author: BERDON, J.

text:
    JAMES E. WYSOCKI v. TOWN OF ELLINGTON OLD LOT NO. 30, LLC v. TOWN OF ELLINGTON
    (AC 27427)
    (AC 27428)
    Bishop, Beach and Berdon, Js.

      Argued February 7
    officially released July 22, 2008

      James E. Wysocki, pro se, the appellant (plaintiff in the first case).

      John H. Parks, for the appellant (plaintiff in the second case).

      Mark R. Spurting, for the appellee (defendant).
   Opinion

BERDON, J.

The plaintiffs, James E. Wysocki and Old Lot No. 30, LLC (Old Lot), appeal from the judgments in favor of the defendant, the town of Ellington, dismissing the plaintiffs’ tax appeals, brought pursuant to General Statutes § 12-119, from the assessment of their properties for the grand list of October 1, 2000. On appeal, the plaintiffs claim that the court improperly (1) concluded that they had failed to raise adequately a claim of equitable estoppel and (2) determined that the municipal tax assessor (assessor) properly had assessed the subject properties according to their highest and best use or, in the alternative, that procedural irregularities relating to the Ellington board of assessment appeals’ (board) decision to increase the assessor’s assessment rendered the increase illegal. We agree with the plaintiffs only as to their claim regarding the validity of the board’s decision to increase the assessment. Accordingly, we affirm in part and reverse in part the judgments of the trial court.

The record reveals the following undisputed factual and procedural history. In 1991, Wysocki, who owned approximately thirty-four acres consisting of four contiguous parcels of 10.7, 8.08, 4.83 and 13.63 acres, filed an application with the assessor seeking to classify these four parcels as forest land. In accordance with the provisions of the property tax assessment scheme set forth in General Statutes §§ 12-107athroughl2-107e, on September 5, 1991, the state forester designated the parcels as forest land. As a result of this designation, the assessor classified the land as forest land. On July 20, 1999, Wysocki transferred the 13.63 acre parcel to Old Lot, a limited liability company that he had formed. The conveyance was not recorded immediately in the Ellington land records. Instead, Wysocki sought advice from the assessor as to whether he could transfer the 13.63 acre parcel to Old Lot without compromising the favorable tax treatment that he was receiving by virtue of the forest land classification. In response to Wysocki’s inquiry, on January 12, 2000, the assessor sent a letter to Wysocki erroneously informing him that the transfer of the 13.63 acre parcel would have no adverse effect on the parcel’s forest land designation, provided that Wysocki was the sole member of Old Lot. Wysocki subsequently recorded the conveyance.

On January 12, 2000, Wysocki filed an application with the assessor seeking to maintain the 13.63 acre parcel’s forest land classification, listing the owner of the parcel as Old Lot. The assessor approved the application. On January 31, 2000, Wysocki and the assessor submitted an amended application to the department of environmental protection, division of forestry, seeking to designate the 13.63 acre parcel as forest land and to amend the existing forest land certificate to reflect the change of ownership. On February 22, 2000, the division of forestry informed Wysocki that a parcel must be at least twenty-five acres to qualify as forest land under General Statutes (Rev. to 1999) § 12-107b (b) and that because neither Wysocki nor Old Lot individually owned twenty-five acres, the forest land designation would be cancelled on April 25, 2000, unless further documentation was provided to the state forester demonstrating that cancellation was not warranted. On May 1,2000, the state forester cancelled the forest land designation as to all four parcels of land. The record reveals that the plaintiffs did not appeal from the state forester’s decision as they were permitted to do under General Statutes § 12-107d.

The assessor subsequently issued a certificate of declassification, and the properties were assessed according to their highest and best use for the grand list of October 1, 2000. The plaintiffs appealed to the board from the assessor’s decision to declassify the properties as forest land for the 2000 grand list. A hearing was scheduled for March 17, 2001. The board rendered a decision in which it further increased the assessment for the 13.63 acre parcel. The board made no changes to the assessor’s assessments for the 10.7, 8.08 and 4.83 acre parcels but determined that the 13.63 acre parcel, which had frontage on Elderberry Lane, a roadway, was taxable as a building lot

Thereafter, the plaintiffs filed an appeal in the Superior Court pursuant to § 12-119 claiming, on various grounds, that the imposition of the tax was illegal. After a one day trial, the court issued a memorandum of decision dismissing the plaintiffs’ appeals on January 12, 2006. These appeals followed.

I

The plaintiffs first claim that the court improperly concluded that they had failed to set forth adequately a claim of equitable estoppel. They argue that they raised a claim of equitable estoppel at trial by arguing that they had relied on representations made by the assessor that the transfer of the 13.63 acre parcel to Old Lot would not jeopardize the designation of the four parcels as forest land. We conclude that the record is inadequate to review the plaintiffs’ claim.

The following additional procedural history is relevant to our review of the plaintiffs’ claim. In its February 9, 2006 memorandum of decision, in response to the plaintiffs’ motion to reargue, the court determined that the plaintiffs had abandoned any claim of equitable estoppel. The court concluded that “[e]ven if an estoppel claim had been sufficiently raised, it would not have had a controlling effect on [the] court’s original decision.”

Our Supreme Court recently has reiterated the fundamental point that “ [i]t is incumbent upon the [appellant] to take the necessary steps to sustain [his] burden of providing an adequate record for appellate review. . . . Our role is not to guess at possibilities . . . but to review claims based on a complete factual record developed by a trial court. . . . Without the necessary factual and legal conclusions furnished by the trial court . . . any decision made by us respecting [the appellant’s claims] would be entirely speculative.” (Internal quotation marks omitted.) Ravetto v. Triton Thalassic Technologies, Inc., 285 Conn. 716, 731-32, 941 A.2d 309 (2008).

In the present case, it is unclear from the court’s February 9, 2006 memorandum of decision why it concluded that even if the plaintiffs adequately had raised a claim of equitable estoppel, the assertion of that claim would not have had an effect on the court’s decision. Under these circumstances, the plaintiffs should have filed a motion for articulation to preserve an adequate record for review. See Practice Book §§ 61-10 and 66-5. “It is well established that [a]n articulation is appropriate where the trial court’s decision contains some ambiguity or deficiency reasonably susceptible of clarification. . . . [P]roper utilization of the motion for articulation serves to dispel any . . . ambiguity by clarifying the factual and legal basis upon which the trial court rendered its decision, thereby sharpening the issues on appeal.” (Internal quotation marks omitted.) Ravetto v. Triton Thalassic Technologies, Inc., supra, 285 Conn. 732-33. Because the plaintiffs failed to seek an articulation from the court, we are unable to determine the legal or factual basis for the court’s decisions. The record, therefore, is not adequate to review this claim.

II

The plaintiffs next claim that the court improperly failed to conclude that the assessment of the subject parcels, according to their highest and best use, was manifestly excessive and illegal under § 12-119. Alternatively, the plaintiffs argue that even if the assessor properly declassified the properties, procedural irregularities rendered the board’s decision to increase the assessment illegal. We agree as to the latter claim.

“The principles that govern a complaint filed pursuant to § 12-119 are not in dispute. In contrast to § 12-117a . . . which allows a taxpayer to challenge the assessor’s valuation of his property, § 12-119 allows a taxpayer to bring a claim that the tax was imposed by a town that had no authority to tax the subject property, or that the assessment was manifestly excessive and could not have been arrived at except by disregarding the provisions of the statutes for determining the valuation of [the real] property .... Our case law makes clear that a claim that an assessment is excessive is not enough to support an action under this statute. Instead, § 12-119 requires an allegation that something more than mere valuation is at issue.” (Citation omitted; internal quotation marks omitted.) Tyler’s Cove Assn., Inc. v. Middlebury, 44 Conn. App. 517, 526, 690 A.2d 412 (1997).

Here, the plaintiffs’ claims are premised on the second category of § 12-119, which authorizes “claims that assessments are (a) manifestly excessive and (b) . . . could not have been arrived at except by disregarding the provisions of the statutes for determining the valuation of the property. . . . Cases in this category must contain allegations beyond the mere claim that the assessor overvalued the property. [The] plaintiff . . . must satisfy the trier that [a] far more exacting test has been met: either there was misfeasance or nonfeasance by the taxing authorities, or the assessment was arbitrary or so excessive or discriminatory as in itself to show a disregard of duty on their part. . . . Only if the plaintiff is able to meet this exacting test by establishing that the action of the assessors would result in illegality can the plaintiff prevail in an action under § 12-119. The focus of § 12-119 is whether the assessment is illegal. . . . The statute applies only to an assessment that establishes a disregard of duty by the assessors.” (Citations omitted; internal quotation marks omitted.) Id., 526-27.

At the outset, we set forth our standard of review. In concluding that the plaintiffs failed to establish that the assessment was manifestly excessive under § 12-119, the court drew legal conclusions on the basis of its interpretation of appellate case law and provisions of the General Statutes. Therefore, our review is plenary. See State v. Marsh & McLennan Cos., 286 Conn. 454, 464, 944 A.2d 315 (2008); Waterbury Hotel Equity, LLC v. Waterbury, 85 Conn. App. 480, 488, 858 A.2d 259, cert. denied, 272 Conn. 901, 863 A.2d 696 (2004).

A

The plaintiffs claim that their property was assessed wrongfully according to its highest and best use, as opposed to forest land and, accordingly, that the resulting assessment was manifestly excessive. More specifically, the plaintiffs appear to argue that in concluding that the assessor correctly declassified the properties, the court improperly applied General Statutes §§ 12-96, 12-99, 12-107b, 12-107d and 12-504h. Because the plaintiffs’ claim relates to the propriety of the decision to cancel the property’s forest land designation, a decision that was made by the state forester on May 1, 2000, and which is solely within his jurisdiction, we conclude that the plaintiffs’ claim lacks merit.

The following factual and procedural history is relevant to our review of the plaintiffs’ claim. In its January 12, 2006 memorandum of decision, the court determined that “the tax assessor declassified the plaintiffs’ property on October 2, 2000, as a result of the cancellation of the forest land designation on May 1, 2000, by the state forestry division, and not because of the conveyance between Wysocki and Old Lot.” Relying on our Supreme Court’s decision in Carmel Hollow Associates Ltd. Partnership v. Bethlehem, 269 Conn. 120, 130-34, 848 A.2d 451 (2004), the court concluded that “[o]nce the state forester determined that the forest land certification was cancelled on May 1, 2000, the tax assessor was statutorily required to issue a notice of this cancellation.”

In the present case, because this claim relates to a decision that was made by the state forester on May 1, 2000, we conclude that the court did not, nor under the circumstances of this case was it required to, apply or construe §§ 12-96, 12-99, 12-107b, 12-107d or 12-504h. Rather, the court correctly determined that the assessor was required to declassify the land on the basis of the earlier, unchallenged decision rendered by the state forester. See Carmel Hollow Associates Ltd. Partnership v. Bethlehem, supra, 269 Conn. 130-34. Because Carmel Hollow Associates Ltd. Partnership clearly establishes that an assessor has no discretionary authority with respect to the classification of property as forest land; id., 137 (“state forester’s actions are not reviewable by local authorities”); we conclude that the plaintiffs’ claim regarding the court’s purported application of these statutory provisions must fail.

B

The plaintiffs’ remaining claims relate to the validity of the board’s decision to increase the assessment for the 13.63 acre parcel abutting Elderberry Lane. More specifically, the plaintiffs claim that even if the court correctly determined that the assessor properly declassified the properties, the assessment was illegal because the board failed to comply with the notice provisions contained in General Statutes §§ 12-111 and 12-60. Additionally, the plaintiffs argue that the court improperly took judicial notice of the Ellington zoning regulations and improperly concluded that the Elderberry Lane parcel was taxable as a building lot. We agree with the plaintiffs that the board disregarded its mandatory duty to provide notice to the plaintiffs of its intention to increase the assessment at least one week before holding a hearing. Indeed, in its brief, the defendant concedes that “the board of assessment appeals did not notify [the] plaintiffs and invite them to appear at least one week before adding to [the] plaintiffs’ assessment as required by § 12-111.” Because this defect operates to invalidate the board’s decision to increase the assessment, we decline to consider the remaining claims raised on appeal.

A review of the record reveals the following additional factual and procedural history. On February 7, 2001, the plaintiffs appealed to the board from the assessor’s valuation of their properties. A hearing was scheduled for March 17, 2001. On May 2, 2001, the board released its decision designating the 13.63 acre parcel as a building lot abutting Elderberry Lane and increased the assessment without first providing notice as set forth in § 12-111 to the plaintiffs to show cause why the increase should not have been made. The court rejected the plaintiffs’ claim that the board’s failure to provide notice rendered the increase manifestly excessive and illegal, concluding that the notice provision contained in § 12-111 was directory, rather than mandatory, and that, in any event, the plaintiffs were provided with an opportunity to be heard on March 17, 2001.

Under § 12-111 (a), a municipal board of assessment appeals is vested with the authority to “increase or decrease the assessment of any taxable property . . . .” General Statutes § 12-111 (a). Before a municipal board of assessment appeals proceeds “to increase the assessment of any person ... it shall mail to such person ... at least one week before making such increase ... a written or printed notice ... to appear before such board and show cause why such increase . . . should not be made.” General Statutes § 12-111 (a).

In resolving this matter, we begin by setting forth the legal principles relevant to our discussion. “In order to determine whether a statute’s provisions are mandatory we have traditionally looked beyond the use of the word shall and examined the statute’s essential purpose. . . . The test to be applied in determining whether a statute is mandatory or directory is whether the prescribed mode of action is the essence of the thing to be accomplished, or in other words, whether it relates to a matter of substance or a matter of convenience.” (Citation omitted; internal quotation marks omitted.) United Illuminating Co. v. New Haven, 240 Conn. 422, 465, 692 A.2d 742 (1997). Moreover, our Supreme Court also has concluded that in the context of statutes relating to property tax assessment, when the statutory “provision is for the benefit and protection of the individual taxpayer . . . the provision is mandatory. ... If the provision is mandatory it must be followed or the assessment will be invalid. ... All provisions designed to give [the taxpayer] an opportunity of a review of the assessment, whether by the assessors themselves or on appeal from their conclusions, are exclusively in his interest.” (Citation omitted; internal quotation marks omitted.) Rocky Hill Inc. District v. Hartford Rayon Corp., 122 Conn. 392, 403, 190 A. 264 (1937).

Applying these principles in the present case, we conclude that the notice required by § 12-111 is a mandatory condition precedent to a municipal board’s decision to increase a property tax assessment. The clear and unambiguous language of § 12-111 suggests that its notice provision was intended to provide a taxpayer with notice of the board’s intention to increase a taxpayer’s assessment and an opportunity to be heard on that particular issue before the board acts to implement the increase. Although the record reveals that the board scheduled a hearing for March 17, 2001, the defendant concedes that the plaintiffs were not provided with any notice of the board’s intention to increase the assessment prior to this hearing. Even if the plaintiffs participated in a hearing on March 17, 2001, the board’s failure to provide the plaintiffs with notice prevented the plaintiffs from preparing any objections relating to the propriety of the board’s intention to increase the assessment. Moreover, the record reveals that the board received a memorandum prepared by the town planner that was dated April 4, 2001. In this memorandum, the town planner opined that the 13.63 acre Elderberry Lane parcel constituted a building lot under the Ellington zoning regulations. To the extent that the receipt of this memorandum prompted the increase of the assessment, under § 12-111, an additional hearing was necessary to give the plaintiffs an opportunity to be heard on this issue. Accordingly, we conclude that the notice by the board under § 12-111 is mandatory, rather than directory, and because notice was not provided, the board’s decision to increase the assessment of the 13.63 acre parcel was illegal within the meaning of § 12-119.

The judgments are reversed only as to the board’s increase of the assessment for the 13.63 acre parcel and the case is remanded with direction to render judgments sustaining the plaintiffs’ appeals as to that particular claim. The judgments are affirmed in all other respects.

In this opinion the other judges concurred.

       Although Wysocki and Old Lot brought separate appeals, we address these appeals in one opinion because both plaintiffs presented identical issues, submitted identical briefs and conceded at oral argument that the arguments as to Wysocki also would apply to Old Lot.

       General Statutes § 12-119 provides in relevant part: “When it is claimed that ... a tax laid on property was computed on an assessment which, under all the circumstances, was manifestly excessive and could not have been arrived at except by disregarding the provisions of the statutes for determining the valuation of such property, the owner thereof . . . prior to the payment of such tax, may, in addition to the other remedies provided by law, make application for relief to the superior court for the judicial district in which such town or city is situated. ... In all such actions, the Superior Court shall have power to grant such relief upon such terms and in such manner and form as to justice and equity appertains, and costs may be taxed at the discretion of the court. If such assessment is reduced by said court, the applicant shall be reimbursed by the town or city for any overpayment of taxes in accordance with the judgment of said court.”

       The court considered the plaintiffs’ claims under § 12-119, entitled “Remedy when property wrongfully assessed.” On appeal to this court, the plaintiffs claim that they also sought to advance claims under General Statutes § 12-117a. “There is a distinction between an excessive assessment and an illegal, unlawful or wrongful assessment. . . . General Statutes § 12-117a, formerly General Statutes § 12-118, is the avenue to review the amount of an assessment, and § 12-119 is the way to contest the taxability itself.” (Citation omitted.) Sun Valley Camping Cooperative, Inc. v Stafford, 94 Conn. App. 696, 710 n.17, 894 A.2d 349 (2006). To the extent that the court’s memorandum of decision does not address these claims under § 12-117a, they were either not presented or, if presented, were not decided. If the claims were presented to the court but not decided, the plaintiffs’ failure to request an articulation renders the record inadequate for review. See JCV Investment Group, Inc. v. Manjoney, 56 Conn. App. 320, 322 n.1, 742 A.2d 438 (2000). Accordingly, we do not review any claims predicated on § 12-117a.

       “The terms ‘designation’ and ‘classification,’ as used in the statutory scheme, refer to specific actions of the state forester and town assessors, respectively. The ‘designation’ of property as forest land requires the property owner to file a written application seeking the designation and a determination by the state forester that the property is so qualified. The ‘classification’ of designated property as forest land on the grand list of a municipality requires the property owner to file an application with the town assessor to obtain the preferential tax treatment afforded to such classified property. See generally General Statutes § 12-107d.” Carmel Hollow Associates Ltd. Partnership v. Bethlehem, 269 Conn. 120, 131-32 n.17, 848 A.2d 451 (2004).

       Because the plaintiffs did not appeal from the state forester’s decision, the propriety of that determination is not before us in these appeals.

       The record reveals that Wysocki corresponded with the state forester and, on April 9, 2001, Wysocki agreed to transfer the 13.63 acre parcel, deeded to Old Lot, back to himself. The state forester designated all four parcels as forest land. The land then was classified as forest land by the assessor for the 2001 grand list. For the 13.63 acre parcel, the date of classification was listed as April 9, 2001.

       We note, however, that “estoppel against a public agency is limited and may be invoked: (1) only with great caution; (2) only when the action in question has been induced by an agent having authority in such matters [in this case, the agent with authority was not the assessor, but rather the state forester]; and (3) only when special circumstances make it highly inequitable or oppressive not to estop the agency [in this case, the loss could have been avoided because the appellant was given warning] .... As noted, this exception applies where the party claiming estoppel would be subjected to substantial loss if the public agency were permitted to negate the acts of its agents.” (Internal quotation marks omitted.) Fadner v. Commissioner of Revenue Services, 281 Conn. 719, 726, 917 A.2d 540 (2007).

       See footnote 3 of this opinion.

       Those statutes pertain to forest land designation and taxation.

       The return of record contains no evidence in the form of a transcript of, or minutes taken during, a hearing before the board of assessment appeals.


source: Caselaw Access Project

author: BEACH, J.

license: Public Domain

text:
    ANTHONY CARTER v. COMMISSIONER OF CORRECTION
    (AC 28712)
    Harper, Beach and Robinson, Js.

      Argued April 25
    officially released July 22, 2008

      Anthony Carter, pro se, the appellant (petitioner).

      James A. Killen, senior assistant state’s attorney, with whom, on the brief, was Kevin T. Kane, chief state’s attorney, for the appellee (respondent).
   Opinion

BEACH, J.

The pro se petitioner, Anthony Carter, appeals following the denial of certification to appeal from the judgment dismissing his petition for a writ of habeas corpus. On appeal, the petitioner claims that the habeas court abused its discretion in denying certification to appeal and improperly dismissed his petition as a successive petition pursuant to Practice Book § 23-29 (3). We conclude that the record is inadequate to review the petitioner’s claim and, therefore, dismiss the appeal.

The following facts and procedural history are relevant to the petitioner’s appeal. In 2002, the jury found the petitioner guilty of assault in the first degree in violation of General Statutes § 53a-59 (a) (5), attempt to commit assault in the first degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-59 (a) (5), risk of injury to a child in violation of General Statutes § 53-21 (a) (1) and criminal possession of a firearm in violation of General Statutes § 53a-217 (a) (1). The trial court rendered judgment accordingly and sentenced the petitioner to a total effective term of twenty-seven years incarceration. This court affirmed that judgment in State v. Carter, 84 Conn. App. 263, 853 A.2d 565, cert. denied, 271 Conn. 932, 859 A.2d 931 (2004), cert. denied, 544 U.S. 1066, 125 S. Ct. 2529, 161 L. Ed. 2d 1120 (2005).

In 2004, the petitioner filed his first petition for a writ of habeas corpus in which he raised fourteen claims. That petition was denied by the habeas court. The petitioner then appealed following the court’s denial of his petition for certification to appeal. This court dismissed that appeal in Carter v. Commissioner of Correction, 106 Conn. App. 464, 942 A.2d 494 (2008). In that decision, this court noted that, following a two day trial in January, 2006, “the [habeas] court agreed with the respondent [commissioner of correction] that the petitioner was procedurally defaulted as to ten of the claims raised in his petition, determining in each instance that the petitioner failed to demonstrate either good cause for his failure to raise the claim at trial or on direct appeal or actual prejudice resulting from the claimed impropriety. It further concluded that the petitioner had not satisfied his burden of proving deficient performance on the part of trial and appellate counsel or prejudice resulting therefrom. See Strickland v. Washington, 466 U.S. 668, 687,104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). As to the petitioner’s claim that the prosecution knowingly elicited perjured testimony during his criminal trial, the [habeas] court noted that the petitioner had provided no testimony or exhibits in support thereof, thereby precluding meaningful review. Finally, the [habeas] court concluded that the petitioner failed to meet his burden of proving actual innocence with clear and convincing evidence that no reasonable fact finder would conclude that the petitioner was guilty of the crime of assault in the first degree. Accordingly, the court denied the petition for a writ of habeas corpus. The court subsequently denied the petition for certification to appeal.” Carter v. Commissioner of Correction, supra, 465-66.

The petitioner filed a second petition for a writ of habeas corpus on March 6, 2007. In a supplemental memorandum attached to his petition, the petitioner raised four claims. In support of two of those claims, that the prosecuting authority had deliberately deceived the comí and jurors in order to obtain the petitioner’s conviction and that his trial counsel was ineffective, the petitioner offered in the memorandum in support of his second petition evidence from the first habeas trial. The evidence consisted of transcribed excerpts of the testimony of two Hartford police detectives and supporting police reports the petitioner obtained from the Hartford police allegedly after he had heard the detectives’ testimony at his first habeas trial. The court summarily dismissed the petitioner’s second petition on its own motion, without an evidentiary hearing and before the respondent had filed her reply. The court stated in its judgment of dismissal that “[a]fter having reviewed the above-captioned petition, the court finds the petition to be res judicata and dismisses the petition pursuant to Practice Book § 23-29 (3). See Carter v. Commissioner of Correction, Superior Court, judicial district of Tolland, Docket No. CV-04-4000182-S (May 4, 2006), which was denied on May 4, 2006, by Judge Stanley Fuger.” The court subsequently denied the petition for certification to appeal. This appeal followed.

The petitioner later filed a motion for articulation as to the court’s denial of his petition for certification to appeal, and the court responded that “[t]his court reviewed [the] petitioner’s renewed effort to seek habeas corpus relief, again premised on claims of ineffective assistance of counsel, arising from the identical convictions, and concluded [that] the doctrine of res judicata applied to preclude [the] petitioner from continuing to relitigate the same claims. . . . The court concluded [that] it would be an abuse of discretion to grant the petition for certification to appeal because none of the Lozada v. Deeds [498 U.S. 430, 431-32, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991)] criteria are met.”

The dispositive issues in this appeal are whether the petitioner’s second petition is successive, that is, whether it was founded on the same grounds as those raised in his first petition and, if so, whether the petition is nonetheless supported by newly discovered evidence that was not discoverable at the time of the first habeas trial with the exercise of due diligence. Because the record is inadequate to permit appellate review of the petitioner’s claim that his second petition is based on new evidence, we decline to reach the merits of his claim.

“Our Supreme Court has stated that [i]n our case law, we have recognized only one situation in which a court is not legally required to hear a habeas petition. In Negron v. Warden, [180 Conn. 153, 158, 429 A.2d 841 (1980)], we observed that, pursuant to Practice Book § 531 [now § 23-29], [i]f a previous application brought on the same grounds was denied, the pending application may be dismissed without hearing, unless it states new facts or proffers new evidence not reasonably available at the previous hearing. We emphasized the narrowness of our construction of Practice Book § 531 [now § 23-29] by holding that dismissal of a second habeas petition without an evidentiary hearing is improper if the petitioner either raises new claims or offers new facts or evidence. . . . Negron therefore strengthens the presumption that, absent an explicit exception, an evidentiary hearing is always required before a habeas petition may be dismissed. . . .

“We recently explained that Practice Book § 23-29 provides in relevant part: The judicial authority may, at any time, upon its motion or upon motion of the respondent, dismiss the petition, or any count thereof, if it determines that ... (3) the petition presents the same ground as a prior petition previously denied and fails to state new facts or [to] proffer new evidence not reasonably available at the time of the prior petition .... In this context, a ground has been defined as sufficient legal basis for granting the relief sought. . . .

“[A] petitioner may bring successive petitions on the same legal grounds if the petitions seek different relief. . . . But where successive petitions are premised on the same legal grounds and seek the same relief, the second petition will not survive a motion to dismiss unless the petition is supported by allegations and facts not reasonably available to the petitioner at the time of the original petition.” (Citation omitted; internal quotation marks omitted.) Mejia v. Commissioner of Correction, 98 Conn. App. 180, 188-89, 908 A.2d 581 (2006); see also McClendon v. Commissioner of Correction, 93 Conn. App. 228, 231-32, 888 A.2d 183 (affirming habeas court’s dismissal of petitioner’s second petition for writ of habeas corpus because petitioner failed to allege factual support for allegations contained in petition unavailable to him at time of original habeas petition; likewise, at hearing on motion to dismiss filed by respondent, petitioner offered no evidence facts alleged unavailable while original habeas petition pending), cert. denied, 277 Conn. 917, 895 A.2d 789 (2006).

The general grounds for relief in this petition are the same as previously alleged: prosecutorial impropriety and ineffective assistance of counsel. The allegedly new evidence the petitioner relies on is the testimony of two Hartford police detectives, which was elicited at the petitioner’s first habeas trial. The detectives allegedly testified regarding a police theory as to a particular bullet that was responsible for striking the victim, as well as the location of its shell casing. In his supporting memorandum, the petitioner asserts the general claim that “this petition is based on new facts or evidence not reasonably available at the time of the prior petition.” He does not, however, offer any supporting facts as to why, with the exercise of due diligence, this evidence was not discoverable at the time of the original petition. At oral argument before this court, the petitioner asserted that he had requested to amend his first habeas petition upon hearing the detectives’ testimony but that his request had been denied by the habeas court. The petitioner, however, did not file with this court a transcript of the relevant portions of his first habeas trial. Without a complete record, we are unable to determine whether the allegedly new evidence reasonably could have been incorporated into the petitioner’s original petition. We cannot render a decision without first having “specific findings of fact to determine the basis of the court’s ruling.” State v. Rios, 30 Conn. App. 712, 715, 622 A.2d 618 (1993). The petitioner has not taken the necessary steps to sustain his burden of providing an adequate record for appellate review. See State v. Ortiz, 47 Conn. App. 333, 342-43, 705 A.2d 554 (1997), cert. denied, 244 Conn. 902, 710 A.2d 175 (1998). We therefore decline to review the petitioner’s claim.

The appeal is dismissed.

In this opinion the other judges concurred.

       Practice Book § 23-29 provides in relevant part: “The judicial authority may, at any time, upon its own motion or upon motion of the respondent, dismiss the petition, or any count thereof, if it determines that ... (3) the petition presents the same ground as a prior petition previously denied and fails to state new facts or proffer new evidence not reasonably available at the time of the prior petition . . . .”

       The petitioner additionally claims on appeal that the court abused its discretion in denying certification to appeal when it (1) required him to meet the criteria set forth in Lozada v. Deeds, 498 U.S. 430, 431-32, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991), as a prerequisite to granting certification to appeal, (2) raised, sua sponte, the issue of res judicata and (3) dismissed the petition on the ground of res judicata pursuant to Practice Book § 23-29. We carefully have considered these three claims and summarily conclude that they have no merit.

       The petitioner amended his first petition several times. In his fourth amended petition for a writ of habeas corpus, the petitioner claimed that (1) there was insufficient evidence to prove beyond a reasonable doubt the element of intent for assault in the first degree, (2) the prosecution knowingly elicited perjured testimony during the criminal trial, (3) prosecutorial impropriety transpired, (4) his arrest warrant contained false statements and material omissions in violation of Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978), (5) the trial court impermissibly amended the information on the charge of assault in the first degree during its instruction to the jury, (6) his arrest was illegal on the charge of attempt to commit assault in the first degree, (7) the trial court improperly instructed the jury on the element of intent, (8) the conviction of assault in the first degree and risk of injury to a child is legally inconsistent, (9) the conviction of assault in the first degree and attempt to commit assault in the first degree violates the constitutional protection against double jeopardy, (10) General Statutes § 53a-59 is unconstitutionally vague, (11) General Statutes § 53-21 is unconstitutionally vague, (12) he received ineffective assistance of trial counsel, (13) he received ineffective assistance of appellate counsel and (14) he was actually innocent of the crime of assault in the first degree.

       In his second petition for a writ of habeas corpus, the petitioner claimed that (1) the prosecuting authority deliberately deceived the court and jurors in order to obtain the petitioner’s conviction, (2) the state’s argument on direct appeal deliberately deceived the Appellate Court in order to have the petitioner’s conviction affirmed, (3) the petitioner’s trial counsel rendered ineffective assistance when he failed to call certain adverse witnesses and (4) the petitioner’s trial counsel rendered ineffective assistance when he failed to object to the prosecutor’s false or misleading argument to the jury.

       “Res judicata” in the context of habeas corpus actions has a more narrow scope than in most contexts. It is clear that the habeas court in this case applied the more narrow standard, as expressed in Practice Book § 23-29 (3).


author: ROBINSON, J.

text:
    MEDVALUSA HEALTH PROGRAMS, INC. v. MEMBERWORKS, INC.
    (AC 28124)
    Bishop, McLachlan and Robinson, Js.
    Argued March 24
    officially released July 22, 2008

      Craig S. Taschner, for the appellant (plaintiff).

      Jeffrey R. Bobbin, with whom were Katherine Hsu Hagmann and, on the brief, Robert M. Longer, for the appellee (defendant).
   Opinion

ROBINSON, J.

The plaintiff, MedValUSA Health Programs, Inc., appeals from the order of the trial court denying its postjudgment motion for attorney’s fees pursuant to the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. The plaintiff claims that the court abused its discretion. We affirm the judgment of the trial court.

The following facts and procedural history were set forth in MedValUSA Health Programs, Inc. v. MemberWorks, Inc., 273 Conn. 634, 872 A.2d 423, cert. denied sub nom. Vertrue, Inc. v. MedValUSA Health Programs, Inc., 546 U.S. 960, 126 S. Ct. 479, 163 L. Ed. 2d 363 (2005). “The plaintiff is a Connecticut corporation formed by Andrew Bronfman and Andrew Fineberg to sell discount health care subscriptions for physician, dental, vision, prescription, hearing and other medically-related services to targeted segments of the general public. The defendant [MemberWorks, Inc.] is a Connecticut corporation that provides membership service programs that give consumers access to discounts on a variety of products and services in many areas, including the health care industry.

“The parties entered into a contract whereby the plaintiff agreed to become a wholesale, nationwide vendor of one of the defendant’s dental and health plans. After they entered into the contract, relations between the parties deteriorated, prompting them to amend their agreement on April 15, 1999. The amended contract delayed the ‘start date’ of the agreement and reduced the number of service units that the plaintiff was obligated to purchase within eighteen months of the start date. The amendment also changed the defendant’s obligations relating to the number and density of physicians participating in the program by supplementing the original provider network (network 1) made available to the plaintiff with a second provider network (network 2), to which the plaintiff would have access when network 1 provided insufficient coverage within a state. The parties’ relationship did not improve and, eventually, the plaintiff notified the defendant that it was shutting down its business operations and ‘evaluating [its] options with counsel.’

“Subsequently, the plaintiff filed a demand for arbitration with the American Arbitration Association for breach of contract, breach of the implied covenant of good faith and fair dealing, and a violation of [CUTPA]. The demand alleged that the defendant had breached the original and amended agreements by: (1) failing to communicate to the plaintiff vital information regarding the provider networks; (2) failing to ensure that the provider networks were sufficient to service the needs of the plaintiffs customers; (3) making misrepresentations about the number and distribution of physicians in network 1 and about the admitting privileges of network 2 physicians to network 1 hospitals; (4) withdrawing the dental network; (5) failing to deliver fulfillment materials; (6) refusing the plaintiffs requests for meetings; and (7) refusing to communicate with the plaintiff other than in writing. The plaintiff further alleged that the defendant employed these tactics for the purpose of gaining a competitive edge over the plaintiff, and that the defendant began, at a time not specified in the demand, offering to the general public membership programs modeled after that designed by the plaintiff.

“The arbitration panel ruled in favor of the plaintiff on all counts, but awarded no compensatory damages, finding that the plaintiff had failed to establish damages with reasonable certainty. The panel found, however, that, because the defendant had engaged in a number of unfair and deceptive acts in violation of CUTPA, General Statutes § 42-110g (a), the provision within CUTPA providing for the award of punitive damages, justified a punitive damages award of $5 million. The defendant’s unfair and deceptive acts, as found by the panel, may be summarized as follows: (1) the failure to disclose to the plaintiff the nature of its communications with network 1, some of which called into question the availability of that network for the plaintiffs enterprise; (2) the failure to disclose to the plaintiff the availability of other networks; (3) a history of misrepresenting its obligations to the plaintiff under the contract; (4) the refusal to meet with the plaintiff in a timely manner and the unavailability of one of its employees for conference calls; (5) the failure to inform the plaintiff about the elimination of free dental services from the program and its inadequate responses to the plaintiffs requests for information, including inquiries concerning the dental services; (6) the failure to provide the plaintiff with new fulfillment materials necessitated by that elimination; (7) the failure to approve in a timely manner hospital lists for advertising; (8) an insistence that all communications with the plaintiff be in writing; and (9) the preparation and distribution of an inaccurate summary of a meeting with the plaintiff. In addition to punitive damages, the panel awarded the plaintiff $387,794 in attorney’s fees and $70,950 in arbitration costs.

“The plaintiff timely applied to the trial court to confirm the arbitration award. Soon thereafter, the defendant moved to vacate the award on three grounds: (1) the award violated Connecticut public policy, embodied in the due process clause of the fourteenth amendment of the constitution of the United States, against excessive punitive damage awards; (2) the award violated the public policy against awarding punitive damages in CUTPA actions in the absence of reckless, intentional or wanton misconduct; and (3) the excessive award evidenced a manifest disregard or patently irrational application of the law in violation of General Statutes § 52-418 (a) (4). The court denied the defendant’s motion to vacate and granted the plaintiffs application to confirm the arbitration award. Subsequently, in a separate ruling, the court denied the plaintiffs motion for prejudgment and postjudgment interest.” MedValUSA Health Programs, Inc. v. MemberWorks, Inc., supra, 273 Conn. 637-40.

Both parties appealed from the judgment of the Superior Court. The defendant claimed on appeal that the trial court’s confirmation of the arbitration award violated its right to due process under the fourteenth amendment and violated the state’s public policy against excessive punitive damage awards. Id., 636, 641. The plaintiff claimed that the court abused its discretion in denying the plaintiffs motion for prejudgment and postjudgment interest. Id., 665. Our Supreme Court affirmed the decision of the trial court. Id., 636-37.

On October 17, 2005, the United States Supreme Court denied the defendant’s petition for a writ of certiorari. Vertrue, Inc. v. MedValUSA Health Programs, Inc., 546 U.S. 960, 126 S. Ct. 479, 163 L. Ed. 2d 363 (2005). The defendant thereafter paid the award, and the plaintiff filed a satisfaction of judgment in the trial court on October 25, 2005. Subsequently, the plaintiff filed a motion for attorney’s fees in the trial court on November 10, 2005, and its supporting memorandum on July 17, 2006. On September 20, 2006, the court denied the plaintiffs motion. This appeal followed.

The plaintiff claims that the court abused its discretion in denying its motion for attorney’s fees. In support of its claim, the plaintiff argues that the public policy underlying CUTPA, to encourage litigants and attorneys to accept and to litigate CUTPA claims, favors an award of attorney’s fees in this instance. The plaintiff further argues that the court improperly failed to address the twelve factors for analyzing fee requests under CUTPA set forth in Steiger v. J. S. Builders, Inc., 39 Conn. App. 32, 663 A.2d 432 (1995).

In response, the defendant relies on Staehle v. Michael’s Garage, Inc., 35 Conn. App. 455, 459, 646 A.2d 888 (1994), to assert that the plain language of CUTPA and its legislative history indicate that the award of attorney’s fees is not an entitlement, but that it is an award within the court’s discretion. The defendant maintains that in the present case, an award of additional attorney’s fees is not necessary to uphold the public policy underlying CUTPA because the plaintiff already had been awarded and reimbursed the fees and expenses it incurred during the arbitration and had been compensated amply by the award of punitive damages. The defendant further argues that the factors set forth in Steiger govern the calculation of fees, and, therefore, any consideration of these factors must await the court’s discretionary decision to award fees. We agree with the defendant.

The following well established legal principles guide our resolution of the plaintiffs appeal. “Awarding . . . attorney’s fees under CUTPA is discretionary; General Statutes § 42-1 lOg (a) and (d) . . . and the exercise of such discretion will not ordinarily be interfered with on appeal unless the abuse is manifest or injustice appears to have been done. . . . The salient inquiry is whether the court could have reasonably concluded as it did. . . . [T]he term abuse of discretion does not imply a bad motive or wrong purpose but merely means that the ruling appears to have been made on untenable grounds.” (Citations omitted; internal quotation marks omitted.) Thames River Recycling, Inc. v. Gallo, 50 Conn. App. 767, 800, 720 A.2d 242 (1998).

In an articulation dated October 24, 2006, the court set forth its reasoning for denying the motion, stating that (1) “[n]one of the defendant’s efforts to challenge the award was undertaken frivolously, and it would not further the interests of justice to penalize [the defendant] for seeking a final judicial determination of this issue,” (2) the same reasons previously given for denying interest, mainly, that an additional monetary award when there were no compensatory damages would “ ‘constitute nothing other than additional punitive damages’ ” and (3) the court was troubled by the timing of the motion, that the “[p]laintiff gave no notice of its intention to seek additional counsel fees until all appeals had been exhausted and until after the defendant satisfied the judgment.”

We conclude that the court reasonably could have determined that awarding the plaintiff for attorney’s fees it incurred on appeal would not further the interest of justice, given that the plaintiff had been awarded punitive damages, costs and fees at arbitration and that the defendant had satisfied the judgment. Additionally, we note that the twelve factors set forth in Steiger do not govern the issue in the present case. Those factors govern the standard for setting the amount of attorney’s fees once a trial court has exercised its decision to award such fees. See Steiger v. J. S. Builders, Inc., supra, 39 Conn. App. 36-37. As noted, “CUTPA . . . ailow[s] attorney’s fees only subject to the sound discretion of the court . . . and this court will not upset the trial court’s judgment without a showing of manifest abuse of discretion or injustice.” (Citation omitted; internal quotation marks omitted.) Staehle v. Michael’s Garage, Inc., supra, 35 Conn. App. 460-61. There being no indication of either in this case, we conclude that it was within the discretion of the trial court to deny the plaintiffs motion.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 42-110g (d) provides in relevant part: “[T]he court may award, to the plaintiff, in addition to the relief provided in this section, costs and reasonable attorneys’ fees based on the work reasonably performed by an attorney and not on the amount of recovery. . . .”

       “In Johnson v. Georgia Highway Express, Inc., [488 F.2d 714, 715, 717-19 (5th Cir. 1974)], the question before the Fifth Circuit Court of Appeals concerned the adequacy of attorney’s fees awarded by the District Court in an across-the-board action to remedy employment discrimination pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. The Circuit Court of Appeals set out twelve guidelines for the District Court to consider on remand in setting reasonable attorney’s fees: (1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill requisite to perform the legal service properly; (4) the preclusion of other employment by the attorney due to acceptance of the case; (5) the customary fee for similar work in the community; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation and ability of the attorneys; (10) the undesirability of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases. . . .
      “As under CUTPA, a District Court has discretion under Title VII to award the prevailing party reasonable attorney’s fees. . . . Mindful that the purpose of Title VII is to effectuate the congressional policy against racial discrimination . . . the Court of Appeals in Johnson noted that the guidelines are an attempt to enable litigants to obtain competent counsel worthy of a contest with the caliber of counsel available to their opposition and to fairly place the economical burden of Title VII litigation. . . .
      “The guidelines set forth in Johnson for calculating reasonable attorney’s fees are appropriate in CUTPA litigation because, similar to Title VII, CUTPA seeks to create a climate in which private litigants help to enforce the ban on unfair or deceptive trade practices or acts. . . . Our review of whether the trial court correctly applied the guidelines and set a reasonable award of attorney’s fees is limited to a consideration of whether the court abused its discretion.” (Citations omitted; internal quotation marks omitted.) Steiger v. J. S. Builders, Inc., supra, 39 Conn. App. 38-39.

       “The use of the word ‘may’ indicates that the statute does not provide a mandatory award of fees to the plaintiff; rather, the court has discretion to award attorney’s fees. The language of the statute is clear and unambiguous; the awarding of attorney’s fees is within the discretion of the trial court.” Staehle v. Michael’s Garage, Inc., supra, 35 Conn. App. 459.
      “During the legislative debate of the 1976 amendment, Representative Alan H. Nevas commented that ‘[w]hen the initial legislation was enacted, the language provided that if there was litigation, the court, at the end of that litigation, could make an award of costs and attorney’s fees to either party, depending on the discretion of the court and in its judgment as to which party should be entitled to such an award.’ . . . Responding to a complaint that the new amendment would be unfairly harsh to businessmen, Senator Louis S. Ciccarello observed, T think it’s fair and I think it should also be pointed out that reasonable attorney’s fees are granted only upon discretion of the court, so therefore, a plaintiff may not be able to receive any fees whatsoever.’ . . . These comments strongly indicate that the intent behind § 42-1 lOg (d) was for an award of attorney’s fees to be determined at the discretion of the trial court.” (Citations omitted.) Id., 459-60 n.8.

       The defendant urges this court to, alternately, affirm the denial of the motion on the ground that the plaintiffs motion was untimely under Practice Book § 11-21, and, therefore, it must be denied as a matter of law. Because we conclude that the court did not abuse its discretion in denying the plaintiffs motion, we do not reach this issue.


author: DiPENTIMA, J.

text:
    JANE DAVENPORT BLUM v. HOWARD R. BLUM
    (AC 28101)
    (AC 28532)
    Flynn, C. J., and DiPentima and Lavery, Js.

      Argued March 19
    officially released July 22, 2008

      Gary I. Cohen, with whom, on the brief, was Marci E. Finkelstein, for the appellant (defendant).

      Deborah L. Grover, for the appellee (plaintiff).

      Christopher P. Norris, for the minor children.
   Opinion

DiPENTIMA, J.

The defendant, Howard R. Blum, appeals from the judgments of the trial court denying his postjudgment motions to modify his alimony and child support obligations. The defendant claims that the court improperly (1) determined that he had failed to meet his burden of proving that the cohabitation of the plaintiff, Jane Davenport Blum, had altered her financial needs, (2) determined that he had failed to meet his burden of proving a substantial change in his income or earning capacity and (3) awarded attorney’s fees to the plaintiff. We affirm the judgments of the trial court.

The following facts are not in dispute. The parties were married on January 26,1991. During the marriage, the parties had three children together. On May 30, 2003, the plaintiff filed a complaint seeking a dissolution of the marriage and other relief. The court rendered judgment dissolving the parties’ marriage on July 25, 2005.

Pursuant to the judgment of dissolution, the court ordered the defendant to pay to the plaintiff, inter alia, periodic alimony in the amount of $4300 per month, plus 33 percent of his net income in excess of $190,000 per calendar year. The court ordered that the alimony “shall be modifiable as to amount and shall terminate on the first to occur of any of the following events . . . [s]even years from the date of dissolution . . . [t]he death of either party . . . [t]he remarriage of the [p]laintiff . . . [t]he [pjlaintiffs cohabitation with an unrelated person pursuant to . . . General Statutes § 46b-86 (b).” In addition, the court ordered the defendant to pay child support in the following amounts: $2630 per month; 17.16 percent of his net earnings in excess of $15,500 per month; 90 percent of day care, extracurricular and unreimbursed medical and dental expenses for the benefit of the minor children; and all health insurance premiums for the benefit of the minor children.

On May 30, 2006, the defendant filed the first of two motions to modify his alimony and child support obligations. In his May 30,2006 motion, the defendant alleged that the plaintiff had begun living with Damian Donovan, the father of the plaintiffs fourth child, bom on June 16, 2006, and that their cohabitation resulted in a change in her financial circumstances sufficient to justify a reduction or termination of the defendant’s alimony obligations. After a hearing on August 28, 2006, the court, Hon. Sidney Axelrod, judge trial referee, denied the defendant’s May 30, 2006 motion.

On October 24, 2006, the defendant filed a second motion to modify his alimony and child support obligation. In his October 24, 2006 motion, the defendant alleged that his income had declined since the date of the judgment of dissolution and that the decline in his income was a substantial change in circumstances sufficient to warrant a reduction in his alimony and child support obligations. After a hearing, the court, Leheny, J., denied the defendant’s second motion on January 26, 2007. The defendant timely appealed from the denials of both motions. Thereafter, the court awarded the plaintiff $6000 in attorney’s fees and costs to defend the appeals, and the defendant amended his second appeal to challenge that award. Additional facts will be set forth as necessary.

I

On appeal, the defendant first claims that the court improperly construed § 46b-86 (b) in denying his May 30,2006 motion to modify his alimony and child support obligations. Specifically, he claims that the court improperly charged him with providing evidence of specific amounts by which the plaintiffs financial needs had changed. In support of his claim, he argues that even without such quantitative evidence, he clearly established that the plaintiff is supporting Donovan and that such support has altered her financial condition. We disagree.

The following additional facts are relevant to the defendant’s claim. Pursuant to the terms of the judgment, the parties sold the marital residence and divided the net proceeds. With her share of the proceeds, the plaintiff purchased a home on April 4, 2006, with the expectation that Donovan and their child would live with her. Since the date of purchase, Donovan has been residing in the new residence with the plaintiff and their child, as well as the parties’ three minor children. Donovan testified that he pays for the expenses of his child but not for the defendant’s three minor children. Donovan testified, and the court found, that he purchases groceries for the residence once a week, occasionally cuts the lawn and helps with minor household chores. Donovan, however, eats most of his meals at the plaintiffs home, uses her utilities, such as electricity and heat, and pays nothing toward the mortgage, taxes, insurance, utilities, the plaintiffs clothing, fuel and maintenance for the plaintiffs car, furniture, the plaintiffs haircuts or expenses for the parties’ three children. The defendant adduced no evidence as to the value of the goods, services and resources provided or consumed by Donovan.

As a threshold matter, we set forth our standard of review. “An appellate court will not disturb a trial corut’s orders in domestic relations cases unless the court has abused its discretion or it is found that it could not reasonably conclude as it did, based on the facts presented. ... In determining whether a trial court has abused its broad discretion in domestic relations matters, we allow every reasonable presumption in favor of the correctness of its action. ... In reviewing the trial court’s decision under [the abuse of discretion] standard, we are cognizant that [t]he issues involving financial orders are entirely interwoven. The rendering of judgment in a complicated dissolution case is a carefully crafted mosaic, each element of which may be dependent on the other.” (Internal quotation marks omitted.) Gervais v. Gervais, 91 Conn. App. 840, 843-44, 882 A.2d 731, cert. denied, 276 Conn. 919, 888 A.2d 88 (2005). “Notwithstanding the great deference accorded the trial court in dissolution proceedings, a trial court’s ruling on a modification may be reversed if, in the exercise of its discretion, the trial court applies the wrong standard of law.” (Internal quotation marks omitted.) Williams v. Williams, 276 Conn. 491, 497, 886 A.2d 817 (2005).

Because the defendant’s claim raises a question of statutory interpretation, “our review is plenary. . . . A fundamental tenet of statutory construction is that statutes are to be considered to give effect to the apparent intention of the lawmaking body. . . . Our legislature . . . enacted General Statutes § l-2z, which provides that [t]he 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, extratextual evidence of the meaning of the statute shall not be considered.” (Internal quotation marks omitted.) Gervais v. Gervais, supra, 91 Conn. App. 849-50.

“It is an accepted principle of statutory construction that, if possible, the component parts of a statute should be construed harmoniously in order to render an overall reasonable interpretation. ... It also is well established that we are required to read statutes together when they relate to the same subject matter .... Accordingly, [i]n determining the meaning of a statute ... we look not only at the provision at issue, but also to the broader statutory scheme to ensure the coherency of our construction. ... In applying these principles, we are mindful that the legislature is presumed to have intended a just and rational result.” (Internal quotation marks omitted.) Id., 855.

General Statutes § 46b-86 (b) provides: “In an action for divorce, dissolution of marriage, legal separation or annulment brought by a husband or wife, in which a final judgment has been entered providing for the payment of periodic alimony by one party to the other, the Superior Court may, in its discretion and upon notice and hearing, modify such judgment and suspend, reduce or terminate the payment of periodic alimony upon a showing that the party receiving the periodic alimony is living with another person under circumstances which the court finds should result in the modification, suspension, reduction or termination of alimony because the living arrangements cause such a change of circumstances as to alter the financial needs of that party.” (Emphasis added.)

The court found, and the parties do not dispute, that Donovan was living with the plaintiff for purposes of § 46b-86 (b). The issue in this case is whether this living arrangement altered the financial needs of the plaintiff. As to this second prong, it is the defendant’s burden to prove that the plaintiffs living arrangements caused a change of circumstances so as to alter the plaintiffs financial needs. See Cushman v. Cushman, 93 Conn. App. 186, 199, 888 A.2d 156 (2006). The court found that the defendant had failed to meet his burden because he adduced no evidence as to the values of the contributions that Donovan made to the plaintiffs household or the burdens that Donovan placed on the plaintiffs financial resources.

We begin our analysis by noting that our Supreme Court has defined the purpose of alimony as “the obligation of support that spouses assume toward each other by virtue of the marriage.” Rubin v. Rubin, 204 Conn. 224, 234, 527 A.2d 1184 (1987). This court has stated that “[ajlimony is always represented by money and is damages to compensate for loss of marital support and maintenance.” (Internal quotation marks omitted.) Crowley v. Crowley, 46 Conn. App. 87, 98, 699 A.2d 1029 (1997); see also Black’s Law Dictionary (7th Ed. 1999) (alimony defined as allowance paid to former spouse for maintenance following divorce). In other words, alimony represents the court’s finding, measured in dollars, of the financial needs of the receiving spouse at the time of the dissolution.

In order to obtain a suspension, reduction or termination of his alimony obligation pursuant to § 46b-86 (b), the defendant must demonstrate that the plaintiffs financial needs, as quantified by the court in setting the alimony award pursuant to General Statutes § 46b-82, have been altered by her living arrangements. Although the alteration need not be substantial; Gervais v. Gervais, supra, 91 Conn. App. 853; the difference must be measurable in some way before the court can conclude whether a difference, in fact, exists. See D’Ascanio v. D’Ascanio, 237 Conn. 481, 487, 678 A.2d 469 (1996) (evidence sufficient when defendant’s cohabitation resulted in contribution from cohabitant of $100 per week); see also DiStefano v. DiStefano, 67 Conn. App. 628, 630 & n.2, 787 A.2d 675 (2002) (evidence not sufficient when cohabitant living in defendant’s basement at no charge and storing possessions in basement); Duhl v. Duhl, 7 Conn. App. 92, 93, 507 A.2d 523 (evidence sufficient when cohabitant paying plaintiff $400 per month for rent), cert. denied, 200 Conn. 803, 509 A.2d 517 (1986); cf. Lupien v. Lupien, 192 Conn. 443, 444-45, 472 A.2d 18 (1984) (evidence sufficient when cohabitant paid plaintiff $30 weekly for food and performed numerous handyman chores that plaintiffs financial situation previously had prevented her from procuring). In other words, the court must have the ability to compare the plaintiffs financial needs at different points in time in order to determine whether those needs either have increased or have decreased over time. Because the court, in setting the alimony award pursuant to § 46b-82, quantified the plaintiffs financial needs in terms of dollar amounts at the time of dissolution, we conclude that the proper way for the court to determine whether the plaintiffs financial needs have changed as a result of her cohabitation is to quantify her financial needs in terms of dollar amounts during the period of cohabitation. Such an “apples to apples” comparison would harmonize §§ 46b-82 and 46b-86 (b) into one coherent statutory scheme and lead to more just and rational results. See Krafick v. Krafick, 234 Conn. 783, 804, 663 A.2d 365 (1995) (“[c]asting the judgment in specific amounts will make the result more comprehensible for the litigants and will facilitate appellate review as often as such review may become necessary” [internal quotation marks omitted]).

For purposes of clarity, we note that this construction does not place an unnecessary burden on parties seeking suspension, reduction or termination of alimony under § 46b-86 (b). Parties are not required to account for every penny that leaves the cohabitant’s purse or elicit expert testimony as to the value conferred on the alimony recipient by every activity of the cohabitant. The party moving for a change in the court’s alimony order, however, must adduce some evidence from which the court reasonably could infer the value of the cohabitant’s contributions. The alternative improperly would require courts to speculate as to the values of various goods and resources. In this case, there was no evidence from which the court could have inferred the value of Donovan’s contributions to, or demands on, the plaintiffs financial resources. Accordingly, we conclude that the court properly construed § 46b-86 (b) in denying the defendant’s May 30, 2006 motion.

II

The defendant next claims that the court improperly denied his October 24, 2006 motion to modify his alimony and child support obligations. Specifically, he claims that the court improperly found that he had not met his burden of proving a substantial decline in his income or earning capacity. In support of his claim, he argues that the court’s finding was clearly erroneous because there is no evidence in the record to contradict his testimony that he has been meeting his expenses by using resources other than income. We conclude that the defendant’s argument perverts his burden of proof and that the court’s finding was not clearly erroneous.

Resolution of the defendant’s claim turns on the following facts. In his October 24, 2006 motion to modify alimony and child support, the defendant claimed that he had not achieved the level of income as a freelance writer that the court had assigned to him in its July 25, 2005 judgment, specifically, $300,000 per year. At the January 22, 2007 hearing on his motion, the defendant testified, and his financial affidavit reflected, that he had earned just $54,000 during 2005, and $77,281, during 2006, but that his weekly expenses totaled $6877, or approximately $357,000 annually. He stated that part of the reason for the decline in his earnings was that he had been receiving less money in advance of writing his books due to high “unearned advances” on previous books. He explained that he had been covering his weekly expenses, which included, inter alia, $200 per week to eat at restaurants, with his share of the proceeds from the April, 2006 sale of the marital residence. He testified, however, that he had exhausted that resource by paying off his old debts and had begun incurring new debts.

In its memorandum of decision, the court noted that the defendant had claimed a decline in his net weekly income from $2865 on March 10, 2005, to $201.86 on January 16,2007. The court further noted that the defendant, over the same time period, had not altered his lifestyle nor reduced his expenses. The court concluded that “[t]he significant discrepancy as to [the defendant’s] income and the nature and amount of his personal expenses was not explicated to the court’s satisfaction.” Accordingly, the court found that the defendant had failed to prove a substantial decline in his income or earning capacity.

After the date of a dissolution judgment, a party to the dissolution may obtain a modification of alimony and child support on “a showing of a substantial change in the circumstances of either party . . . .” General Statutes § 46b-86 (a). “The party seeking modification bears the burden of showing the existence of a substantial change in the circumstances.” (Internal quotation marks omitted.) Syragakis v. Syragakis, 79 Conn. App. 170, 174, 829 A.2d 885 (2003).

As previously noted, we will not disturb the trial court’s ruling on a motion for modification of alimony or child support unless the court has abused its discretion or reasonably could not conclude as it did, on the basis of the facts presented. Gervais v. Gervais, supra, 91 Conn. App. 843. Furthermore, “[t]he trial court’s findings [of fact] 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.) Id., 844.

In pursuit of its fact-finding function, “ [i]t is within the province of the trial court ... to weigh the evidence presented and determine the credibility and effect to be given the evidence. . . . Credibility must be assessed . . . not by reading the cold printed record, but by observing firsthand the witness’ conduct, demeanor and attitude. ... An appellate court must defer to the trier of fact’s assessment of credibility because [i]t is the [fact finder] . . . [who has] an opportunity to observe the demeanor of the witnesses and the parties; thus [the fact finder] is best able to judge the credibility of the witnesses and to draw necessary inferences therefrom.” (Internal quotation marks omitted.) Ravetto v. Triton Thalassic Technologies, Inc., 285 Conn. 716, 728, 941 A.2d 309 (2008). Because the trial court is the sole arbiter of witness credibility, it has discretion to reject even uncontested evidence. West Farms Mall, LLC v. West Hartford, 279 Conn. 1, 17, 901 A.2d 649 (2006); see also Mierzejewski v. Brownell, 102 Conn. App. 413, 422, 925 A.2d 1126 (trier free to accept or reject, in whole or part, testimony offered by either party), cert. denied, 284 Conn. 917, 931 A.2d 936 (2007).

The defendant was charged with persuading the court that his circumstances had changed substantially. In attempting to meet his burden, he introduced testimony and documentaiy evidence that his income and earning capacity had declined since the date of the judgment. The court was free, however, to discredit even his uncontroverted testimony. Absent any credible evidence that the defendant’s income or earning capacity had declined, the court reasonably could have found that the defendant had failed in his quest to prove a substantial change in his circumstances. Accordingly, we conclude that the court’s finding was not clearly erroneous and that the court properly denied the defendant’s October 24, 2006 motion on that basis.

III

The defendant’s final claim is that the court improperly ordered him to pay the plaintiff attorney’s fees and costs to defend the present appeals. We decline to review the defendant’s claim due to an inadequate record.

On February 28, 2007, the plaintiff filed a motion for counsel fees and expenses. Following a hearing, the court granted the plaintiffs motion, ordering the defendant to pay the plaintiff $5000 toward counsel fees and $1000 toward other costs of defending the appeals. In granting the plaintiffs motion, the court did not make any factual findings or state the basis for its award.

“[General Statutes §] 46b-62 governs the award of attorney’s fees in dissolution proceedings. That section provides in part that the court may order either spouse ... to pay the reasonable attorney’s fees of the other in accordance with their respective financial abilities and the criteria set forth in [§] 46b-82. . . . The criteria set forth in § 46b-82 are the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties and the award, if any, which the court may make pursuant to [§] 46b-81, and, in the case of a parent to whom the custody of minor children has been awarded, the desirability of such parent’s securing employment.” (Internal quotation marks omitted.) Grimm v. Grimm, 276 Conn. 377, 396, 886 A.2d 391 (2005), cert. denied, 547 U.S. 1148, 126 S. Ct. 2296, 164 L. Ed. 2d 815 (2006). “An award of counsel fees under [§ 46b-62] calls for the exercise of judicial discretion. ... In exercising its discretion, the court must consider the statutory criteria set out in §§ 46b-62 and 46b-82 and the parties’ respective financial abilities.” (Citation omitted; internal quotation marks omitted.) Berglass v. Berglass, 71 Conn. App. 771, 789, 804 A.2d 889 (2002).

In this case, we cannot review whether the award was proper because the record on the matter does not reveal the court’s reasoning, specifically, whether or to what extent it considered the criteria set forth in § 46b-82, and the defendant sought no articulation of the court’s reasoning. See id. “It is a well established principle of appellate procedure that the appellant has the duty of providing this court with a record adequate to afford review. . . . Where the factual or legal basis of the trial couit’s ruling is unclear, the appellant should seek articulation pursuant to Practice Book § [66-5]. . . . Accordingly, [w]hen the decision of the trial court does not make the factual predicates of its findings clear, we will, in the absence of a motion for articulation, assume that the trial court acted properly.” (Internal quotation marks omitted.) Berglass v. Berglass, supra, 71 Conn. App. 789. Accordingly, we are unable to address the defendant’s claim that the court’s award of attorney’s fees was an abuse of discretion.

The judgments are affirmed.

In this opinion the other judges concurred.

       As part of the July 25, 2005 judgment of dissolution, the court granted the plaintiff’s request to restore her birth name to Jane Davenport Cox.

       At the hearing on the defendant’s May 30, 2006 motion, counsel for the defendant stated that any modification of child support was contingent on whether the court ordered a change in its alimony order, which, he argued, would change the financial circumstances of the parties such that a modification of child support also would be necessary. Because the court denied the defendant’s motion and the defendant makes no claim that the court improperly failed to modify its child support order, we limit our discussion to the defendant’s claim for a modification of his alimony obligation.

       In his second motion, the defendant repeated his claim that a reduction in alimony also was warranted as a result of the plaintiffs cohabitation and the resulting change in her financial circumstances. The defendant, however, does not appeal from the court’s denial of his October 24, 2006 motion on the basis of this claim.

       On appeal, the attorney for the minor children has adopted the position of the plaintiff and elected not to file a separate brief. See Practice Book § 67-13.

       The defendant further argues that the additional burden of quantifying the change in the plaintiff’s financial needs rewarded the plaintiff for Donovan’s failure to comply with a subpoena request for Donovan’s personal financial records. Our review of the record reflects that although Donovan may have failed to comply with the subpoena, the defendant did not ask the court to continue the hearing or to compel Donovan’s compliance. Instead, the defendant merely requested that the court draw an adverse inference as to Donovan’s credibility, which a fair reading of the record reveals that the court declined to do. Accordingly, the defendant has failed to preserve this issue, and we decline to address it. See Cutler v. Greenberg, 60 Conn. App. 752, 754-55, 761 A.2d 237 (2000) (enforcement of subpoena not self-executing, and we cannot ascribe impropriety to failure of compliance when those seeking enforcement never notified court of noncompliance or asked for compliance), cert, denied sub nom. Cutler v. Estate of Agostinelli, 255 Conn. 943, 769 A.2d 58, cert. denied, 534 U.S. 1056, 122 S. Ct. 648, 151 L. Ed. 2d 565 (2001).

       General Statutes § 46b-82 (a) provides in relevant part: “At the time of entering the decree, the Superior Court may order either of the parties to pay alimony to the other .... In determining whether alimony shall be awarded, and the duration and amount of the award, the court shall hear the witnesses, if any, of each party . . . shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties and the award, if any, which the court may make pursuant to section 46b-81, and, in the case of a parent to whom the custody of minor children has been awarded, the desirability of such parent’s securing employment.”

       “We also note that even after the required factual showings the ultimate decision still is entrusted to the discretion of the trial court. General Statutes § 46b-86 (b).” Kaplan v. Kaplan, 186 Conn. 387, 389, 441 A.2d 629 (1982).

       The trial court cases cited by the defendant in support of his argument are not inconsistent with our conclusion. For example, in Rogg-Meltzer v. Rogg-Meltzer, Superior Court, judicial district of New Haven, Docket No. FA-98-0351228-S (November 3,2005), the court found that the alimony recipient’s expenses substantially exceeded her $600 per week self-employment income and that she had been meeting those additional expenditures with contributions in the amount of $5000 per month from the cohabiting party. As a result, the court found she was able to preserve her assets and purchase a more expensive home in an exclusive community. Thus, the court had evidence before it from which it could quantify the effect of the recipient’s living arrangements on her financial needs.
      In Peltzer v. Peltzer, Superior Court, judicial district of Hartford, Docket No. FA-96-0711472-S (January 26, 2005), the court found that as a result of her cohabitation, the alimony recipient had purchased an expensive house, expending capital and increasing her debt. The court concluded, therefore, that the purchase of the house constituted a change in her financial circumstances resulting from her residence with another person. The court did not articulate its findings as to the amount of capital that the recipient had expended or the amount by which her debt had increased. We assume, however, that the court had evidence before it from which it could reasonably infer and assign dollar values to the recipient’s assets and the amount of her debt. See Moreira v. Moreira, 105 Conn. App. 637, 641, 938 A.2d 1289 (2008) (when decision of trial court does not state factual predicates of its findings, we assume trial court acted properly).
      In contrast, nothing in the record before this court supports the defendant’s contention that the plaintiffs total capital or total debt had been altered as a result of the purchase of her new home. Moreover, the record reflects, and the court reasonably could have concluded, that the plaintiffs purchase of her new home and any corresponding changes in her financial status, were the direct result of the divorce decree, rather than her living arrangements with Donovan.

       Again, the attorney for the minor children has adopted the position of the plaintiff and has elected not to file a separate brief. See Practice Book § 67-13.

       According to the defendant, an unearned advance results when the publisher of a book is unable to recoup, through book sales, the amount of money that is advanced to the author in anticipation of writing the book.

       The plaintiff introduced a copy of the closing statement from the April, 2006 sale of the marital residence, which reflected that the defendant had received more than $950,000 of the net proceeds of the sale.

       We note that a comparison of the defendant’s February 2, 2006 financial affidavit and his January 16, 2007 financial affidavit reveals a decline in his net worth, i.e., total assets minus total liabilities, of more than $920,000. Thus, according to the defendant’s financial affidavits, he depleted his assets at a rate of approximately $21,000 per week between February 2, 2006, and January 16,2007, despite the fact that his expenses had exceeded his income by just $4100 per week.

       The defendant argues that the court’s finding was clearly erroneous, in part, because the court made no specific finding as to his credibility. The court’s denial of the defendant’s motion, however, includes implicit findings that it resolved any credibility determinations and any conflicts in testimony in a manner that supports its ruling. See State v. Brunetti, 279 Conn. 39, 53 n.23, 901 A.2d 1 (2006), cert. denied, 549 U.S. 1212, 127 S. Ct. 1328, 167 L. Ed. 2d 85 (2007). Accordingly, we reject the defendant’s argument.

       For this claim, the attorney for the minor children has adopted the position of the defendant and again has elected not to file a separate brief. See Practice Book § 67-13.