text:
    PROBUILD EAST, LLC v. ADRIAN C. POFFENBERGER
    (AC 32996)
    Gruendel, Espinosa and Borden, Js.

      Argued February 2
    officially released June 12, 2012

      GenevieveP. Salvatore, for the appellant (defendant).

      TarynD. Martin, with whom, on the brief, was Robert A. Ziegler, for the appellee (plaintiff).
   Opinion

GRUENDEL, J.

The defendant, Adrian C. Poffenb-erger, appeals from the judgment of the trial court in favor of the plaintiff, ProBuild East, LLC. The defendant claims that the court improperly determined that (1) the plaintiffs mechanic’s lien was valid in accordance with General Statutes § 49-34, (2) alienable fund existed where the general contractor was paid the contract price in full and (3) a lienable fund existed where the contract between the defendant and the general contractor did not comply with the Home Improvement Act (act), General Statutes § 20-418 et seq. We affirm the judgment of the trial court.

The relevant facts, as found by the court, are as follows. In 2008, the defendant entered into a contract with DJ Flanagan Builders, LLC (Flanagan Builders), to renovate his property in Milford. The initial price was $94,000, but as the work progressed there were various modifications that resulted in increases to the price. On September 23, 2009, Flanagan Builders entered into a contract with the plaintiff, formerly known as Strober Building Supply, LLC, to provide supplies and materials for the project. The plaintiff delivered various materials to Flanagan Builders in January and February, 2009. On May 4, 2009, the plaintiff filed a certificate of mechanic’s hen dated April 28, 2009. The certificate was sworn and subscribed to by Alexander Pilagin, the credit manager for the plaintiff. The lien claimed that the plaintiff furnished materials and rendered services in the construction of a building on property owned by the defendant in Milford. The lien claimed that materials and services were furnished from January 8 to February 24, 2009, and the value of the materials and services totaled $15,276.47. A notice of lis pendens thereafter was recorded on the Milford land records.

Thereafter, the plaintiff filed its complaint seeking foreclosure of the hen. The defendant filed an answer, asserting two special defenses. The defendant claimed that the plaintiffs hen was invalid, first, because the defendant paid Flanagan Builders the full amount of the original contract price and, second, because Pilagin had no personal knowledge of the materials purportedly provided by the plaintiff.

The matter was tried to the court. In its memorandum of decision, the court first determined that the hen was not invalidated by an incorrect commencement date on the certificate because the error was not made in bad faith and did not harm the defendant. Turning to the defendant’s arguments about the lack of a henable fund, the court concluded that a henable fund did exist because the defendant still owed Flanagan Builders $10,800. The court then determined that the fact that the underlying contract between the defendant and Flanagan Builders did not comply with the act did not invalidate the hen. It further concluded that the hen should be enforced in the reduced amount of $10,800. Thereafter, the plaintiff filed a motion for a judgment of strict foreclosure. The court rendered a judgment of foreclosure by sale, setting a sale date of January 29, 2011. This appeal followed.

Before turning to the defendant’s claims, we note the apphcable standard of review. “On appeal, it is the function of this court to determine whether the decision of the trial court is clearly erroneous. . . . This involves a two part function: where the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision; where the factual basis of the court’s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous. That is the standard and scope of this court’s judicial review of decisions of the trial court. Beyond that, we will not go. ... 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 fiim conviction that a mistake has been committed.” (Citation omitted; internal quotation marks omitted.) Rollar Construction & Demolition, Inc. v. Granite Rock Associates, LLC, 94 Conn. App. 125, 130, 891 A.2d 133 (2006).

I

The defendant argues that the court erred in finding that the plaintiffs mechanic’s lien is valid under § 49-34 despite the incorrect commencement date listed on the certificate. Specifically, the defendant challenges the court’s factual finding that the defendant was not harmed by the inclusion of an incorrect commencement date, and the lien was therefore not invalid for failing to comply with § 49-34. We disagree.

Section 49-34 sets forth the required contents of a certificate of mechanic’s lien. Among the requisites is that the certificate state “the date of the commencement of the performance of services or furnishing of materials . . . .” The commencement date, and not the filing date, establishes the lienor’s priority as against other claimants. General Statutes § 49-33 (b); see also New England Savings Bank v. Meadow Lakes Realty Co., 243 Conn. 601, 616, 706 A.2d 465 (1998).

“We have long endorsed a policy favoring liberal construction of claimed inadequacies in certificates of mechanics’ liens in order to achieve the remedial purposes of the mechanics’ hen statutes. ... In accordance with this policy, our courts have been liberal in validating hens despite claimed errors on the face of the hen certificate where the mistake was made in good faith and no resulting prejudice was claimed.” J. C. Penney Properties, Inc. v. Peter M. Santella Co., 210 Conn. 511, 514-15, 555 A.2d 990 (1989). “As we have reasoned many times, we do not think a court of equity can be called upon to declare [a] hen utterly void upon the motion of persons who have lost nothing by [the] mistake. . . . Therefore, [wjhere the misstatement of the claim is intentional, that is, where the statement of the claim is intentionally false, or where it is fraudulent, the hen will be void; but where it is the result of a mistake, the misstatement of the claim will not invalidate the lien.” (Citation omitted; internal quotation marks omitted.) First Constitution Bank v. Harbor Village Ltd. Partnership, 230 Conn. 807, 816, 646 A.2d 812 (1994).

The court noted that Dennis J. Flanagan, the operator of Flanagan Builders, testified that he began to use materials provided by the plaintiff in October, 2008. The hen certificate stated a commencement date of January 8, 2009. The court found that there was no evidence indicating how the defendant was prejudiced by this error, nor was there evidence demonstrating a fraudulent intent. The record supports the court’s conclusion. Flanagan testified at trial that he began work at the defendant’s property in late September or early October, 2008, and that he began using materials from the plaintiff in the end of September or October, 2008. The invoices for these materials are dated from January 8 to February 24, 2009. The fact that the dates on the certificate correspond to the dates on the invoices support the court’s finding that the commencement date was not intentionally false or fraudulent. Upon our review of the record, there is no evidence to demonstrate a fraudulent intent in stating the commencement date as January 8, 2009. The court also found that the defendant failed to introduce any evidence or present any argument regarding how he was injured or prejudiced by the incorrect commencement date. “If neither deficiency exists, we express satisfaction that the statute has been substantially complied with and reject the argument that the hen should be invalidated.” First Constitution Bank v. Harbor Village Ltd. Partnership, supra, 230 Conn. 818. The court thus properly found that the hen was valid.

n

The defendant claims that the court’s factual finding that there was unpaid contract debt owed to Flanagan Builders by the defendant was improper given that the defendant paid Flanagan Builders the original contract price of $94,000. We disagree.

The statutory limitations on lienable funds as applicable to subcontractors are set forth in General Statutes §§ 49-33 and 49-36. A subcontractor is subrogated to the rights of the general contractor through whom he claims, such that a subcontractor only can enforce a mechanic’s lien to the extent that there is unpaid contract debt owed to the general contractor by the owner. See General Statutes § 49-33 (f); see also Seaman v. Climate Control Corp., 181 Conn. 592, 601-602, 436 A.2d 271 (1980). Sections 49-33 and 49-36 “define and delimit the fund to which a properly noticed mechanic’s hen may attach. Both of these sections start with the proposition that no mechanic’s lien may attach to any building or land in an amount greater than the price which the owner has agreed to pay the general contractor for the building being erected or improved. The amount may be diminished ... by bona fide payments, as defined in section 49-36, made by the owner . . . before receiving notice of [the mechanic’s] hen or hens.” (Citation omitted; internal quotation marks omitted.) Rene Dry Wall Co. v. Strawberry Hill Associates, 182 Conn. 568, 571-72, 438 A.2d 774 (1980); see also W. G. Glenney Co. v. Bianco, 27 Conn. App. 199, 205, 604 A.2d 1345 (1992).

The court found that the original contract price was $94,000 and that Flanagan Builders was paid that amount by the defendant. The court also found, however, that due to modifications to the plans made along the way, or “extras,” the price increased and the defendant still owed Flanagan Builders $10,800 for the project. These determinations find ample support in the record, specifically Flanagan’s trial testimony. There was no conflicting testimony or evidence presented as to the existence or amount of the unpaid debt. In light of the foregoing, the court’s factual finding that the defendant still owed $10,800 under the general contract was not clearly erroneous.

The lienable fund is limited to “the unpaid contract debt owed by the owner to the general contractor.” Seaman v. Climate Control Corp., supra, 181 Conn. 602. Because the court properly found that there was unpaid contract debt, a lienable fund exists. Accordingly, the defendant’s argument that the lien is invalid for lack of a lienable fund because he paid the original contract price must fail.

Ill

Finally, the defendant claims that the court improperly applied the statutes and case law regarding the subrogation of subcontractors’ claims. He claims that, because the underlying contract violates General Statutes § 20-429 (a), it is unenforceable against him by Flanagan Builders and there is therefore no lienable fund from which the plaintiff can collect. We disagree.

The act is a consumer protection statute. Its purpose is “to promote understanding by the consumer, to ensure his ability to make an informed decision and to protect him from substantial work by an unscrupulous contractor.” Habetz v. Condon, 224 Conn. 231, 239, 618 A.2d 501 (1992). The act requires that home improvement contractors register with the commissioner of consumer protection and that a home improvement contract include certain provisions to be valid and enforceable. General Statutes §§ 20-420 and 20-429. It also prohibits a home improvement contractor from enforcing any home improvement contract made with a homeowner that fails to adhere to the statutory requirements. MJM Landscaping, Inc. v. Lorant, 268 Conn. 429, 435, 845 A.2d 382 (2004). Subcontractors do not fall within the statutory definition of home improvement contractor, and they are therefore not required to register nor are they required to enter into valid home improvement contracts. Meadows v. Higgins, 249 Conn. 155, 165-68, 733 A.2d 172 (1999).

The court in the present case determined that it would be inequitable to subject the plaintiff to the terms of a contract to which it was not a party. It determined that the subrogation language of § 49-33 (f) was created solely for the purpose of protecting homeowners and should be interpreted to protect homeowners from double liability or liability beyond the contract price. The court concluded that, because the doctrine of subrogation is flexible, the subrogation language in § 49-33 (f) should not be interpreted to bar claims of subcontractors who were not involved in the formation of an invalid contract between the general contractor and the homeowner.

The court’s interpretation of § 49-33 (f) is an issue of law subject to plenary review. Ceci Bros., Inc. v. Five Twenty-One Corp., 51 Conn. App. 773, 776, 724 A.2d 541 (1999). Likewise, whether the act applies to the facts of this case is a matter of statutory construction over which we exercise plenary review. Meadows v. Higgins, supra, 249 Conn. 162.

“[T]he guidelines for interpreting mechanic’s hen legislation are . . . weh established. Although the mechanic’s lien statute creates a statutory right in derogation of the common law ... its provisions should be liberally construed in order to implement its remedial purpose of furnishing security for one who provides services or materials. . . . Our interpretation, however, may not depart from reasonable compliance with the specific terms of the statute under the guise of a liberal construction.” (Internal quotation marks omitted.) Rollar Construction & Demolition, Inc. v. Granite Rock Associates, LLC, supra, 94 Conn. App. 129. “A subcontractor’s right to claim a hen against a property owner with whom he is not in privity was created because the subcontractor has furnished material or labor to or for the contractor which has gone into the owner’s building.” (Internal quotation marks omitted.) H & S Torrington Associates v. Lutz Engineering Co., 185 Conn. 549, 553, 441 A.2d 171 (1981).

Assuming without deciding that the defendant is correct in his assertion that the underlying contract does not meet the requirements of § 20-429 (a), we do not agree that this is a bar to the plaintiffs right to recover against him under the mechanic’s hen statute. The defendant has provided no authority to support his proposition that when a general contractor’s hen is unenforceable for a lack of compliance with the act, the subcontractor’s hen also is unenforceable. Indeed, our trial courts consistently have rejected the proposition. See, e.g., White v. Edwards, Superior Court, judicial district of New Haven, Docket No. CV-00-0437477-S (June 9, 2000); Fromm v. FAS Designer & Builders, Inc., Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-97-0160094-S (March 16, 1998) (21 Conn. L. Rptr. 494); Fink v. Olson, Superior Court, judicial district of Fairfield, Docket No. CV-96-0335948S (November 19, 1996) (18 Conn. L. Rptr 259); Torre Builders v. Steven, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-92-0121684-S (October 21, 1992) (7 Conn. L. Rptr. 491); Baxter v. Quoka, Superior Court, judicial district of Ansonia-Milford, Docket No. CV-90-031911-S (July 3, 1990) (1 Conn. L. Rptr. 817); see also D. Rosengren, 13 Connecticut Practice Series: Construction Law (2005) § 8.5, p. 175 (“[W]hen a construction contract is unenforceable due to a violation of [the act], any hen held by the contractor is invalid. However, any subcontractor holding a hen will still be able to enforce it, as [the act] does not apply to subcontractors, and the validity of a subcontractor’s hen will not be affected by the validity of a contractor’s hen.”). To hold otherwise would expand the subrogation language of § 49-33 and impute additional conditions on subcontractors’ hens. It would also be a de facto apphcation of the requirements of the act to subcontractors, a group clearly excluded from complying with the act. See Meadows v. Higgins, supra, 249 Conn. 165-68. There is nothing in either the mechanic’s hen statutes or the act to indicate that the legislature intended such a result.

The subrogation language of § 49-33 (f) certainly requires that subcontractors’ hens be invalidated where there is no unpaid contract debt owed to the general contractor from the owner. Seaman v. Climate Control Corp., supra, 181 Conn. 601-602; W. G. Glenney Co. v. Bianco, supra, 27 Conn. App. 201. But where, as here, there is unpaid contract debt and the defendant asserts speculatively that the general contractor would be unable to collect that debt because of a separate statutory regime that does not apply to subcontractors, sub-rogation principles are not a bar to the validity of the plaintiffs lien.

The judgment is affirmed and the case is remanded for the purpose of setting a new sale date.

In this opinion the other judges concurred.

       On March 28, 2011, the plaintiff moved to substitute ProBuild East, LLC, as plaintiff, which this court granted.

       General Statutes § 49-34 provides: “A mechanic’s lien is not valid unless the person performing the services or furnishing the materials (1) within ninety days after he has ceased to do so, lodges with the town clerk of the town in which the building, lot or plot of land is situated a certificate in writing, which shall be recorded by the town clerk with deeds of land, (A) describing the premises, the amount claimed as a lien thereon, the name or names of the person against whom the lien is being filed and the date of the commencement of the performance of services or furnishing of materials, (B) stating that the amount claimed is justly due, as nearly as the same can be ascertained, and (C) subscribed and sworn to by the claimant, and (2) not later than thirty days after lodging the certificate, serves a true and attested copy of the certificate upon the owner of the building, lot or plot of land in the same manner as is provided for the service of the notice in section 49-35.”

       The defendant also argues that the lien is invalid under § 49-34 because Pilagin could not properly swear to the accuracy of the information contained in the lien because he did not have personal knowledge of the truth of the information he swore to. The defendant asserted this as a special defense, but the court’s memorandum of decision does not address it. The court addressed the evidentiary issue of the admission of twenty-four invoices that listed materials sold to Flanagan Builders and found that they were properly admitted as business records through Pilagin’s testimony despite the fact that he did not have personal knowledge of whether the materials listed on the invoices were used in the project. The court’s memorandum of decision does not address the issue of Pilagin’s lack of personal knowledge as it related to the defendant’s claim that the lien was invalid because the lien certificate was not properly sworn and subscribed to by Pilagin. Although we can imply from the court’s ruling in favor of the plaintiff that the defendant did not carry his burden of proof as to the special defense, it is well settled that “[t]his court is unable to review claims that were not expressly addressed by the trial court.” Miller v. Miller, 124 Conn. App. 36, 40, 3 A.3d 1018 (2010). Accordingly, we decline to review this claim.

       General Statutes § 49-33 provides in relevant part: “(a) If any person has a claim for more than ten dollars for materials furnished or services rendered in the construction, raising, removal or repairs of any building or any of its appurtenances or in the improvement of any lot or in the site development or subdivision of any plot of land, and the claim is by virtue of an agreement with or by consent of the owner of the land upon which the building is being erected or has been erected or has been moved, or by consent of the owner of the lot being improved or by consent of the owner of the plot of land being improved or subdivided, or of some person having authority from or rightfully acting for the owner in procuring the labor or materials, the building, with the land on which it stands or the lot or in the event that the materials were furnished or services were rendered in the site development or subdivision of any plot of land, then the plot of land, is subject to the payment of the claim. . . .
      “(e) A mechanic’s lien shall not attach to any such building or its appurtenances or to the land on which the same stands or to any lot or to any plot of land, in favor of any subcontractor to a greater extent in the whole than the amount which the owner has agreed to pay to any person through whom the subcontractor claims subject to the provisions of section 49-36.
      “(f) Any such subcontractor shall be subrogated to the rights of the person through whom the subcontractor claims, except that the subcontractor shall have a mechanic’s lien or right to claim a mechanic’s lien in the event of any default by that person subject to the provisions of sections 49-34, 49-35 and 49-36, provided the total of such lien or liens shall not attach to any building or its appurtenances, or to the land on which the same stands or to any lot or to any plot of land, to a greater amount in the whole than the amount by which the contract price between the owner and the person through whom the subcontractor claims exceeds the reasonable cost, either estimated or actual, as the case may be, of satisfactory completion of the contract plus any damages resulting from such default for which that person might be held liable to the owner and all bona fide payments, as defined in section 49-36, made by the owner before receiving notice of such lien or liens . . . .”

       General Statutes § 49-36 provides in relevant part: “(a) No mechanic’s lien may attach to any building or its appurtenances, or to the land on which the same stands, or any lot, or any plot of land, in favor of any person, to a greater amount in the whole than the price which the owner agreed to pay for the building and its appurtenances or the development of any such lot, or the development of any such plot of land. . . .
      “(c) In determining the amount to which any lien or hens may attach upon any land or building, or lot or plot of land, the owner of the land or building or lot or plot of land shall be allowed whatever payments he has made, in good faith, to the original contractor or contractors, before receiving notice of the hen or hens. No payments made in advance of the time stipulated in the original contract may be considered as made in good faith, unless notice of intention to make the payment has been given in writing to each person known to have furnished materials or rendered services at least five days before the payment is made.”

       General Statutes § 20-429 (a) provides in relevant part: “No home improvement contract shall be valid or enforceable against an owner unless it: (1) Is in writing, (2) is signed by the owner and the contractor, (3) contains the entire agreement between the owner and the contractor, (4) contains the date of the transaction, (5) contains the name and address of the contractor and the contractor’s registration number, (6) contains a notice of the owner’s cancellation rights in accordance with the provisions of chapter 740, (7) contains a starting date and completion date, (8) is entered into by a registered salesman or registered contractor, and (9) includes a provision disclosing each corporation, limited liability company, partnership, sole proprietorship or other legal entity, which is or has been a home improvement contractor pursuant to the provisions of this chapter or a new home construction contractor pursuant to the provisions of chapter 399a, in which the owner or owners of the home improvement contractor are or have been a shareholder, member, partner, or owner dining the previous five years. . .

       Flanagan Builders is not a party to this action, and we do not determine in this matter whether it would be precluded from enforcing its contract with the defendant.


source: Caselaw Access Project

author: BEAR, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. VICTOR SMALLS
    (AC 33885)
    DiPentima, C. J., and Bear and Bishop, Js.
    Argued March 5
    officially released June 12, 2012

      Raymond L. Durelli, special public defender, for the appellant (defendant).

      Rita M. Shair, senior assistant state’s attorney, with whom, on the brief, was David I. Cohen, state’s attorney, and James Bemardi, senior assistant state’s attorney, for the appellee (state).
   Opinion

BEAR, J.

The defendant, Victor Smalls, appeals from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes § 53a-54a and carrying a pistol without a permit in violation of General Statutes § 29-35 (a). On appeal, the defendant claims that the court improperly (1) found that there was probable cause to support the prosecution of the defendant for causing the death of the victim, Edgar Sanchez, and (2) concluded that the evidence was sufficient to sustain the defendant’s conviction for murder as either a principal or accessory. We affirm the judgment of the trial court.

The jury reasonably could have found the following detailed facts. On the afternoon of March 22,2007, Colonel Francis, James Gibson and the victim drove to the vicinity of the Monterey Village housing project, which also is known as the Carlton Court housing project (apartment complex), in Norwalk. They parked then-vehicle near the apartment complex, and Gibson went to sell narcotics, while the victim and Francis went to a nearby diner to wait for Gibson. When Gibson arrived at the diner, he told Francis and the victim that he thought something was going on outside and that they should leave the area. As they were walking back to their vehicle, Gibson noticed two hooded and masked individuals, later identified as Jimmy Kave and the defendant, following them, and he told the victim and Francis to walk faster. One of the hooded and masked individuals called out to the men, and Francis looked back and saw one of the men reach toward his waistline. Believing that the man was about to pull out a gun, Francis turned and ran toward the vehicle. The victim turned around to face the hooded and masked men, and the defendant and Kave both fired several shots at the victim, one of which hit him, causing his death. Gibson turned and saw both the defendant and Kave firing handguns. The defendant and Kave fled the scene after firing the shots. Francis heard the gunshots and then heard Gibson yelling for him to get the car. Francis got the car and parked it near the victim, who was located at or near the entrance to the apartment complex on Grove Street, and he and Francis attempted to get the victim into the car, but the victim collapsed. Gibson applied pressure to the victim’s wound, while he and Francis waited for the police and an ambulance to arrive.

Moments earlier, a resident of the apartment complex, Tracie McElveen (T. McElveen), along with her twin sister, Stacie McElveen (S. McElveen), drove down Grove Street, where they saw three males walking toward the apartment complex, and drove into the parking area of the apartment complex shortly before they heard gunfire. They then saw two males wearing hoo-dies run from Grove Street and between buildings twelve and thirteen of the apartment complex, with their hoods clenched tight around their faces. T. McEl-veen then saw the men run into building thirteen of the apartment complex. As the McElveens drove away from the apartment complex, they saw the victim lying on his back, with blood all over him, and they stopped their car. T. McElveen recognized the injured male as one of the three males she and her sister had seen walking toward the apartment complex a short time before. The other two males they had seen were nearby, and one of them asked for someone to call 911. S. McElveen then called 911 using her cell phone. The McElveens remained at the scene and spoke with the police once they arrived at the scene.

A maintenance worker at the apartment complex, Temestocles Sanchez (T. Sanchez), had been repairing a hole in the wall in building thirteen when he heard the gunshots. After hearing the gunshots, he looked out of the window and saw the defendant and Kave run into the building less than a minute after he heard the shots. T. Sanchez recognized the defendant, and he also saw that the other individual had a partially exposed gun in his hoodie. The defendant and Kave began knocking on apartment doors. T. Sanchez went to report the incident to his supervisor, and they telephoned the police.

The defendant and Kave gained entry into apartment 151, and they began talking with its occupants, Erica Sawyer and her cousin, Crystal Burden. Burden, Burden’s mother, Maribel Rodriguez, and Burden’s younger sister all lived in apartment 151. Once Burden’s mother left for work and Burden’s younger sister left for school in the morning, Burden and Sawyer were the only people in apartment 151 until the defendant and Kave arrived. Burden and Sawyer had not left the apartment all day. After the defendant and Kave arrived, they each removed their sneakers and their hoodies. Burden told the defendant and Kave to leave, but they remained. The police arrived at the scene and surrounded building thirteen; no one entered or exited the building, except for the police. The police obtained a master key from the manager of the apartment complex, secured the approval of the apartment residents and began knocking on doors looking for the defendant and Kave. Upon entering apartment 151, the police ordered its occupants to come out, and Sawyer and Burden exited a bedroom. An officer again ordered anyone else in the apartment to come out. The defendant and Kave came out of the bedroom from which Burden and Sawyer also exited. No one else was found in the apartment. The renter of the apartment, Maribel Rodriguez, arrived home, and the police obtained her permission to search the apartment. They found two hoodies, two pairs of ‘men’s sneakers and, in the back of the bedroom closet, a .380 semiautomatic handgun and a nine millimeter dock handgun. In the cartridge of the dock handgun were four Federal Cartridge Company (Federal) Hydra-Shok brand nine millimeter bullets. The police also uncovered a black mask in a pocket of one of the hoo-dies and another black mask in one of the defendant’s pockets.

In the meantime, the police had arrived at the location of the shooting and attempted to tend to the unconscious victim. An ambulance was called, and it transported the victim to the hospital, where he was pronounced dead, never having regained consciousness. The paramedic explained that the victim had “bled . . . out right on the street. He lost most of his blood there.” The medical examiner reported that the twenty-two year old victim had died as a result of a “[g]unshot wound to the lower abdomen.” The medical examiner retrieved one bullet from the victim’s body, which, after cleaning and photographing it, she placed in a labeled container and then turned it over to the police. The bullet was a nine millimeter caliber, jacket hollow point, with a Hydra-Shok design.

While at the scene of the shooting, the police collected eight spent shell casings and one live round. Four of the shell casings were .380 caliber, as was the one live round. The remaining shell casings were nine millimeter. It was determined, to a reasonable degree of certainty, that the shell casings had come from the handguns that had been seized from apartment 151. The bullet that killed the victim also was consistent with one having been fired from the nine millimeter handgun that was recovered from apartment 151. None of the shell casings or the handguns contained fingerprints, and the defendant and Kave had no gunpowder residue on their hands.

Following a probable cause hearing, the defendant elected to be tried by a jury, and a trial ensued. At the close of the state’s evidence, the defendant filed a motion for a judgment of acquittal, which the court denied. The defendant called no witnesses. The jury found the defendant guilty of murder and of carrying a pistol without a permit. The court sentenced him to a total effective sentence of forty-five years imprisonment. This appeal followed.

I

We first must consider the defendant’s claim that the court improperly concluded that the evidence was sufficient to sustain the defendant’s conviction for murder as either a principal or an accessory. See State v. Munoz, 233 Conn. 106, 110, 659 A.2d 683 (1995) (“[w]e first consider the defendant’s claim that the evidence was insufficient to convict him of murder, because if that claim is meritorious, all of his other claims are moot”). The defendant argues that there clearly was no evidence to support his conviction for murder as a principal because there was no evidence that he ever touched the handgun from which the fatal shot was fired. He also argues that there was no evidence to support his conviction for murder as an accessory because there was no proof that he intentionally aided another person, pursuant to General Statutes § 53a-8 (a), in the commission of the murder. The state argues that under the concert of action doctrine, the evidence was sufficient to sustain the defendant’s conviction for murder as a principal or an accessory. We agree with the state.

“Whether a person who is present at the commission of a crime aids or abets its commission depends on the circumstances surrounding his presence there and his conduct while there. . . . Since under our law both principals and accessories are treated as principals ... if the evidence, taken in the light most favorable to sustaining the verdict, establishes that [the defendant] committed the [murder] charged or did some act [that] forms ... a part thereof . . . then the convictions must stand. . . . Therefore, as we have stated in the past, the terms accessory and principal refer to the alternate means by which one substantive crime may be committed.” (Citations omitted; internal quotation marks omitted.) State v. Delgado, 247 Conn. 616, 622, 725 A.2d 306 (1999).

The defendant claims that the evidence was insufficient to support his conviction for murder as a principal or an accessory. He argues that there was no evidence that he fired the fatal shot that caused the death of the victim or that he intended to aid Kave in firing the fatal shot. We disagree. The defendant’s claim is similar to a claim made in the Delgado case, in which the defendant had argued, inter alia, that to support his conviction for murder under an accessory theory, the state was required to prove that the defendant “intended to aid [the other participant] in the commission of murder . . . .” Id. In considering that claim, our Supreme Court explained: “[T]he jury reasonably could have inferred that, at the time that the defendant was firing the thirteen rounds at the victim, he was aware that [the other participant] also was shooting at the victim. Although the evidence did not reveal whether it was the defendant or [the other participant] who had fired the shot that fatally injured the victim, the jury reasonably could have determined that there was sufficient concert of action between the defendant and [the other participant] to support the accessory allegation. ... As such, there was sufficient evidence to support the jury’s conclusion that the defendant had intentionally contributed to the victim’s murder.” (Citation omitted.) Id., 623; see State v. Diaz, 237 Conn. 518, 544, 679 A.2d 902 (1996); see also State v. Ashe, 74 Conn. App. 511, 519-20, 812 A.2d 194, cert. denied, 262 Conn. 949, 817 A.2d 108 (2003). The facts of the present case fit squarely within the Delgado analysis.

In the present case, the jury reasonably could have found that, at the time the defendant was firing the four rounds at the victim, he was aware that Kave also was firing at the victim. Although the evidence did not reveal whether it was the defendant or Kave who had fired the shot that fatally wounded the victim, the jury reasonably could have determined that there was sufficient concert of action between the defendant and Kave to support the accessory allegation. See State v. Delgado, supra, 247 Conn. 623. As such, there was sufficient evidence to support the jury’s conclusion that the defendant intentionally contributed to the victim’s murder. See id. Accordingly, the evidence was sufficient to support the defendant’s conviction for murder as a principal or an accessory.

II

Before proceeding to trial in this case, the state had been required to establish probable cause to believe that the defendant was guilty of intentional murder in violation of § 53a-54a, the elements of which are intent, causation, and death by killing. See State v. Rasmussen, 225 Conn. 55, 74, 621 A.2d 728 (1993). At the time of the probable cause hearing, the defendant had not been charged as an accessory, but only as a principal. The defendant claims that the court improperly found that the evidence was sufficient to support a finding of probable cause that he caused the death of the victim. Specifically, he argues that “the evidence submitted at [the] probable cause hearing was insufficient to establish that he fired the shot that mortally wounded [the victim] ” and, therefore, that the court was without jurisdiction to hear the state’s case against him. The state argues that “the evidence offered at the hearing in probable cause would certainly warrant a person of reasonable caution to believe that the [defendant] had committed the charged offense of the murder of [the victim].” We agree with the state.

On August 30, 2007, the court conducted a hearing to determine if there was probable cause that the defendant had committed the crime of murder in violation of § 53a-54a. At the conclusion of the hearing, the court reasonably could have found the following facts. On March 22, 2007, T. McElveen, a tenant at the apartment complex, was returning to her home, accompanied by her sister, S. McElveen, to check her mailbox. As T. McElveen drove toward the apartment complex, she and her sister saw three men walking up Grove Street. After T. McElveen parked her car and went to check her mailbox, she heard several gunshots, causing her to “fr[eeze] in [her] tracks . . . .” S. McElveen also heard the gunshots. The McElveens then saw two people wearing black hoodies run between buildings twelve and thirteen of the apartment complex. T. McElveen saw those people enter building thirteen. She then saw a maintenance worker exit the building. She and her sister returned to the car and drove down Grove Street, where they saw the victim, whom T. McElveen identified as one of the three men she had seen earlier, lying on the ground on his back with “blood all over him.” The other two men who had been walking with the victim were standing over him, and one of those men asked if someone would call 911. S. McElveen telephoned 911 from her cell phone, and she and her sister remained at the scene until the police arrived.

A maintenance worker at the apartment complex, T. Sanchez, also heard gunshots and looked out of a window in building thirteen to see what was happening. He saw two people running from Grove Street into building thirteen; he recognized one of those people to be the defendant, whom he recognized as a tenant or former tenant of the apartment complex. He noticed that the other man had a handgun. Both of these men began to knock on apartment doors in building thirteen. T. Sanchez left building thirteen and reported the incident to his supervisor. He also contacted the police.

Officer Alan Mocciola of the Norwalk police department was dispatched to Grove Street to investigate a possible shooting. Upon his arrival, he noticed the victim on the ground near a gray vehicle with the right rear door partially opened. The victim was bleeding from the pelvis area, and Mocciola applied pressure to the wound as he called for an ambulance. The victim was not conscious. Several other officers and detectives arrived on the scene, and the scene was secured with yellow police tape. The ambulance arrived, and the victim was transported to a hospital where he was pronounced dead.

Sergeant John Lysobey and Officer Susan Holland of the Norwalk police department were dispatched to building thirteen, where they searched, inter alia, apartment 151. Holland opened the door to apartment 151 with a key that had been obtained from building management, and she ordered the occupants of the apartment to exit. Sawyer and Burden came out of a bedroom, and Holland asked them if anyone else was present in the apartment, to which they responded in the affirmative. Holland then ordered everyone else in the apartment to come out, and the defendant and Kave also exited the bedroom. The officers then searched apartment 151 and discovered a .380 caliber handgun and a nine millimeter handgun in the closet of the bedroom from which Sawyer, Burden, Kave and the defendant had exited. No one else was present in apartment 151. Following the defendant’s arrest, he tested negative for gunshot residue on his hands, and testing of the handguns revealed no identifiable latent fingerprint impressions.

A search of the immediate area of the shooting revealed eight spent shell casings and one five round on the ground. Four of the shell casings were nine millimeter casings, four were .380 caliber casings and the five round also was a .380 caliber round. In addition, four live nine millimeter rounds were located in the magazine of the nine millimeter handgun that was recovered from the closet in apartment 151. Those rounds were of the type manufactured by Federal, and they were of the Hydra-Shok style. One bullet, consistent with one having been fired from the nine millimeter handgun, was recovered from the body of the victim during his autopsy. It also was a nine millimeter Hydra-Shok round manufactured by Federal. No identifiable latent fingerprint impressions were recovered from any of the shell casings.

“In making a finding of probable cause, the trial court must determine whether the evidence offered would warrant a person of reasonable caution to believe that the accused had committed the charged offense. . . . The quantum of evidence necessary to establish probable cause exceeds mere suspicion, but is substantially less than that required for conviction. Our cases have made clear [t]hat there is often a fine line between mere suspicion and probable cause, and [t]hat line necessarily must be drawn by an act of judgment formed in light of the particular situation and with account taken of all the circumstances. ... On appellate review of a probable cause hearing, we must examine the evidence presented to the trial court at that hearing and determine whether it was sufficient to warrant a person of reasonable caution to believe that the accused had committed the charged offense.” (Citation omitted; internal quotation marks omitted.) State v. Booth, 250 Conn. 611, 652-53, 737 A.2d 404 (1999), cert. denied sub nom. Brown v. Connecticut, 529 U.S. 1060, 120 S. Ct. 1568, 146 L. Ed. 2d 471 (2000).

The defendant argues that although the evidence reasonably might “justify an inference that either the defendant or Kave fired the fatal shot” that killed the victim, “the only inference that can be derived from [the] facts is that there is a [50] percent possibility that the defendant fired the fatal shot .... And there is a [50] percent possibility [that] Kave fired the fatal shot.” He argues that this is insufficient to support a finding of probable cause to try him for murder. We disagree with the defendant’s assertion that probable cause requires more than a 50 percent likelihood, which essentially would amount to a preponderance of the evidence, that the defendant committed the crime, and we conclude that the evidence presented at the defendant’s hearing in probable cause would warrant a person of reasonable caution to believe that the defendant had murdered the victim.

Our conclusion is guided by our Supreme Court’s decision in State v. Munoz, supra, 233 Conn. 135, where the court held that the preponderance of the evidence standard is an improper standard in evaluating the evidence at a probable cause hearing. The court explained that “probable cause is notthe same as a preponderance of the evidence. . . . [P]roof of probable cause requires less than proof by a preponderance of the evidence.” Id.; see Skakel v. State, 295 Conn. 447, 479 n.22, 991 A.2d 414 (2010) (“The existence of probable cause does not . . . turn on whether the defendant could have been convicted on the same available evidence. . . . [P]roof of probable cause requires less than proof by a preponderance of the evidence.” [Internal quotation marks omitted.]); State v. Grant, 286 Conn. 499, 516 n.10, 517-18, 944 A.2d 947 (proof of probable cause does not require certainty or reasonable belief that it was more likely than not, and mere possibility of innocent explanation for evidence connecting defendant with crime does not preclude finding of probable cause), cert. denied, 555 U.S. 916, 129 S. Ct. 271, 172 L. Ed. 2d 200 (2008); see also Illinois v. Gates, 462 U.S. 213, 244 n.13, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983) (“probable cause requires only a probability or substantial chance of criminal activity, not an actual showing of such activity”). Accordingly, on the basis of our clear precedent, we reject the defendant’s claim that there was insufficient evidence to support a finding of probable cause that he murdered the victim.

The judgment is affirmed.

In this opinion the other judges concurred.

      A hoodie is defined as “a hooded sweatshirt.” Merriam-Webster Online Dictionary, available at http://www.merriam-webster.com/dictionary/hoodie (last visited May 7, 2012).

       We note that the transcripts of the probable cause hearing and the trial incorrectly refer to these as “hyrdroshock” brand bullets. See http:// www.federalpreinium.com/hunters_education/handgun_bullet_details.aspx (last visited May 7, 2012).

       General Statutes § 53a-8 (a) provides: “A person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender.”

       During oral argument before this court, the defendant asked that we look only to the plain words of § 53a-8 (a) in considering his claim, and that we not look to the concert of action cases decided by our Supreme Court, which, he claims, put a gloss on the statute that is not supported by the statute’s plain language. Because we are bound by the precedent set by our Supreme Court, however, we are not at liberty to ignore those cases. “As an intermediate appellate court ... we are not at liberty to overrule, reevaluate or reexamine controlling precedent of our Supreme Court. See Stuart v. Stuart, 297 Conn. 26, 45-46, 996 A.2d 259 (2010) (‘it is manifest to our hierarchical judicial system that [the Supreme Court] has the final say on matters of Connecticut law and that the Appellate Court and Superior Court are bound by [its] precedent’).” Pite v. Pite, 135 Conn. App. 819, 826-27, 43 A.3d 229 (2012).

       In Munoz, our Supreme Court explained that the trial court, at the defendant’s probable cause hearing, had stated: “Preponderance of the evidence is 51 percent standard of proof. In fact, the State’s asking me to find by 51 percent, that [the defendant] committed this crime, and defense in effect, is asking me by 51 percent, to find that the other person in the car finished off the victim. And while there’s evidence to support the State’s request, there’s no evidence to support the Defendant’s request. . . . [B]ased on the evidence that’s been presented to me, I can find by a preponderance of the evidence . . . [the defendant’s] responsibility in this, again, by 51 percent.” (Internal quotation marks omitted.) State v. Munoz, supra, 233 Conn. 135 n.22. The defendant argued that the court had used an improper standard to determine whether there was probable cause. The Supreme Court “agree [d] with the defendant that the court used an improper standard.” Id., 135. It “also conclude[d], however, that the impropriety inured to the defendant’s benefit, rather than to his detriment, and that, therefore, the court’s finding of probable cause was not so flawed as to require a new hearing.” Id.


author: ALVORD, J.

text:
    CHERYL JANSEN v. HERBERT JANSEN
    (AC 32070)
    Robinson, Alvord and Flynn, Js.

      Argued March 6
    officially released June 12, 2012

      Charles D. Ray, with whom was Matthew A. Weiner, for the appellant (defendant).

      Proloy K. Das, with whom was James M. Ruel, and, on the brief, Debra C. Ruel, for the appellee (plaintiff).
   Opinion

ALVORD, J.

The defendant, Herbert Jansen, appeals from the judgment of the trial court denying his motion to modify his alimony obligation to the plaintiff, Cheryl Jansen. On appeal, the defendant argues that the court abused its discretion in failing to find a substantial change in circumstances warranting modification of his alimony obligation pursuant to General Statutes § 46b-86 (a). Specifically, he contends that his forced retirement is a substantial change in circumstances because his annual taxable income decreased as a result We find the defendant’s claim to be meritless and, accordingly, affirm the judgment of the trial court.

The following facts and procedural history are relevant to our disposition of the defendant’s appeal. On April 16, 2009, the defendant filed a motion to modify his alimony obligation to the plaintiff. The defendant also sought a reduction in the amount of life insurance that he is required, pursuant to the parties’ separation agreement (agreement), to maintain for the benefit of the plaintiff. The court, Hon. Howard T. Owens, Jr., judge trial referee, heard the parties regarding the motion on November 30 and December 1 and 2, 2009, and heard testimony from the plaintiffs expert witness, Philip J. DeCaprio, Jr., a forensic accountant who studied the parties’ financial records.

The parties were married on April 7, 1973. After twenty-three years of marriage, the parties entered into the agreement on October 18, 1996, which agreement was then incorporated into the judgment of dissolution rendered by the court on the same date. The parties have two children, one of whom was a minor at the time of the dissolution. The agreement provided for monthly unallocated child support and alimony in the amount of $16,500 to be paid by the defendant to the plaintiff until her death or remarriage. The agreement also provided the defendant with the option to petition the court for relief if the plaintiff cohabitated with a person of the opposite sex for more than four months or if the plaintiff earned more than $75,000 in gross income per year. The plaintiff could seek modification, pursuant to the agreement, if the defendant’s income increased by more than $150,000 per year. According to the agreement, the parties also had the right to modify the alimony award pursuant to § 46b-86 (a). The agreement required the defendant to maintain his existing life insurance policy in the face amount of $750,000 with the plaintiff as the irrevocable beneficiary for as long as the defendant was required to pay alimony to the plaintiff.

At the time of the dissolution, the defendant worked for the accounting firm of Arthur Andersen and earned a gross annual income of $629,616 with a net monthly income of $27,509 and assets worth $567,721. The plaintiff was a full-time graduate student with no monthly income and monthly household expenses exceeding $10,500. The defendant married his current wife, Anne Swope, four months after the judgment of dissolution was rendered. After the collapse of Arthur Andersen, the defendant was employed as a partner at Ernst & Young. The defendant testified that the reason that he transferred title to or made Swope a joint owner of a substantial amount of his assets was because he and Swope anticipated potential claims of liability based on his partnership at Arthur Andersen.

While working at Ernst & Young, the defendant earned substantially more in gross income than he had at the time of the dissolution. The defendant purchased a home in Norwalk, but conveyed it by quitclaim deed to Swope in 2002. The Norwalk property was sold for approximately $950,000 and a home in South Carolina was purchased for approximately $600,000 in 2009. A year prior, in 2008, a home in Bolton Landing, New York was purchased for approximately $800,000. All of the properties were acquired solely with the defendant’s funds and all of the expenses regarding the properties are paid by the defendant, yet the properties are titled only in Swope’s name. The defendant also claims $200,000 of equity in a New York City apartment he purchased for his daughter.

The defendant and Swope have several joint checking accounts and certificates of deposit funded solely by the defendant but in which the defendant claims Swope maintains an equal interest. Swope also maintains a separate investment account with Charles Schwab (Schwab account) in which she has approximately $3.35 milhon in assets funded mainly with her bonus earnings from her job as an investment banker. The defendant claims that the Schwab account belongs solely to Swope despite the fact that he contributed more than $200,000 to the account. The defendant, however, deposited the entirety of his almost $2 milhon annual earnings into the couple’s joint accounts.

The defendant pays substantially all of the couple’s approximately $20,000 of monthly expenses. Swope pays for a de minimis amount of those expenses based on her approximately $430 per week of unemployment benefits, which she had been collecting from the government through the time of trial. The defendant also has gifted $20,000 annually to his adult children for the past five years. The defendant admits he bestowed these gifts without thought to his obligations to the plaintiff. The defendant also gifted $24,000 to his son’s fiancée.

The defendant retired from Ernst & Young pursuant to the company’s mandatory retirement policy, which requires partners reaching the age of sixty to retire, although he received permission to work until he was sixty-one. The defendant argued that his retirement status has resulted in a $100,000 gap between his income and his alimony obligation. He claimed, therefore, that his alimony obligation pursuant to the agreement should be reduced from $198,000 yearly to $40,000 yearly in order for him to sustain his current lifestyle while continuing to pay the plaintiff one third of his annual income.

The plaintiffs expert, DeCaprio, provided a detailed analysis of the parties’ financial information. DeCaprio testified that the defendant’s assets in October, 2009, were substantially higher than the assets he possessed on the date of the 1996 dissolution. DeCaprio testified that the combined assets of the defendant and Swope were in excess of $8 million and that 73.79 percent of those assets, some $6.3 million, were attributable to the defendant. He also testified that Swope was able to contribute to the Schwab account only because the defendant was contributing to her expenses. DeCaprio testified that the defendant paid all of his salary into jointly accessible funds while Swope maintained her assets separately. Finally, DeCaprio testified that the defendant and Swope had a “convoluted commingling of funds. ” The defendant did not provide his own expert. Swope testified that she would agree that the couple’s assets were indeed commingled.

On February 3, 2010, almost three months after the close of the hearing, the defendant filed a motion to open the evidence, alleging that the plaintiff had accepted new employment which increased her annual income to approximately $50,000. The plaintiff objected to the evidence as irrelevant based on the “safe harbor” provision in the agreement which allowed the plaintiff to earn up to $75,000 before the defendant could challenge the alimony agreement on the basis of her employment. The court summarily denied the motion to open the evidence on February 25, 2010.

On March 3, 2010, the court issued its memorandum of decision in which it made the following findings: “Since [the] defendant is retired there has been some diminution of his income but he clearly has the ability to pay the existing order and his station in life is no different than it was at the time of dissolution, in fact it has improved. While it is gallant that he would like to leave a substantial part of his assets to his heirs he must first abide by the court’s October 18, 1996 judgment, which is apriority. [The] [defendant's annual income for the years from 2001 through 2008 exceeded the $630,000 he was earning at the time of the 1996 judgment. It should also be noted that the defendant has transferred substantial assets without consideration to his current wife and to his adult children as well. The defendant is currently paying the expenses for two homes and he owned no home at the time of the 1996 dissolution. While [the] defendant’s current wife is unemployed she refuses to spend any of the $3.35 million in her Schwab account to support herself and [the] defendant has made it clear he will not avail himself of any of that money. . . .

“Since the judgment, the defendant combined all of his assets and earnings with his current wife but the actions of the wife have hardly been reciprocal. . . . [The] [d]efendant’s current affidavit admits to owning assets in excess of $3 million. He has also commingled his assets with his wife’s since 1997, which has resulted in his wife having a substantial increase in her assets while the defendant pays a substantial portion of her bills. [The] [defendant's wife candidly admits that she intends to live off of his retirement income in the foreseeable future. The defendant has failed to establish a substantial change in his effort to modify the alimony order. . . . Since the defendant and his wife have commingled assets that are now worth in excess of $8,000,000 it is not up to the court to discern and dissect the sum that is clearly attributable to either or both. Clearly the defendant’s culpable conduct by his commingling of assets cannot lead him to complain that he cannot meet his current alimony obligation or entitle him to any modification. His naked assertion is simply without merit.
“In addition the defendant has during the period involved, made gifts to each of his two children totaling $200,000. He has also given a gift of $24,000 to his son’s fiancé. [The] [defendant admits a diversion of funds to his new wife and contemplates additional gifts in the future.” The court then denied the defendant’s motion for modification. This appeal followed.

On July 14, 2010, the defendant filed a motion for articulation with the trial court, which motion the court denied. The defendant subsequently filed a motion for review with this court on August 13,2010, which motion was granted, but the relief requested was denied. The defendant then filed a motion pursuant to Practice Book § 64-1 on September 17, 2010, followed by a motion to perfect the trial court record for appeal on September 28, 2010, which motion this court denied. Additional facts will be set forth as necessary.

The defendant claims that the court abused its discretion in failing to find a substantial change in circumstances warranting modification of his alimony obligation. We disagree.

We first set forth the applicable standard of review. “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 . . . .” (Internal quotation marks omitted.) Schade v. Schade, 110 Conn. App. 57, 62, 954 A.2d 846, cert. denied, 289 Conn. 945, 959 A.2d 1009 (2008).

The parties’ agreement provided that the defendant’s alimony obligation could be modified pursuant to § 46b-86 (a). “[Section] 46b-86 governs the modification or termination of an alimony or support order after the date of a dissolution judgment. When, as in this case, the disputed issue is alimony, the applicable provision of the statute is § 46b-86 (a), which provides that a final order for alimony may be modified by the trial court upon a showing of a substantial change in the circumstances of either party. . . . Under that statutory provision, the party seeking the modification bears the burden of demonstrating that such a change has occurred.” (Internal quotation marks omitted.) Simms v. Simms, 283 Conn. 494, 502, 927 A.2d 894 (2007).

“We previously have explained the specific method by which a trial court should proceed with a motion brought pursuant to § 46b-86 (a). When presented with a motion for modification, a court must first determine whether there has been a substantial change in the financial circumstances of one or both of the parties. . . . Second, if the court finds a substantial change in circumstances, it may properly consider the motion and, on the basis of the [General Statutes] § 46b-82 criteria, make an order for modification. . . . The court has the authority to issue a modification only if it conforms the order to the distinct and definite changes in the circumstances of the parties. . . . Simply put, before the court may modify an alimony award pursuant to § 46b-86, it must make a threshold finding of a substantial change in circumstances with respect to one of the parties.” (Citation omitted; emphasis in original; internal quotation marks omitted.) Schade v. Schade, supra, 110 Conn. App. 63.

In the present case, the court made a threshold finding that no substantial change in the defendant’s financial circumstances existed. The defendant argues that the court should have found a substantial change in circumstances on the basis that he was forced to retire from his job at Ernst & Young, thereby decreasing his annual income. We are not persuaded.

While the court recognized that the defendant’s yearly income decreased due to his retirement, it found that there was no substantial change in circumstances because the defendant engaged in culpable conduct. This court has stated that “if a party’s culpable conduct causes an inability to pay an alimony award, then the threshold question of whether a substantial change of circumstances exists is not met.” Id., 65 n.6; see also Sanchione v. Sanchione, 173 Conn. 397, 407, 378 A.2d 522 (1977) (new hearing ordered where trial court reduced alimony without finding whether inability to pay alimony was result of defendant’s own extravagance, neglect, misconduct or other unacceptable reason); Wanatowicz v. Wanatowicz, 12 Conn. App. 616, 620, 533 A.3d 239 (1987) (no substantial change in circumstances warranting alimony reduction because defendant’s reduction in funds brought about by his own fault after he “ ‘blew’ ” his money while drinking). In the present case, the court found that the defendant commingled his assets with that of his new wife, Swope, and that the defendant gave large gifts to Swope and to his adult children without consideration and without regard for his lifetime alimony obligation to the plaintiff. The court found that the defendant failed to meet his burden of showing a substantial change in circumstances that was not tainted by his culpable actions.

“[A]ppellate review of a trial court’s findings of fact is governed by the clearly erroneous standard of review. The trial court’s findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. ... 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.) Schade v. Schade, supra, 110 Conn. App. 66.

The court’s findings are not clearly erroneous. The court determined that the defendant’s assets at the time of dissolution totaled approximately $568,000, as contrasted with his admitted assets at the time of the motion for modification in excess of $3 million. Further, the defendant and Swope share commingled assets amounting to approximately $8 million, and it was the defendant’s burden to show the court that this commingling was not culpable conduct. The court determined that the defendant did not meet that burden, and, on the basis of that determination, it concluded that no substantial change in circumstances existed. See Richard v. Richard, 23 Conn. App. 58, 62, 579 A.2d 110 (1990) (“[t]he burden of ‘clearly and definitely’ demonstrating the substantial change in the circumstances of either of the parties, however, remains with the moving party”).

The defendant and Swope admitted that they transferred assets originally purchased or owned by the defendant into Swope’s name in order, they testified, to avoid creditors who might have sought those assets on the basis of the defendant’s personal liability stemming from his employment at Arthur Andersen. Those transferred assets included two homes, which were purchased with the defendant’s income, but titled only in Swope’s name. Additionally, almost all of the defendant’s many bank accounts are held jointly with Swope. Despite the fact that Swope enjoys joint ownership of these accounts, she also maintains the Schwab account in her sole name with more than $3 million in assets.

Thus, the defendant would have had the court believe that Swope owns one half of all of his assets, but he does not own any of Swope’s assets. The court rejected the defendant’s argument. The court’s determination was based on its credibility determinations and weighing of the evidence, and we decline to disturb its decision. See, e.g., Brown v. Brown, 132 Conn. App. 30, 40, 31 A.3d 55 (2011). The defendant also admits that he gave large gifts to his adult children to the tune of hundreds of thousands of dollars. The defendant’s commingling of his assets with Swope and his making of large gifts to Swope and to his children without consideration clearly constitutes culpable conduct as contemplated by our Supreme Court in Sanchione and by this court in Schade and Wanatowicz. Accordingly, the court’s findings were not clearly erroneous, and the court did not abuse its discretion by determining that no modification of the defendant’s alimony obligation was warranted.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 46b-86 (a) provides: “Unless and to the extent that the decree precludes modification, any final order for the periodic payment of permanent alimony or support, an order for alimony or support pendente lite or an order requiring either party to maintain life insurance for the other party or aminor child of the parties may, at any time thereafter, be continued, set aside, altered or modified by the court upon a showing of a substantial change in the circumstances of either party or upon a showing that the final order for child support substantially deviates from the child support guidelines established pursuant to section 46b-215a, unless there was a specific finding on the record that the application of the guidelines would be inequitable or inappropriate. There shall be a rebuttable presumption that any deviation of less than fifteen per cent from the child support guidelines is not substantial and any deviation of fifteen per cent or more from the guidelines is substantial. Modification may be made of such support order without regard to whether the order was issued before, on or after May 9,1991. In determining whether to modify a child support order based on a substantial deviation from such child support guidelines the court shall consider the division of real and personal property between the parties set forth in the final decree and the benefits accruing to the child as the result of such division. After the date of judgment, modification of any child support order issued before, on or after July 1, 1990, may be made upon a showing of such substantial change of circumstances, whether or not such change of circumstances was contemplated at the time of dissolution. By written agreement, stipulation or decision of the court, those items or circumstances that were contemplated and are not to be changed may be specified in the written agreement, stipulation or decision of the court. This section shall not apply to assignments under section 46b-81 or to any assignment of the estate or a portion thereof of one party to the other parly under prior law. No order for periodic payment of permanent alimony or support may be subject to retroactive modification, except that the court may order modification with respect to any period during which there is a pending motion for modification of an alimony or support order from the date of service of notice of such pending motion upon the opposing party pursuant to section 52-50.”

       According to the defendant’s testimony, he did not officially retire until July 3, 2009, yet he filed his motion for alimony reduction almost three months before this date. In his motion, he stated, “I am required to retire from my current employment and my income is substantially reduced.”

       Swope transferred back the $200,000 one week before trial.

       The defendant urges this court to determine that the trial court made inconsistent findings as to whether he showed a substantial change in circumstances. The court declined to decrease the defendant’s alimony obligation, finding that no substantial change in circumstances existed, but lowered the amount of the life insurance policy that the defendant is required to maintain for the benefit of the plaintiff from $750,000 to $500,000. The defendant argues that the court implicitly found a substantial change in circumstances with regard to the life insurance policy inconsistent with its stated finding that no change existed. We note, however, that the court explicitly stated that “ [t]he defendant has failed to establish that a substantial change in circumstances has occurred in order to warrant a modification of alimony.” We do not know from the record before us whether the original life insurance award was intended to be a guarantee for alimony or aproperty settlement. See Billings v. Billings, 54 Conn. App. 142, 159, 732 A.2d 814 (1999). Regardless, it appears that the court may have erred in reducing the life insurance award. If the life insurance award was a part of the property settlement, the court lacked jurisdiction to change the award; if it was a guarantee for alimony, then the court lacked authority to change the order without finding a substantial change in circumstances. The court never stated that it based its determination that the life insurance should be reduced on a substantial change in circumstances and we will not infer such a finding in the face of the court’s expressed finding to the contrary. To the extent that the court may have improperly lowered the amount of life insurance, neither party appealed that issue, and we decline the defendant’s invitation to conclude that the court’s apparent error in reducing the life insurance award, an error that actually favors the defendant, provides an adequate basis for reversal of the court’s decision to maintain the status quo as to the alimony order.
      The defendant also argues that the court abused its discretion by refusing to grant the defendant’s motion to open the evidence in which he attempted to argue that the plaintiff had new employment that increased her salary to approximately $50,000. We determine that this claim is meritless because the defendant never sought a modification based on the plaintiffs substantial change in circumstances. Therefore, the trial court did not abuse its discretion by denying the motion to open the evidence.

       The court also found that the defendant’s station in life had substantially improved and that he had considerably increased his assets since the dissolution.

       The defendant claims that he never argued that he had an “inability to pay”; however, he claims several times in his appellate brief that his current income and assets are insufficient to meet his alimony obligations due to a “$97,000 shortfall between his annual income and his alimony obligation.” Additionally, it was not disputed at the trial court that during depositions, the defendant argued that his alimony obligation was going to cause him to go bankrupt. Regardless, his argument is inapposite. This court has repeatedly stated that “[i]t is hornbook law that what a spouse can afford to pay for support and alimony is a material consideration in the court’s determination as to what is a proper order.” (Internal quotation marks omitted.) Panganiban v. Panganiban, 54 Conn. App. 634, 642-43, 736 A.2d 190, cert. denied, 251 Conn. 920, 742 A.2d 359 (1999).

       DeCaprio testified at length with respect to the defendant’s commingling of assets with Swope which resulted in the expert’s attribution of income to the defendant being significantly greater than the assets the defendant listed on his 2009 financial affidavit. The defendant testified that he did not consider what he and Swope did to be commingling of funds and he disputed DeCaprio’s view of his and Swope’s finances. The court clearly credited DeCaprio’s testimony and did not credit the defendant’s testimony, and it was well within the court’s discretion to do so.

       Swope testified on cross-examination regarding her intentions for the Schwab account:
      “[The Plaintiffs Counsel]: Okay. So you’re going to rely on your husband’s retirement income to allow you to survive as long as possible until some day when unforeseen circumstances cause you to have to invade your Charles Schwab account, correct?
      “[The Witness]: Yes.”

       On cross-examination, the following colloquy took place:
      “[The Plaintiffs Counsel]: But you recall [Swope] testifying that the Charles Schwab account that’s not listed on this financial affidavit, that’s solely in her name and has over $3.5 million in it, is hers and that you have no interest in it, correct?

        “[The Defendant]: That’s correct, yes.
      “[The Plaintiffs Counsel]: She did testify to that, right?
      “[The Defendant]: That’s my recollection, yes.
      “[The Plaintiffs Counsel]: Right. . . . And the reason she said that you have no interest in that Charles Schwab account with $3.5 million in it was because she had earned all the money that went into that account, correct?
      “[The Defendant]: That’s what she said. . . .
      “[The Plaintiffs Counsel]: So she did say that?
      “[The Defendant]: Yes, she did.
      “[The Plaintiffs Counsel]: Okay. Thank you. And then I asked her, well . . . [the defendant] earned all the money that went into the Citibank checking account, so why is it fair that she is assigned 50 percent of that account? And she said that she, that in her mind, she considers that whole account yours, didn’t she?
      “[The Defendant]: I can’t recall. It’s very possible she said that.
      “[The Plaintiffs Counsel]: Okay. But you don’t think that because you think that she gets 50 percent of that account even though you provided all the funds to that account?
      “[The Defendant]: That’s the way I think of it.
      “[The Plaintiffs Counsel]: Okay. And so, to be clear, when [Swope] deposits funds that she earns into [an] account, they’re all hers because she earned them, but when you earn funds and you deposit them into an account, you put it in a joint account, and all of a sudden, 50 percent of those funds become your wife’s, correct?
      “[The Defendant]: I guess you could look at it that way, yes.”