author: GRUENDEL, J.

text:
    THOMAS LANE ET AL. v. COMMISSIONER OF ENVIRONMENTAL PROTECTION
    (AC 33346)
    DiPentima, C. J., and Gruendel and Robinson, Js.

      Argued March 15
    officially released June 5, 2012

      Tracey Lane Russo, for the appellants (plaintiffs).

      John M. Looney, assistant attorney general, with whom, on the brief, was George Jepsen, attorney general, for the appellee (defendant).
   Opinion

GRUENDEL, J.

The plaintiffs, Thomas Lane and Gail Lane, appeal from the judgment of the Superior Court dismissing their appeal from the declaratory ruling issued by the defendant, the commissioner of environmental protection. In that ruling, the defendant concluded that the department of environmental protection (department), through its office of Long Island Sound Programs (office), properly issued a notice of violation for maintaining an unauthorized dock and boardwalk on the plaintiffs’ property and properly denied the plaintiffs’ subsequent application for a certificate of permission filed pursuant to General Statutes § 22a-363b (a). On appeal, the plaintiffs claim that the court improperly (1) affirmed the defendant’s construction of § 22a-363b (a), (2) concluded that substantial evidence supported the defendant’s determinations that the dock and boardwalk were not eligible for a certificate of permission pursuant to that statute, (3) denied their claim of equitable estoppel, (4) concluded that the declaratory ruling did not violate their littoral rights, (5) affirmed the defendant’s denial of their second request for an extension of time and (6) failed to conclude that the declaratory ruling was arbitrary, capricious and characterized by an abuse of discretion. We affirm the judgment of the Superior Court.

This is an appeal about a dock and a boardwalk located on waterfront property known as 32 Money Point Road in Stonington (property). In 1937, the owner of the property, Hugh Cole, built a dock that was approximately 4 feet wide, extended 75 to 90 feet and ended in a “T” shaped pier. Cole also constructed a pathway of cinders or gravel through the tidal marsh leading to the dock.

The record contains numerous aerial photographs of the property taken over a span of more than fifty years. As the court observed, they depict “the dock and path in various conditions since its original construction. These photographs demonstrate that the dock and pathway lacked continuity in size and configuration and at some points were not even present on the property.” In her declaratory ruling, the defendant made the following specific findings with respect to those aerial photographs: “A 1951 aerial photograph shows an approximately 100 foot long pier with a timber crib located at the end of a T shaped pier head. There is a graded path through the marsh to the pier. A 1965 aerial photograph shows the pier in a state of disrepair without any decking. A graded path is still visible through the high marsh vegetation. A 1968 and a 1970 aerial photograph shows a pier less than 40 feet long with a cleared or graded path through the tidal marsh. A July, 1974 aerial photograph shows the graded path through the tidal marsh and a new pier/floating dock in place. The first pier section, beginning on land, is less than 50 feet long. This pier leads to a ramp, approximately 10 feet long, that leads to a floating section of dock, approximately 65 feet long, connected to a 20 foot by 10 foot T float. A July, 1981 aerial photograph shows a thinner path through the marsh with encroaching vegetation. Only the first approximately 50 foot section of the pier, that begins on land, remains, in what appears to be a state of disrepair; there is no ramp, no section of floating dock and no T float present. In a March, 1986 aerial photograph no pier, ramp, float or other dock structure is present. Also, the path through the tidal marsh is barely discemable as the tidal wetlands have mostly reestablished. A July, 1986 aerial photograph shows the same condition, except a 10 foot by 16 foot floating dock is situated on the waterward edge of the marsh. A July, 1990 aerial photograph shows an approximately 120 foot by 3 foot at grade wooden boardwalk placed directly on the tidal marsh. This is the first time that a wooden boardwalk appears on the marsh. The boardwalk leads to a 6 foot wide pier that begins on land and extends into the near shore waters. The pier is estimated to be 78 feet long. The pier is supported by two stone-filled cribs, approximately 8 feet by 8 feet, located at the middle and at the end of the pier. Following the pier is a ramp longer than 10 feet that leads to a floating dock that is approximately 20 feet by 10 feet in size. In a 1995 aerial photograph, a portion of the at grade walkway is missing, reducing the boardwalk to about 100 linear feet. The pier is in a state of disrepair as exposed stringers are visible. The ramp and float are still in place. In a September, 2000 aerial photograph the pier is more dilapidated than in 1996, however replacement sections of the boardwalk are visible. In a March, 2004 aerial photograph, the entire boardwalk is gone and a pier, ramp and float, consistent with the 1990 aerial photograph, are in place. A September, 2006 aerial photograph shows the pier repaired and only 80 feet of the boardwalk is present.”

In September, 1985, the dock was destroyed by Hurricane Gloria and, as the owner of the property at that time attested by affidavit, “all that was left of the dock were pilings and some stringers.” The dock remained in that state for a number of years until a subsequent owner, David Shiling, constructed a new dock in 1988. Although Shiling obtained a building permit from the town of Stonington, he neither contacted the department nor submitted an application for a permit with that agency. In 1991, Shiling transferred the property to Robert Stetson and Ruth Stetson, who in turn transferred the property to the plaintiffs in October, 2004.

On March 30, 2007, department officials inspected the property. A notice of violation thereafter issued on May 7, 2007, which stated in relevant part: “[I]t appears that you have unauthorized structures comprised of a 2 foot by 82 foot plywood walk laid out atop an estuarine marsh down to a 6 foot by 51 foot pier with support pilings and two stone cribs, each 8 foot by 6 foot by 6 foot, out to a 2.5 foot by 10 foot ramp with railing and a 8 foot by 20 foot floating dock below the evidenced high tide line without authorizations required by General Statutes §§ 22a-32 and 22a-361. Please correct the above referenced violation by removing by hand all structures to a location landward of the high tide line outside of tidal wetlands within 45 days.”

Much discussion between the plaintiffs, their representatives and the department followed. Following a meeting with the plaintiffs, Brian P. Thompson, director of the office, encouraged the plaintiffs to submit a permit application pursuant to § 22a-361. In that letter, he stated in relevant part: “Thank you for attending the meeting held ... on April 11, 2008. Although we did not reach an accord to resolve the matter at that meeting, we strongly encourage you to submit an application for a raised walkway and dock facility to replace the existing structures at this time as a first step towards resolution. . . . Enclosed for your reference is a copy of Connecticut’s residential dock guidelines. Designing a dock in accordance with these guidelines will improve the likelihood of approval. Also enclosed is some general guidance to assist you with preparing a complete application. The dock located at the adjacent property to the east is an example of the size and extent of a structure that is consistent with our standards and criteria for structures located over tidal wetlands and in coastal and tidal waters.” The plaintiffs declined that invitation to submit a permit application pursuant to § 22a-361.

Instead, the plaintiffs, on July 28, 2008, filed an application for a certificate of permission to conduct “substantial maintenance” on their property “to retain and maintain” the existing dock. The application further sought permission to remove the existing at-grade 4 foot by 100 foot boardwalk and replace it with an elevated 4 foot by 152 foot wooden boardwalk. In a letter to the plaintiffs dated August 6, 2008, Thompson denied that application. He explained that because the existing structures “have not been maintained and serviceable since June 24,1939 . . . the proposed activities do not meet the eligibility criteria for a certificate of permission . . . .”

On August 29, 2008, the plaintiffs filed a petition for a declaratory ruling with the defendant challenging both the issuance of the notice of violation and the denial of their application for a certificate of permission. In that petition, the plaintiffs argued that the activity proposed in their application was exempt from the permit requirements of § 22a-361, as it qualified for the exemption contained in § 22a-363b (a) (2) for structures in place prior to June 24, 1939, and continuously maintained and serviceable since that time. The plaintiffs further alleged violations of their littoral and due process rights and advanced a claim of equitable estoppel against the department.

The defendant issued the declaratory ruling on March 20, 2009, in which she rejected the plaintiffs’ claims. In so doing, the defendant concluded that pursuant to § 22a-363b (a) (2), “to be eligible for a certificate of permission, the structure in question must have not only been in place before June 24, 1939, it must have been in good repair and useable, without interruption, from June, 1939, until the time a certificate of permission is sought. . . . This case has never turned on whether each nail, plank and timber from a pre-1939 structure has remained in place, unchanged over time. Nor does the department understand the term continuously maintained and serviceable to mean that a structure must remain unrepaired from June, 1939, to the present. Rather, the term continuously maintained and serviceable must be evaluated in the facts and circumstances of each case and in this case it is clear . . . that the [plaintiffs] have not been able to demonstrate that the dock at their property was in good repair or useable, without interruption, from June 24,1939, until they sought a certificate of permission.” The defendant further found that Thompson properly denied the application for a certificate of permission because “(a) the boardwalk had not been in place prior to June 24,1939; (b) while a dock had existed at this location before June 24, 1939, it had not been continuously maintained and serviceable; (c) for both the dock and the boardwalk the activities that the [plaintiffs] sought to be authorized under a certificate of permission went beyond rebuilding, reconstructing or reestablishing to a preexisting condition and dimension; and (d) that the dock and walkway, as presently constituted are inconsistent with the department’s standards and criteria for private residential docks and are causing adverse impacts to the environment.” Pursuant to General Statutes § 4-183, the plaintiffs appealed from that decision to the Superior Court. Following a hearing, the court rendered judgment dismissing the appeal, and this appeal followed.

Before considering the plaintiffs’ specific claims, we note the standard applicable to our review of administrative decisions. “Judicial review of [an administrative agency’s] action is governed by the Uniform Administrative Procedure Act [(UAPA), General Statutes § 4-166 et seq.] . . . and the scope of that review is very restricted. . . . With regard to questions of fact, it is neither the function of the trial court nor of this court to retry the case or to substitute its judgment for that of the administrative agency. . . . The substantial evidence rule governs judicial review of administrative fact-finding .... Substantial evidence exists if the administrative record affords a substantial basis of fact from which the fact in issue can be reasonably inferred. . . . This substantial evidence standard is highly deferential and permits less judicial scrutiny than a clearly erroneous or weight of the evidence standard of review. . . . The burden is on the [plaintiff] to demonstrate that the [agency’s] factual conclusions were not supported by the weight of substantial evidence on the whole record. . . .

“Even as to questions of law, [t]he court’s ultimate duty is only to decide whether, in fight of the evidence, the [agency] has acted unreasonably, arbitrarily, illegally, or in abuse of its discretion. . . . Conclusions of law reached by the administrative agency must stand if the court determines that they resulted from a correct application of the law to the facts found and could reasonably and logically follow from such facts. . . . Ordinarily, this court affords deference to the construction of a statute applied by the administrative agency empowered by law to carry out the statute’s purposes. . . . Cases that present pure questions of law, however, invoke a broader standard of review than is ordinarily involved in deciding whether, in light of the evidence, the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion. . . . Furthermore, when a state agency’s determination of a question of law has not previously been subject to judicial scrutiny . . . the agency is not entitled to special deference.” (Citations omitted; internal quotation marks omitted.) MacDermid, Inc. v. Dept. of Environmental Protection, 257 Conn. 128, 136-37, 778 A.2d 7 (2001).

I

The plaintiffs claim that the defendant improperly construed § 22a-363b (a). Because that construction has not been subject to judicial scrutiny, we afford it no deference. The proper interpretation of § 22a-363b (a) presents a question of statutory construction over which our review is plenary. See Fullerton v. Administrator, Unemployment Compensation Act, 280 Conn. 745, 755, 911 A.2d 736 (2006).

“The principles that govern statutory construction are well established. When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. ... In seeking to determine that meaning . . . [General Statutes] § l-2z directs us first to consider 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, extra-textual evidence of the meaning of the statute shall not be considered. . . . The test to determine ambiguity is whether the statute, when read in context, is susceptible to more than one reasonable interpretation.” (Citation omitted; internal quotation marks omitted.) Francis v. Fonfara, 303 Conn. 292, 297, 33 A.3d 185 (2012). In addition, we are mindful that “exemptions to statutes are to be strictly construed.” Cannata v. Dept. of Environmental Protection, 239 Conn. 124, 141, 680 A.2d 1329 (1996).

We thus begin our analysis with the text of the statute. Section 22a-363b is part of a statutory scheme governing the erection of structures in the water resources of the state. A permit generally is required prior to commencing any work therein. See General Statutes §§ 22a-32 and 22a-361. Section 22a-363b (a) enumerates certain exceptions to that general rule. It provides in relevant part: “Routine maintenance of permitted structures, fill, obstructions or encroachments or routine maintenance of structures, fill, obstructions or encroachments in place prior to June 24, 1939, and continuously maintained and serviceable since that date shall be exempt from the requirements of obtaining certificates of permission or permits pursuant to section 22a-363a, this section or section 22a-361. The following activities may be eligible for a certificate of permission, in accordance with the provisions of subsections (c) and (d) of this section ... (2) substantial maintenance of any structures, fill, obstructions or encroachments in place prior to June 24, 1939, and continuously maintained and serviceable since such time . . . .” By its plain language, § 22a-363b (a) distinguishes routine maintenance from substantial maintenance. The statute expressly exempts routine maintenance of structures in place prior to June 24, 1939, from the requirements of obtaining either a certificate of permission or a permit.

By contrast, § 22a-363b (a) provides that substantial maintenance “may be eligible” for a certificate of permission, rather than a permit pursuant to § 22a-361, when, inter alia, the proposed activity is “substantial maintenance of any structures, fill, obstructions or encroachments in place prior to June 24, 1939, and continuously maintained and serviceable since such time . . . .” Section 22a-363b (a) (2) thus sets forth two prerequisites to the granting of a certificate of permission to conduct substantial maintenance on such structures. First, the structure must have been in place prior to June 24,1939. Second, the structure must have been “continuously maintained and serviceable” since that time. The phrase “continuously maintained and serviceable” is not defined by statute.

It is a cardinal rule of statutory construction that statutory words and phrases are to be given their ordinary meaning in accordance with the commonly approved usage of the language. See General Statutes § 1-1 (a) (“[i]n the construction of the statutes, words and phrases shall be construed according to the commonly approved usage of the language”). As our Supreme Court held almost one century ago, “[t]he words of a statute are to be interpreted in their natural and usual meaning unless the context indicates that a different meaning was intended. By our statute words and phrases are to be construed according to the commonly plain usage of language.” Brown v. New Haven Taxicab Co., 92 Conn. 252, 254, 102 A. 573 (1917); accord State v. Grullon, 212 Conn. 195, 200, 562 A2d 481 (1989) (words of statute to be given their ordinary meaning unless context dictates otherwise); Caldor, Inc. v. Heffernan, 183 Conn. 566, 570, 440 A.2d 767 (1981) (statutory term must be “interpreted in its natural and usual meaning unless the context indicates that a different one was intended”); Gural v. Fazzino, 45 Conn. App. 586, 588, 696 A.2d 1307 (1997) (in interpreting language of statute, words must be given plain and ordinary meaning and natural and usual sense).

“To ascertain the commonly approved usage of a word, we look to the dictionary definition of the term.” (Internal quotation marks omitted.) Stone-Krete Construction, Inc. v. Eder, 280 Conn. 672, 678, 911 A.2d 300 (2006); see also Hartford/Windsor Healthcare Properties, LLC v. Hartford, 298 Conn. 191, 200-201, 3 A.3d 56 (2010) (appropriate to look to common understanding of term as expressed in dictionary if statute does not sufficiently define term). The defendant did precisely that in her declaratory ruling, noting that “the American Heritage Dictionary defines ‘continuous’ as extending or prolonged without interruption or cessation, unbroken. ‘Maintain’ is defined as to continue, carry out, keep up or to keep in a condition of good repair or efficiency. ‘Serviceable’ is defined as ready for service, useable.” The parties do not quarrel with those definitions, and recourse to Webster’s Third New International Dictionary (2002) confirms that they convey the common usage of the terms. Those definitions indicate that the ordinary meaning of the phrase “continuously maintained and serviceable,” as it is used in § 22a-363b (a) (2), requires that the structure must have been kept in a state of repair and fit for use without interruption, as the defendant determined in her declaratory ruling. That construction gives effect to the apparent intent of the legislature to permit substantial maintenance to the preexisting conditions and dimensions of pre-1939 structures in limited circumstances, while requiring a permit for modification or expansion thereof. It further comports with the mandate that “exemptions to statutes are to be strictly construed.” Cannata v. Dept. of Environmental Protection, supra, 239 Conn. 141.

Because the aforementioned statutory language is not susceptible to more than one reasonable interpretation, it is not ambiguous. Francis v. Fonfara, supra, 303 Conn. 297. Accordingly, we conclude that the defendant properly construed § 22a-363b (a).

II

The plaintiffs next contend that the court improperly concluded that substantial evidence supported the defendant’s determinations that their dock and boardwalk were not eligible for a certificate of permission pursuant to § 22a-363b (a) (2). We disagree.

The plaintiffs’ July 28, 2008 application for a certificate of permission expressly sought authorization to conduct “substantial maintenance” on their property. Their request was twofold in nature: they.sought “to retain and maintain” the existing dock, and they sought to remove the existing at-grade 4 foot by 100 foot wooden boardwalk and replace it with an elevated 4 foot by 152 foot wooden boardwalk. We deal with each aspect of the application in turn.

The request to conduct substantial maintenance on the wooden boardwalk requires little discussion. The defendant found that the boardwalk was not in place prior to June 24, 1939, as required by § 22a-363b (a) (2). The record substantiates that finding, as it is barren of any evidence indicating that a wooden boardwalk existed on the plaintiffs’ property prior to that date. To the contrary, the court found that when Cole originally built the dock prior to 1939, he constructed a pathway of cinders or gravel through the tidal marsh leading to the dock. General Statutes § 22a-363a plainly defines substantial maintenance as “rebuilding, reconstructing, or reestablishing to a preexisting condition and dimension any structure, fill, obstruction or encroachment . . . ,” (Emphasis added.) We agree with the defendant’s determination that the installation of a wooden boardwalk in place of the pathway of cinders or gravel that existed prior to June 24, 1939, does not constitute “reestablishing to a preexisting condition,” as the statute requires. For those reasons, the defendant properly concluded that the boardwalk was ineligible for a certificate of permission pursuant to § 22a-363b (a) (2).

The plaintiffs request to conduct substantial maintenance “to retain and maintain” the existing dock likewise suffers from multiple infirmities. Although a dock existed on the property prior to June 24,1939, the defendant found that it had not been kept in a state of repair and fit for use without interruption since that time. The record contains ample evidence to support that finding. The March, 1965 aerial photograph of the property and the December 29, 2008 affidavit of DeAva Lambert, an environmental analyst with the office who reviewed that photograph, indicate that the pier in 1965 lacked any decking and, hence, was not fit for use. Likewise, the July 23,1981 aerial photograph indicates that much of the previously existing dock no longer was present on the property, supporting the defendant’s finding that “[o]nly the first approximately 50 foot section of the pier, that begins on land, remains, in what appears to be a state of disrepair; there is no ramp, no section of floating dock and no T float present.” Indeed, a stark contrast between the dock as it existed on July 22, 1974, and July 23, 1981, plainly is visible in the aerial photographs taken on those dates.

It also is undisputed that the dock was destroyed by Hurricane Gloria in 1985 and “all that was left of the dock were pilings and some stringers,” as the owner of the property at that time averred in his affidavit. Aerial photographs taken in March and July, 1986, confirm the absence of a dock at that time. As the defendant found in her declaratory ruling, “[t]he aerial photographs show that there were clearly periods of time that the dock was in such a state of disrepair that it could not be used. At other times, only a truncated dock, only a portion of what originally was present, could be used. Other portions of the original dock were no longer present. Other aerial photographs show that there was no dock at the site at all. . . . Even the [plaintiffs] acknowledge that for at least a three year period of time after Hurricane Gloria . . . there was no dock at the property.” Those findings are substantiated by the aerial photographs in the record and the affidavit of Shiling indicating that he rebuilt the dock sometime in 1988, approximately three years after the hurricane had destroyed it. Because the record contains substantial evidence to support the defendant’s finding that the dock was not kept in a useable condition without interruption as § 22a-363b (a) (2) requires, the defendant properly determined that it is not eligible for a certificate of permission pursuant to that statute.

Moreover, the record contains substantial evidence underlying the defendant’s findings that “the original dock [built prior to June 24, 1939, was] comprised of a pier with a timber crib located at the end of a X shaped pier head. There were no stone-filled cribs, no ramps to a floating dock, and no floating dock elements of the kind [that now are present on the plaintiffs’ property].” Indeed, the plaintiffs do not dispute that those modifications to the dock were undertaken well after June 24, 1939. Accordingly, a certificate of permission to “retain and maintain” the dock as so modified is impermissible, as the substantial maintenance permitted under § 22a-363b (a) (2) authorizes only the “rebuilding, reconstructing, or reestablishing to apreex-isting condition and dimension” of structures in place prior to June 24, 1939.

Ill

The plaintiffs also claim that the court improperly denied their claim of equitable estoppel, which is predicated on the department’s alleged failure to take “action to indicate that the repairs [made by Shiling in 1988] were not authorized.” That claim is untenable.

“Under our well-established law, any claim of estop-pel is predicated on proof of two essential elements: the party against whom estoppel is claimed must do or say something calculated or intended to induce another party to believe that certain facts exist and to act on that belief; and the other party must change its position in reliance on those facts, thereby incurring some injury. ... In addition, 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; and (3) only when special circumstances make it highly inequitable or oppressive not to estop the agency.” (Citations omitted; internal quotation marks omitted.) Kimberly-Clark Corp. v. Dubno, 204 Conn. 137, 148, 527 A.2d 679 (1987).

The record before us is bereft of any evidence indicating that the department or its agents did or said anything calculated to induce the plaintiffs into changing their position as to the structures on their property. The plaintiffs have provided this court with no authority, nor are we aware of any, for their proposition that agency inaction may form the basis of an equitable estoppel claim. In addition, “[i]t is the burden of the person claiming the estoppel to show that he exercised due diligence to ascertain the truth and that he not only lacked knowledge of the true state of things but had no convenient means of acquiring that knowledge.” (Internal quotation marks omitted.) Id. As the defendant noted in the declaratory ruling, the plaintiffs had a “readily available means for ascertaining whether the structures on the property had the required permits” at the time of their purchase in 2004, as they could have asked either the department or the sellers of the property.

In addition, the plaintiffs argue, as a general matter, that the department’s action in enforcing the requirements of the General Statutes results “in extreme inequity for the plaintiffs . . . .” That claim is predicated on their allegation, set forth in the petition for a declaratory ruling, that the department did not issue permits for the maintenance and repair of docks in the 1980s, but rather provided “verbal approvals” for such activity. That claim fails for two distinct reasons. First and foremost, the defendant found that the plaintiffs “failed to demonstrate that circa 1988 the department did not require or issue permits for the complete rebuilding of a pre-1939 dock or the installation of [a] wooden boardwalk as was done by [Shiling].” In reaching that determination, the defendant expressly credited the statements of Thompson indicating that the construction done by Shiling in 1988 would have required a permit under the department’s then-existing policies. We will not disturb that credibility determination. Briggs v. State Employees Retirement Commission, 210 Conn. 214, 217, 554 A.2d 292 (1989) (court “must defer to the agency’s assessment of the credibility of the witnesses and to the agency’s right to believe or disbelieve the evidence presented by any witness, even an expert, in whole or in part”). In addition, even if the defendant had credited the plaintiffs’ proposition that it was the department’s practice in the 1980s to issue verbal approvals for the maintenance and repair of docks, it remains that the plaintiffs presented no evidence whatsoever indicating that previous owners of the property ever requested, never mind obtained, such approval. Indeed, Shiling’s affidavit and handwritten notes indicate merely that he obtained “[a]ll building permits from the town of Stonington” and verbal approval from the United States Army Corps of Engineers. As the defendant found in the declaratory ruling, “there is no evidence that [Shiling] ever contacted the department to determine if a permit was required and frankly, no claim by the [plaintiffs] that any such contact was ever attempted.” Accordingly, we conclude that the plaintiffs’ equitable estoppel claim, including their ancillary contention regarding verbal approval, is mer-itless.

IV

The plaintiffs also claim that the court improperly concluded that the declaratory ruling did not violate their common law littoral rights. That issue presents a question of law over which our review is plenary. See Murphy v. EAPWJP, LLC, 123 Conn. App. 316, 329-30, 1 A.3d 1171, cert. granted on other grounds, 298 Conn. 930, 5 A.3d 489 (2010).

Littoral rights pertain to properties abutting an ocean, sea or lake. “[T]here is often confusion between the terms littoral and riparian as applied to the water rights of property owners. Littoral is the proper term for describing the rights that shoreline owners possess to make exclusive use of the land lying seaward of the mean high water mark. . . . [R]iparian rights are limited to rights related to the waters in a watercourse and include the right to take waters from a stream . . . .” (Internal quotation marks omitted.) Caminis v. Troy, 300 Conn. 297, 299 n.2, 12 A.3d 984 (2011). “The owner of the adjoining upland has certain exclusive yet qualified rights and privileges in the waters and submerged land adjoining his upland. He has the exclusive privilege of wharfing out and erecting piers over and upon such soil and for these purposes of occupying and using it in any manner which does not interfere with navigation .... [State v. Knowles-Lombard Co., 122 Conn. 263, 265, 188 A. 275 (1936)].” (Emphasis added.) Stefanoni v. Duncan, 282 Conn. 686, 701, 923 A.2d 737 (2007).

At the same time, the rights of a littoral owner “are always subordinate to the public rights, and the state may regulate their exercise in the interest of the public. ... [A] [littoral] proprietor . . . has the right of access to the navigable part of the [water] in front of his land, and to construct a wharf or pier projecting into the [water] . . . subject to such general rules and regulations as the legislature may prescribe for the protection of the public .... [I]t is clear that the rights of [littoral] landowners are ordinarily subject to regulation by [the] [s]tate. . . . [I]n the ordinary case, the [s]tate that grants [littoral] rights is also the [s]tate that has regulatory authority over the exercise of those rights . . . .” (Citations omitted; internal quotation marks omitted.) Murphy v. EAPWJP, LLC, supra, 123 Conn. App. 331. As the Supreme Court noted more than one-half century ago, “[t]here is no reason why, because of its peculiar nature as property, [a littoral] right cannot, like any other property right, be made subject to reasonable police regulation in the interest of the public welfare.” Shorehaven Golf Club, Inc. v. Water Resources Commission, 146 Conn. 619, 624, 153 A.2d 444 (1959).

The plaintiffs’ position, as best we can understand, is that the denial of their application for a certificate of permission to conduct substantial maintenance on their property impermissibly infringed upon their littoral rights, despite the fact that they remained free to seek a permit for that activity. We disagree. The certificate of permission provided for by § 22a-363b (a) (2) is a creature of legislative grace, as it constitutes a narrow exception to the general permit requirements. As we already have discussed, the plaintiffs’ dock and boardwalk plainly do not qualify for that exception. Accordingly, the plaintiffs, like most waterfront property owners, must comply with the permit requirements contained in our General Statutes. As an exercise of its regulatory authority, the state requires a permit to erect and maintain docks on waterfront properties. See General Statutes §§ 22a-32 and 22a-361. We concur with the assessment of our Supreme Court in Bloom v. Water Resources Commission, 157 Conn. 528, 536, 254 A.2d 884 (1969), that such a permit requirement is a reasonable exercise of the state’s regulatory authority.

As the Superior Court observed, “[i]n denying the plaintiffs’ application for a certificate of permission, the department has not ultimately denied the plaintiffs’ right to reach deep water; nothing prevents the plaintiffs from seeking a permit to construct an acceptable and permittable structure.” That critical distinction was emphasized by the defendant in the declaratory ruling. She stated: “The department did not, and has never said, that the [plaintiffs] are unable to have a dock at their property. To the contrary, in meetings with [them], the department has offered to make itself available to discuss potential dock designs, locations, etc., at the [plaintiffs’] property. However, the current dock at [their] property does not have any authorization and the undisputed evidence is that this structure may well be causing environmental harm by eroding the shoreline. The dock may not even be wholly within the littoral area allocated to the [plaintiffs]. ... I agree that this situation is unfortunate and it would have been better if this situation had been rectified earlier. However, the denial of a certificate of permission and the removal of unpermitted structures does not mean that the [plaintiffs] cannot have any structures on their property. It means that any structure that [they] would like to erect needs to be evaluated to ensure that it meets all applicable requirements and that all required permits are obtained. In fact, in a May 28,2008 letter, the department strongly encouraged the [plaintiffs] to submit a permit application for the dock and boardwalk.”

The plaintiffs also baldly assert that the denial of the certificate of permission results in the “taking of private property without just compensation.” The plaintiff failed to brief that claim adequately. “Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly. . . . Where a claim receives only cursory attention in the brief without substantive discussion, it is deemed to be abandoned.” (Internal quotation marks omitted.) Billboards Divinity v. Commissioner of Transportation, 133 Conn. App. 405, 412, 35 A.3d 395 (2012). Because the plaintiffs have not provided any substantive analysis, we do not review the merits of that assertion.

We conclude that the denial of the plaintiffs’ application for a certificate of permission to conduct substantial maintenance on their property did not violate their littoral rights. Those rights are subject to reasonable regulation, which includes the permit requirements of §§ 22a-32 and 22a-361.

V

The plaintiffs next claim that the defendant improperly denied their second request for an extension of time. Although they allege a violation of their right to due process, it is well established that the procedural right involved in such administrative proceedings properly is described as a right to fundamental fairness. See Grimes v. Conservation Commission, 243 Conn. 266, 273 n.11, 703 A.2d 101 (1997); Megin v. Zoning Board of Appeals, 106 Conn. App. 602, 607 n.6, 942 A.2d 511, cert. denied, 289 Conn. 901, 957 A.2d 871 (2008). Following the plaintiffs’ August 29, 2008 filing of their petition for a declaratory ruling, the defendant granted the department an extension of time until December 30, 2008, to submit a response thereto. The department complied. The plaintiffs then requested an extension of time to respond to the department’s submission, which the defendant granted. The plaintiffs subsequently requested a second extension of time, which the defendant denied. On our review of the record, we conclude that the plaintiffs’ right to fundamental fairness in the administrative proceeding was not violated by that denial.

VI

As a final matter, the plaintiffs argue that the declaratory ruling was “arbitrary, capricious and characterized by an abuse of discretion.” Without citation to or discussion of any legal authority, they allege that the defendant’s ruling “is fraught with inherent intellectual inconsistencies” and that “an objective observer would conclude that the [defendant’s] decision is characterized at nearly every turn as an abuse of discretion.” This appellate body disagrees. The findings underlying the defendant’s comprehensive ruling are supported by substantial evidence in the record, and the legal conclusions drawn therein reflect a correct and logical application of the law to those findings. We therefore reject the plaintiffs’ contention that the defendant abused her discretion in issuing the declaratory ruling.

The judgment is affirmed.

In this opinion the other judges concurred.

       A crib is “a frame of logs or beams to be filled with heavy material . . . and sunk as a foundation or retaining wall in the building of docks, piers, dams, and similar structures . . . .” Webster’s Third New International Dictionary (2002).

       In her declaratory ruling, the defendant also found that “the undisputed evidence is that the presence of both the dock and boardwalk is causing environmental degradation of the resources that I am statutorily charged with protecting.” Similarly, the court noted in its memorandum of decision that “the structures [on the plaintiffs’ property] not only lack a permit, but are also causing environmental harm.” The plaintiffs do not challenge that finding in this appeal, which is supported by the record.

       June 24, 1939, is the date on which the Structures, Dredging and Fill Act; General Statutes § 22a-359 et seq.; originally was enacted.

       General Statutes § 22a-361 (a) (1) provides: “No person, firm or corporation, public, municipal or private, shall dredge, erect any structure, place any fill, obstruction or encroachment or carry out any work incidental thereto or retain or maintain any structure, dredging or fill, in the tidal, coastal or navigable waters of the state waterward of the high tide line until such person, firm or corporation has submitted an application and has secured from the Commissioner of Environmental Protection a certificate or permit for such work and has agreed to carry out any conditions necessary to the implementation of such certificate or permit.”

       General Statutes § 22a-363a defines routine maintenance as “replacement and repair of out-of-water structures including the surfaces of docks, piers, wharves and bridges, replacement or repair in any year of up to twenty-five per cent of all pilings approved in accordance with section 22a-361 and seasonal installation, reinstallation or repair of floating docks, provided that all locations, dimensions, elevations and materials shall remain the same as or equivalent to that approved in accordance with said section . . . Section 22a-363a defines substantial maintenance as “rebuilding, reconstructing, or reestablishing to a preexisting condition and dimension any structure, fill, obstruction or encroachment . . . .’’To the extent that the plaintiffs in their appellate brief complain that the defendant failed to consider the import of “routine maintenance” in her ruling, that critique is misplaced, as their July 28, 2008 application for a certificate of permission expressly sought authorization to conduct “substantial maintenance” on their property. Similarly, the issue presented by the plaintiffs in their petition for a declaratory ruling was whether the department erred “in denying [their] application for a [certificate of permission] for substantial maintenance of structures that have existed on the property since prior to June 24, 1939.”

       We note that § 22a-363b (a) (1) also pertains to substantial maintenance, providing in relevant part that “[substantial maintenance or repair of existing structures, fill, obstructions or encroachments authorized pursuant to section 22a-33 or section 22a-361” may be eligible for a certificate of permission. That statutory provision has no bearing on the present case.

       Indeed, the plaintiffs in their appellate brief set forth nearly identical definitions of those words. In particular, they define serviceable as “helpful, useful ... fit for use.”

       Webster’s Third New International Dictionary (2002) defines continuous as “characterized by uninterrupted extension in space; stretching on without break . . . operated without interruption . . . .” It defines “maintain” as “to keep in a state of repair, efficiency, or validity; preserve from failure or decline” and defines serviceable as “fit for use; suited for a purpose; useable to advantage . . . .” Id.

       Pursuant to § 22a-361 (a) (1), a permit generally is required before any person may “retain or maintain any structure ... in the tidal, coastal or navigable waters of the state . . . .”

       The plaintiffs do not contest that factual finding in this appeal.

       The plaintiffs do not argue that the definition of substantial maintenance provided in § 22a-363a is ambiguous.

       The record also contains a January 26, 2009 letter from Lambert to the plaintiffs’ counsel, in which Lambert details the manner in which she examined the aerial photographs. That letter states in relevant part: “[U]nder-standing these images requires more than simply looking at them with the naked eye. For example, I use a magnifying loupe — similar to a magnifying glass — to view details in a print or transparency of a photograph placed on a light table. With magnification, a ruler can often help determine the approximate measurements of visible structures. Also, the [department] aerial photographs are colorized infrared to differentiate vegetative cover. This helps to identify areas of tidal wetlands, intertidal features and wrack lines. Other features, structures, or information may be discemable by linear uniformity, elements of dimension, shadow, or contrasting light and dark features. In short, distinguishing particular objects in aerial photographs and understanding these photographs requires experience as well as thorough and scrupulous observation, while making comparisons between photographs.”
      The plaintiffs, in their appellate brief, suggest that the defendant improperly credited the analysis of Lambert over that of their expert, Lee Ross, with respect to the aerial photographs in evidence. Such an assertion has no place before this appellate tribunal, as courts in administrative appeals “must defer to the agency’s assessment of the credibility of the witnesses and to the agency’s right to believe or disbelieve the evidence presented by any witness, even an expert, in whole or in part.” Briggs v. State Employees Retirement Commission, 210 Conn. 214, 217, 554 A.2d 292 (1989).

       The plaintiffs also claim that the defendant improperly relied on certain records of the tax assessor of the town of Stonington, which demonstrated that the “docks and their corresponding assessments” were removed from the grand list in 1984 and later were “added back on to the 1990 assessment list.” They rely on a January 12, 2009 letter from the Stonington assessor’s office to the department, which stated in relevant part that although the assessor’s office had no knowledge of the existence of a dock on the plaintiffs’ property between 1984 and 1990, “[t]his does not mean that the docks were not there during this period of time . ...” In light of that statement, the plaintiffs argue that the defendant should not have credited the evidence of the tax assessment records. We need not consider the merits of that contention, as the record contains substantial evidence apart from the tax records indicating that the dock was not kept in a useable condition in the years following its September, 1985 destruction.

       In the declaratory ruling, the defendant stated in relevant part: “Thompson noted that with respect to pre-1939, that when the department’s water resources division had responsibility for issuing permits under § 22a-361, that the department’s understanding was that a permit was not necessary for the maintenance or upkeep of a dock provided the dock was in place before June 24, 1939, it had been continuously maintained and serviceable and that the activities restored or maintained the structure to its preexisting size, configuration, method of support and construction. [Thompson] noted that it was unclear whether this policy would apply to the complete rebuilding of a dock as was done by [Shiling], He also noted that when responsibility for issuing such permits under § 22a-361 was transferred from the department’s water resources division to the coastal area management divisions, sometime in the late 1980s, coincident with that transfer of responsibility, the department changed its interpretation of § 22a-361 and required a permit even for the upkeep or maintenance of pre-1939 structures. [Thompson] concluded that under either interpretation of § 22a-361, the dock built by [Shiling] would have required a permit. He also noted that the placement of a boardwalk on tidal wetlands would have also required a permit.” (Emphasis in original.)
      The plaintiffs contest that finding, relying heavily on the written statement of Arthur J. Rocque, Jr., former commissioner of the department. That statement indicated that “the records kept by the [department] [from the mid-1970s to 1990] concerning repairs or reconstruction of pre-1939 structures or previously permitted structures were extremely sparse” and that Rocque’s “review of the policies and practices of [the department] revealed that the interpretation of the relevant statutes . . . was that permits were not required for either the repair or reconstruction of structures that had been issued prior permits, or for structures that existed prior to 1939 . . . .” The defendant, as arbiter of credibility, chose not to credit that evidence. Moreover, Rocque’s statement can be reconciled with that of Thompson, in that Thompson explained that the department’s understanding in the 1980s was that a permit was not necessary for the maintenance or upkeep of a dock provided the dock was in place before June 24, 1939, it had been continuously maintained and serviceable and the activities restored or maintained the structure to its preexisting size, configuration, method of support and construction. Because Rocque’s statement does not specifically address pre-1939 structures whose size, configuration and construction were significantly modified in the years after 1939, a plausible reading of his statement is that it pertains to structures that underwent rebuilding and reconstruction consistent with the condition and dimensions that existed in 1939.


source: Caselaw Access Project

author: SHELDON, J.

license: Public Domain

text:
    LIBBY LIGHT v. DAVID GRIMES
    (AC 32065)
    DiPentima, C. J., and Graendel and Sheldon, Js.
    Argued March 7
    officially released June 5, 2012

      Barbara M. Schellenberg, with whom, on the brief, was Richard L. Albrecht, for the appellant (defendant).

      Gary I. Cohen, for the appellee (plaintiff).
   Opinion

SHELDON, J.

In this marital dissolution appeal, we must determine the effect on certain orders issued in a dissolution decree when a motion for reconsideration of other orders associated with that decree is filed. The defendant, David Grimes, claims that the trial court erred in holding that the parties’ marital assets must be valued as of the date on which the dissolution decree was entered. Specifically, the defendant argues that, even though both he and the plaintiff, Libby Light, moved for clarification of the court’s order dividing their assets, without seeking reconsideration of that order, the judgment and all orders associated therewith did not become final or effective until a decision was rendered on his motion for reconsideration of other unrelated financial orders, and thus that the date on which the court ruled on the motion for reconsideration constituted the actual date of judgment in this case. The defendant thus contends that the proper date of valuation of the parties’ marital assets is the date on which the court ruled on his motion for reconsideration. We disagree and, accordingly, affirm the judgment of the trial court.

The following factual and procedural history is relevant to the resolution of this appeal. On May 9, 2008, following a contested trial, the court issued a memorandum of decision dissolving the parties’ marriage. The court therein issued the following order regarding the division of marital assets: “The assets of the parties shall be divided so that the plaintiff retains 50% of the total value and the defendant retains 50% of the total value . . . .” The court then listed each of the parties’ assets, which included real estate and various financial accounts, and assigned a monetary value to each asset as the net equity from the asset to be distributed to each party.

On May 23, 2008, the plaintiff filed a “motion for clarification” of the dissolution decree seeking a “clarification as to whether [the financial] accounts were to be divided in the precise amount[s] set forth in the schedule included in the court’s [May 9,2008] memorandum of decision, or whether one or more of the financial accounts were to be divided according to percentages, taking into account market changes that occurred from the time of the closing of the evidence to the date of judgment and/or to the date of distribution.” On May 29, 2008, the defendant filed a “motion to reargue, correct and clarify” the dissolution judgment, asking therein for the court to clarify certain of its orders and to reconsider others. By way of clarification, the defendant, like the plaintiff, asked the court to clarify its order regarding the division of the parties’ marital assets, specifically, their financial accounts. The defendant claimed that two of his 401k accounts had declined in value “due to a decline in the stock market since the [dissolution] hearing,” and “submitted]” that the order regarding the division of those accounts should be “based on [the] actual May 9th values” of those accounts. Apart from his request for clarification, the defendant asked the court to reconsider or correct other unrelated orders issued at the time of the decree. The defendant asked the court, inter alia, to reconsider and shorten the duration of the alimony award; to reconsider its unallocated child support and alimony award to provide for changes as each child reaches the age of majority; and to issue new orders regarding the expenses associated with the children’s extracurricular activities and their medical and dental expenses.

On July 21, 2008, the court held a hearing on both of the parties’ aforementioned motions. At that hearing, the plaintiff sought an accounting from the defendant of the parties’ financial accounts in order to ascertain the value of those accounts as of the May 9, 2008 date of judgment. The defendant conceded both that there may have been changes in the values of some of the accounts due to market fluctuations between the date of the dissolution hearing and the date of the judgment and that the assets should be valued as of the date of dissolution. He thus agreed to provide to the plaintiff statements of those accounts that portrayed their values as of May 9, 2008. The defendant did not, at any time during that hearing, suggest that the date of judgment, and hence the date of valuation, should be any date other than the May 9, 2008 date of dissolution. The court ordered the defendant to provide the plaintiff with documentation as to the value of the parties’ accounts as of May 9, 2008, and then heard the parties’ arguments pertaining to the defendant’s requests for reconsideration, as set forth in his motion with respect to other aspects of the judgment.

On December 15, 2008, the court issued a “clarification of the [May 9, 2008] memorandum of decision,” in which it stated: “The plaintiff seeks clarification as to whether the order dividing investment assets of the parties are to be divided according to percentages taking into account market fluctuations occurring from the time of the closing of evidence to the date of judgment and/or to the date of distribution. The assets are to be divided according to percentages taking into account market fluctuations to the date of judgment.” In response to the defendant’s request for reargument, the court declined to change the term of alimony; agreed that the unallocated award should decrease by $3000 per month as each child reaches the age of majority, yet declined to address the issue of the cost of the babysitter; agreed that the plaintiff should pay for the expenses related to the children’s extracurricular activities; and eliminated the order requiring the defendant to maintain medical and dental insurance for the children, but ruled that it could be modified in the event that there is no coverage in the future. As to the defendant’s claims regarding the division of the parties’ assets, the court held that the defendant should be credited with $20,000, as the defendant had requested.

Thereafter, on January 12, 2010, the plaintiff filed a request for “articulation that the date of judgment is the date upon which the court’s original memorandum of decision was filed, namely May 9,2008.” The plaintiff claimed that an articulation in this regard was necessary because “the defendant continue [d] to resist division of the [financial] accounts, claiming that the date of judgment is a date upon which the court ruled on various postjudgment motions for clarification and reargument.” The defendant summarily objected to the plaintiffs motion “[i]n fight of [the] plaintiffs improper averments” contained therein, and sought oral argument on the issue. The court held a hearing on February 8,2010. Thereafter, on February 18,2010, the trial court issued a decision in which it summarily held that “the date of judgment is May 9, 2008.” The defendant appealed from that decision. On September 6, 2011, pursuant to this court’s order for articulation, the court issued a clarification of its February 18, 2010 order. The court explained that: “The date of judgment is May 9, 2008. The date of the court’s ruling on the plaintiffs motion for clarification cannot as a matter of law be the basis for the date of judgment. A motion for clarification is a postjudgment motion which does not modify or alter the substantive terms of a prior judgment.”

The sole issue for our determination in this appeal is whether the court properly held that the appropriate date of valuation of the parties’ marital assets, for purposes of the distribution of those assets, was the date of its original decree, May 9, 2008. This issue is well settled and is controlled by our Supreme Court’s ruling in Sunbury v. Sunbury, 216 Conn. 673, 676, 583 A.2d 636 (1990), in which the court held that, in a marital dissolution action, the date of valuation of marital assets is the date that the dissolution decree is rendered. In Sunbury, following an appeal from a judgment of dissolution, the court remanded the case to the trial court for a redetermination of the financial orders because it had incorrectly calculated the husband’s income. Id., 674-75. In the time period between the date of dissolution and the proceedings on remand, the value of the husband’s profit sharing plan had quadrupled. Id., 675-76. Consequently, the wife appealed from the trial court’s new financial orders, arguing that it should have valued the parties’ assets as of the date of remand, rather than the date of dissolution. Id., 675. Our Supreme Court rejected the wife’s claim, holding that: “The division of property ... in dissolution proceedings [is] governed by General Statutes [§] 46b-81 (a) .... Section 46b-81 (a) provides in part: At the time of entering a decree . . . dissolving a marriage . . . the superior court may assign to either the husband or wife all or any part of the estate of the other. . . . The only temporal reference in the enabling legislation refers us to the time of the decree as controlling the entry of financial orders. It is neither unreasonable nor illogical, therefore, to conclude that the same date is to be used in determining the value of the marital assets assigned by the trial court to the parties. In the absence of any exceptional intervening circumstances occurring in the meantime, [the] date of the granting of the divorce would be the proper time as of which to determine the value of the estate of the parties upon which to base the division of property. ... An increase in the value of the property following a dissolution does not constitute such an exceptional intervening circumstance. ... To the extent that the [wife] seeks consideration of a postdecree appreciation in the value of property, such appreciation, having occurred after the termination of the marriage, is no longer a marital asset.” (Citation omitted; emphasis in original; internal quotation marks omitted.) Id., 676. “Such a construction of our dissolution statutes also comports with well recognized principles regarding the finality of actions. It is not in the public interest ... to condone a procedure which would permit a plaintiff to litigate the same question over and over again, encumbering the mechanisms our society has established to resolve disputes .... Litigation must end at some point.” (Internal quotation marks omitted.) Id., 677.

The defendant argues that Sunbury is distinguishable from this case because he had filed a postjudgment motion for reconsideration which, he contends, rendered the initial May 9, 2008 judgment invalid. Here, however, the parties did not seek reargument or reconsideration of the court’s order dividing the parties’ marital assets, but, rather, sought a clarification of the court’s order regarding the value of the parties’ financial accounts. Practice Book § 63-1 (c) (1) provides in relevant part: “Motions that, if granted, would render a judgment, decision or acceptance of the verdict ineffective include, but are not limited to, motions that seek: the opening or setting aside of the judgment; a new trial; the setting aside of the verdict; judgment notwithstanding the verdict; reargument of the judgment or decision; collateral source reduction; additur; remitti-tur; or any alteration of the terms of the judgment.

“Motions that do not give rise to a new appeal period include those that seek: clarification or articulation, as opposed to alteration, of the terms of the judgment or decision; a written or transcribed statement of the trial court’s decision; or reargument of a motion listed in the previous paragraph.” (Emphasis added.)

“[T]he purpose of a clarification is to take a prior statement, decision or order and make it easier to understand. Motions for clarification, therefore, maybe appropriate where there is an ambiguous term in a judgment or decision . . . but, not where the movant’s request would cause a substantive change in the existing decision. Moreover, motions for clarification may be made at any time and are grounded in the trial court’s equitable authority to protect the integrity of its judgments.” (Citation omitted.) In re Haley B., 262 Conn. 406, 413, 815 A.2d 113 (2003).

The defendant acknowledges that he, like the plaintiff, sought only a clarification of the court’s May 9, 2008 order dividing the parties’ financial accounts. He admits that neither he nor the plaintiff sought reconsideration of that order. In fact, the defendant emphatically argued that, as to the division of assets, the only motion pending was a motion for clarification, not a motion for reargument or reconsideration. At oral argument before the trial court, moreover, the defendant had no objection to the plaintiffs motion for clarification. The defendant acknowledged that the values of some of the parties’ financial accounts were subject to fluctuation and that the appropriate value to ascribe to each account should be established as of the May 9, 2008 date of judgment. Indeed, the defendant had sought the same clarification in his own postjudgment motion. Nevertheless, the defendant now contends on appeal that even though the court’s clarification of the May 9, 2008 judgment, alone, had no substantive effect on the terms of the May 9, 2008 judgment, the filing of his motion for reconsideration of some of the other May 9, 2008 orders suspended the finality of the May 9, 2008 judgment in its entirety, and the subsequent orders, which were limited to certain financial issues, rendered all of the orders issued in the May 9, 2008 judgment invalid. In his own words, the defendant contends that, because the court reconsidered certain orders that were rendered in the dissolution judgment, “[t]here is simply no reasonable way to construe [the December 15, 2008] decision as anything but the final judgment that rendered the May 9, 2008 judgment ineffective.” In fact, the defendant claims that the relevant date of judgment would have been December 15, 2008, even if the court had denied his motion for reconsideration. On that basis, the defendant claims that the marital assets should be valued as of December 15,2008. We disagree.

We first note that the defendant has provided no authority, and we are aware of none, for his position that the filing of a motion for reconsideration of some orders rendered in a dissolution judgment invalidates the judgment in its entirety. Further, the defendant’s argument fails for practical reasons. It is curious what effect the defendant’s reasoning would have on the other orders that the court issued in its May 9, 2008 judgment of dissolution. If we were to accept the defendant’s claim that the court’s December 16, 2008 ruling invalidated the May 9, 2008 judgment in its entirety, the only orders that would remain in effect associated with the parties’ dissolution proceedings would be those that the court rendered on December 15, 2008, which were limited to certain financial orders. There would be no orders providing for the custody and visitation of the parties’ children. There would also be no orders regarding the parties’ real property, tax liabilities or counsel fees. More fundamentally, perhaps, there would be no judgment dissolving the parties’ marriage. The potential ramifications of the defendant’s reasoning, if applied, are, to say the least, troubling.

The case at hand involves the valuation of the parties’ marital assets. The court derives its authority to divide marital assets solely from the statute, which provides that a court may do so at the time of the entering of a decree dissolving the marriage. Thus, it stands to reason that the date on which the values of those assets must be determined is the date of the decree, for anything that occurs subsequent to that date is simply not relevant to the value of the marital assets. Accordingly, the court properly determined that the date of valuation of the parties’ assets is the date of dissolution, May 9, 2008.

The judgment is affirmed.

In this opinion the other judges concurred.

       Specifically, the defendant asked the court to reconsider its order of lifetime alimony, suggesting that alimony should be limited to a term of less than twelve years. The defendant also asked the court to reconsider the unallocated child support and alimony award, suggesting that the award should decrease by $3000 as each child reaches the age of majority, and that the award should further decrease when there is no longer a need to pay a babysitter to care for the children. The defendant suggested that the plaintiff should be required to pay for the children’s extracurricular activities with the support that he is paying to her. The defendant contested the order that he continue to pay for medical and dental insurance for the minor children because, historically, the plaintiff’s sister “provide[d] these services firee of charge” and that he should only be required to maintain the insurance in the event the plaintiffs sister no longer provides dental services free of charge. Finally, the defendant also argued that the court referenced four financial accounts as having an “ ‘undetermined’ ” value, yet credited him with $20,000 as part of his 50 percent split of assets. Because those accounts were closed and had no value, the defendant sought a credit of $20,000 in other assets to effectuate a true 50 percent division of the parties’ assets. We note that these accounts are unrelated to the accounts subject to the order for which the parties sought clarification.

       In the transcript of this hearing, other proceedings are referenced by the parties. The only transcripts provided to this court, however, were those for the July 21, 2008 and February 8, 2010 hearings.

       The court in Sunbury also noted the importance of its holding as it pertains to periodic support orders, which is instructive to our analysis regarding the valuation of assets. The court stated: “Further, General Statutes § 46b-86 sets up a separate and distinct procedure for the modification of orders of alimony and support after the date of a dissolution judgment. This statute authorizes modifications upon a showing of a substantial change in the circumstances of either party. In view of a procedure that authorizes modifications based upon a substantial change, it becomes important to fix the parties’ circumstances at some point in time to serve as a bench mark from which the substantial change required by § 46b-86 may thereafter be measured.” (Internal quotation marks omitted.) Sunbury v. Sunbury, supra, 216 Conn. 676-77.

       Additionally, Practice Book § 11-11 provides for “Motions which Delay the Commencement of the Appeal Period or Cause the Appeal Period to Start Again,” and states: “Any motions which would, pursuant to Section 63-1, delay the commencement of the appeal period, and any motions which, pursuant to Section 63-1, would toll the appeal period and cause it to begin again, shall be filed simultaneously insofar as such filing is possible, and shall be considered by the judge who rendered the underlying judgment or decision. The party filing any such motion shall set forth the judgment or decision which is the subject of the motion, the name of the judge who rendered it, the specific grounds upon which the party relies, and shall indicate on the bottom of the first page of the motion that such motion is a Section 11-11 motion. The foregoing applies to motions to reargue decisions that are final judgments for purposes of appeal, but shall not apply to motions under Sections 16-35, 16-36 and 11-12.”

       The following excerpts from the transcript of the July 21, 2008 hearing on the parties’ postjudgment motions, is revealing as to the defendant’s position on the date of judgment and finality:
      “[The Plaintiff’s Counsel]: The issue is . . . that [the defendant] should update the numbers in his accounts as of the date judgment. . . . [WJe’re asking that he be ordered to update and that the court clarify its order to be that the value of the account as of the date of judgment should be divided otherwise you’re dealing with information that was stale. . . .
      “[The Defendant’s Counsel]: Your Honor, I don’t have much of a quarrel on this issue. ... I assume that is what he is seeking an order with, whether one or more of the financial accounts were to be divided according to percentages taking into account market changes. ... If it’s an account that is subject to a market change I have no objection to an order, and I think it’s appropriate to get an order, because they go up and down.
      “Enter using the percentage basis based upon the relationship that Your Honor established in the decision, and applying that percentage to the value of the account as of the date of judgment the close of business on the date of judgment. That way his client would be protected and my client would be protected on ups and downs.”
      In response to the plaintiffs request that the court order the defendant to produce statements of all of the financial accounts, the defendant acceded as follows:
      “[The Defendant’s Counsel]: ... I will give you the actual copies of the actual statements of those accounts with values as of the close of business on the date of Your Honor’s decision. If there is anything further beyond that, if we can’t implement beyond that, it’s to be divided in the percentages that you established in your decision. . . .

      “[The Defendant’s Counsel]: Your Honor .... This is not a motion to reargue. This is a motion to clarify and you have to look at the motion to see what [the plaintiff’s counsel] requested. He requested — whether . . . [wjhether one or more of the financial accounts were divided in accordance to percentages taking into account market changes. That is what it was about. . . .
      “I think you could give h[er], and I agree with that, what [s]he is asking for in the motion and that is accounts that were subject to market changes— any accounts, investment accounts, 401k accounts, pension accounts, anything that was subject to market changes and it will be effective as of the date of judgment. There is no case that has ever been tried in this world where something didn’t happen between the time at the end of the trial and the time of the judgment, and we know that. There is going to be ups and downs for both of them in that, but you can’t now reargue and say you have to take evidence on further information on other accounts that are not subject to market changes, that’s not right, you’re reopening the evidence.

      “[The Plaintiff s Counsel]: If Your Honor’s order is that the account as to the date of judgment were to be divided by percentages then we are entitled to know what was in the account from the date of judgment. ... We are entitled to the statements of the accounts that you intended to divide as of the date of judgment. . . .

      “[Tjhat’s the purpose for the motion to clarify. If you intended it to be percentages, percentages of what? . . .
      “[The Defendant’s Counsel]: I am sorry, Your Honor, that [the plaintiff] does not trust her former husband, that is not my issue. The case was closed, we finished the case. He has not filed a motion to reopen the case or to reargue the matter. He does not get discovery in a general sense because he thinks it’s fair. These things have to come to an end in some way.

      “You file a motion, and I don’t dispute [t]his motion, I think on accounts that were subject to market changes [s]he is entitled to that because there is going to be ups and downs for both of them, but to start going into other accounts now because his client doesn’t trust. She had her opportunity at the trial to cross-examine my client.
      “I’m not asking for her accounts and what happened in her accounts between the time at the end of the trial and the date of the judgment. This will go on forever because if you’re going to do for one then you’re going to do for the other. We are going to start examining and have discovery on what happened in the roughly 120 day period between the end of the trial. It has just got to end somewhere with these folks, please. That is my response.
      “[The Plaintiffs Counsel]: . . . You divided certain accounts, did you intend to divide them as they existed on the date of judgment or did you intend to divide them as of September 30, and that is the question, and that is why we move to clarify. . . .
      “We would like to know what it was as of the date of judgment, and you are the only one who could tell us that. . . . What did you intend? That is why it’s called a motion to clarify. . . .
      “[The Defendant’s Counsel]: The intention of the court is clear in its decision. You made an award a specific dollar award, as a matter of fact specific dollars and cents in each of these accounts. You made an award. Now, [the plaintiffs counsel] says, I’m not so sure because there may be market fluctuations in the accounts between the date of the award and four months later when the judgment entered.
      “Between today and tomorrow it is going to change and it has to end somewhere. I thought you ended it but I was willing to accommodate [the plaintiffs counsel’s] motion by agreeing to clarify and amend the order so as to take into account the market fluctuation. I am not agreeing to reopen his financial affidavit and go through every single account of his.

        “The Court: I understand. I see the motion for clarification specifically talks about the market changes that occurred from the time of the closing of the evidence to the date of judgment and/or to the date of distribution. ...” (Emphasis added.)

       On page four of his posljudgment motion, the defendant argues: “The court’s opinion references the [defendant’s] LLG&M 401k plan as having $279,914 in value, when in fact, on May 12, 2008, it had only $267,368, due to a decline in the stock market since the hearing. The [defendant’s] Reed Smith 401k plan has experienced a similar decline in value since the hearing date. [The (defendant) respectfully submits that the amounts referenced in the May 9, (2008) order should be paid, on a pro rata basis based on actual May 9, (2008) values of the 401k plans.]” (Emphasis added.)

       In support of his position, the defendant cites to Weinstein v. Weinstein, 275 Conn. 671, 882 A.2d 53 (2005). Our holding here, however, is not inconsistent with the court’s decision in Weinstein because Weinstein involved a motion for reconsideration of the issue ultimately appealed, not a motion for clarification of that issue, a distinction that the court in Weinstein itself acknowledged. Id., 699.

       Indeed, if the filing of a motion for reconsideration invalidated all of the orders rendered on May 9, 2008, there would have been no need for the court to attempt to clarify any of the orders contained therein.

       We further note that the defendant’s claim is belied by his own actions in that he did not, nor did he seek to, submit, in support of his motion for reconsideration, new evidence regarding the value of the parties’ assets. If we were to apply the defendant’s reasoning to the facts at hand, the defendant’s alleged date of judgment, December IB, 2008, would have no basis in fact in that the court had no way of knowing the value of the parties’ accounts at that time. Without that information, all of the court’s financial orders, not only those dividing the parties’ assets, but potentially also periodic support orders, would be askew.


author: ALVORD, J.

text:
    DONNA M. LANTIERI v. ADMINISTRATOR, UNEMPLOYMENT COMPENSATION ACT, ET AL.
    (AC 33368)
    Beach, Alvord and Borden, Js.

      Submitted on briefs March 20
    officially released June 5, 2012

      George Jepsen, attorney general, and Philip M. Schulz and Krista D. O’Brien, assistant attorneys general, filed a brief for the appellant (named defendant).
   Opinion

ALVORD, J.

The defendant administrator of the Unemployment Compensation Act appeals from the judgment of the trial court reversing the decision of the employment security board of review (board) denying benefits to the plaintiff, Donna M. Lantieri. On appeal, the defendant claims that the trial court improperly found facts beyond those certified to it by the board and utilized those facts to improperly determine that the board’s decision that the plaintiff engaged in wilful misconduct was not supported by the evidence. We agree with the defendant that the court improperly found and relied upon its own facts and, accordingly, reverse the judgment of the trial court.

The following facts, as certified by the board, and procedural history are relevant to our disposition of the defendant’s appeal. The plaintiff was employed by Ocean State Job Lot of Meriden Parkade, LLC (Ocean State) as a full-time department manager from October, 2007, until she was discharged on August 11, 2009. The plaintiff broke her arm while off-duty on June 1, 2009, and required surgery. Her arm was in a cast for approximately one month, and she was required to participate in four to five weeks of physical therapy. On June 5, 2009, the plaintiff requested a leave of absence pursuant to the federal Family and Medical Leave Act of 1993 (FMLA), 29 U.S.C. § 2601 et seq. Ocean State notified the plaintiff by letter that she would be granted leave on the condition that she complete and return a “Certification of Health Care Provider for Employee’s Serious Health Condition” form (medical form), which was enclosed with the letter. The letter stated that the plaintiff must return the medical form to Ocean State by July 7, 2009, and that if the plaintiff failed to do so in a timely manner, she faced loss of her right to reinstatement.

The plaintiff received the letter from Ocean State and brought the medical form to her physician, Robert S. Wetmore, on June 29, 2009, leaving instructions with his office staff to send the completed medical form to Ocean State’s human resources department by facsimile. Ocean State did not receive the completed medical form by July 7, 2009, as required, and notified the plaintiff by telephone. The plaintiff was on vacation in Florida from July 3 until July 14, 2009. Upon her return from vacation, the plaintiff notified Wetmore’s office that Ocean State did not receive her medical form, and upon inquiring, learned that someone in Wetmore’s office had lost her medical form. The plaintiff then informed Ocean State’s human resources department of that fact.

Ocean State directed the plaintiff to obtain a duplicate medical form (second medical form) to provide to her physician. In a letter dated July 31, 2009, Ocean State informed the plaintiff that it had extended the deadline for her to return the second medical form until August 10.2009. In the letter, Ocean State informed the plaintiff that if the human resources department did not receive the second medical form by close of business on August 10, 2009, then Ocean State would consider the plaintiff to have voluntarily resigned. The plaintiff failed to return her second medical form to Ocean State by August 10, 2009.

Ocean State sent a letter to the plaintiff on August 11.2009, stating that the plaintiffs leave of absence had not been extended beyond June 13, 2009, because she had failed to provide the second medical form to Ocean State as required. The letter informed the plaintiff that Ocean State considered the plaintiff to have voluntarily resigned effective June 13,2009. On September 21,2009, Wetmore provided a statement taking responsibility for losing the plaintiff’s first medical form.

The plaintiff applied for unemployment benefits on August 22, 2009, and a hearing was scheduled for September 10, 2009, before the defendant. On September 25, 2009, the defendant denied benefits based on his finding that the plaintiff failed to provide the second medical form as required. The plaintiff appealed the decision of the defendant on October 8, 2009, and the appeals referee heard the plaintiff’s appeal on November 23, 2009. On November 30, 2009, the referee issued her decision reversing the determination of the defendant. The referee stated that although an employee’s failure to comply with a request for medical documentation typically constitutes wilful misconduct, the referee found that, in the present case, the plaintiff had good cause for failing to comply with the requirement. The referee found that Wetmore’s office had lost the plaintiffs first medical form and that Wetmore was on vacation when she attempted to have him send in the second medical form. The appeals referee therefore found that Ocean State discharged the plaintiff for reasons other than wilful misconduct in the course of her employment and that the plaintiff was not disqualified from receiving benefits.

Ocean State timely appealed the referee’s decision to the board on December 18, 2009. On March 18, 2010, the board sent the parties notice that it was requesting documentation and that it intended to supplement the record. In this notice, it stated the following: “On December 18, 2009, [Ocean State] filed a timely appeal to the board of review from the referee’s decision of November 30, 2009. Although the board normally decides an appeal on the basis of the existing record, the board may take additional evidence if the findings are incomplete on a factual issue material to the case. See Regs., Conn. State Agencies § 31-237g-40 (e).

“At the referee’s hearing on November 23, 2009, the [plaintiff] testified that she was unsuccessful in her numerous attempts to have her doctor’s office complete FMLA paperwork that the employer was requesting. The [plaintiff] should provide documentation from her doctor’s office verifying any contact the [plaintiff] may have made with the doctor’s office. The documentation should also specify the date and method of contact. The [plaintiffs] doctor should also indicate whether the office was closed for vacation, and if so, provide the exact dates the office was closed for business.
“At the referee’s hearing, the employer referred to documents it allegedly mailed the [plaintiff] in response to her request for FMLA leave. The employer should provide copies of any such documentation to the board.
“The parties have two weeks from the issuance of this notice to provide this documentation to the board of review. Copies of all documents filed with the board should also be provided to the other parties. The parties have ten (10) days from the filing of the documents in which to object to the admission of the evidence, submit written argument in rebuttal, or request a further evi-dentiary hearing.”

Although Ocean State complied with the board’s request for additional documentation, the plaintiff failed to comply; she also did not object to or submit written argument in rebuttal to any of the evidence submitted by Ocean State nor did she request a further evidentiary hearing. After reviewing the record, including the newly furnished documentation provided by Ocean State, the board reversed the decision of the appeals referee. It stated: “We find that the [plaintiffs] reliance upon her doctor’s office to submit the documentation to the employer does not absolve her from any and all responsibility with regard to the matter. Because her doctor’s office lost the forms when she originally submitted them, the [plaintiff] should have taken extra precautions to ensure the doctor’s office completed and returned the second set of forms to the employer by August 10, 2009. Moreover, we take an adverse inference from the [plaintiffs] failure to respond to the board’s request for documentation, and find that the doctor did not prevent the [plaintiff] from complying with the extended deadline for providing medical documentation to the employer by August 10, 2009. We, therefore, conclude that the [plaintiffs] failure to provide the employer with reasonably requested medical documentation constitutes an act of wilful misconduct.” The board also modified the referee’s findings of fact to include the following: “The [plaintiff] did not provide the employer with the medical documentation after learning that the physician lost the first set of forms. The physician did not prevent the [plaintiff] from providing a second set of forms to the employer.” The board then determined that the plaintiff was disqualified from receiving benefits. The plaintiff did not file a motion to correct the board’s findings.

The plaintiff appealed the board’s decision to the Superior Court via a petition dated May 19, 2010. She subsequently sent a letter to the Superior Court clerk’s office, which letter was received October 13, 2010, in which she argued that it was Wetmore’s office who had lost her first medical form and that she had made several attempts to contact Wetmore regarding the second medical form, but that Wetmore had been on vacation. On October 22, 2010, the defendant filed a memorandum of law arguing that the plaintiffs appeal was properly dismissed by the board because the board found that the plaintiff had engaged in wilful misconduct by failing to turn in the second medical form to Ocean State and that, despite being provided with ample time in which to do so, she had presented no evidence to the board explaining her failure to comply with Ocean State’s requirement. The defendant requested that the court dismiss the plaintiffs appeal. The matter was heard on March 17, 2011; it is undisputed that the plaintiff failed to appear for the hearing.

The court rendered judgment on March 29, 2011. Its memorandum of decision stated: “The [plaintiff] initially requested a leave of absence beginning on June 1, 2009. She is accused of ignoring multiple requests from her employer that she supply adequate medical certification to support her need for medical leave of absence. The record does not bear this out, unless the many calls, one fax and several attempts by [the plaintiff] to secure her records by visiting the doctor’s office are ignored. See p. 13 entitled Fact Finding Report Plaintiff Statement. Page 16 entitled Findings of Fact discloses that the FMLA medical certification was originally due by [July 7, 2009] and was not submitted by [the plaintiff] by [July 7, 2009]. The employer extended the deadline to [August 10, 2009]. The [plaintiff] failed to submit said FMLA medical certification by [August 10, 2009], and was discharged from her employment on that date.

“The reason for [the plaintiffs] failures was because unknown to her Dr. [Wetmore’s] office had lost the forms which had dutifully been submitted to the office by the [plaintiff]. . . .
“According to the [plaintiff], on one of her calls she had been informed by the doctor’s office that Dr. [Wetm-ore] was on vacation and out of the office for an extended period following her surgery, which was another reason why he could not have furnished the necessary paper work in a timely manner. The court certainly is not critical of Dr. [Wetmore] for taking a vacation, but, it appears to the court that everything that accounted for the delay in securing the information required, was not of the [plaintiffs] making, but rather of unexpected happenings that made compliance with the deadline sought by the employer impossible for the [plaintiff] to meet. Nor, does the court feel that a finding of wilful misconduct on the part of the [plaintiff] is justified on a finding that the [plaintiff] could or should have made more calls to the [d]octor’s office or more visits to the [d]octor’s office than were made by her, and that if said calls or visits had been made, [the plaintiff] could have provided said forms earlier in conformity with deadlines.
“The court can find no evidence that would justify a finding of wilful misconduct on the part of the [plaintiff]. As a result the [plaintiff] is not disqualified from receiving unemployment compensation benefits pursuant to General Statutes § 31-236 (a) (2) (B).” The court then reversed the decision of the board and awarded full benefits to the plaintiff. This appeal followed.

The defendant claims that the court improperly found facts beyond those certified to it by the board and utilized those facts to improperly determine that the board’s decision that the plaintiff engaged in wilful misconduct was not supported by the evidence. We agree.

“A trial court’s review of the findings of the board is circumscribed. To the extent that an administrative appeal, pursuant to General Statutes § 31-249b, concerns findings of fact, a corut is limited to a review of the record certified and filed by the board of review. The court must not retry the facts nor hear evidence. . . . [The court] cannot review the conclusions of the board when these depend upon the weight of the evidence and the credibility of witnesses. ... In the absence of a motion to correct the finding of the board, the court is bound by the board’s finding.” (Citation omitted; internal quotation marks omitted.) Warner v. Administrator, Unemployment Compensation Act, 135 Conn. App. 84, 88-89, 41 A.3d 348 (2012). “Judicial review of the conclusions of law reached administratively is also limited. The court’s ultimate duty is only to decide whether, in light of the evidence, the board of review has acted unreasonably, arbitrarily, illegally, or in abuse of its discretion.” Burnham v. Administrator, Unemployment Compensation Act, 184 Conn. 317, 322, 439 A.2d 1008 (1981).

In the present case, the court exceeded its limited role on review and ignored the facts certified to it by the board. The court improperly looked to documents in the record to support its own conclusions, such as a written statement of the plaintiff provided to the defendant regarding the plaintiffs attempts to contact Wetmore’s office. In doing so, the court implicitly made its own credibility determinations and weighed the evidence. The board explicitly found that the plaintiff failed to provide credible documentation for her failure to return the second medical form to Ocean State, even after the board itself requested and provided an extended time frame for her to provide such documentation to support her claims. The board also explicitly found that Wetmore was not responsible for the plaintiffs failure to submit the second medical form to Ocean State. It was not the role of the trial court to determine otherwise. It is not the province of the trial court in the unemployment compensation context to make credibility determinations or to weigh evidence.

The court also improperly determined that the board’s conclusion that the plaintiff engaged in wilful misconduct was not supported by the evidence. The board found that the plaintiff was provided with two opportunities over the course of several months to submit the required medical form to Ocean State. The board determined that the loss of the first medical form by Wetmore’s office excused the plaintiff from returning it the first time. After learning that Wetmore’s office lost the first medical form, however, the plaintiff failed to return the second medical form despite having ample time in which to do so. The board determined that the plaintiff failed to provide adequate documentation as to why she never returned the second medical form. Subsequently, the board determined that the plaintiffs failure to turn in the second form to Ocean State or to offer a credible explanation as to why she failed to do so constituted wilful misconduct because Ocean State informed the plaintiff in its letters to her that failure to return the requested documentation would result in loss of her right to reinstatement. On the basis of its certified findings, we cannot conclude that the board acted unreasonably, arbitrarily, illegally or in abuse of its discretion in determining that the plaintiff engaged in wilful misconduct and was therefore not entitled to unemployment benefits.

The judgment is reversed and the case is remanded to the trial court with direction to affirm the decision of the employment security board of review.

In this opinion the other judges concurred.

       The plaintiffs employer, Ocean State Job Lot of Meriden Parkade, LLC, was named as a defendant but is not involved in this appeal. We refer in this opinion to the administrator of the Unemployment Compensation Act as the defendant.

       General Statutes § 31-236 (a) (2) (B) provides in relevant part that an individual is not eligible for unemployment compensation benefits if “in the opinion of the administrator, the individual has been discharged . . . [for] wilful misconduct in the course of the individual’s employment . . . .”
      General Statutes § 31-236 (a) (16) provides in relevant part: “[W]ilful misconduct means deliberate misconduct in wilful disregard of the employer’s interest, or a single knowing violation of a reasonable and uniformly enforced rule or policy of the employer, when reasonably applied, provided such violation is not a result of the employee’s incompetence . . . .’’(Internal quotation marks omitted.) See also Regs., Conn. State Agencies § 31-236-26.

       The defendant also argues that the court exceeded its authority by improperly awarding benefits to the plaintiff instead of remanding the case to the board for further proceedings. Because we determine that the court improperly discounted the facts certified to it by the board and utilized its own factual findings to reverse the board’s judgment, we need not address the defendant’s second contention.