted improperly not only because the plaintiff made conflicting statements as to whether the property was in a trust and the defendant produced evidence that a trust existed, but also because the content of the trust document went to the crux of the defendant’s defense, namely, that the plaintiff lacked standing to file a summary process action in his personal capacity because the property was held in a trust, and there was no other way to determine if the property was in the trust. We agree that the court should have granted a limited continuance to allow the plaintiff to comply with the subpoena.

We first note our standard of review. “A trial court holds broad discretion in granting or denying a motion for a continuance. Appellate review of a trial court’s denial of a motion for a continuance is governed by an abuse of discretion standard that . . . affords the trial court broad discretion in matters of continuances. . . . An abuse of discretion must be proven by the appellant by showing that the denial of the continuance was unreasonable or arbitrary.” (Internal quotation marks omitted.) Cole v. Machabee, 87 Conn. App. 627, 633, 866 A.2d 639 (2006). “There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied. . . . There are several factors that the trial court may consider in exercising its discretion. The factors include the timeliness of the request for continuance; the likely length of the delay; the age and complexity of the case; the granting of other continuances in the past; the impact of delay on the litigants, witnesses, opposing counsel and the court; the perceived legitimacy of the reasons proffered in support of the request; the defendant’s personal responsibility for the timing of the request; [and] the likelihood that the denial would substantially impair the defendant’s ability to defend himself .... [A]n appellate court should limit its assessment of the reasonableness of the trial court’s exercise of its discretion to a consideration of those factors, on the record, that were presented to the trial court, or of which that court was aware, at the time of its ruling on the motion for a continuance.” (Internal quotation marks omitted.) State v. Jennings, 126 Conn. App. 801, 820, 9 A.3d 446 (2011). “In the event that the trial court acted unreasonably in denying a continuance, the reviewing court must also engage in harmless error analysis. . . . [I]n order to establish reversible error in nonconstitutional claims, the defendant must prove both an abuse of discretion and harm . . . .” (Citations omitted; internal quotation marks omitted.) State v. Coney, 266 Conn. 787, 802, 835 A.2d 977 (2003).

Practice Book § 13-2 provides in relevant part: “In any civil action . . . where the judicial authority finds it reasonably probable that evidence outside the record will be required, a party may obtain in accordance with the provisions of this chapter . . . production and inspection of papers, books, documents and electronically stored information material to the subject matter involved in the pending action . . . whether the discovery or disclosure relates to the . . . defense of the party seeking discovery . . . and which are within the knowledge, possession or power of the party or person to whom the discovery is addressed. Discovery shall be permitted if the disclosure sought would be of assistance in the . . . defense of the action and if it can be provided by the disclosing party or person with substantially greater facility than it could otherwise be obtained by the party seeking disclosure. It shall not be a ground for objection that the information sought will be inadmissible at trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence . . . .” Our Supreme Court has noted that “[a] subpoena is an appropriate process for the production of documents that are relevant to the matter before the court.” (Internal quotation marks omitted.) State v. Montgomery, 254 Conn. 694, 728, 759 A.2d 995 (2000).

In the present case, the court was aware that the defendant’s sole defense was that the property was held in a trust and, therefore, that the plaintiff could not bring a summary process action with respect to the property in his personal capacity. The defendant’s counsel had subpoenaed the plaintiff and directed him to bring the trust document to court prior to the first day of the hearing. The subpoena was served on November 7, 2010, two days before the first day of the hearing. On December 23, 2010, when the defendant’s counsel learned that the plaintiff had not received the subpoena, he immediately asked for a continuance to allow the plaintiff to obtain the trust document. The plaintiffs counsel did not move to quash the subpoena.

When questioned by the court, the defendant provided evidence that the trust existed, explained why the defendant believed that the property was in the trust and explained why the document needed to be subpoenaed. Moreover, the defendant’s counsel elicited from the plaintiff conflicting testimony as to whether the property was in a trust and an acknowledgment that no inventory of the estate had been completed, that he was unaware of whether a certificate of devise had been issued and that he had not filed a tax return with respect to the property. Thus, the defendant demonstrated through competent evidence that verification of whether the property was in the trust could not be established through any other document.

Given the circumstances, and in fight of the previously noted factors, it was unreasonable for the court not to allow the defendant a limited continuance so that the plaintiff could produce the trust document. Because the evidence sought by the court — proof that the property was in the Jane M. Cunniffe Irrevocable Trust — could be obtained only by the production of the trust document, the contents of which were reasonably calculated to lead to admissible evidence as to whether the plaintiff had standing to bring this action in his personal capacity, we conclude that the court abused its discretion in denying the motion for a continuance.

Moreover, the defendant was harmed by the denial of the motion. Throughout the pendency of the action, the defendant maintained, as her sole defense, that the plaintiff did not have standing to bring the summary process action in his own name because he was not the owner of the property. Rather, she claimed, the property was held in trust, with her husband as the beneficiary. Because the will contained a general, not specific, devise of property, the estate was still pending, no inventory of the estate had been completed, the plaintiff was not aware of a certificate of devise being filed, no tax forms had been filed and no deed transferring the property from the plaintiffs wife to the trust had been recorded, the only way that the defendant could prove if the property was in the trust was through production of the trust document. The information contained in the trust document related to the defendant’s defense, was within the power of the plaintiff, as trustee, to obtain and could not have been obtained by the defendant by any other means. By not granting the defendant a continuance to gain access to the trust document, the defendant was impaired in her ability to establish her defense. Accordingly, the court’s failure to grant the continuance was harmful.

The judgment is reversed and the case is remanded for further proceedings consistent with this opinion.

In this opinion the other judges concurred.

       We note that although the defendant states as the third issue in her statement of the issues on appeal, that the court abused “its discretion in not ordering the production of the Jane [M.] Cunniffe Irrevocable Trust that undersigned counsel subpoenafed] from [the plaintiff],” her argument in her brief is not consistent with her statement of that issue or its heading. Rather, her discussion of the legal claim challenges the court’s denial of her motion for continuance. “[W]e will nonetheless review all claims which are fairly presented, or at least, reasonably discernible, upon the record before us”; (internal quotation marks omitted) McCook v. Whitebirch Construction, LLC, 117 Conn. App. 320, 322 n.3, 978 A.2d 1150 (2009), cert. denied, 294 Conn. 932, 987 A.2d 1029 (2010); as long as they do not prejudice the other party. See Stein v. Tong, 117 Conn. App. 19, 21 n.1, 979 A.2d 494 (2009) (addressing claim not raised in preliminary statement of issues or statement of issues in brief where both parties briefed and argued issue). In light of the fact that the plaintiff fully addressed the substance of the defendant’s claim both in his reply brief and at oral argument before this court, we conclude that the plaintiff would not be prejudiced by our review of this claim. Additionally, we have reframed the issue so that it better represents the defendant’s claim on appeal. See Mercer v. Champion, 139 Conn. App. 216, 222 n.8, 55 A.3d 772 (2012).

       The defendant also claims that the court improperly concluded that a grammatical error in the notice to quit possession was not a substantive defect. Because we hold that the court improperly failed to grant a continuance to allow for compliance with the subpoena duces tecum and, accordingly, reverse the judgment of the court on that ground, we need not reach that claim.
      Finally, the defendant claims that the plaintiff did not have standing to bring the summary process action in his personal capacity. Because our reversal requires further factual findings by the trial court to determine whether the plaintiff has standing, we do not resolve the merits of this claim.

       The notice to quit possession stated the second ground as “[l]ease of time.” In its memorandum of decision, however, the court stated that “it is clear from the evidence that [the] defendant understood it to mean lapse of time, and that this misspelling was a grammatical error.”

       The court and the parties alternately referred to the trust as the “Jane Cunniffe Irrevocable Trust,” the “Jane Cunniffe Trust” and the “Jane M. Cunniffe Irrevocable Trust.” For consistency, we will refer to the trust as the Jane M. Cunniffe Irrevocable Trust.

       For the purposes of the briefs requested by the court, the defendant assumed that the property was part of the estate. Notwithstanding that assumption, she asserted that the property was in a trust, not part of the estate, and reserved the right to challenge the plaintiffs assertion that the property was part of the estate.

       The defendant’s additional claim that the court “inappropriately placed the burden on [her] to demonstrate the relevance of [the] trust document” is without merit. “The proffering party bears the burden of establishing the relevance of offered evidence.” State v. Crespo, 114 Conn. App. 346, 362, 969 A.2d 231 (2009), aff'd, 303 Conn. 589, 35 A.3d 243 (2012). This argument, however, has no bearing on our analysis of the claim.

       After the defendant produced a document proving the existence of the Jane M. Cunniffe Irrevocable Trust and proffered reasons why she needed the trust in order to prove her case, the court made the following statement: “You have not offered me any proof other than your bare assertion that [the property] was subject to an irrevocable trust executed by the decedent during her lifetime and I don’t have anything in the will. I don’t have any other document that in any way modified the deed from [the plaintiff] to his wife and that she passed away. So, what do you want me to do?”


author: BEAR, J.

text:
    A. CHRISTINE KEPPLE ET AL. v. LINDA R. DOHRMANN ET AL.
    (AC 34056)
    DiPentima, C. J., and Bear and Espinosa, Js.
    Argued December 7, 2012
    officially released March 12, 2013

      Jonathan M. Starble, with whom, on the brief, was Brooke M. Meling, for the appellants (plaintiffs).

      Andrew R. Cellemme, with whom was Matthew R. Kinell, for the appellees (defendants).
   Opinion

BEAR, J.

The plaintiffs, A. Christine Kepple and Mark R. Kepple, appeal from the judgment of the trial court rendered in favor of the defendants, Linda R. Dohr-mann, Wilham F. Dohrmann, Jane H. Lionelli and Frank E. Lionelli, on their statute of limitations defense to the plaintiffs’ action for a declaratory judgment. On appeal, the plaintiffs claim in relevant part that the court improperly concluded that the document entitled “RESTRICTIVE COVENANTS AND AGREEMENTS” (covenant document) created a private restriction on the defendants’ properties, rather than a view easement in favor of the plaintiffs, thereby leading the court to conclude, improperly, that General Statutes § 52-575a barred the plaintiffs’ claims. We reverse the judgment of the trial court.

The following facts, which are not in dispute, are relevant to our resolution of the plaintiffs’ claim on appeal. The parties own adjoining residential properties in the Great Bay Estates subdivision (subdivision) in the town of Stonington. The Dohrmanns are the owners of lot A, the Lionellis are the owners of lot B, the plaintiffs are the owners of lot C and William B. Ware and Vicki J. Ware, who are not parties to this action but who received notice of the action, are the owners of lot D. In connection with the creation of the subdivision, the owners of the Great Bay Estates, Chester J. Godom-sky and Fredericka Ann Singer Schmidt, recorded the covenant document on the Stonington land records on April 3, 1980. The covenant document provides in relevant part:

“5. The owner of Lot C must construct his single family residence on the westerly portion of Lot C. It must be confined to that portion of Lot C which is within 140 feet of the easterly line of the private road which borders the westerly portion of Lot C as designated in said plan.

“6. The owner of Lot B must construct his single family residence on the easterly portion of Lot B. It must be confined to that portion of Lot B which is within 140 feet of the easterly line of Lot B. The remaining portion of Lot B shall be subject to a visual easement to the benefit of Lots C and D hereinafter mentioned in Paragraph 7.

“7. No trees, bushes, shrubs, or man-made objects or any other natural or unnatural substance on the remaining portion of Lot B which shall not be used for residential building purposes as defined in Paragraph 6 may attain a height which shall arise five (5) feet above the highest natural point of Lot C in the area which is restricted to the building area within Lot C; that area which extends 140 feet from the easterly side of the private roadway as designated in said plan.

“8. The owner of Lot A shall not be restricted as to where he may build a single family residence within the confines of Lot A. However he shall be restricted to a [thirty] foot maximum height level for his structure. Further, no tree, bushes, shrubs, man-made objects, or any other natural or unnatural substances shall attain such a height as to rise five (5) feet above the highest natural point within the confines of the building area of Lot C as hereinbefore mentioned. . . .

“10. These restrictions shall be considered to be covenants running with the land.

“11. Any of the covenants or restrictions outlined in 1. through 10. may be released with the written consent of the land owners provided that such written consent shall be recorded on the land records of the [t]own of Stonington.”

The defendants affirmatively alleged by counterclaim that they have permitted vegetation on lot A and lot B to attain a height that exceeds the permitted maximum height provided in the covenant document. The parties agree that they all are subject to the covenant document.

In a complaint filed August 12, 2009, the plaintiffs brought an action against the defendants for interference with easement rights, and they sought a declaratory judgment regarding a claimed visual easement over each of the defendants’ properties, requiring the defendants to remove or trim all objects presently in violation of the claimed visual easement. The plaintiffs also sought to enjoin the defendants from further violations of their easement rights. In response, the defendants filed an answer and special defense, asserting, in relevant part, that the plaintiffs had a private restriction, rather than a visual easement, and that the action was barred by virtue of the statute of limitations for private restrictions set forth in § 52-575a. The defendants also filed a counterclaim, asserting that if the covenant document had created a visual easement, that easement was extinguished by adverse possession.

Following a trial to the court, the court concluded that the covenant document contained private restrictions on each of the defendants’ properties, rather than visual easements, and that the plaintiffs’ action, therefore, was barred by the three year statute of limitations set forth in § 52-575a because the plaintiffs or their predecessor in title had known of the defendants’ violation of the restrictions for more than three years before bringing the present action. This appeal followed.

On appeal, the plaintiffs claim that the court improperly concluded that the covenant document created a private restriction on the defendants’ properties, rather than a visual easement in favor of the plaintiffs, thereby leading the court to conclude, incorrectly, that § 52-575a was applicable to bar the plaintiffs’ claims. We agree.

The parties agree that our standard of review for construing the covenant document is the standard employed when construing an instrument of conveyance or a deed. “[I]n construing a deed [or other conveyance], a court must consider the language and terms of the instrument as a whole. . . . Our basic rule of construction is that recognition will be given to the expressed intention of the parties to a deed or other conveyance, and that it shall, if possible, be so construed as to effectuate the intent of the parties. . . . In arriving at the intent expressed ... in the language used, however, it is always admissible to consider the situation of the parties and the circumstances connected with the transaction, and every part of the writing should be considered with the help of that evidence. . . . The construction of a deed in order to ascertain the intent expressed in the deed presents a question of law and requires consideration of all its relevant provisions in light of the surrounding circumstances.” (Internal quotation marks omitted.) Wykeham Rise, LLC v. Federer, 305 Conn. 448, 456-57, 52 A.3d 702 (2012).

Because our resolution of this appeal, in part, requires us to interpret § 52-575a, we also set forth the principles governing our statutory interpretation. “The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextuai evidence of the meaning of the statute shall not be considered.” General Statutes § l-2z.

Here, the trial court found that § 52-575a barred the plaintiffs’ claims because the covenant document created a private restriction against the defendants, rather than an easement in favor of the plaintiffs, and § 52-575a bars an action to enforce a private restriction if the action is not commenced within three years of the plaintiffs knowledge of the violation.

Section 52-575a provides: “No action or any other type of court proceeding shall be brought to enforce a private restriction recorded in the land records of the municipality in which the property is located or a notation on a filed map pertaining to the use of privately owned land, the type of structures that may be erected thereon or the location of same unless such action or proceeding shall be commenced within three years of the time that the person seeking to enforce such restriction had actual or constructive knowledge of such violation. This section shall be deemed not to apply to any private restriction or notation pertaining to (a) any public utility easement; (b) any right-of-way; (c) any park or open space land; (d) any private driveway, roadway or street, or (e) any sewer line or water line.” The parties agree that if the covenant document conferred easement rights to the plaintiffs, then § 52-575a is not applicable.

Paragraph 6 of the covenant document specifically states that “[t]he remaining portion of Lot B shall be subject to a visual easement to the benefit of Lots C and D . . . .” The covenant document then set forth, in paragraph 7, certain restrictions on lot B: “No trees, bushes, shrubs, or man-made objects or any other natural or unnatural substance on the remaining portion of Lot B which shall not be used for residential building purposes as defined in Paragraph 6 may attain a height which shall arise five (5) feet above the highest natural point of Lot C in the area which is restricted to the building area within Lot C; that area which extends 140 feet from the easterly side of the private roadway as designated in said plan.” The covenant document then explains, in paragraph 8, that the owner of lot A is not restricted as to where he may build his single-family home; he is, however, restricted as to the height of the residence and as to the height of trees, bushes, etc., “to . . . five (5) feet above the highest natural point within the confines of the building area of Lot C as hereinbefore mentioned.” The covenant document also states that the restrictions axe covenants that run with the land and that the covenants or restrictions may be released only with the written consent of the landowners, provided that the written consent is recorded on the land records.

Considering the intent of the drafter of the covenant document, as expressed in the document itself, and considering every part of the writing, as we must; see Wykeham Rise, LLC v. Federer, supra, 305 Conn. 456-57; we conclude that although only paragraph 6 of the covenant document specifically states that lots C and D have a visual easement over lot B, paragraphs 7 and 8, which define the restrictions on lots A and B evince the intent that the restrictions are for the benefit of visual easements over both lot B and lot A granted in favor of lots C and D. We therefore conclude that the covenant document grants to the plaintiffs a view easement over both lots A and B. See Schwartz v. Murphy, 74 Conn. App. 286, 293, 812 A.2d 87 (2002) (although deed did not use word “easement,” “[t]here is no question that the restrictions in the defendants’ deed express the intent to establish a view easement over the defendants’ property”), cert. denied, 263 Conn. 908, 819 A.2d 841 (2003), cert. denied, 546 U.S. 820, 126 S. Ct. 352, 163 L. Ed. 2d 61 (2005).

The defendants argue that the court correctly determined that the plaintiffs were not granted a view easement in the covenant document, in part, because the covenant document “clearly create[s] restrictive covenants that limit the permissible use of both the Dohr-mann [property and the Lionelli [property . . . [and] [t]he language does not . . . grant the Kepples any right to enter and use the properties or grant them any enforcement rights for a violation.” Specifically, they contend that the covenant document cannot be construed as granting the plaintiffs an easement because there is no stated right to entry onto the defendants’ land and no stated right to enforce any purported easement. We disagree that either of these are necessary to create a valid easement. See, e.g., Schwartz v. Murphy, supra, 74 Conn. App. 297-98 (defendants, by express terms of restrictive covenant, are prohibited from placing accessory structures or view obstructions in easement area; plaintiffs have right, although not specifically stated in deed, to clear any obstructions of view easement).

“An easement has six primary characteristics: (1) it is an interest in land in the possession of another, (2) it is an interest of a limited use or enjoyment, (3) it can be protected from interference by third parties, (4) it cannot be terminated at will by the possessor of the servient land, (5) it is not a normal incident of a possess-ory land interest, and (6) it is capable of creation by conveyance .... An easement may be affirmative or negative; appurtenant or in gross .... More modem approaches have expanded the use of easement to such areas as ‘air rights,’ the condominium and cooperative, ‘cluster’ developments, scenic easements, and beach access . . . .” (Citations omitted.) 4 R. Powell, Real Property (2010) § 34.01 [1], p. 34-1. “Under the unified concept, a negative easement may be designated as a negative easement or a restrictive covenant; the terms have been held to be interchangeable.” 1J. Backman & D. Thomas, A Practical Guide to Disputes Between Adjoining Landowners — Easements (2012) § 1.01 [2] [h], P- M3.

“Easements can be considered affirmative or negative. An affirmative easement authorizes uses of land that would be viewed as actionable trespasses if no easement existed. A right of way across a neighbor’s property is a common example of an affirmative easement. A negative easement does not authorize the owner of the dominant land to do anything; instead, such an easement limits the activities of the servient tenement owner in the servient land. A negative easement, in other words, allows the holder of the easement to prevent the servient owner from actions on his land which, but for the existence of the easement, he normally would be able to do. For example, a landowner may be unable to build a structure on his property because his neighbor owns a negative easement allowing the easement owner an unobstructed view of the land or water in the valley below.” Id., § 1.01 [2] [h], p. 1-13.

Easements are created for a variety of reasons and do not require, as the defendants argue, that the dominant estate owner expressly have the right to “enter and use” the land of the servient estate in order for there to be a valid easement. See, e.g., General Statutes § 7-13 Id (establishing Charter Oak open space grant program creating permanent conservation easements over acquired property); General Statutes § 23-8a (requiring any person, organization or political subdivision to whom state proposes to convey state park land, forest land or other state land held as protected open space to execute conservation easement in favor of state before land may be conveyed); Schwartz v. Murphy, supra, 74 Conn. App. 293 (“[t]here is no question that the restrictions in the defendants’ deed express the intent to establish a view easement over the defendants’ property”).

A view easement generally is considered to be a negative easement. “Negative easements prevent specific activities by the servient property such as a prohibition against certain types of improvements in order to protect the easement owner’s right to sunlight or scenic views.” 1 J. Backman & D. Thomas, supra, § 1.02 [2], p. 1-17. “In all jurisdictions, easements of light, air, and view may be created by express grant.” 4 R. Powell, supra, § 34.11 [5], p. 34-125; see also Schwartz v. Murphy, supra, 74 Conn. App. 293.

Additionally, some alternative energy easements are negative easements. “There continues to be interest in wind energy as an alternative source of electric power. Serious use of this energy form requires an unobstructed wind flow which frequently can be assured through the use of negative easements on adjacent land.” 9 R. Powell, Real Property (1998), § P8.ll [1], p. P8-24. “Solar energy production requires access to sunlight. Natural and manmade structures on adjoining land can interfere with access to sunlight. One way to assure solar access is through an easement. Since a solar easement is a negative easement ... it is unlikely that courts will recognize a prescriptive easement for solar access .... However, it is possible to obtain an express solar easement over a landowner’s property to receive unobstructed sunlight.” (Citations omitted.) Id., § P8.12 [1], p. P8-26.

Easements protecting historic properties are a form of negative easement. “Historic preservation easements seek to protect the character of privately owned historic buildings. . . . The most common historic preservation easement is the facade easement which prevents the owner from demolishing or changing the exterior of a historic building without the easement owner’s consent. The owner of the historic building can continue to use the building and can generally change the building’s interior. However, the easement requires that owners respect the property’s historic features and refrain from inappropriate change and development. These easements are generally permanent and are important tools in protecting historic resources.” (Citation omitted.) Id., § P8.10, pp. P8-22 through P8-23; General Statutes § 47-42a (a) (“ ‘ [conservation restriction’ means a limitation, whether or not stated in the form of a restriction, easement, covenant or condition, in any deed, will or other instrument executed by or on behalf of the owner of the land described therein, including, but not limited to, the state or any political subdivision of the state, or in any order of taking such land whose purpose is to retain land or water areas predominantly in their natural, scenic or open condition or in agricultural, farming, forest or open space use”).

Conservation easements also are within the category of negative easements. “Conservation easements are the most frequently used legal device to limit the development of land. This type of easement generally seeks to preserve the servient estate in its natural state. Such an easement is accomplished by having the property owner convey selected development rights to a land trust or governmental agency. . . . The easement conveyed does not necessarily prohibit all development, but can be structured to allow limited development of the property. Conservation easements have been used to preserve open space in cluster developments. Every state has a law pertaining to conservation easements.” (Citations omitted.) 9 R. Powell, supra, § P8.08 [1], pp. P8-17 through P8-18; see General Statutes § 7-131d (establishing Charter Oak open space grant program creating permanent conservation easements over acquired property); General Statutes § 23-8a (requiring any person, organization or political subdivision to whom state proposes to convey state park land, forest land or other state land held as protected open space to execute conservation easement in favor of state before land may be conveyed). All of the foregoing so-called negative easements protect or require property to be left or maintained in a specific condition, whether or not the dominant estate has a delineated right of entry onto or access to the servient estate.

Although an easement does not create an ownership interest in the servient estate but creates a mere privilege to use the servient estate in a particular manner, “an easement involves limited rights to enjoy or to restrict another’s use of property.” 1 J. Backman & D. Thomas, supra, § 1.01 [2] [a], p. 1-5. “If an easement is created to benefit and does benefit the possessor of the land in his use of the land, the benefit of that easement is appurtenant to the land. The land is being benefited by the easement in the neighboring property. ... An important characteristic of appurtenant easements is that they continue in the respective properties, rather than being merely personal rights of the parties involved. The easement’s benefit or its burden passes with every conveyance affecting either the servient or dominant property.” Id., § 1.01 [2] [g], p. 1-11.

We further are guided by our decision in Schwartz v. Murphy, supra, 74 Conn. App. 293, in which we concluded that although the deed at issue in that case did not contain the word “easement,” the deed, by virtue of the restrictions contained therein, clearly expressed “the intent to establish a view easement over the defendants’ property.” The deed in Schwartz contained the following relevant restrictions: “(1) Restriction as to view obstruction and location of accessory structures affecting the southeasterly comer of the premises as shown on said map, 12226, (2) Notations as shown on Maps numbered 10716 and 12226 and (3) Restrictive covenants and agreements set forth in a certain agreement between Faye Dunaway and John A. Contegni, et al., dated February 2,1981 . . . .” (Internal quotation marks omitted.) Id., 288. After considering this language, the trial court concluded that it evinced an intent to create a view easement. See id., 289. We agreed. Id., 290-95. In the present case, not only does the covenant document expressly state that the plaintiffs have a visual easement over lot B, but we are persuaded, as was the court in Schwartz, that the document also expresses the intent that the plaintiffs have a visual easement over lot A, as well.

Schwartz also provides guidance on the defendants’ contention that the court properly concluded that the plaintiffs cannot have an easement because the covenant document contains no specified right to enforcement. In Schwartz, the deed specifically referenced, inter alia, map 12226. Id., 288. Map 12226 stated: “No accessory structures or view obstructions shall be placed in this area.” (Internal quotation marks omitted.) Id., 292. We explained that this language expressly “prohibited [the defendants] from placing accessory structures or view obstructions in the easement area.” (Emphasis in original.) Id., 297. We further explained that “the defendants’ deed contains no language concerning, nor is there evidence of, any other agreement that requires the defendants to maintain the view easement for the plaintiff. Under such circumstances, the law is clear that it is the plaintiffs responsibility to maintain the view easement at his expense, and he had no right to compel the defendants to maintain it for his benefit.” Id., 297-98. Accordingly, although the deed and related documents contained no express right of enforcement, as a matter of law, the plaintiffs in Schwartz had a right to maintain the easement.

On the basis of the foregoing, we conclude that the covenant document granted a view easement to the plaintiffs over lots A and B and, therefore, the statute of limitations contained in § 52-575a, concerning private restrictions, is not applicable in this case.

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

In this opinion the other judges concurred.

       We use the terms view easement and visual easement synonymously throughout this opinion.

       Because we agree with the plaintiffs’ first claim, we conclude that it is not necessary to discuss their alternate claims.

       After being requested by the defendants to articulate its finding on their adverse possession claim, the court determined that the defendants had not proven their claim of adverse possession. There was no appeal taken from this aspect of the court’s judgment.

       In the present case, we make no determination as to whether the covenant document requires the defendants to maintain the easements on their respective properties or whether the plaintiffs, themselves, are responsible for maintaining the easements, but we leave those issues for the trial court to consider on remand.