author: Stoughton, J. Norcott, J.,

text:
    State of Connecticut v. Francisco Pena
    (6045)
    Bieluch, Stoughton and Norcott, Js.

      Argued April 20
    decision released October 4, 1988

      Jean Elmblad Blue, special public defender, for the appellant (defendant).

      Steven M. Sellers, assistant state’s attorney, with whom, on the brief, was Brian Cotter, assistant state’s attorney, for the appellee (state).
   Stoughton, J.

The defendant appeals from a judgment of conviction of the crime of possession of a narcotic substance with intent to sell in violation of General Statutes § 21a-277 (a). The defendant claims that the trial court erred in accepting his Alford plea and in denying his subsequent motion to withdraw the plea. The defendant further alleges that the trial court erred in denying defense counsel’s motion to withdraw his appearance and in refusing to appoint another special public defender to represent the defendant.

The following facts are pertinent to these issues. The defendant was arrested in Danbury on July 24, 1986, and charged with possession with intent to sell one ounce or more of cocaine, a violation of General Statutes § 21a-278 (a). The defendant was also charged with possession of a narcotic substance in violation of General Statutes § 21a-279 (a). The defendant initially entered a plea of not guilty to these charges. On November 12, 1986, however, when the case was ready for trial, the defendant withdrew his pleas of not guilty and on a substitute information entered a plea of guilty, pursuant to the doctrine of North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970), to the crime of possession of a narcotic substance with intent to sell in violation of General Statutes § 21-277 (a).

The state offered the following factual basis for the plea. During the month of June, 1986, the Danbury police received information that a man named “Juan” was selling large quantities of cocaine at the Super 8 Motel in that city. It was reported that Juan drove a white Dodge Omni bearing New York registration plates. Danbury police officers pursued the tip and observed the automobile at the motel as reported and further determined that the registration was in the name of one Virginia Rufino of New York City. On July 23, 1986, the police received a second tip that Juan’s full name was Juan Rufino, described as a short Hispanic male with a dark beard, and that he would be taking a trip to New York City later that day to obtain more narcotics. Subsequently, the police observed Juan Rufino and a young woman, later identified as Elize Perez, enter a Datsun with Massachusetts registration plates. They also saw the defendant and a third man, Americo Ramirez, enter a white Dodge Omni. After making two local stops, the vehicles proceeded onto Interstate 684 heading toward New York City. The next day, at approximately 12:40 a.m., Danbury police officers observed the same two vehicles returning to Danbury on Interstate 684. The police stopped the cars and observed that the defendant was a passenger in the white Dodge Omni. The police also discovered in plain view a red duffle bag which contained more than seven ounces of cocaine having a purity of more than 75 percent. The defendant and the other occupants of the vehicles were arrested and charged with possession of one ounce or more of narcotics with intent to sell in violation of General Statutes § 21a-278 (a).

Perez gave a statement to the police which indicated that on the night in question she had accompanied Rufino, Ramirez and the defendant to the Bronx, New York, where they obtained the cocaine and then returned to Danbury. Perez’s role was that of an interpreter in the event the vehicles were stopped by the police. She was to receive a quantity of heroin in return for her services. Perez later testified at a probable cause hearing that she had overheard a conversation between Rufino and the defendant describing the New York City trip as a “drug deal.” Perez further gave the police information that she had also overheard Rufino “berate” the defendant for not collecting enough money for the cocaine that the defendant was selling for Rufino.

After hearing the factual basis supporting the defendant’s plea and canvassing the plea in accordance with Practice Book §§711 through 713, the court accepted the defendant’s Alford plea, and the case was continued for sentencing. At the sentencing hearing on Decernber 15, 1986, the defendant made an oral motion to withdraw his guilty plea, alleging that he had been denied the effective assistance of counsel and that there was a lack of a factual basis for the plea pursuant to Practice Book § 721 (4) and (5), respectively.

The defendant’s counsel, acting as a special public defender, simultaneously moved the court to permit his withdrawal from the case, claiming that he was unable to be an effective advocate on the ineffective assistance of counsel claim, and moved for the appointment of another special public defender for the defendant. The court, McDonald, J., denied the defense counsel’s motion to withdraw from the case but, without ruling on the motion to withdraw the guilty plea, continued the case to allow the defendant to obtain new counsel and file “any motions” that they felt were necessary.

On February 17, 1987, after three continuances during which the indigent defendant was unable to obtain new counsel, the court, Lavery, J., denied the defendant’s renewed motion to withdraw his plea and the defense counsel’s renewed motion to withdraw as special public defender and to appoint another special public defender in his place. The court then sentenced the defendant to an eleven year term of incarceration in accordance with the original plea agreement.

I

The defendant first claims that the trial court erred in accepting his Alford plea and in denying his motion to withdraw that plea at sentencing because there was an insufficient factual basis to support the plea. We disagree.

We note at the outset that a trial court should not accept a plea of guilty until it has satisfied itself that a factual basis exists for that plea. Practice Book § 713. A factual basis is required whether the plea of guilty is made pursuant to the doctrine of North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970), or is accompanied by an admission of guilt. Oppel v. Lopes, 200 Conn. 553, 561, 512 A.2d 888 (1986); State v. Deboben, 187 Conn. 469, 475-76, 446 A.2d 828 (1982). In determining whether a factual basis exists, the court may consider the facts recited by the state’s attorney as well as any other facts properly submitted to the court which support a conviction. State v. Marra, 174 Conn. 338, 346, 387 A.2d 550 (1978); State v. Huey, 1 Conn. App. 724, 731-32 n.5, 476 A.2d 613 (1984), aff’d, 199 Conn. 121, 505 A.2d 1242 (1986) (“trial court may consider transcripts, sworn statements, oral testimony, police reports, or other material to satisfy itself of the existence of factual basis”), citing State v. Doherty, 261 N.W.2d 677, 682 n.10 (S.D. 1978). A factual basis exists where the facts before the court are sufficient to establish each and every element of the crime charged. State v. Eason, 192 Conn. 37, 44, 470 A.2d 688 (1984); State v. Battle, 170 Conn. 469, 472, 365 A.2d 1100 (1976).

In this case, the defendant pleaded guilty to the crime of possession of a narcotic substance with intent to sell in violation of General Statutes § 21a-277 (a). This statute provides criminal penalties for “[a]ny person who . . . possesses with the intent to sell or dispense . . . a narcotic substance . . . .” Accordingly, the state had to produce sufficient facts to support a finding (1) that the defendant possessed a narcotic substance, and (2) that he intended to sell the substance.

The defendant first contends that there were insufficient facts before the court to support an inference that he possessed a narcotic substance. He contends that the facts before the court merely established him to be a passenger in a vehicle that contained narcotics and did not establish his possession of those narcotics. We disagree.

It is well established that “[i]n order to prove illegal possession of a narcotic substance, it is necessary to establish that the defendant knew the character of the substance, knew of its presence and exercised dominion and control over it.” State v. Alfonso, 195 Conn. 624, 633, 490 A.2d 75 (1985). “The phrase ‘to exercise dominion or control’ as commonly used contemplates a continuing relationship between the controlling entity and the object being controlled. . . . The essence of exercising control is not the manifestation of an act of control but instead it is the act of being in a position of control coupled with the requisite mental intent.” State v. Hill, 201 Conn. 505, 516, 523 A.2d 1252 (1986).

Our Supreme Court has held that evidence demonstrating that a person was an occupant in a car is not sufficient to establish that that person exercised dominion and control over an illegal object in that car. State v. Watson, 165 Conn. 577, 596, 345 A.2d 532 (1973), cert. denied, 416 U.S. 960, 94 S. Ct. 1977, 40 L. Ed. 2d 311 (1974). “It cannot be logically and reasonably presumed that an occupant of a motor vehicle knew of the presence of a [prohibited object] in a vehicle simply on the fact that he was an occupant. Presence alone, ‘unilluminated by other facts’ is insufficient proof of possession. United States v. Romano, [382 U.S. 136, 141-42, 86 S. Ct. 279, 15 L. Ed. 2d 210 (1965).]” State v. Watson, supra, 596. “Where the defendant is not in exclusive possession of the premises where the narcotics are found, ‘it may not be inferred that [the defendant] knew of the presence of the narcotics and had control of them, unless there are other incriminating statements or circumstances tending to buttress such an inference.’ Evans v. United States, 257 F.2d 121, 128 (9th Cir.), cert. denied, 358 U.S. 866, 79 S. Ct. 98, 3 L. Ed. 2d 99, reh. denied, 358 U.S. 901, 79 S. Ct. 221, 3 L. Ed. 2d 150 (1958); see generally annot, 56 A.L.R.3d 948 (1974).” State v. Alfonso, supra, 633.

In this case, there were other statements or facts before the court buttressing the inference that the defendant knew of the presence of the drugs in the car and exercised dominion and control over them. The court had the statement of Perez which indicated that on the night in question she had accompanied Rufino, Ramirez and the defendant to the Bronx where they had obtained cocaine and then returned to Danbury. Also before the court was the testimony elicited from Perez at a probable cause hearing in which she indicated that she had overheard a conversation between Rufino and the defendant describing the trip to the Bronx as a “drug deal.” Finally, the court had the additional information provided by Perez that she had overheard Rufino berate the defendant for not collecting enough money for the drugs he was selling for Rufino. Given these additional statements, we find that the trial court had before it enough information to substantiate a claim that the defendant not only knew of the presence and character of the narcotic substance in the car on the return trip from the Bronx but also exercised dominion and control over it. State v. Vilalastra, 9 Conn. App. 667, 673-74, 521 A.2d 170 (1987), rev’d on other grounds, 207 Conn. 35, 540 A.2d 42 (1988).

The defendant also contends that there were insufficient facts before the court to support an inference that he intended to sell the cocaine found in the car. We disagree.

The facts before the court indicated that the police found more than seven ounces of 75 percent pure cocaine in the car when the vehicle was stopped. As we noted in State v. Parent, 8 Conn. App. 469, 474, 513 A.2d 725 (1986), “ ‘[possession of large quantities of prohibited narcotics will support a conclusion that it was possessed for distribution or for sale.’ [State v. Avila, 166 Conn. 569, 579, 353 A.2d 776 (1974)].” In this case, the inference that the drugs were possessed for the purpose of distribution or sale was supported by the statements of Perez. With regard to the defendant’s first claim, therefore, we find no error.

II

The defendant’s second claim is that the trial court erred in denying defense counsel’s motion to withdraw his appearance and in refusing to appoint another special public defender to represent the defendant on the limited issue of whether he should be permitted to withdraw his plea because of the ineffective assistance of counsel.

We begin our analysis of this claim by noting that a criminal defendant has a constitutional right to the effective assistance of counsel. McMann v. Richardson, 397 U.S. 759, 771 n.14, 90 S. Ct. 1441, 25 L. Ed. 2d 763 (1970); State v. High, 12 Conn. App. 685, 690, 533 A.2d 1217 (1987). This right is equally applicable whether defense counsel is court appointed or privately retained. Levine v. Manson, 195 Conn. 636, 639, 490 A.2d 82 (1985). We note, however, that the right is not without limitation. “For example, the right to counsel does not include the ‘ “unbridled right to discharge counsel on the eve of trial . * (Emphasis in original.) State v. Drakeford, [202 Conn. 75, 83, 519 A.2d 1194 (1987)], quoting United States v. Grow, 394 F.2d 182, 209 (4th Cir.), cert. denied, 393 U.S. 840, 89 S. Ct. 118, 21 L. Ed. 2d 111 (1968).” State v. High, supra, 690. “Furthermore, it is clear that the right to effective assistance of counsel does not include an 'unlimited opportunity to obtain alternate counsel.’ State v. Watson, 198 Conn. 598, 610, 504 A.2d 497 (1986).” State v. High, supra.

In State v. Watson, supra, our Supreme Court considered a factual situation similar to the one presented by this case. The defendant in Watson had pleaded guilty and then attempted to withdraw his plea at sentencing on the ground that he had been denied the effective assistance of counsel. Defense counsel moved to withdraw, claiming that he could not effectively represent the defendant because of a conflict of interest. The trial court denied defense counsel’s motion to withdraw and informed the defendant that he could proceed pro se or have defense counsel assert the basis of the defendant’s claim of ineffective assistance of counsel. The defendant elected to proceed pro se and his motion was denied. Our Supreme Court held that the trial court was correct in denying defense counsel’s motion to withdraw. The Supreme Court ruled that mere allegations of a conflict of interest do not merit the granting of such a motion.

The following additional facts are pertinent to our analysis of this claim. The defendant was represented by a special public defender during these proceedings. There was a probable cause hearing at which a lawyer from New York appeared and informed the court that he had represented the defendant on other occasions in New York and had been retained by the defendant’s family. He asked to be admitted pro hac vice. No written application was made by a member of the bar of this state as required by Practice Book § 24, and the request was denied without prejudice to the filing of another application to the trial judge should a trial occur at a later time. Nevertheless, the court permitted the New York attorney to sit at counsel table with the defendant and the special public defender to discuss strategy and propound any questions through the special public defender.

The New York attorney did not appear at any proceedings after probable cause had been found. When the case was first reached for sentencing, defense counsel informed the court that the defendant wanted to withdraw his plea. Counsel told the court that the defendant had informed him that he was not satisfied with counsel’s performance. The matter was then referred to Judge McDonald, who had accepted the plea of guilty, and defense counsel requested permission to withdraw from the proceedings, stating that he believed that there was a conflict between himself and his client on the motion to withdraw the plea. The court was informed that the grounds for the motion to withdraw the plea were ineffective assistance of counsel and lack of a factual basis for the plea. After the court reporter read back the proceedings at the acceptance of the guilty plea, the court inquired about the basis for defense counsel’s request for permission to withdraw from the case. Counsel informed the court that the defendant felt that he had not received effective assistance of counsel at the plea proceeding. The court again pressed for the basis for that claim, and counsel stated that he did not feel he was at liberty to discuss it further. In response to the court’s expostulation that it could not rule on the motion unless it had some basis for it, defense counsel stated that the court would have to act on the bare representation that the defendant felt he had not received effective assistance of counsel unless it wanted to hear testimony from the defendant and from counsel. The court determined that a factual basis for the plea had been stated whereupon defense counsel noted his disagreement and stated that, “as to the other grounds,” he did not feel that he could be an effective advocate. Counsel asked for the appointment of another attorney. The court asked the defendant to articulate why he thought defense counsel had not been effective, and counsel stated that the defendant should be advised by alternate counsel before answering. The court recessed so that defense counsel could discuss the defendant’s response with him, remarking that simple dissatisfaction with defense counsel was not enough.

After the recess, the defendant told the court that he had been pressured by his lawyer to plead guilty, and that he could prove that the narcotics were not his. Defense counsel stated that he felt that the court had enough information upon which to act and did not need to ascertain anything more from the defendant. The court asked if counsel were instructing the defendant not to say anything more and gave them another opportunity to confer. After the conference, the defendant stated that he wanted another lawyer and a new trial. The court denied counsel’s motion for permission to withdraw and continued the case for sentencing to allow the defendant to get another lawyer. After two additional continuances, counsel informed the court, Lavery, J., that the defendant had been trying to retain other counsel and asked for another continuance. This request was denied. Counsel repeated his request for permission to withdraw as special public defender on the grounds that the defendant’s plea was involuntary and that the defendant felt that counsel’s assistance in explaining the plea and his advice in that respect were not effective. The court sought to determine the basis for the claim, but counsel stated that he could not put himself on the stand and that he could not adequately represent the defendant and produce evidence on any of the allegations regarding his effectiveness. When asked whether he wished to make a statement, the defendant stated that he had thought he would receive probation or a one year prison term, and that he was not guilty. The court found that there was no basis to support a change of plea.

The facts of this case clearly demonstrate that the court was never presented with a factual basis to support a claim of ineffective assistance of counsel. This claim is more properly addressed in habeas corpus proceedings in which evidence can be taken and facts found. See State v. Gonzalez, 205 Conn. 673, 684, 535 A.2d 345 (1987); State v. Morico, 14 Conn. App. 140, 145, 539 A.2d 1033 (1988). There is no authority for the proposition that unsupported allegations of ineffective assistance and conflict of interest, regardless of merit, require the court to furnish the defendant with an unlimited opportunity to obtain alternate counsel. State v. Watson, supra, 610. It is the province of the trial court to determine whether there is a factual basis for disqualification of counsel and, in the absence of a factual record showing an abuse of discretion, the trial court’s failure to permit withdrawal of counsel is not reversible error. Id. The court did everything it could to attempt to determine whether there was a factual basis for the request and, from the record, it appears that counsel was unable to articulate any reason except that the defendant was dissatisfied. The defendant stated that he did not realize what the sentence would be and that he was not guilty. The first of these claims is refuted by the transcript of the proceedings at the time of the plea. As to the second claim, the defendant entered an Alford plea, which plea requires that he acknowledge that there was sufficient evidence to convict him despite his refusal to admit guilt. A request for substitution of counsel requires support by a substantial reason. State v. Drakeford, supra, 83; State v. Morico, supra, 144. We find, on the record before us, that the defendant has not established an abuse of discretion on the part of the trial court. There is no merit to this claim.

Ill

The substitute information contained in the record includes notations that on November 12, 1986, there was a plea of guilty entered under the Alford doctrine, there was a finding of guilty by the court, and there was a finding that the defendant’s plea was made knowingly, voluntarily, intelligently and with full understanding. On March 25, 1988, an assistant clerk of the Superior Court sent to the clerk of the Appellate Court a copy of the substitute information from which the letter “G,” indicating a finding of guilty, had been erased. In a letter attached to the information, the assistant clerk of the Superior Court stated that she had reviewed the transcripts and was unable to locate where the court had entered a finding of guilty. As a result, the clerk believed that she had entered the finding erroneously at the time of sentencing and removed it. The information had been signed by the judge at the time of disposition. The letter from the assistant clerk of the Superior Court and the altered substitute information were made available to this court and to counsel for oral argument.

On the basis of the revelation by the assistant clerk of the Superior Court, we permitted the defendant to raise a claim, which had neither been raised in his statement of issues nor briefed, that the trial court committed error in imposing sentence without first accepting the guilty plea. The defendant pressed the claim that pursuant to Practice Book § 720 the defendant should have been allowed to withdraw his plea as a matter of right because his guilty plea had not been accepted. He argues that this claim is reviewable without having been raised in the trial court under the exceptional circumstances doctrine of State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). We agree that the defendant’s claim facially implicates a fundamental constitutional right. State v. Thurman, 10 Conn. App. 302, 306, 523 A.2d 891, cert. denied, 204 Conn. 805, 528 A.2d 1152 (1987). Therefore, we will review the record to determine whether the claim is of constitutional proportions. Id.

It was not within the authority of the assistant clerk to alter the record by obliterating an entry on the substitute information which had been signed by the judge. The clerk is a recording officer, and if he or she has made a mistake the court may amend the record. State v. Rowe, 1 Conn. Cir. Ct. 427, 430, 186 A.2d 809, cert. denied, 150 Conn. 708, 204 A.2d 934 (1962); Hillhouse v. Dunning, 7 Conn. 139, 141 (1828). See General Statutes § 51-52 (general duties of clerks) and § 51-52a (powers of clerks and clerical assistants). These duties and powers do not include alteration of the records of the court.

The entry of a plea of guilty under the Alford doctrine is the functional equivalent of a plea of nolo contendere. State v. Palmer, 196 Conn. 157, 169 n.3, 491 A.2d 1075 (1985). A conviction occurs as a result of a plea of guilty. Id. By entering his plea, the defendant consented to punishment in the event that the court accepted the Alford plea as if he were guilty.

Until the question was raised by the court at the time of oral argument of this appeal, the defendant never claimed that a valid finding of guilty had not been made. The parties had always treated the case as if a finding that the plea was voluntary had been made and as if that plea had been accepted by the court. See State v. Piskorski, 177 Conn. 677, 748, 419 A.2d 866, cert. denied, 444 U.S. 935, 100 S. Ct. 283, 62 L. Ed. 2d 194 (1979).

Our review of the entire record leaves us with no doubt that a finding of guilty was manifest in the trial court’s actions. Despite the absence of the specific words “I find the defendant guilty” in the transcripts, the trial court’s unchallenged signature attesting to a finding of guilty is clear evidence of the court’s conclusion as to the defendant’s guilt. The court determined that the defendant had entered his plea “knowingly, intelligently and voluntarily with full understanding of the crime charged and the possible consequences of the plea.” Thereafter, the court continued the matter for preparation of a presentence investigation report. The court asked if there was anything more and remarked, “All right, thank you. So the trial would not be necessary in this matter; is that correct?” On the basis of these facts, we find that a finding of guilty was implicit in the trial court’s actions and was properly recorded. There is no merit to the claim that a valid finding of guilty had not been made.

There is no error.

In this opinion, Bieluch, J., concurred.

Norcott, J.,

dissenting. I disagree with the majority because I find that this case is factually distinct from State v. Watson, 198 Conn. 598, 504 A.2d 497 (1986). In Watson, our Supreme Court held that there was no error in denying defense counsel’s motion to withdraw his appearance or in refusing to appoint new counsel to represent the defendant on his motion to withdraw his pleas when the defendant made only unsupported allegations of ineffective assistance of counsel and conflict of interest. In Watson, however, it was clear that the defendant was not completely denied the effective assistance of counsel when the trial court denied his motion for the appointment of new counsel. As the Supreme Court noted, after the defendant’s request for new counsel had been denied, the trial court proceeded to hold a hearing on the defendant’s motion to withdraw his pleas, permitting the defendant either to have his original counsel address the court or to present his argument pro se. The defendant elected to proceed pro se.

The factual scenario presented in this case is distinctly different. When the defendant’s motion for withdrawal of his plea on the basis of ineffective assistance of counsel was first raised, counsel for the defendant informed the court that he would be unable to represent the defendant on that matter because of what he perceived to be a conflict of interest. Accordingly, he asked for permission to withdraw his appearance. The trial court denied his motion to withdraw and granted the defendant a continuance to find new counsel. Because of his indigency, however, the defendant was unable to obtain new counsel. When the matter came before the court a second time, defense counsel again refused to assert his client’s claims of ineffective assistance of counsel. Accordingly, the defendant was forced to attempt to assert the basis of his claim of ineffective assistance of counsel himself. What resulted was a garbled statement which revealed nothing.

These facts indicate that, unlike the defendant in Watson, the defendant in this case was completely denied the effective assistance of counsel to which he was constitutionally entitled. McMann v. Richardson, 397 U.S. 759, 771 n.14, 90 S. Ct. 1441, 25 L. Ed. 2d 763 (1970); State v. High, 12 Conn. App. 685, 690, 533 A.2d 1217 (1987). Because the trial court denied defense counsel’s motion to withdraw his appearance and also denied the defendant’s motion for the appointment of new counsel, the defendant was forced to rely on the counsel whose assistance he claimed was ineffective to assert his claim for withdrawal of his plea. This counsel, however, was unwilling to assert the defendant’s claim of ineffective assistance of counsel. Accordingly, the defendant was required to act on his own behalf in this matter. I consider this a violation of the defendant’s constitutional right to the effective assistance of counsel.

I would also dissent because I do not feel that the defendant had an adequate opportunity to express the merits of his. claim for withdrawal of his plea. When the court first asked the defendant to articulate the merits of his claim for withdrawal, the defendant gave a rather general response. The court asked the defendant a question on the matter, presumably to clarify the basis of the defendant’s claim, but before the defendant could give a complete response, he was interrupted by defense counsel. Defense counsel informed the court that it needed to know nothing further to rule on the merits of the defendant’s motion. The court proceeded onto other matters. Under these circumstances, I do not feel that the defendant was given an adequate opportunity to assert his claim of ineffective assistance of counsel. The defendant’s response to the court’s sole question at a subsequent hearing also did not constitute an adequate opportunity to assert the basis of the claim.

I would remand this case for a hearing on the defendant’s motion to withdraw his plea. At that hearing, the defendant would be represented by new counsel.

       A plea of guilty pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970), allows a defendant in a criminal case to consent to punishment as if he were guilty without the express acknowledgement of his guilt.

       “[Practice Book] Sec. 721. — grounds
      “The grounds for allowing the defendant to withdraw his plea of guilty after acceptance are as follows: . . .
      “(4) The plea resulted from the denial of effective assistance of counsel;
      “(5) There was no factual basis for the plea . . . .”

       Practice Book § 713 provides: “The judicial authority shall not accept a plea of guilty unless he is satisfied that there is a factual basis for the plea.”

       The complete text of General Statutes § 21a-277 (a) provides: “Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any controlled substance which is a hallucinogenic substance other than marihuana, or a narcotic substance, except as authorized in this chapter, for a first offense, shall be imprisoned not more than fifteen years and may be fined not more than fifty thousand dollars or be both fined and imprisoned and for each subsequent offense, shall be imprisoned not more than thirty years and may be fined not more than one hundred thousand dollars, or be both fined and imprisoned.”

       “The Court: Well, I’d have to find there is no basis, that an adequate factual basis wasn’t recited because he stated himself that he had no objection to a finding of an adequate factual basis, according to what’s just been read; isn’t that correct?”

       The colloquy proceeded as follows:
      “Mr. Buzaid: Your Honor, I advised Mr. Pena not to address the court but he wishes to address the court.
      “The Court: All right.
      “Mr. Buzaid: Through the services of the court interpreter.
      “The Court: All right, Mrs. Dejesus, thank you.
      “The Defendant: With all due respect, I want to explain to you, Your Honor, that I pled guilty that day. Besides, it was not my decision but being pressured by my lawyer and the comments that I would be — that I would get life, forty years, I was scared and that’s why I was hesitant. It was not my decision because I can prove that that was not mine.
      “The Court: Because he can prove what?
      “The Defendant: That that was not mine. Those charges, they’re not my charges because I am—
      “Mr. Buzaid: Your Honor, excuse me, I feel that the court has enough information in front of it to act on my motion to withdraw his plea at this time. The court really doesn’t need to ascertain any more from Mr. Pena.”

       “[Practice Book] § 720. — when allowed. A defendant may withdraw his plea of guilty or nolo contendere as a matter of right until the plea has been accepted. After acceptance, the judicial authority shall allow the defendant to withdraw his plea upon proof of one of the grounds in Sec. 721. A defendant may not withdraw his plea after the conclusion of the proceeding at which the sentence was imposed.”

       Defense counsel’s claim of conflict of interest was a weighty one. “The conflict of interests inherent in a situation where an attorney must assert his own misconduct as a basis for relief to his client is plain. Once a client has accused his attorney of serious misconduct, such as that charged by the defendant in this case, continuance of the attorney-client relationship at the behest of the court is incompatible with the canons of professional ethics.” State v. Watson, 198 Conn. 598, 615, 504 A.2d 497 (1986) (Shea, J., dissenting).

       The defendant, then, was in a far worse situation than the defendant in Watson. Instead of being confronted with the choice of either representing himself or having the counsel he was claiming was ineffective assert the basis of his motion for withdrawal; State v. Watson, 198 Conn. 614, 504 A.2d 497 (1986) (Shea, J., dissenting); this defendant had no choice; he was forced to represent himself.


source: Caselaw Access Project

author: Stoughton, J. Bieluch, J.,

license: Public Domain

text:
    5011 Community Organization et al. v. Thomas E. Harris et al.
    (6012)
    Bieluch, Stoughton and Norcott, Js.
    Argued April 21
    decision released October 4, 1988

      George A. Athanson, with whom, on the brief, was Stephen R. Corbeil, for the appellants (plaintiffs).

      John F. McKenna, with whom, on the brief, was Thomas J. Farrell, for the appellees (defendants).
   Stoughton, J.

This is an appeal by the plaintiffs from the trial court’s denial of a declaratory judgment upholding certain deed restrictions and the denial of a permanent injunction to restrain the defendants from building on the land in question anything other than a residential structure. The plaintiffs argue that the trial court erred (1) in not enforcing certain restrictions contained in a deed dated November 18, 1914, (2) in concluding that the proposed commercial use of the land would not be violative of said restrictions, and (3) in denying the plaintiffs equitable relief in the form of a declaratory judgment and an injunction. Our conclusion with respect to the second issue is dispositive of this appeal and, accordingly, we do not address the remaining two claims.

The trial court made the following findings of fact. Early in 1986, the defendants, Burger King Corporation and Te-Al Foods Corporation, applied for a permit to build a restaurant in Hartford on three parcels of land owned by Thomas Harris and John Testa. One of these parcels, hereinafter lot three, has an abandoned gasoline station situated upon it. The remaining two parcels, which will be referred to as lots one and two, had no structures upon them except for a billboard on lot one. The three parcels are located in a B-3 zone which would ordinarily permit the construction of the proposed Burger King restaurant. Lots one and two were owned by Testa and were part of a forty-four lot subdivision as shown on a 1914 map of the property of Joseph P. Halliday. Lot three is not a part of the original subdivision and it is beyond dispute that a restaurant may be constructed on it.

In the fall of 1914, Halliday conveyed lot one to Nellie F. Wall with certain restrictions as to the type and number of dwellings that may be constructed on the lot. This or similar deed restrictions appear on the land records with respect to thirty-seven of the forty-four lots of this subdivision, including lot two. On December 28, 1962, lot one had the restriction rerecorded on the conveyance to Testa.

In October of 1986, Testa and Harris sold all three parcels of land to agents of Te-Al Foods Corporation. The deed by which Testa conveyed lots one and two contained the provision that “[b]oth of said premises are conveyed subject to any and all provisions of any ordinance, municipal regulation, a public or private law and to building, building line and zoning restrictions of the town of Hartford, with particular reference to restrictions set out in a deed from Ernest C. Halliday to Nellie F. Wall, Trustee, dated August 15, 1914 and recorded at Volume 404, page 569 of the Hartford Land Records.” This paragraph refers to the Halliday to Wall deed recording the restrictions as to lot one. No reference was made in this deed to the original deed containing similar restrictions as to lot two.

The amended building application indicates that the proposed Burger King restaurant is to be situated on lot three. A parking area, menu board, microphone for drive-through orders, lights and brick trash enclosure are to be located on either lot one or lot two.

The issue before the trial court was whether the deed restrictions on lots one and two were still enforceable, and, if so, to what extent they were enforceable. The trial court reached the following conclusions: (1) that there existed a common scheme of development in the original forty-four lot subdivision; (2) that, owing to the Connecticut Marketable Record Title Act, the restrictions as to lot one were still in effect while the restrictions as to lot two had not been sufficiently demonstrated by the plaintiffs; and (3) even though the plaintiffs had demonstrated that the restrictions as to lot one remained in force, the deed restrictions did not prohibit the defendants’ proposed use of the property. For these reasons, the court declined to grant the plaintiffs’ request for injunctive relief. Additionally, it refused to render a declaratory judgment that the deed restrictions were valid and enforceable on the ground that the plaintiffs had not complied with Practice Book § 390 (d) which requires that all persons having an interest in the subject matter of the complaint be given reasonable notice thereof. The court noted that only about one half of the members of the original subdivision had received notice of this action. On that ground, the court refused to render a declaratory judgment. We agree with the trial court that the deed restrictions do not prohibit the defendants’ proposed use of the property and we therefore need not reach the remaining assignments of error.

The trial court concluded, and we agree, that the restrictions on the subdivision were created to benefit the lot owners. Thirty-seven of the forty-four lots comprising the subdivision contained similar restrictions. Moreover, there was no evidence that Halliday intended to retain ownership .of any part of the tract. It is clear that there was a common scheme of development in the original subdivision. Marion Road Assn. v. Harlow, 1 Conn. App. 329, 333, 472 A.2d 785 (1984).

Halliday conveyed lot one to Nellie F. Wall with a deed containing the following restrictions: “It is hereby agreed that only one dwelling house shall be erected on said lot either a single or a two-family house, said single house to cost not less than Three Thousand (3000) Dollars, and said two-family house to cost not less than Fifty-five Hundred (5500) Dollars, and that no out building shall be erected upon said lot other than a private garage. Said garage shall be at least thirty (30) feet distance from the rear of the house, and shall not be erected until a dwelling house on said lot is completed. As part consideration for this deed it is hereby further agreed that all lots appearing on said plan shall be sold by the grantee herein, or his heirs or assigns, subject to the same restrictions as are contained in this deed.”

Several courts have considered whether a restrictive covenant which limits the number and nature of residential dwelling houses also prohibits the use of the subject land for commercial parking lots. Courts have construed similar restrictions to limit only the nature of the dwellings and conclude that they did not restrict other uses of the land. Shaddock v. Walters, 55 N.Y.S. 2d 635 (1945) (holding that a covenant directing that no building should be erected on any portion of the premises except dwelling houses to be used for residential purposes only, did not prohibit use of certain lots subject to the restrictions as a parking field); Mahrt v. First Church of Christ, Scientist, 75 Ohio L. Abs. 5, 142 N.E.2d 567 (1955), aff'd, 75 Ohio L. Abs. 24, 142 N.E.2d 678, reh. denied, 75 Ohio L. Abs. 27, 142 N.E.2d 680 (1956) (holding that restrictions in a deed purporting to preserve all lots in an allotment as individual building sites, but not providing that such restricted lots were to be used for residences and for no other purpose whatsoever, did not prohibit the use of a restricted lot for off street parking for a church).

A restrictive covenant must be narrowly construed and ought not to be extended by implication. Neptune Park Assn. v. Steinberg, 138 Conn. 357, 361, 84 A.2d 687 (1951). Moreover, if the covenant’s language is ambiguous, it should be construed against rather than in favor of the covenant. Hooker v. Alexander, 129 Conn. 433, 436, 29 A.2d 308 (1942).

We agree with the trial court that the restrictions do not prohibit the use of the property in question as a parking lot, but only limit the quality and type of dwellings that may be erected thereon. Additionally, we agree with the trial court that a menu board, microphone, lights and a brick trash enclosure are structures and not outbuildings which would be prohibited by the restrictions. “[W]hile a building is always a structure, all structures are not buildings.” Katsoff v. Lucertini, 141 Conn. 74, 78, 103 A.2d 812 (1954); Hendryx Co. v. New Haven, 104 Conn. 632, 640, 134 A. 77 (1926). Moreover, this is not an instance where the restrictions expressly prohibit any commercial use of the property or contain an affirmative dedication that the property shall be used for residential purposes only. Cf. Shore-front Park Improvement Assn., Inc. v. King, 157 Conn. 249, 251, 253 A.2d 29 (1968); Pulver v. Mascalo, 155 Conn. 644, 646, 237 A.2d 97 (1967); Baker v. Lunde, 96 Conn. 530, 540, 114 A. 673 (1921). These are permissible structures under the terms of the restrictive covenant.

There is no error.

In this opinion Norcott, J., concurred.

Bieluch, J.,

dissenting. I do not agree with the majority opinion holding that a paved parking lot for patrons and employees, a lighted menu board, a microphone and speaker for drive-through orders, overhead lights and a brick trash enclosure, all of which are integral and necessary components for the operation of a fast-food restaurant under a franchise from Burger King, are permissible structures under the terms of the restrictive covenant under review.

The language and expressed intent of the applicable restrictions are clear and self defining: “It is hereby agreed that only one dwelling house shall be erected on said lot either a single or a two-family house, said single house to cost not less than Three Thousand (3000) Dollars, and said two-family house to cost not less than Fifty-five Hundred (5500) Dollars, and that no outbuilding shall be erected upon said lot other than a private garage. Said garage shall be at least thirty (30) feet distance from the rear of the house, and shall not be erected until a dwelling house on said lot is completed.”

In the present case, there is no need to apply rules of interpretation. The specific restrictions (1) that only one dwelling house be erected on the lot, either a single or a two-family house, and (2) that no outbuilding be erected upon the lot, except a private garage, clearly limit the use-of the lot and the construction upon it. These restrictive covenants are to be read in the light of the circumstances existing at the time they were entered into and the purposes sought to be attained thereby. The subject restrictive covenants were recorded on the land records in 1914, twelve years before the adoption of zoning regulations for the city of Hartford in 1926.

In opening this tract of land for building in 1914, Ernest C. Halliday desired to have it maintained as a one and two-family residential development, which it still is. It was for this reason that his grantees were forbidden to erect any buildings, except one and two-family dwelling houses of a certain cost. The terms one-family and two-family dwellings are in common use in this jurisdiction. There appears to have been no occasion for defining them in our cases. The reason for this may well be that they need no definition. A one-family house is a house designed for occupancy by one family; a two-family house is one designed for occupancy by two families. See Hooker v. Alexander, 129 Conn. 433, 436, 29 A.2d 308 (1942).

The case of Mellitz v. Sunfield Co., 103 Conn. 177, 179, 129 A. 228 (1925), is conclusively on point. The following facts in Mellitz parallel those now before this court. A conveyance of property in Bridgeport to one Linsky in 1915 contained these restrictions: “ ‘No building shall be erected in said premises, with the exception of lots fronting on Fairfield Avenue, to be used for any other purpose except dwellings or to be occupied by more than two families. No building shall be erected upon the corner of Ellsworth Street and Fairfield Avenue to be occupied for any other purpose except dwellings or to be occupied by more than two families, said corner lot to consist of approximately 130 feet frontage on Fairfield Avenue. No building shall be erected on the balance of the Fairfield Avenue frontage to be occupied for any other purpose except stores and dwellings, said stores to be used for the sale of ordinary merchandise; said buildings on Fairfield Avenue frontage shall not contain more than one family, besides the store.’ ” Id., 179.

Linsky divided this tract of land into forty-three building lots, of which thirteen fronted on Fairfield Avenue and thirty on Ellsworth Street. The plaintiff acquired lot eleven located on Fairfield Avenue and constructed his dwelling there in accordance with these restrictions. Linsky subsequently conveyed to the defendant lot one, located on the southwesterly corner of Fairfield Avenue and Ellsworth Street, and having a frontage of one hundred thirty feet on Fairfield Avenue and one hundred forty-four feet on Ellsworth Street, and the adjoining lots two and three have a combined frontage of one hundred feet on Fairfield Avenue. Linsky added to the original restrictions in his transfers to the defendant.

The defendant constructed a brick and tile building on lot two, and a cement driveway on lot three. The building was a store used for selling automobile accessories and supplies, and also gasoline, oil and grease. On lots two and three the defendant had also constructed and maintained two underground gasoline tanks, seven gasoline pumps, and a number of air, water and oil pumps. Lots two and three also had cement walks used for driveway purposes. There was a crushed stone driveway on lot one which was used in connection with the business conducted by the defendant on lots two and three. No building or other structure was erected on lot one. The plaintiff sought to enjoin the defendant’s violation of the restrictive covenants on its land. After judgment was rendered for the defendant, the plaintiff appealed. The Supreme Court found error only on the issue decisive of the question now being considered.

The Supreme Court made three rulings, one of which is determinative here. The court first held that the plaintiff could enforce only the restrictive covenants in the conveyance to him. As a prior purchaser, he had no right to enforce Linsky’s additional restrictions in the conveyances to the defendant. The second ruling was that the business conducted by the defendant on lots two and three was a store “used for the sale of ordinary merchandise.” The third ruling is controlling of the issue under review here.

The court concluded that lot one, the corner lot, was restricted to residential purposes, and that none of it was to be used for business purposes. The defendant had constructed a crushed stone driveway on lot one which it used in connection with its business conducted on lots two and three. Its patrons were those using automobiles and they passed to and from lots two and three over and across lot one. The Mellitz court’s analysis of the same issue we face in the present case applies directly and decisively to the defendant’s proposed establishment on adjacent unrestricted land of a Burger King restaurant with its necessary paved parking lot for patrons and employees, a light menu board, a microphone and speaker for drive-through orders, overhead lights and a brick trash enclosure on either lot one or two: “The direct benefit to such a business from having such use of a corner lot is perfectly manifest, and its advertising value to the business is, of course, large. The use defendant makes of lot one makes of it an integral and valuable part of its business. It was a use for a business, and not a residential purpose. If defendant had erected a store covering lot two and had made the approaches to the store across lot one and all deliveries to or from the store in its own trucks as well as its patrons’ conveyances were from lot one, could it be said that lot one was not used for business purposes because no building had been erected thereon? If defendant can maintain its driveway for the uses of its business across lot one, we see no reason why it may not maintain its tanks under ground on lot one, or use it for storage purposes. Nor why, if the store on lot two were a lumber or coal business, the lumber or coal might not be piled upon lot one. It is apparent that such uses would violate the primary purpose of the Bartram heirs in restricting the uses of all lots on Ellsworth Street, including lot one, to residential purposes exclusively.” Mellitz v. Sunfield Co., supra, 184-85.

To reinforce its conclusion in Mellitz that the plaintiff there was entitled to an injunction restraining the defendant from using lot one for any purpose in connection with the business conducted on lot two, or for any purpose other than that specified in the restrictions contained in the conveyance of the Bartram heirs to Linsky, the court quoted extensively from Laughlin v. Wagner, 146 Tenn. 647, 244 S.W. 475 (1922).

In Laughlin v. Wagner, supra, the defendant owned land fronting on Belvedere Street and Madison Avenue. It was subject to the restriction: “Any house erected on the Belvedere side to be used for residence purposes only, to be two stories or more in height, and to be built on established house lines.” Id., 649. The defendant also owned the lot lying between the plot on Belvedere Street and that on Madison Avenue, which was unrestricted. He proposed building for business uses on his unrestricted land and using the Belvedere Street land as an entrance to his business on the unrestricted lot. The Tennessee court disallowed such a violation, saying: “ ‘We think a fair interpretation of the restrictive clause in question would permit any use of the Belvedere side of the street which would be consistent with its use for residential purposes only. . . . [W]hatever the character or form of the building, it would be permissible to use it for residential purposes, and if there be no building at all, it could be used for purposes consistent with an incident to its use for residential purposes. From this interpretation it follows that the Belvedere side of this lot could not be made use of in such a way as that the manifest purpose would be to serve the business houses adjacent to it. For example, it could not be used as affording an intentional passageway or entrance into the business house. Any structure, whether strictly a house or not, such as a concrete driveway, which devotes the use of the property to the carrying on of a business, would be violative of this clause, but the use of the lot for decorative purposes, such as flower beds or as a walkway on the lot itself, would not violate the manifest intent and purpose of this clause. In other words, any use of this lot which might be reasonably incident to its use for residential purposes is permissible, but it is not permissible to put the lot into service as an incident to the business houses on the adjacent portion of the lot. . . . This does not mean that the defendants may not use it for flower beds or for walkways, but it does mean that no portion of the Belvedere side can be used as a means of service to the business being conducted upon the adjacent lots or portions of the lot.’ ” Mellitz v. Sunfield Co., supra, 185-86, quoting Laughlin v. Wagner, supra, 658-59.

For these reasons, I would hold that a paved parking lot for patrons and employees, a light menu board, a microphone and speaker for drive-through orders taken from a standing vehicle on an installed driveway, overhead lights and a brick trash enclosure for the collection of refuse from the restaurant operation until it can be removed by trash trucks, are integral and necessary installations and components of the fast-food business to be known as Burger King and their location on either lot one or lot two would constitute a violation of the restrictive covenants upon the land.

       5011 Community Organization is a nonprofit corporation representing individual property owners on Ashford and North Main Streets in Hartford.

       The following zoning regulations were adopted by the Court of Common Council of the city of Hartford on February 8, 1926, and approved on February 9, 1926: “Ordinance Regulating and Restricting Height, Number of Stories and Size of Buildings and other Structures, the Percentage of Lot that may be Occupied, the Size of Yards, Courts and other Open Spaces, the Density of Population and the Location and Use of Buildings, Structures, and Land for Trade, Industry, Residence, and other Purposes and Establishing the Boundaries of Districts for said Purposes and Providing Penalties for Their Violation.”
      This ordinance was authorized by 23 Special Acts 987, No. 484, Entitled “An Act Authorizing the City of Hartford to Create Zoning Districts.”


author: O’Connell, J.

text:
    Judith Fitzgerald v. George Fitzgerald
    (5759)
    Bieluch, O’Connell and Stoughton, Js.
    Argued March 15
    decision released October 4, 1988

      Elaine S. Amendola, with whom, on the brief, was Edward R. Scofield, for the appellant-appellee (defendant).

      J. Patrick Dwyer, with whom, on the brief, was Timothy J. Fitzgerald, for the appellee-appellant (plaintiff).
   O’Connell, J.

The defendant appeals from a judgment of the trial court finding the plaintiff in contempt as a result of her violation of certain terms of the parties’ dissolution decree. The defendant claims that the trial court erred (1) in finding that a promissory note was not due and payable as a result of the plaintiff’s rental of the marital home, despite the fact that such rental violated the terms of the dissolution decree, and (2) in denying the defendant’s motion for modification of alimony in light of the plaintiff’s receipt of substantial income from the rental of the marital home. The plaintiff cross appeals alleging that the trial court erred (1) in finding that her rental of the marital home violated the dissolution decree, and (2) in finding her in contempt. We find no error on the appeal and error on the cross appeal.

The following facts are relevant to the resolution of this appeal. The marriage of the parties was dissolved on August 14, 1985. Pursuant to the decree of the trial court, the defendant transferred to the plaintiff his interest in the parties’ Glastonbury home, in return for the plaintiff’s execution of a noninterest bearing promissory note in the amount of $50,100. The decree required that this note be secured by a mortgage on the property, and that it be payable upon the occurrence of any of four contingencies: the plaintiff’s remarriage, death, failure to use the property as the principal place of residence for herself and the parties’ minor child, or the date August 14, 1991.

On November 11, 1986, the defendant sought to have the plaintiff adjudged in contempt for, among other reasons, failing to use the Glastonbury property as the plaintiff’s primary residence. The defendant also filed a motion to modify the dissolution decree by reducing the $250 weekly alimony he paid to the plaintiff, as the defendant claimed that the plaintiff’s rental of the Glastonbury property constituted an unforeseen substantial change in circumstances.

The trial court denied that portion of the motion which sought to reduce the plaintiff’s alimony. The court also held that the plaintiff’s rental of the home violated the terms of the dissolution decree, and found her in contempt. The trial court refused, however, to order the plaintiff to pay the defendant the $50,100 due on the promissory note, because it found that the plaintiff believed that the rental was “allowable.” The court, instead, required the plaintiff to pay the defendant the sum of $5093, which equalled one-half of the income received for the six months rental of the marital home, adjusted for expenses due and owing between the parties. The plaintiff was ordered to pay the $5093 by January 1, 1987, to purge the contempt, and was further ordered to reinhabit the Glastonbury home by April 15, 1987. Failure to do so, or any future rental of the home by the plaintiff, would have resulted in the acceleration of the $50,100 debt owed to the defendant. The present appeal and cross appeal followed.

The defendant first claims that the trial court erred in failing to order the plaintiffs promissory note due and payable upon finding the plaintiff in contempt for vacating the marital home in violation of the divorce decree. The defendant argues, in essence, that the contempt finding operated as a fifth contingency under the terms of the dissolution decree, the occurrence of which required the plaintiff’s payment of the promissory note.

It is a well established doctrine that, in deciding disputes on the family law docket, trial courts have broad discretion to fashion equitable relief. Oneglia v. Oneglia, 14 Conn. App. 267, 271-72, 540 A.2d 713 (1988), and cases cited therein. In the present case, the trial court found the plaintiff in contempt for her actions in leaving the marital home, and in renting it to third parties. To find a party in contempt, a trial court must conclude that a party has disobeyed an order of the court. “ ‘Contempt is a disobedience to the rules and orders of a court which has power to punish for such an offense. Welsh v. Barber ... [52 Conn. 147, 157 (1884)]; 2 Swift, Digest, p. 358. ... A civil contempt is one in which the conduct constituting the contempt is directed against some civil right of an opposing party and the proceeding is initiated by him.’ ” Stoner v. Stoner, 163 Conn. 345, 359, 307 A.2d 146 (1972), quoting State v. Jackson, 147 Conn. 167, 168-69, 158 A.2d 166 (1960).

In the present case, the trial court erred in finding the plaintiff in contempt, as the plaintiffs actions did not violate an order of the court. The trial court, in rendering the dissolution decree, never affirmatively ordered the plaintiff to remain in the marital home. Rather, the decree merely provided that the failure to remain in occupancy constituted a contingency which would, in turn, cause the promissory note referenced in the decree to become due and payable. The dissolution decree simply placed the plaintiff on notice that any of several actions, if taken, would trigger the payment on the note to the defendant. Given the nature of the order, the plaintiffs actions could not constitute a “disobedience” thereof, and the trial court erroneously found the plaintiff in contempt.

We further conclude, however, that the trial court’s actions in denying the relief requested did not fall beyond the scope of the trial court’s remedial discretion in the determination of family law matters. “In family matters, the court exercises its equitable powers. The balancing of equities is a matter which falls within the discretion of the trial court. Kakalik v. Bernardo, 184 Conn. 386, 395, 439 A.2d 1016 (1981). For that reason, equitable remedies are not bound by formula but are molded to the needs of justice. Hebrew University Assn. v. Nye, 26 Conn. Sup. 342, 348-49, 223 A.2d 397 (1966). ‘ “The scope of our review of a trial court’s exercise of its broad discretion in domestic relations cases is limited to the questions of whether the trial court correctly applied the law and could reasonably have concluded as it did. Leo v. Leo, 197 Conn. 1, 4, 495 A.2d 704 (1985); Rose v. Rose, 10 Conn. App. 391, 393, 523 A.2d 914 (1987).” Voloshin v. Voloshin, 12 Conn. App. 626, 629, 533 A.2d 573 (1987).’ ” Oneglia v. Oneglia, supra, 271-72, quoting Crocker v. Crocker, 13 Conn. App. 129, 132, 534 A.2d 1251 (1987).

With regard to the trial court’s actions in ordering the remedial measures outlined herein, we find that this standard has been met. The trial court’s action in ordering that the plaintiff provide the defendant one-half of the rents collected, emphasizing that the note would become due and payable upon future rental of the marital home, and barring her from ever again renting the home to another party, was well within that court’s general remedial discretion. The remedial nature of the trial court’s actions is readily apparent. The trial court expressly referred to the amount of money owed by the plaintiff to the defendant as the “purge figure,” and clearly sought to remedy the inequity which resulted from the plaintiff’s action. Although we conclude that the trial court erred in finding the plaintiff in contempt, its orders thereafter were well within its discretion. See Sardilli v. Sardilli, 16 Conn. App. 114-15, 120, 546 A.2d 926 (1988).

The defendant next claims that the trial court erred in denying his motion for modification of alimony, in light of the income received by the plaintiff from the rental of the property. “Connecticut unequivocally follows the widely established rule that no modification of alimony or support is to be granted unless there has been a showing of a substantial change in the circumstances of either party. General Statutes [§ 46b-86]; Viglione v. Viglione, 171 Conn. 213, 215, 368 A.2d 202 [1976]; see Clark, Domestic Relations § 14.9.” Grinold v. Grinold, 172 Conn. 192, 195, 374 A.2d 172 (1976). Case law in the area of modification makes it abundantly clear that two elements must be present in order for the modification to be proper: (1) that the moving party bear the burden of proving a clear showing of a change in circumstances; Howat v. Howat, 1 Conn. App. 400, 402, 472 A.2d 799 (1984); Vonaa v. Vonaa, 15 Conn. App. 745, 747-48, 546 A.2d 923 (1988); and (2) that any change shown be substantial. McGuinness v. McGuinness, 185 Conn. 7, 11, 440 A.2d 804 (1981); Vonaa v. Vonaa, supra, 748.

The defendant claims that the motion to modify should have been granted (1) because the income obtained by the plaintiff incident to the rental of the marital home constituted a substantial and unforeseen change in circumstances, and (2) because the parties’ net worth changed dramatically since their dissolution. Once again, we disagree.

With regard to the defendant’s first rationale, the trial court, in fashioning the contempt order, ordered the plaintiff to pay to the defendant one-half of the rental income, thereby eliminating any adverse change in the parties’ postdissolution economic standing. Thus, any disparity arising from the rental income was rectified.

We will not review the defendant’s second rationale, namely, that there resulted a change in the parties’ economic standing based upon the appreciation of the value of the marital home subsequent to the dissolution, as this matter was neither raised in the parties’ statement of issues; see Practice Book §§ 4013, 4065; nor supported by citations to precedent or other authorities. “ 'Assignments of error which are merely mentioned but not briefed beyond a statement of the claim will be deemed abandoned and will not be reviewed by this court.’ ” Bowman v. 1477 Central Avenue Apartments, Inc., 203 Conn. 246, 250 n.3, 524 A.2d 610 (1987), quoting Hayes v. Smith, 194 Conn. 52, 66 n.12, 480 A.2d 425 (1984).

There is no error on the appeal, there is error in part on the cross appeal, the judgment finding the plaintiff in contempt is set aside and the case is remanded with direction to deny the defendant’s motion to adjudge the plaintiff in contempt.

In this opinion the other judges concurred.

       The defendant’s motion was also based upon the plaintiff’s failure to execute and deliver the promissory note to the defendant. The plaintiff, however, executed and delivered the note to the defendant on December 17, 1986, the second day of the hearing on the defendant’s motions, thereby purging herself of the contempt finding.

       The trial court awarded the defendant $4800 as the value of one-half of the interest income, and added to that figure $2000 in counsel fees, $263 in sheriff’s and filing fees, and $300 for the value of a painting owned by the defendant, which the plaintiff had sold in violation of the dissolution decree. The trial court then subtracted $2250 from that amount for past real estate taxes that the defendant admittedly owed the plaintiff. The amount the trial court ordered the plaintiff to pay to the defendant was apparently $20 less than that actually owed. We assume this discrepancy resulted from an arithmetical error. The parties have not raised this discrepancy on appeal.

       The plaintiff was further ordered to pay to the defendant one-half of rent monies obtained from the time of judgment on the motions to the time the tenants vacated the premises.


author: Foti, J.

text:
    William G. Weld et al. v. Alice Pack Melly
    (5079)
    Dupont, C. J., Norcott and Foti, Js.
    Argued May 31
    decision released October 4, 1988

      W. James Cousins, with whom, on the brief, was Thomas G. Wolff, for the appellants-appellees (plaintiffs).

      James R. Fogarty, with whom, on the brief, were Joseph T. O’Connor and Andrew P. Nemiroff, for the appellee-appellant (defendant).
   Foti, J.

In this action for the reformation of a deed and purchase agreement and for the breach of deed warranties, the plaintiffs appeal from the judgment of the trial court. The plaintiffs claim that the court erred (1) in finding that the plaintiff buyers and the defendant seller were not mutually mistaken as to the correct boundaries of a parcel of real property purchased by the plaintiffs, (2) in concluding that the defendant had not induced the plaintiffs’ mistake as to the disputed boundaries through fraud or misrepresentation, and (3) in awarding only nominal damages for breach of deed warranties. In her cross appeal, the defendant claims that the court erred in finding that the defendant breached the deed warranties. In view of our decision on the appeal, there is no reason to address that claim. We find the court’s ultimate conclusion that there was no mutual mistake unsupported by the court’s subsidiary findings of fact.

On September 9, 1976, the defendant executed a warranty deed conveying 1.008 acres, known as 120 Zaccheus Mead Lane in Greenwich, to the plaintiffs. The parcel, which is improved by a single-family detached home, is bounded on the southwestern side by a stone wall and on the southern side by a public road. A driveway runs from the public road to the house.

The deed, which was duly recorded, gives notice that the parcel is subject to “restrictions, covenants, agreements and reservations set forth in the aforesaid deed of the Indian Spring Land Company.” Approximately three years later, the Indian Spring Land Company (Indian Spring) served the plaintiffs with notice that a septic field, appurtenant to the house and installed by the defendant in 1968, was located on Indian Spring property. Indian Spring informed the plaintiffs that it intended to dispute any right of the plaintiffs to maintain the existing septic field on its land. Thereafter, the plaintiffs had a survey performed which disclosed that portions of what they believed to be their property were, in fact, the property of Indian Spring.

At trial, the parties offered conflicting evidence regarding representations made by the defendant to the plaintiffs during an inspection of the property prior to the sale. The plaintiffs testified that during this inspection of the property the defendant pointed to the stone wall as the southwestern boundary of the property, that she described the work, completed in 1968, which extended the septic field to the stone wall, and that she pointed to two large sections of the yard where the driveway meets the public road which she had improved by planting pachysandra and rhododendron and by installing Belgian blocks.

The plaintiffs also offered as exhibits certain photographs that showed that the parcel had been maintained to the stone wall and that the property on the far side of the wall remained in its natural state. The photographs also depicted the area on either side of the driveway improved by the plantings and Belgian blocks.

In contrast to the plaintiffs’ testimony, the defendant claimed that she only pointed out one tree located fifty-seven feet from the house which is located on the property line. She also denied the accuracy of any affirmative representation made by her regarding the stone wall or the area improved by the plantings. The defendant did concede, however, on questioning by the court, that she was aware of where the septic field installed by her in 1968 had been located and that it was being installed on property which she believed to be her own. The court found that the plaintiffs had proven that the septic field was located on land which they believed they were purchasing, and that the defendant believed that she was selling that land. The court concluded, however, in its memorandum of decision that there was no mutual mistake of the parties. Since the court found that the seller and the buyers all believed that the land on which the septic tank was located was being sold to the plaintiffs, the court could not have concluded that there was no mutual mistake. Its ultimate conclusion constitutes reversible error. See DeVita v. Esposito, 13 Conn. App. 101, 110, 535 A.2d 364 (1987).

There is error, the judgment is set aside and the case is remanded for a new trial.

In this opinion the other judges concurred.

       The plaintiffs subsequently brought an action against Indian Spring, which resulted in a stipulated judgment dated November 28, 1979. That judgment established that the plaintiffs did not acquire the disputed land by adverse possession. The plaintiffs then commenced this action against the defendant seller seeking reformation of the purchase agreement and the deed and damages. In this action, the plaintiffs allege that the disputed land was never owned by the defendant, but that the defendant showed the plaintiffs the land and orally stated that she owned the land and intended to convey it to the plaintiffs.