author: ROBINSON, J.

text:
    RONALD J. ANDERSON v. R & K SPERO COMPANY ET AL.
    (AC 28625)
    Flynn, C. J., and Robinson and Pellegrino, Js.

      Argued March 12
    officially released May 13, 2008

      Ronald J. Anderson, pro se, the appellant (plaintiff).

      Lawrence R. Pellett, for the appellees (defendants).
   Opinion

ROBINSON, J.

The plaintiff, Ronald J. Anderson, appeals from the decision of the workers’ compensation review board (board) affirming the decision of the workers’ compensation commissioner (commissioner) denying his claim for workers’ compensation benefits. On appeal, the plaintiff claims that the board improperly sustained the commissioner’s finding that his chiropractic treatments were not medically reasonable and necessary. We affirm the decision of the workers’ compensation review board.

The following factual and procedural history is necessary for our discussion. On June 24, 1997, the plaintiff was employed by the defendant R & K Spero Company (Spero) and sustained a work-related injury to his lumbar spine, cervical spine and right shoulder. The plaintiff sustained these injuries following a fall in Spero’s restaurant. The defendants accepted responsibility for these injuries and paid specific benefits for impairments to the cervical spine, lumbar spine and right shoulder of the plaintiff. The plaintiff achieved máximum medical improvement for his back and neck in 1998, and for his right shoulder in 1999.

In March, 2002, the plaintiff aggravated his previous back injury after picking up a container of milk in his home. The plaintiff began treatment with Thomas Arkins, a physician who prescribed physical therapy and pain medication. Arkins also referred the plaintiff to another physician, Martin Hasenfeld. Hasenfeld ordered a magnetic resonance imaging (MRI) procedure and facet joint injections. The MRI showed disc degeneration in the plaintiffs back. Hasenfeld prescribed pain medication and recommended a discogram.

On April 1, 2003, Jacob Mushaweh, a physician, performed an examination of the plaintiff at the request of the defendants. Mushaweh opined that the plaintiffs back pain was not related to his compensable injury. He further opined that the plaintiff was not a good candidate for surgery and did not recommend a disco-gram. Following Mushaweh’s examination and opinion, the defendants contested any further treatment.

In December, 2003, Robert N. Margolis, a physician, conducted a commissioner’s examination of the plaintiff. Margolis diagnosed lumbar disc degeneration and determined that the plaintiff had achieved maximum medical improvement. Later that month, Margolis reviewed the plaintiffs lumbar spine MRI and indicated that his opinion regarding the plaintiffs physical condition had not changed.

In January, 2004, the plaintiff, on his own initiative, began treating with James Allen, a chiropractor. Between January, 2004, and March, 2005, he received 166 chiropractic treatments. In August, 2004, Margolis performed another commissioner’s examination and indicated that the petitioner was capable of light duty work. He further indicated that in his opinion, the type of chiropractic treatments performed by Allen on the plaintiff were not “scientifically valid.”

The amount due for Allen’s chiropractic treatments totaled $9130. The plaintiff has paid $4600 toward that amount. The plaintiff sought authorization for his treatments with Allen, and the commissioner held a hearing on April 4, 2005. On June 9, 2005, the commissioner issued a decision denying authorization for payment to Allen. Specifically, the commissioner concluded that the plaintiff “had reached maximum medical improvement and the unauthorized chiropractic treatment by Dr. Allen [was] not reasonable and necessary.” The commissioner subsequently denied the plaintiffs motion to correct findings.

On July 1, 2005, the plaintiff appealed to the board, claiming that the commissioner improperly had denied authorization and payment for treatment with Allen. On February 21, 2007, the board affirmed the decision of the commissioner. The board observed that it was the plaintiffs “obligation to prove to the trial commissioner [that] his treatment was reasonable and necessary as outlined in General Statutes § 31-294d . . . .” The board then stated that “[t]he specific issue that the trial commissioner needed to determine in this case was whether the treatment provided by Dr. Allen constituted remedial care for the [plaintiffs] compensable injury.” Deferring to the commissioner’s factual findings, which were supported by competent medical evidence, the board concluded that the decision did not constitute an abuse of the commissioner’s discretion. This appeal followed.

On appeal, the plaintiff appears to claim that the commissioner improperly found that Allen’s treatments were not medically reasonable and necessary. 6The defendants counter that the plaintiff impermissibly is attempting to retry the factual basis of the case and have us substitute our judgment for that of the commissioner with respect to the conflicting medical evidence. We agree with the defendants.

General Statutes § 31-294d (a) (1) provides in relevant part: “The employer, as soon as the employer has knowledge of an injury, shall provide a competent physician or surgeon to attend the injured employee and, in addition, shall furnish any medical and surgical aid or hospital and nursing service, including medical rehabilitation services and prescription drugs, as the physician or surgeon deems reasonable or necessary. . . .’’(Emphasis added.) In order for the plaintiff to prevail on appeal, he must establish that Allen’s treatments were reasonable and necessary. See, e.g., Tracy v. Scherwitzky Gutter Co., 279 Conn. 265, 274, 901 A.2d 1176 (2006). The issue is whether the commissioner properly found that Allen’s chiropractic treatment was not medically reasonable or necessary.

As a preliminary matter, we set forth our standard of review. “The commissioner is the sole trier of fact and [t]he conclusions drawn by [the commissioner] from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. . . . The review [board’s] hearing of an appeal from the commissioner is not a de novo hearing of the facts. . . . [I]t is [obligated] to hear the appeal on the record and not retry the facts. . . . On appeal, the board must determine whether there is any evidence in the record to support the commissioner’s finding and award. . . . Our scope of review of [the] actions of the [board] is [similarly] . . . limited. . . . [However] [t]he decision of the [board] must be correct in law, and it must not include facts found without evidence or fail to include material facts which are admitted or undisputed. . . . Put another way, the board is precluded from substituting its judgment for that of the commissioner with respect to factual determinations.” (Citations omitted; internal quotation marks omitted.) Brown v. Dept. of Correction, 89 Conn. App. 47, 53, 871 A.2d 1094, cert. denied, 274 Conn. 914, 879 A.2d 892 (2005); see also Marandino v. Prometheus Pharmacy, 105 Conn. App. 669, 677, 939 A.2d 591, cert. granted on other grounds, 286 Conn. 916, 917, 945 A.2d 977 (2008); Gallagher v. Dudley, No. 5067, CRB-4-06-3 (March 20, 2007) (whether treatment curative and thus compensable is factual question); Covert v. Patterson, No. 4094, CRB-03-99-08 (September 29, 2000) (determination of whether medical care reasonable and necessary, including whether medical care is palliative or curative remedy, is factual issue to be determined by commissioner).

The following additional facts are necessary for our discussion. In his December 16,2003 independent medical evaluation, Margolis opined that the plaintiff had reached maximum medical improvement. He also indicated that any further treatment would be palliative and rated the plaintiff as having a 15 percent permanent partial limitation of the lumbar spine, due to his work-related fall.

Approximately eight months later, Margolis conducted a second examination of the plaintiff. In his August 3,2004 evaluation, Margolis noted that the plaintiff had reported that “his symptomatology is markedly improved since he initiated treatment with Dr. Allen in January of 2004, this treatment consisting of chiropractic manipulation of the entire back from neck to coccyx (according to the patient) three times a week. . . . Both the chiropractor and the [plaintiff] state that he is appreciably better, and that he can climb stairs without support, now walk [farther], and is more comfortable . . . .” Margolis further stated that the plaintiffs functional status appeared improved since the prior examination and that the plaintiff had reported a diminishment of pain.

Margolis then set forth his opinion regarding the chiropractic treatments that the plaintiff had been receiving, as well as their effect on his physical condition. “First of all the question of [the] chiropractor: My personal belief is that chiropractic treatment of this type [mainly the manual ‘release’, ‘fixations’ and the ‘reduction’ of ‘subluxations’] has no scientific validity .... The appreciable improvement in the man’s subject of symptomatology and indeed in his object of physical examination after seven months of such treatment can be explained on multiple other grounds including psychological encouragement, placebo effect, the spontaneous improvement in musculoskeletal function incurred by increased activity (in other words no one knows which is the cart and which is the horse; is the man more mobile because he is convinced that he can do more or because the treatment has allowed him to do more: No one knows).” (Emphasis added.)

Margolis then observed that the plaintiff seemed capable of light work at least on a part-time basis. He recommended, as a future course of treatment, strict limitation of caloric intake and daily light exercise. He then concluded: “I do not believe as stated above that, despite the impressive functional improvement there is any orthopedic indications on a scientific basis for either initial or continued chiropractic manipulations of the spinal column.”

On appeal, the plaintiff argues that the chiropractic treatments were reasonable and necessary. He further maintains that Margolis noted improvements from the first examination, in December, 2003, and the second, in August, 2004. In essence, the plaintiff claims that during this time period, he received treatment with Allen and that his physical condition improved; a fortiori, the chiropractic treatments were medically reasonable and necessary and payment to Allen should have been authorized.

The fatal flaw in the plaintiffs argument is that Margolis, aside from his personal belief regarding this type of chiropractic treatment, offered alternate medical reasons for the plaintiffs improvement, which the commissioner was free to credit. Specifically, Margolis opined that the plaintiffs improvement could be explained on multiple other grounds, including psychological encouragement, placebo effect and spontaneous improvement in the musculoskeletal function incurred by increased activity. “[T]he power and duty to determine the facts rests on the commissioner, who is the trier of fact. . . . This authority to find the facts entitles the commissioner to determine the weight of the evidence presented and the credibility of the testimony offered by lay and expert witnesses.” (Internal quotation marks omitted.) Donaldson v. Continuum of Care, Inc., 94 Conn. App. 334, 339, 892 A.2d 332 (2006), cert. denied, 282 Conn. 921, 925 A.2d 1103 (2007). Additionally, we have stated: “Where the subordinate facts allow for diverse inferences, the commissioner’s selection of the inference to be drawn must stand unless it is based on an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. . . . Once the commissioner makes a factual finding, [we are] bound by that finding if there is evidence in the record to support it. . . . Our Supreme Court consistently has held that [n] o reviewing court can ... set aside [an inference of the commissioner] because the opposite [inference] is thought to be more reasonable; nor can the opposite inference be substituted by the court because of a belief that the one chosen by the [commissioner] is factually questionable. . . . This standard clearly applies to conflicting expert medical testimony. It [is] the province of the commissioner to accept the evidence which impresses] him as being most credible and more weighty.” (Citations omitted; emphasis added; internal quotation marks omitted.) Krol v. A. V. Tuchy, Inc., 90 Conn. App. 346, 349, 876 A.2d 597 (2005).

The commissioner found, on the basis of Margolis’ August 3, 2004 report, that Allen’s treatments were not reasonable and necessary. The board properly concluded that this finding was supported by sufficient evidence in the record. Restricted by our deferential standard of review, we also decline to disturb the commissioner’s finding in the absence of a showing that it was unreasonable or illegally drawn from the underlying facts. See Sellers v. Sellers Garage, Inc., 92 Conn. App. 650, 651-52, 887 A.2d 382 (2005); see also Donaldson v. Continuum of Care, Inc., supra, 94 Conn. App. 342-43 (board properly concluded findings should not be disturbed unless they were made without evidence, based on impermissible or unreasonable factual inferences or contrary to law).

The decision of the workers’ compensation review board is affirmed.

In this opinion the other judges concurred.

       In addition to Spero, its workers’ compensation insurer, Chub & Son, is also a defendant in this case.

       A “diskogram” is defined as the “graphic record, usually radiographic, of diskography.” T. Stedman, Medical Dictionary (28th Ed. 2006). A “discography” is defined as “[historically, radiographic demonstration of intervertebral disk by injection of contrast media into the nucleus pulposus.” Id.

       We have stated: “Once the claimant has selected a treating physician, the commissioner may authorize or direct a change of physician at the request of the employer or employee, or when good reason exists. . . . The employer is not responsible for paying for the cost of care by an unauthorized treater. ... A claimant should obtain permission to change physicians before commencing a new course of treatment. This may include a valid referral from an authorized physician. ... In order [for treatment] to be compensable, a claimant has the burden of proving that medical treatment was either provided by the initial authorized treating physician under [General Statutes] § 31-294d, or obtained pursuant to a valid referral from an authorized physician.” (Citation omitted; internal quotation marks omitted.) Sellers v. Sellers Garage, Inc., 80 Conn. App. 15, 22, 832 A.2d 679, cert. denied, 267 Conn. 904, 838 A.2d 210 (2003); see also General Statutes § 31-294d (c).
      We note that in the present case, the commissioner never authorized or directed a change in physicians; therefore, the plaintiff failed to meet the requirement of the statute in regard to changing his treating physician to Allen. See, e.g., Donaldson v. Continuum of Care, Inc., 94 Conn. App. 334, 339, 892 A.2d 332 (2006), cert. denied, 282 Conn. 921, 925 A.2d 1103 (2007). We further note, however, that the board previously has held that a commissioner has the authority to retroactively authorize a change of medical providers. Atherton v. Rutledge, No. 1339, CRB -7-91-11 (September 2, 1993); see also Farkash v. Gerelco, Inc., No. 1566, CRB-8-92-11 (January 12, 1994); Davis v. Board of Education, No. 1346, CRB-2-91-11 (November 10, 1993). As a result of our conclusion that the board properly affirmed the decision of the commissioner that Allen’s treatments were not medically reasonable or necessary, we need not address the issue of whether Allen should have been authorized retroactively.

       In its written decision, the board noted that although “Allen was capable of being authorized as a treating doctor, he was not the [plaintiffs] original treating doctor and pursuant to General Statutes § 31-294d (c) . . . the [plaintiff] needed to obtain the commissioner’s authorization to proceed in this fashion . . . .” The board then observed that “[subsequent changes of physicians must be authorized by the trier pursuant to § 31-294d (c), who has considerable discretion to grant or deny such changes.” (Internal quotation marks omitted.)

       We note that the plaintiff acted pro se during the proceedings before the commissioner, the board and this court. “[I]t is the established policy of the Connecticut courts to be solicitous of pro se litigants and when it does not interfere with the rights of other parties to construe the rules of practice liberally in favor of the pro se party.” (Internal quotation marks omitted.) New Haven v. Bonner, 272 Conn. 489, 497-98, 863 A.2d 680 (2005); Sellers v. Sellers Garage, Inc., 80 Conn. App. 15, 19 n.2, 832 A.2d 679, cert. denied, 267 Conn. 904, 838 A.2d 210 (2003).
      In his statement of the issues, the plaintiff has set forth five issues for our consideration. After thoroughly reviewing the entire record before us, we conclude that the actual issue presented is whether the commissioner properly found that Allen’s treatments were not reasonable and medically necessary. Accordingly, we focus our discussion on that sole issue.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    ISRAEL CAEZ v. COMMISSIONER OF CORRECTION
    (AC 28277)
    Bishop, Lavine and Robinson, Js.
    Argued March 14
    officially released May 13, 2008

      PaulR. Kraus, special public defender, for the appellant (petitioner).

      Timothy F. Costello, deputy assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, and Erik T. Lohr, former deputy assistant state’s attorney, for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, Israel Caez, appeals from the judgment of the habeas court denying his second amended petition for a writ of habeas corpus. The petitioner claims that his due process rights were violated by the court because he was not given jail credit pursuant to the terms of a plea agreement. We affirm the judgment of the habeas court.

On February 2, 2000, the petitioner pleaded guilty to possession of narcotics (narcotics case) in violation of General Statutes § 2 la-279 (a) and was sentenced to nine months incarceration. He subsequently was arrested and charged with robbery in the first degree (robbery case) in violation of General Statutes § 53a-134 (a) (2) and several other offenses all related to the robbery. On October 2, 2000, the petitioner pleaded guilty pursuant to the Alford doctrine to robbery in the first degree in violation of § 53a-134 (a) (2), conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 and 53a-134 (a) (2), and assault in the second degree in violation of General Statutes § 53a-60 (a) (2). On October 20, 2000, the petitioner was sentenced in the robbery case to twenty years incarceration, suspended after nine years, and five years probation.

On August 26, 2005, the petitioner filed a second amended petition for a writ of habeas corpus, alleging, inter alia, a violation of his constitutional right to due process because, contrary to the terms of his plea agreement, the sentencing court in the robbery case had not included a credit for 259 days of time served on his February 2, 2000 narcotics conviction as part of his sentence on the conviction in the robbery case. Following a trial, the habeas court denied his petition for a writ of habeas corpus. Thereafter, the court granted the petition for certification to appeal, and this appeal followed.

The petitioner claims that his guilty plea in the robbery case was not knowing and voluntary because he did not receive credit for time served in accordance with his plea agreement, specifically, the 259 days between February 3 and October 18, 2000, representing his period of incarceration flowing from his narcotics conviction on February 2, 2000. “Due process requires that every valid guilty plea must be demonstrably voluntary, knowing and intelligent .... [T]he trial court judge bears an affirmative, nondelegable duty to clarify the terms of a plea agreement. [U]nless a plea of guilty is made knowingly and voluntarily, it has been obtained in violation of due process and is therefore voidable. . . . When a defendant pleads guilty, he waives important fundamental constitutional rights, including the privilege against self-incrimination, the right to a jury trial, and the right to confront his accusers. . . . These considerations demand the utmost solicitude of which courts are capable in canvassing the matter with the accused to make sure he has a full understanding of what the plea connotes and its consequences. . . .

“We, therefore, require the trial court affirmatively to clarify on the record that the defendant’s guilty plea was made intelligently and voluntarily. ... In order to make a knowing and voluntary choice, the defendant must possess an understanding of the law in relation to the facts, including all relevant information concerning the sentence. . . . The defendant must also be aware of the actual value of any commitments made to him by the court . . . because a realistic assessment of such promises is essential in making an intelligent decision to plead guilty. ... A determination as to whether a plea has been knowingly and voluntarily entered entails an examination of all of the relevant circumstances. . . . [W]e conduct a plenary review of the circumstances surrounding [a] plea to determine if it was knowing and voluntary.” (Citations omitted; internal quotation marks omitted.) State v. Perez, 85 Conn. App. 27, 31-32, 856 A.2d 452, cert. denied, 271 Conn. 933, 859 A.2d 931 (2004).

“[B]ecause a defendant pleading guilty pursuant to a plea agreement waives a number of fundamental constitutional rights . . . the circumstances surrounding the plea agreement must comport with due process to ensure [the] defendant’s understanding of its consequences. . . . The notion of fundamental fairness embodied in due process implies that whatever promises the government makes in the course of a plea agreement to induce a guilty plea must be fulfilled.” (Citation omitted; internal quotation marks omitted.) State v. Rosado, 92 Conn. App. 823, 826-27, 887 A.2d 917 (2006).

“Our Supreme Court has held that a plea agreement is akin to a contract and that the well established principles of contract law can provide guidance in the interpretation of a plea agreement. . . . Whether a contractual provision is ambiguous presents a question of law and therefore is subject to de novo review. . . .

“[T]he primary goal of contract interpretation is to effectuate the intent of the parties .... Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms. . . . [T]he government ordinarily has certain awesome advantages in bargaining power .... [Therefore] [b]ecause of . . . the substantial constitutional interests implicated by plea agreements, the state must bear the burden for any lack of clarity in the agreement and ambiguities should be resolved in favor of the defendant.” (Citations omitted; internal quotation marks omitted.) Id., 827-28.

At the October 2, 2000 plea hearing, the prosecutor set forth the terms of the plea agreement as follows: “As we discussed in chambers, it’s going to be a total effective sentence of twenty years, execution suspended after nine years, with five years probation. That would be on charges of robbery in the first degree, § 53a-134 (a) (2), five year mandatory minimum; conspiracy to [commit] robbery in the first degree; and assault in the second degree. It will be a five year concurrent sentence on the [charge of] assault in the second degree.” The court thoroughly canvassed the petitioner, determined that his pleas were knowing, intelligent and voluntary, and accepted them. At no time did the petitioner disagree with the terms of the agreement as stated by the prosecutor or indicate that he was confused in any way. The petitioner also did not at any time during the plea hearing make any claim or state a belief that he would receive credit toward his robbery sentence for the time he had served on his earlier narcotics conviction.

The petitioner relies heavily on the following comment made by the court at the October 20,2000 sentencing hearing: “You’re going to get credit for what you’ve served already.” The habeas court concluded that this was not evidence of an agreement that the petitioner would receive credit for his time served from February 3 to October 18, 2000. We agree. In fact, the petitioner’s trial counsel testified at the habeas trial that during pretrial negotiations, he had sought credit for time served on the narcotics conviction but that the court had declined to accede to that request. Furthermore, because the petitioner pleaded guilty on October 2, 2000, and the court’s comment regarding jail credits was made at the sentencing hearing on October 20, 2000, it is difficult to understand the petitioner’s contention that he relied on the court’s comment in pleading guilty when he, in fact, pleaded guilty close to three weeks before the comment was made. The record is devoid of any evidence supporting the petitioner’s claim that the plea agreement entailed credit for time served. For the foregoing reasons, we conclude that the habeas court correctly determined that the petitioner’s plea was made knowingly, intelligently and voluntarily, and the court, therefore, properly denied his petition for a writ of habeas corpus.

The judgment is affirmed.

       See North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).

       In his second amended petition, the petitioner also raised a claim of ineffective assistance of counsel, which was dismissed by the court. That ruling has not been challenged on appeal.

        As pointed out by the respondent, the commissioner of correction, the record offers an unambiguous explanation for the court’s comment at the October 20, 2000 sentencing hearing that the petitioner would be receiving credit for time he had served because, by the date of sentencing, he had completed his narcotics sentence and had been held, albeit for only a few days, in custody after completion of the narcotics sentence and before sentencing on the robbery conviction. Thus, the court’s observation that the petitioner would receive some jail time credit was factually and legally correct.


author: BISHOP, J.

text:
    WANDA BOBINSKI v. TADEUSZ KALINOWSKI ET AL.
    (AC 28066)
    Bishop, Lavine and Robinson, Js.

      Argued March 14
    officially released May 13, 2008

      Anthony E. Parent, for the appellant-appellee (plaintiff).

      Joel M. Ellis, with whom, on the brief, was Alan J. Rome, for the appellee-appellant (named defendant).
   Opinion

BISHOP, J.

In this action for the foreclosure of a judgment lien, the plaintiff, Wanda Bobinski, appeals from the trial court’s judgment denying foreclosure, ordering the discharge of the judgment hen and awarding attorney’s fees to the defendant Tadeusz Kalinowski. The defendant cross appeals, claiming that the court should have awarded greater attorney’s fees. We affirm the judgment of the trial court.

The following factual and procedural history is relevant to the resolution of the issues on appeal. On December 13,2004, the plaintiff filed this action seeking to foreclose a judgment lien in the amount of $2500. The plaintiff alleged that she obtained a judgment against the defendant in that amount on December 21, 1993, in an action she filed against the defendant for conversion of personalty. In that case, Kropelnicki v. Kalinowski, Superior Court, judicial district of Middle-sex, Docket No. CV-92-0064000-S (December 22, 1993), the court held: “Judgment is entered for the plaintiff ... to recover of the defendant . . . the sum of $2500 without costs. However, the court, having taken judicial notice of the pending custody and support case, is aware of substantial arrearages therein owed by the plaintiff to the defendant ... for the support of the minor child. Said arrearages were admitted by the plaintiff to be approximately $2000. The judgment entered herein shall be first applied as a credit against the existing arrearage of approximately $2000. The balance of the judgment shall apply to current payments until the judgment is exhausted, at which time payments in the support case should proceed as ordered therein.”

The plaintiff further alleged, in this action, that, after the defendant failed to pay the judgment, she filed a judgment lien on the land records on December 2, 2002, attaching an interest in real property owned by the defendant in Southington. The defendant filed a counterclaim indicating that he had sought a release of the judgment lien but that the plaintiff had not complied with the request and that he was, therefore, seeking statutory damages pursuant to General Statutes §§ 49-8, 49-13 and 49-51, plus reasonable costs and attorney’s fees.

On July 6, 2006, after trial, the court issued its memorandum of decision rendering judgment in favor of the defendant. The court determined that the plaintiffs foreclosure complaint was “without merit, and if [the plaintiff] is entitled to any relief, she must seek it initially within the context of the judgment rendered ... in Kropelnicki v. Kalinowski, supra, Superior Court, Docket No. CV-92-0064000-S.” On the counterclaim, the court ordered that the lien be removed from the land records and that the plaintiff pay costs plus $3000 in attorney’s fees. The defendant filed a motion for reconsideration, which was denied. The plaintiff filed a motion to reargue, which also was denied. The plaintiff filed this appeal, and the defendant filed a timely cross appeal.

I

The plaintiff first claims that the court improperly denied her request for a judgment of foreclosure of the judgment lien. Specifically, the plaintiff claims that she presented a prima facie case for foreclosure and that the defendant did not meet his burden of proving any of his special defenses. We disagree.

“A foreclosure action is an equitable proceeding. . . . The determination of what equity requires is a matter for the discretion of the trial court. ... In determining whether the trial court has abused its discretion, we must make every reasonable presumption in favor of the correctness of its action. . . . Our review of a trial court’s exercise of the legal discretion vested in it is limited to the questions of whether the trial court correctly applied the law and could reasonably have reached the conclusion that it did.” (Internal quotation marks omitted.) Deutsche Bank National Trust Co. v. Angle, 284 Conn. 322, 326, 933 A.2d 1143 (2007).

It is axiomatic, however, that “[a]n appellate tribunal cannot render a decision without first fully understanding the disposition being appealed. . . . Our role is not to guess at possibilities, but to review claims based on a complete factual record developed by a trial court. . . . Without the necessary factual and legal conclusions furnished by the trial court . . . any decision made by us respecting [the plaintiffs claims] would be entirely speculative.” (Citation omitted; internal quotation marks omitted.) Dickinson v. Mullaney, 284 Conn. 673, 681, 937 A.2d 667 (2007).

In the present case, the plaintiff claims that she made a prima facie case for foreclosure and that the defendant failed to prove any of his eight special defenses. Because the court did not provide any reason for its denial of the plaintiffs request for foreclosure, we do not know whether the court denied the foreclosure on the basis of a deficiency of the evidence presented by the plaintiff or if the court credited one of the defendant’s special defenses. Under these circumstances, the plaintiff should have filed a motion for articulation to preserve an adequate record for review. “It is well established that [a]n articulation is appropriate where the trial court’s decision contains some ambiguity or deficiency reasonably susceptible of clarification. . . . [P]roper utilization of the motion for articulation serves to dispel any . . . ambiguity by clarifying the factual and legal basis upon which the trial court rendered its decision, thereby sharpening the issues on appeal.” (Citation omitted; internal quotation marks omitted.) Stone-Krete Construction, Inc. v. Eder, 280 Conn. 672, 685-86, 911 A.2d 300 (2006). In light of the status of the record before us, we cannot review the plaintiffs claims.

II

On cross appeal, the defendant claims that the court improperly limited his award of attorney’s fees to $3000. The defendant claims that the court should have awarded him greater attorney’s fees under § 49-51 or should have doubled the award pursuant to General Statutes § 52-568 (1). We are unpersuaded.

In his counterclaim, the defendant sought damages and attorney’s fees pursuant to §§ 49-8, 49-13 and 49-51. At trial, the defendant also sought attorney’s fees pursuant to § 52-568 (l).* *** In its memorandum of decision, after denying the plaintiffs request for foreclosure and concluding that the defendant’s counterclaim was meritorious, the court “in light of the evidence and totality of circumstances,” ordered the plaintiff to pay attorney’s fees of $3000. In response to the defendant’s motion for articulation, the court found that “[t]he trial of this complaint and counterclaim . . . lasted approximately two hours. Upon review of the entire record, the court is of the opinion that the award of attorney’s fees of $3000 on the counterclaim is fair, just and reasonable pursuant to General Statutes § 49-51.” The court also found that there was no legal or factual basis to support the defendant’s claim of double counsel fees pursuant to § 52-568.

“An award of attorney’s fees is not a matter of right. Whether any award is to be made and the amount thereof lie within the discretion of the trial court, which is in the best position to evaluate the particular circumstances of a case. ... A court has few duties of a more delicate nature than that of fixing counsel fees. The issue grows even more delicate on appeal; we may not alter an award of attorney’s fees unless the trial court has clearly abused its discretion, for the trial court is in the best position to evaluate the circumstances of each case.” (Internal quotation marks omitted.) Federal Deposit Ins. Corp. v. Owen, 88 Conn. App. 806, 816, 873 A.2d 1003, cert. denied, 275 Conn. 902, 882 A.2d 670 (2005).

Our Supreme Court has long “held that there is an undisputed requirement that the reasonableness of attorney’s fees and costs must be proven by an appropriate evidentiary showing. . . . We also have noted that courts have a general knowledge of what would be reasonable compensation for services which are fairly stated and described . . . and that [c]ourts may rely on their general knowledge of what has occurred at the proceedings before them to supply evidence in support of an award of attorney’s fees.” (Citations omitted; internal quotation marks omitted.) Smith v. Snyder, 267 Conn. 456, 471, 839 A.2d 589 (2004).

The court is permitted “to assess the reasonableness of the fees requested using any number of factors, including its general knowledge of the case, sworn affidavits or other testimony, itemized bills and the like. . . . [T]he value of [reasonable attorney’s fees] is based on many considerations.” (Internal quotation marks omitted.) Id., 480.

In support of his claim for attorney’s fees, the defendant submitted an affidavit, with corresponding time sheets, claiming that his attorney spent 121.32 hours on his case, at a rate of $250 per hour. In awarding $3000, the court noted that the trial in this matter took two hours. Employing the rate of $250 per hour, we might infer, therefore, that the court awarded fees for an additional ten hours. Because we defer to the trial court’s unique position to best evaluate the circumstances of each case, we cannot conclude that the court abused its discretion in not awarding more attorney’s fees under § 49-51.

Additionally, the defendant argues that the court’s award under § 49-51 was an indication that the court determined that the lien was filed without just cause and, therefore, that the foreclosure action was, by extension, filed without probable cause, thus supporting the defendant’s claim for double fees pursuant to § 52-568. Because it is not our province to make such a finding and because the court rejected the defendant’s claim for double fees pursuant to § 52-568 as having no basis in fact or law, we cannot conclude that the court abused its discretion.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff also named Freedom Mortgage Corporation as a defendant in this action. Because Freedom Mortgage Corporation is not a party to this appeal, we refer to Kalinowski as the defendant.

       The plaintiff also claims that the court improperly discharged the judgment lien because the judgment remains unsatisfied. Although the court did find that the $2500 judgment had not been satisfied, the court concluded only that the defendant’s counterclaim was “meritorious under the present circumstances” and ordered the lien removed. Because we are unaware of the legal or factual bases for the court’s conclusion, and the plaintiff did not move for an articulation seeking explanation of the court’s ruling, we are unable to review this claim as well.
      Similarly, this court declines to review the plaintiffs claim that the trial court improperly denied her motion for costs pursuant to Practice Book § 10-5 because the court provided no legal or factual basis for its denial and the plaintiff did not seek an articulation. The record is, therefore, inadequate for our review.

       The plaintiff also challenges the award of attorney’s fees. The plaintiff contends, with no supporting analysis, that because the judgment remained unsatisfied and the defendant made no attempts to satisfy it, the lien was filed with just cause, and the court, therefore, improperly awarded attorney’s fees under § 49-51. Because the plaintiffs argument rests on facts that were not found by the court, namely, that the lien was filed with just cause, her claim fails.

       General Statutes § 49-51 (a) provides: “Any person having an interest in any real or personal property described in any certificate of lien, which lien is invalid but not discharged of record, may give written notice to the lienor sent to him at his last-known address by registered mail or by certified mail, postage prepaid, return receipt requested, to discharge the lien. Upon receipt of such notice, the lienor shall discharge the lien by sending a release sufficient under section 52-380d, by first class mail, postage prepaid, to the person requesting the discharge. If the lien is not discharged within thirty days of the notice, that person may apply to the Superior Court for such a discharge, and the court may adjudge the validity or invalidity of the lien and may award the plaintiff damages for the failure of the defendant to make discharge upon request. If the court is of the opinion that such certificate of lien was filed without just cause, it may allow, in its discretion, damages to any person aggrieved by such failure to discharge, at the rate of one hundred dollars for each week after the expiration of such thirty days, but not exceeding in the whole the sum of five thousand dollars or an amount equal to the loss sustained by such aggrieved person as a result of such failure to discharge the lien, which loss shall include, but not be limited to, a reasonable attorney’s fee, whichever is greater.”

       General Statutes § 52-568 provides in relevant part: “Any person who commences and prosecutes any civil action or complaint against another, in his own name or the name of others, or asserts a defense to any civil action or complaint commenced and prosecuted by another (1) without probable cause, shall pay such other person double damages . . . .”

       The record reveals that the parties stipulated that the hourly rate of $250 was fair and reasonable.


author: PELLEGRINO, J.

text:
    BERTHA GENTILE v. DOMINGOS CARNEIRO
    (AC 28165)
    (AC 28270)
    McLachlan, Beach and Pellegrino, Js.

      Argued January 4
    officially released May 13, 2008

      John A. Pinheiro filed a brief for the appellant (defendant).

      Hugh D. Hughes, with whom, on the brief, were William F. Gallagher and Jacqueline F. Barbara, for the appellee (plaintiff).

       The defendant’s attorney failed to appear on the date scheduled for oral argument. The clerk of the court was able to reach him telephonically, and counsel stated that he would not be in attendance. He did not request a postponement, and the matter proceeded as scheduled in his absence.

   Opinion

PELLEGRINO, J.

In this consolidated appeal, the defendant, Domingos Cameiro, appeals from orders made regarding the custody and support of the parties’ minor children. On appeal, the defendant claims that the trial court (1) improperly determined his earning capacity to be $75,000, (2) improperly issued a supplemental support order applicable to his future commissions, (3) abused its discretion in awarding sole legal custody of his three minor children to the plaintiff, Bertha Gentile, (4) improperly awarded attorney’s fees to the plaintiff and (5) improperly calculated his modified support obligation. We affirm in part and reverse in part the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the defendant’s appeal. The plaintiff and the defendant engaged in a three and one-half year relationship that produced three children. The plaintiff and the parties’ three children currently live in Arizona, while the defendant resides in Connecticut. The parties are not, and never have been, married to each other.

On August 17, 2004, the plaintiff filed a complaint for sole custody, support and other relief for her three minor children bom of the defendant. Protracted discovery ensued, and, on September 20, 2006, the court held its final hearing on the plaintiffs complaint. At that hearing, the plaintiff and the defendant testified and also offered the testimony of one witness each.

On September 28,2006, the court issued its memorandum of decision. The court found that beginning in 1989, the defendant operated his own carting business, known as D.C. Carting, Inc. (D.C. Carting). During the years 2001 through 2004, his net personal income from his carting business fluctuated from $80,000 to $278,000. ***On December 31, 2005, D.C. Carting went out of business, and the defendant did not thereafter engage in other full-time employment. On the basis of the defendant’s background and experience, the court imputed to him an earning capacity of at least $75,000 per year.

The court found that the plaintiff has three children from a prior marriage and currently lives in Arizona with her husband and six children. Her only sources of income are the pendente lite child support payments received from the defendant and $157 weekly child support received from her previous husband. The plaintiff is not employed and is a homemaker.

The court then made twelve separate orders, four of which are relevant to the defendant’s appeal. Specifically, the court ordered that (1) the plaintiff shall have sole legal and physical custody of the minor children, (2) the defendant shall pay $350 per week to the plaintiff for current child support, (3) the defendant shall pay, within ninety days, $6125 toward the plaintiffs counsel fees and (4) the defendant shall pay, within ninety days, $5000 toward costs incurred by the plaintiff.

On October 3, 2006, the defendant filed a motion to reargue, claiming, in part, that he has three additional minor children who are not the issue of the plaintiff and who were not accounted for in the court’s ruling. The court granted the defendant’s motion to reargue limited to the issues regarding the actual number of children that the defendant has and the amount of the child support award. On October 23, 2006, before the parties reargued the case, the defendant filed an appeal, with the docket number AC 28165, in which he challenged the court’s September 28, 2006 ruling. On November 6, 2006, after the parties reargued the case, the court modified its weekly child support order to $346, retroactive to the date of its initial support order, to account for the defendant’s three additional children.

The next day, November 7, 2006, the defendant filed a motion for modification of the court’s support order on the basis of a substantial change in circumstances. The defendant claimed that his income was substantially lower than the $75,000 earning capacity the court imputed to him. On November 21,2006, before the court ruled on the defendant’s motion for modification, he filed a second appeal, with docket number AC 28270, which raised the same issues that were raised in AC 28165. On January 18, 2007, the court held a hearing on the defendant’s motion for modification.

On February 21, 2007, the court issued its ruling on the defendant’s motion for modification. The court found that the defendant currently is employed by Associated Carting, doing collections, sales dispatch and solicitation of new accounts. His gross weekly income from his employment is $600, and his net weekly income is $508. In addition to his weekly income, the defendant is entitled to a commission on an annualized basis. His commission is equal to one sixth of the value of all new accounts he solicits that continue to do business with Associated Carting for at least one year, minus $2000.

On the basis of the defendant’s net weekly income of $508, the court ordered the defendant to pay $207 per week as child support. The court also issued a supplemental order requiring the defendant to pay as additional child support 50 percent of the first $20,000 in aggregate commissions that he is entitled to receive and 25 percent of any aggregate commissions in excess of $20,000.

On March 12, 2007, the defendant filed an amended appeal in AC 28165, claiming that the court improperly calculated the weekly support order of $207 and challenging the court’s supplemental support order. Subsequently, AC 28165 and AC 28270 were consolidated under Practice Book § 61-7.

The defendant’s consolidated appeal challenges both factual findings and legal conclusions of the court. Specifically, the defendant claims that the court (1) improperly determined that his earning capacity was $75,000, (2) improperly issued a supplemental order applicable to his future commissions, (3) abused its discretion in awarding sole legal custody of the children to the plaintiff, (4) improperly awarded attorney’s fees to the plaintiff and (5) improperly determined his modified support obligation of $207 per week. We disagree with all the defendant’s claims except the one pertaining to the court’s supplemental order.

At the outset, we set forth the applicable standard of review. “As has been repeatedly stated by this court, judicial review of a trial court’s exercise of its broad discretion in domestic relations cases is limited to the questions of whether the [trial] court correctly applied the law and could reasonably have concluded as it did. . . . Our function in reviewing such discretionary decisions is to determine whether the decision of the trial court was clearly erroneous in view of the evidence and pleadings in the whole record. . . . With respect to the financial awards in a [child support matter], great weight is given to the judgment of the trial court because of its opportunity to observe the parties and the evidence. . . . For that reason, we allow every reasonable presumption ... in favor of the correctness of [the trial court’s] action.” (Citations omitted; internal quotation marks omitted.) Brent v. Lebowitz, 67 Conn. App. 527, 529-30, 787 A.2d 621, cert. granted on other grounds, 260 Conn. 902, 793 A.2d 1087 (2002) (appeal withdrawn April 25, 2002). Mindful of these principles, we turn to the issues at hand.

I

The defendant first claims that the court improperly imputed to him an earning capacity of $75,000. Specifically, the defendant argues that the court’s finding was clearly erroneous in light of the evidence in the record. We disagree.

In its September 28, 2006 support order, the court made the following findings: “The defendant is forty-four years of age. He was bom in Portugal. He lived there until age eight when he came to Bridgeport .... He has lived in Connecticut ever since. He attended public schools and completed the tenth grade. At [age] sixteen, he dropped out of school and went to work full-time. He has no other formal education. He worked various menial jobs until he was employed by the city of Bridgeport as a driver. After thirteen to fourteen years, he left the employ of the city of Bridgeport in 1995 to engage full-time in his own carting business known as D.C. Carting .... He started the business in 1989 and has engaged in it part-time while working full-time for the city of Bridgeport.

“The defendant’s business receipts to D.C. Carting . . . were largely in the form of cash payments. He took numerous and large loans from his solely owned business to pay his personal expenses. During the years 2001 through 2004, the defendant’s net personal income from his carting business fluctuated from $80,000 to $278,000 per year. On December 31, 2005, D.C. Carting went out of business, and the defendant has not engaged in full-time employment since then. . . . Since December 31, 2005, the defendant has not made a significant or good faith effort to find regular employment. . . . He knows people who will hire him when he is ready to work full-time, but he is not ready yet to work full-time.” The court then concluded that the defendant is able to work a minimum of forty hours per week and, on the basis of his background and experience, has an earning capacity of at least $75,000.

“[T]he court may base financial awards on earning capacity rather than actual earned income of the parties. . . . While there is no fixed standard for the determination of an individual’s earning capacity ... it is well settled that earning capacity is not an amount which a person can theoretically earn, nor is it confined to actual income, but rather it is an amount which a person can realistically be expected to earn considering such things as his vocational skills, employability, age and health.” (Internal quotation marks omitted.) Carasso v. Carasso, 80 Conn. App. 299, 305, 834 A.2d 793 (2003) , cert. denied, 267 Conn. 913, 840 A.2d 1174 (2004) . “[T]he court may consider earning capacity from employment when the evidence shows that the reported amount of earnings is unreasonable. Thus, for example, when a person is, by education and experience, capable of realizing substantially greater earnings simply by applying himself or herself, the court has demonstrated a willingness to frame its orders on capacity rather than actual earnings.” Weinstein v. Weinstein, 87 Conn. App. 699, 706, 867 A.2d 111 (2005), rev’d on other grounds, 280 Conn. 764, 911 A.2d 1077, after remand, 104 Conn. App. 482, 934 A.2d 306 (2007), cert. denied, 285 Conn. 911, 943 A.2d 472 (2008).

On appeal, the defendant has failed to demonstrate how the court’s finding that he has an earning capacity of $75,000 per year was clearly erroneous. Although the defendant claims that imputing to him an earning capacity of $75,000 is unrealistic given his limited education and vocational skills, he does not challenge the court’s findings that his net personal income fluctuated from $80,000 to $278,000 per year between the years 2001 and 2004. Furthermore, the court heard expert testimony that estimated the defendant’s income in 2005 to be $79,000. Accordingly, it cannot be said that the court’s imputing an earning capacity of $75,000 to the defendant has no reasonable basis in fact. The court’s finding that the defendant has an earning capacity of $75,000, therefore, was not clearly erroneous.

II

The defendant’s next claim is that the court’s order impermissibly deviated from the child support and arrearage guidelines (guidelines). Specifically, the defendant claims that the court (1) failed to include his commissions as a part of its current support order and (2) issued a supplemental support order that is not generally consistent with the guidelines. We agree with the latter portion of the defendant’s claim.

The following additional facts are relevant to our resolution of these issues. The court found that in addition to his weekly salary from Associated Carting, the defendant is entitled to a commission on an annualized basis. His commission is equal to one sixth of the value of all new accounts he solicits and that continue to do business with Associated Carting for at least one year, minus $2000. Since November 1, 2006, the defendant solicited on average three new accounts per month and believes he can continue to solicit “at least” three new accounts each month. The value of these accounts ranges from $80 to $240.

On the basis of its findings, the court issued a supplemental order requiring the defendant to pay a percentage of his future commissions as child support in addition to his basic weekly support obligation of $207. Under the supplemental order, the defendant is required to pay 50 percent of the first $20,000 in aggregate commissions that he is entitled to receive and 25 percent of any commission in excess of $20,000 that he is entitled to receive. On appeal, the defendant claims that the court was required to include his commissions in the figure used to calculate his basic weekly support obligation rather than make them subject to a supplemental order. He also claims that if a supplemental order was proper, the court’s order was not of a percentage that is generally consistent with the guidelines.

Resolution of this issue requires us to interpret the statutory scheme that governs child support determinations in Connecticut and, therefore, is a question of law. See Unkelbach v. McNary, 244 Conn. 350, 357, 710 A.2d 717 (1998). The standard of appellate review governing questions of law dictates that “[wjhere the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision . . . .” (Internal quotation marks omitted.) Id. “When the question of law involves statutory interpretation, that determination is guided by well settled principles.” Id. In construing statutes, “[o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.” (Internal quotation marks omitted.) Id. Moreover, our rules of statutory construction apply to administrative regulations. Diamond v. Marcinek, 226 Conn. 737, 744 n.8, 629 A.2d 350 (1993).

Our examination of the guidelines leads us to conclude that the court properly subjected the defendant’s commissions to a supplemental order but that the court’s order impermissibly deviated from the guidelines. Accordingly, we reverse in part the judgment of the trial court.

A

The first portion of the defendant’s claim is that the court improperly issued a supplemental order applicable to his future commissions. The defendant claims that the guidelines define gross income as including commissions, and, therefore, his future commissions must be included as part of his basic support obligation and not part of a supplemental order. We disagree.

Although it is true that our regulations define “gross income” as “the average weekly earned and unearned income from all sources before deductions, including but not limited to the items listed in subparagraph (A)”; Regs., Conn. State Agencies § 46b-215a-l (11); and sub-paragraph (A) includes “commissions, bonuses and tips”; id., § 46b-215a-l (11) (A) (iii); the regulations make clear that only income with a reasonably ascertainable value may be included in gross income. See Child Support and Arrearage Guidelines, preamble, § (g), p. ix. The defendant’s future commissions are of an unknown amount and, therefore, may not be included in his gross income.

The guidelines effective August 1, 2005, provide that the court may, in appropriate cases, enter a supplemental support order requiring a parent to pay a percentage of a future lump sum payment of an unknown amount that he expects to receive. See Regs., Conn. State Agencies § 46b-215a-2b. The guidelines explain that “[w]hile the expected amount may be substantial, the indeterminate nature of such payment precludes its inclusion in the gross income of the parent expected to receive it.” Child Support and Arrearage Guidelines, preamble, § (g) (6), p. ix. A supplemental order treats the unknown future lump sum payment separately from the basic current support order and is intended to account only for those instances in which “the parties have knowledge of an anticipated future lump sum payment of an unknown amount, such as a bonus.” Id.

In the present case, it is undisputed that the defendant’s future commissions are of an indeterminate amount. Accordingly, the court was permitted to craft a supplemental support order to account for these future lump sum payments of an unknown amount. The court, therefore, was not required to include the defendant’s commissions in his gross income, and this portion of the defendant’s claim fails.

B

The next portion of the defendant’s claim is that the court’s supplemental support order is not generally consistent with the guidelines and, therefore, is invalid. We agree with the defendant, albeit for differing reasons, and conclude that the court (1) impermissibly based its supplemental order on his gross commissions, rather than his net commissions, and (2) improperly ordered him to pay an excessive percentage of his future commissions as supplemental support.

We note at the outset that the legal issue that confronts us is moré easily stated than resolved. After a court determines that a supplemental order is appropriate because a parent expects to receive a future payment of an indeterminate amount, the court may enter an order that the parent pay a percentage of that future payment as supplemental support upon receipt of the payment. Regs., Conn. State Agencies § 46b-215a-2b (c) (1) (B). The regulations provide that the percentage must be generally consistent with the schedule in subsection (f) of the guidelines. Id. In the present case, the court ordered the defendant to pay 50 percent of the first $20,000 in aggregate commissions that he is entitled to receive and 25 percent of any commission in excess of $20,000 that he is entitled to receive. Our task, therefore, is to determine whether the court’s supplemental order is of a percentage that is generally consistent with the schedule.

The guidelines neither define nor provide express guidance on what the phrase “generally consistent” means. Webster’s Third New International Dictionary defines “generally,” in relevant part, as “in a general manner” and “as a whole.” The word “consistent” means “marked by harmony, regularity, or steady continuity throughout . . . showing no significant change, unevenness, or contradiction.” Id. A supplemental order, therefore, is generally consistent with the schedule when it is of a percentage that, as a whole, is in harmony with the schedule.

The schedule itself is a seven page table listing the basic child support obligation for parents of varying income levels. See Child Support and Arrearage Guidelines, pp. 10-17. The left column contains rows listing the parents’ combined net weekly income, beginning with $50 and increasing in $10 increments to $4000. The other six columns provide the support obligation for parents supporting from one to six children. To determine a parent’s basic child support obligation, the guidelines instruct a user to find the block in the schedule that corresponds to the combined net weekly income of the parents and the number of children whose support is being determined. The element that corresponds to the parents’ combined net weekly income and their number of children provides the presumptive current support obligation. The schedule expresses the support obligation as both a dollar figure and a percentage.

We conclude that the court’s supplemental order is not generally consistent with the schedule for two reasons. First, the court’s order is based on the defendant’s gross commissions, rather than his net commissions. Second, the court’s supplemental order unfairly burdens the defendant with too high a percentage support obligation. We address each of these conclusions in turn.

1

Although the unique variables involved in crafting a supplemental order make defining the contours of “generally consistent” elusively difficult, “[i]t is well settled that a court must base its child support and alimony orders on the available net income of the parties, not gross income. Collette v. Collette, 177 Conn. 465, 469, 418 A.2d 891 (1979).” Hughes v. Hughes, 95 Conn. App. 200, 204, 895 A.2d 274, cert. denied, 280 Conn. 902, 907 A. 2d 90 (2006). To that end, the schedule used to determine a parent’s child support obligation is based on the parents’ combined net weekly income, rather than gross weekly income.

In the present case, the court’s order required the defendant to pay a percentage of his aggregate yearly commissions but did not permit him to subtract from this amount any allowable deductions. The result is that the court’s supplemental order was based on the defendant’s gross commissions. Although an order incorporating a percentage of any commission payment is certainly the scenario contemplated by the commission for child support guidelines in drafting the regulations, the use of the defendant’s gross commissions is not generally consistent with the schedule in subsection (f). Because this issue will likely arise on remand, we take this opportunity to comment on the net value of a future payment of an indeterminate amount.

Net income is defined in the regulations as gross income minus allowable deductions. Regs., Conn. State Agencies § 46b-215a-l (17); see also id., § 46b-215a-l (1) (A) through (J) (listing allowable deductions). Similarly, the net value of a future payment of an indeterminate amount is equal to the payment’s gross value minus allowable deductions. We believe that for a supplemental order to be of a percentage that is generally consistent with the schedule, potential allowable deductions must be accounted for in a meaningful way. A court’s use of gross income to calculate a supplemental order renders the supplemental order invalid.

When crafting a supplemental order, a court should be mindful that a supplemental order is a tool of convenience that is intended to account for future payments of an unknown amount before the payments are received. Absent a supplemental order, each time a future payment of an unknown amount was received by a parent, the parties would have to return to court to modify the current support order to reflect the parent’s receipt of additional income. A supplemental order saves the parties from having to return to court by accounting for a future payment of an unknown amount before the payment’s receipt.

It is difficult, however, for a court to determine the exact value of allowable deductions before knowing the exact value of a future lump sum payment. The very nature of many allowable deductions renders their value unknown until the value of the future payment becomes known. A supplemental order, however, need not account exactly for all of a parent’s allowable deductions—the regulations mandate only that the order be of a percentage that is generally consistent with the schedule. A court may fulfill this mandate by approximating what deductions will be allowable from a future lump sum payment and then tailoring its order accordingly. Although we decline to dictate how a court should account for allowable deductions, we believe that, in some instances, it may be appropriate to issue a supplemental order that preserves the ratio of net income to gross income found in the current support order.

In the present case, the court’s supplemental order fails to account for any allowable deductions that the defendant may take from his future gross commissions. The court’s failure to account for allowable deductions burdens the defendant with a support obligation that is not generally consistent with the schedule. Accordingly, the court’s supplemental order is invalid.

2

A valid supplemental order must account for a parent’s declining percentage support obligation that accompanies an increase in income. The court’s two tiered supplemental order is not of a percentage that is generally consistent with the schedule because it burdens the defendant with an excessive percentage support obligation at all income levels.

The guidelines are based on the premise that a parent with a high net income pays a lower percentage of his income for child support as compared to an obligor with a lower net income. The preamble explains that “[i]n general, the economic studies have found that spending on children declines as a proportion of family income as that income increases . . . .” Child Support and Arrearage Guidelines, preamble, § (d), p. iii. Toward this end, the schedule imposes a declining percentage support obligation on a parent as his income increases. The percentage support obligations listed in the schedule range from between 41.67 percent for parents with a combined net weekly income of $330 to 17.16 percent for parents with a combined net weekly income of $4000. The guidelines also contain provisions for those instances in which an obligor’s income exceeds the range of the schedule. See Child Support and Arrearage Guidelines, preamble, § (e) (6), p. vi (“the amount of support prescribed at the $4,000 level is presumed to be the minimum that should be ordered in such cases”). In light of the mandate contained in the regulations that a supplemental order must be of a percentage that is generally consistent with the schedule; Regs., Conn. State Agencies § 46b-215a-2b (c) (1) (B); we believe that a supplemental order must account for the schedule’s inverse relationship between a parent’s net income and his weekly support obligation, while also accounting for those instances in which a future payment of unknown amount exceeds the range of the schedule.

In the present case, the court’s supplemental order required the defendant to pay 50 percent of the first $20,000 in aggregate commissions that he is entitled to receive and 25 percent of any commission in excess of $20,000 that he is entitled to receive. Although the court’s two tiered methodology attempted to account for the schedule’s inverse relationship between net income and an obligor’s weekly support obligation, we cannot say that the supplemental order is generally consistent with the schedule. No matter how large or small the defendant’s commission, he is obligated to pay as supplemental support 50 percent of the first $20,000 and 25 percent of any amount over $20,000. We conclude that the court’s order excessively burdened the defendant by obligating him to pay too high a percentage of his future commissions as supplemental support. No matter what the actual value of the defendant’s future commission, he will always be obligated to pay as support a higher percentage than what the schedule mandates. This is an impermissible deviation from the income allocation that the legislature has decided is appropriate. See Unkelbach v. McNary, supra, 244 Conn. 357-58 (inteipretation of guidelines must seek to preserve allocation of resources that legislature decided appropriate). Furthermore, the supplemental order did not account for those instances in which the defendant’s commissions exceed the range of the schedule. Accordingly, we conclude that the court’s supplemental order is invalid.

On remand, the court should craft a supplemental order that requires the defendant to pay a declining percentage of supplemental support as the future lump sum payment increases while also accounting for those instances in which the future lump sum payment exceeds the range of the schedule. The percentages in the court’s order should be within the range utilized by the schedule.

3

The final component of the defendant’s claim requires us to determine whether on remand the court must reconsider all of its financial orders. Financial orders concerning child support obligations are often described as “entirely interwoven” and as “a carefully crafted mosaic, each element of which may be dependent on the other.” (Internal quotation marks omitted.) Smith v. Smith, 249 Conn. 265, 277, 752 A.2d 1023 (1999) (citing cases). “Consequently, when an appellate court reverses a trial court judgment based on an improper alimony, property distribution, or child support award, the appellate court’s remand typically authorizes the trial court to reconsider all of the financial orders. . . . Every improper order, however, does not necessarily merit a reconsideration of all of the trial court’s financial orders. A financial order is severable when it is not in any way interdependent with other orders and is not improperly based on a factor that is linked to other factors.” (Citations omitted.) Id.

In the present case, the court determined its supplemental order apart from its other financial orders. As a result, reversing the judgment only insofar as it relates to that order does not undermine the other financial orders because its impropriety does not place the correctness of the other orders in question. See id., 279. We conclude, therefore, that the court’s supplemental order is severable from all the other financial orders made by the court.

Ill

The defendant’s third claim is that the court abused its discretion in awarding the plaintiff sole legal custody of the parties’ three minor children. Specifically, he claims that the evidence in the record does not support the court’s ruling. Because we find the record inadequate, we decline to review this claim.

In its memorandum of decision, the court ordered that the plaintiff shall have sole legal and physical custody of the minor children and that the defendant shall have reasonable rights of visitation. Although the court made numerous findings of fact regarding both the plaintiff and the defendant, the court did not state the factual basis for its custody award. General Statutes § 46b-56 (b) provides that the court in making or modifying custody orders shall consider the rights and responsibilities of both parents and shall enter orders that serve the best interests of the children. “The controlling principle in a determination respecting custody is that the court shall be guided by the best interests of the child.” (Internal quotation marks omitted.) Ford v. Ford, 68 Conn. App. 173, 187, 789 A.2d 1104, cert. denied, 260 Conn. 910, 796 A.2d 556 (2002). The record before us is silent as to the best interests of the children.

“It is the appellant’s burden to supply us with a record adequate to provide a proper review, and, [w]here the factual basis of the court’s decision is unclear, proper utilization of the motion for articulation serves to dispel any such ambiguity by clarifying the factual and legal basis upon which the trial court rendered its decision, thereby sharpening the issues on appeal.” (Internal quotation marks omitted.) Ashton v. Ashton, 31 Conn. App. 736, 741, 627 A.2d 943, cert. denied, 228 Conn. 901, 634 A.2d 295 (1993). “Our role is not to guess at possibilities, but to review claims based on a complete factual record developed by a trial court. . . . Without the necessary factual and legal conclusions furnished by the trial court, either on its own or in response to a proper motion for articulation, any decision made by us respecting this claim would be entirely speculative.” (Internal quotation marks omitted.) Westfall v. Westfall, 46 Conn. App. 182, 184, 698 A.2d 927 (1997).

It was the defendant’s burden, as the appellant, to file a motion for articulation that would clarify the trial court’s basis for and reasoning behind its awarding sole legal and physical custody to the plaintiff. See Practice Book § 66-5; Gelormino v. Liberman, 36 Conn. App. 153, 154 n.1, 649 A.2d 259, cert. denied, 231 Conn. 946, 653 A.2d 826 (1994). Without such an articulation, it is unclear how the court determined that awarding sole custody to the plaintiff was in the children’s best interests. There is no adequate record permitting review of this claim, and the defendant failed to file a motion for articulation. Therefore, we decline to review the defendant’s claim.

IV

The defendant’s fourth claim is that the court improperly awarded $6125 in counsel fees and $5000 in costs to the plaintiff. We disagree.

General Statutes § 46b-62 vests in the trial court the discretion to award attorney’s fees in custody proceedings. Our Supreme Court has included within the definition of attorney’s fees allowable under § 46b-62 certain costs of litigation, including expert witness fees. See Eslami v. Eslami, 218 Conn. 801, 819-21, 591 A.2d 411 (1991); Medvey v. Medvey, 98 Conn. App. 278, 287, 908 A.2d 1119 (2006). The criteria to be considered in determining whether an award of attorney’s fees is appropriate include “the age, health, station, occupation, amount and sources of income, vocational skills, employability [and] estate and needs of each of the parties . . . .” General Statutes § 46b-82. We review the court’s awarding of attorney’s fees under the abuse of discretion standard. See Medvey v. Medvey, supra, 287-88. The ultimate issue in our review, therefore, is whether the court reasonably could have concluded as it did. Id., 288.

In the present case, the court reasonably could have concluded as it did. The record supports the court’s finding that the plaintiff had no income other than the child support she received from the defendant and her previous husband, and that the defendant was five weeks in arrears and owed the plaintiff $1750 in past due child support. There also is ample evidence in the record demonstrating the defendant’s financial status and earning capacity. On the basis of those considerations, it was reasonable for the court to have determined that counsel fees of $6125 and expert witness fees of $5000 should be allowed. Furthermore, the court did not abuse its discretion in ordering that the defendant pay the award within ninety days. The court found that the defendant had liquid assets that he did not disclose on his financial affidavit and, on that basis, reasonably could have concluded as it did. Accordingly, we cannot conclude that the court abused its discretion when awarding the plaintiff attorney’s fees.

V

The defendant’s fifth claim is that the court improperly failed to follow the guidelines in ruling on his motion for modification. Specifically, the defendant claims that the order requiring him to pay $207 per week in child support is an impermissible deviation from the guidelines. We will not review this claim because the defendant failed to submit a child support guidelines worksheet as required by Practice Book § 25-30 (e).

In a motion for modification proceeding, the parties have an affirmative obligation to submit to the court certain sworn statements concerning income, expenses, assets and liabilities, as well as a child support guidelines worksheet. See Practice Book § 25-30. “In Favrow v. Vargas, 231 Conn. 1, 29, 647 A.2d 731 (1994), our Supreme Court stressed adherence by the trial court to observe the procedures set out in the child support guidelines to facilitate appellate review. Recently, in Bee v. Bee, 79 Conn. App. 783, 787-88, 831 A.2d 833, cert. denied, 266 Conn. 932, 837 A.2d 805 (2003), we concluded that a party who fails to submit a child support guidelines worksheet is precluded from complaining of the alleged failure of the trial court to comply with the guidelines and that we will not review such a claim.” Kunajukr v. Kunajukr, 83 Conn. App. 478, 485, 850 A.2d 227, cert. denied, 271 Conn. 903, 859 A.2d 562 (2004).

Although the record before us contains financial affidavits that each party filed with the court on January 18, 2007, our review of the record fails to reveal the defendant’s child support guidelines worksheet. The defendant has failed to provide any meaningful distinction between this case and Bee. Accordingly, we decline to review his claim.

The judgment is reversed only as to the supplemental child support order and the case is remanded for further proceedings consistent with this opinion. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       At the time the complaint was filed, the three minor children were residents of Connecticut.

       The facts of this case reveal that the defendant failed to comply with many of the plaintiffs discovery requests. In addition, on four separate occasions, the court ordered the defendant to provide the plaintiff with certain financial documents that were requested by her accountant and needed to value his business. The defendant failed to comply fully with the court’s orders. The record also reveals that the plaintiff filed fourteen motions for contempt against, the defendant.

       The court, also found that the defendant had income and assets that he failed to disclose on his financial affidavit. In particular, the court found that the defendant receives additional cash income from garbage pickups that he makes but cannot provide accurate, reliable or credible figures as to how much cash he receives in this manner.

       General Statutes § 46b-86 (a) permits the court to modify child support orders in two alternative circumstances. Pursuant to this statute, a court may not modify a child support order unless there is first either “(1) a showing of a substantial change in the circumstances of either party or (2) a showing that the final order for child support substantially deviates from the child support guidelines . . . .” Santoro v. Santoro, 70 Conn. App. 212, 218, 797 A.2d 592 (2002). “Both the substantial change of circumstances and the substantial deviation from child support guidelines provision establish the authority of the trial court to modify existing child support orders to respond to changed economic conditions. The first allows the court to modify a support order when the financial circumstances of the individual parties have changed, regardless of their prior contemplation of such changes. The second allows the court to modify child support orders that were once deemed appropriate but no longer seem equitable in the light of changed social or economic circumstances in the society as a whole . . . .” (Internal quotation marks omitted.) Syragakis v. Syragakis, 79 Conn. App. 170, 174, 829 A.2d 885 (2003).

       The plaintiff questions whether the defendant’s claim is ripe for review. If an issue is not yet ripe for adjudication, this court lacks subject matter jurisdiction to afford it consideration. See Esposito v. Specyalski, 268 Conn. 336, 347, 844 A.2d 211 (2004). Contrary to the plaintiffs assertions, however, the defendant’s claim is justiciable because it is capable of resolution on the merits by judicial action. See Cumberland Farms, Inc. v. Groton, 46 Conn. App. 514, 517, 699 A.2d 310 (1997), rev’d on other grounds, 247 Conn. 196, 719 A.2d 465 (1998).

       The defendant also claims that the court failed to state on the record why its order deviates from the guidelines. See Regs., Conn. State Agencies § 46b-215a-3. Because we find that the court properly issued a supplemental order, the court did not deviate from the guidelines. Accordingly, no specific finding on the record was required, and the defendant's claim fails.

       Section 46b-215a-l (11) (A) of the Regulations of Connecticut State Agencies provides: “The gross income inclusions are: (i) salary; (ii) hourly wages for regular, overtime and additional employment not to exceed 45 total paid hours per week; (iii) commissions, bonuses and tips; (iv) profit sharing, deferred compensation and severance pay; (v) tribal stipends and incentives; (vi) employment perquisites and in-kind compensation (any basic maintenance or special need such as food, shelter or transportation provided on a recurrent basis in lieu of or in addition to salary or wages); (vii) military personnel fringe benefit payments; (viii) benefits received in place of earned income including, but not limited to, workers’ compensation benefits, unemployment insurance benefits, strike pay and disability insurance benefits; (ix) veterans’ benefits; (x) social security benefits (excluding Supplemental Security Income [SSI] for a parent or a child), including dependency benefits on the earnings record of an insured parent that are paid on behalf of a child whose support is being determined; (xi) net proceeds from contractual agreements; (xii) pension and retirement income; (xiii) rental income after deduction of reasonable and necessary expenses; (xiv) estate or trust income; (xv) royalties; (xvi) interest, dividends and annuities; (xvii) self-employment earnings, after deduction of all reasonable and necessary business expenses; (xviii) alimony being paid by an individual who is not a party to the support determination; (xix) adoption subsidy benefits received by the custodial parent for the child whose support is being determined; (xx) lottery and gambling winnings, prizes and regularly recurring gifts (except as provided in subparagraph [B] [v] of this subdivision); and (xxi) education grants (including fellowships or subsidies, to the extent taxable as income under the Internal Revenue Code).”

       The guidelines are preceded by a preamble that “is intended to assist users of the child support and arrearage guidelines but is not part of the official regulations.” Child Support and Arrearage Guidelines, preamble, § (a), p. i.

       Pursuant to General Statutes § 46b-215a, the commission for child support guidelines is charged with updating the guidelines every four years. The 1999 guidelines did not specifically allow for supplemental orders. In the 2005 update, the commission specifically allowed supplemental orders. The preamble to the guidelines states that the approach adopted by the commission “maintains the integrity of the current support calculation method, since it does not attempt to include indeterminate or speculative amounts in a parent’s gross income. It also saves the parties from returning to court to modify the support order to account for receipt of the payment.” Child Support and Arrearage Guidelines, preamble, § (g) (6), p. ix.

       Section 46b-215a-2b (c) of the Regulations of Connecticut State Agencies provides in relevant part: “The primary requirement of a specific dollar amount of current support shall not preclude the entry of a supplemental order, in appropriate cases; to pay a percentage of a future lump sum payment, such as a bonus. Such supplemental orders may be entered only when: (i) such payment is of an indeterminate amount; and (ii) the percentage is generally consistent with the schedule in subsection (f) of this section. . .

       We note that the court did not make an express finding that the future commissions were of an indeterminate amount. In their respective briefs and at oral argument, the parties did not address whether such a finding is a prerequisite to the issuance of a supplemental support order. Cf. Weinstein v. Weinstein, 104 Conn. App. 482, 494, 934 A.2d 306 (2007) (preliminary finding of substantial change in circumstances is prerequisite to making support modification on basis of substantial change of circumstances), cert. denied, 285 Conn. 911, 943 A.2d 472 (2008). We decline to address the issue sua sponte.

       In the present case, the court found that the parties’ combined net weekly income is $508 and their support obligation is for three children. Their basic current support obligation, therefore, is $207 per week or 40.68 percent. The defendant is responsible to pay this entire amount because the plaintiff has no net weekly income. See Regs., Conn. State Agencies § 46b-215a-2b (c) (4).

       For example, federal, state and local income taxes are allowable deductions whose value will not be known until the future payment is actually received. In some instances, however, the allowable deductions may remain fixed regardless of the value of the future lump sum payment. See Regs., Conn. State Agencies § 46b-215a-l (1) (D) (medical, hospital, dental or health insurance premium payments); § 46b-215a-l (1) (E) (court-ordered life insurance); § 46b-215a-l (1) (F) (court-ordered disability insurance); and § 46b-215a-l (1) (H) (costs of mandatory uniforms and tools).

       If, after the value of a future payment becomes known, the court’s approximations prove to be inaccurate, either parent may seek modification of the court’s support orders. See General Statutes § 46b-86.

       “The guidelines are predicated upon the concept that children should receive the same proportion of parental income that they would have received had the family remained intact. Child Support and Arrearage Guidelines, preamble, § (c), pp. ii—iii. Toward that end, the guidelines are income driven, rather than expense driven. At each income level, the guidelines allocate a certain percentage of parental income to child support. The percentage allocations contained in the guidelines aim to reflect the average proportions of income spent on children in households of various income and family sizes, and contain a built-in self-support reserve for the obligor. Id., § (c) and (d), pp. ii—iii. The result is that the guidelines incorporate an allocation of resources between parents and children that the legislature has decided is the appropriate allocation. Consequently, our interpretation of the guidelines must seek to preserve this allocation.” Unkelbach v. McNary, supra, 244 Conn. 357-58.

       The decline in spending, however, is not linear—as family income increases, the percentage allocated for support decreases at a varying rate. The result is that the basic support, obligation is not a linear function of income.

       These figures are based on the support obligation for three children, as in the present case.

       We note that the defendant did not seek in any pleading a request for custody and, up until the first day of trial, denied that he was the father of the children bom of this relationship. Before the trial commenced, the plaintiffs attorney stated on the record and without objection from the defendant that he thought custody was not an issue in this case. It was only in final argument that the defendant’s attorney for the first time made a claim for joint custody.

       General Statutes § 46b-62 provides in relevant part: “In any proceeding seeking relief under the provisions of [chapter 815j], the court may order . . . either parent to pay the reasonable attorney’s fees of the other in accordance with their respective financial abilities and the criteria set forth in section 46b-82. . . .”

       Practice Book § 25-30 (e) provides in relevant part that “the parties shall file a completed child support and arrearage guidelines worksheet at the time of any court hearing concerning child support . . . .” The child support guidelines worksheet is set forth in § 46b-215a-2b of the Regulations of Connecticut State Agencies.

       In the appendix to his brief, the defendant included a copy of a worksheet that he claims is part, of the record. This copy does not contain a date stamp indicating the date of its filing with the trial court clerk. Furthermore, the record and case file do not contain a copy of the worksheet that the defendant included in his appendix. Accordingly, this worksheet is not part of the record before us. See Practice Book§61-10; Blakeman v. Planning & Zoning Commission, 82 Conn. App. 632, 641 n.8, 846 A.2d 950 (“[i]n deciding a case, this court cannot resort to matters extraneous to the formal record, to facts which have not been found and which are not admitted in the pleadings, or to documents or exhibits which are not part of the record” [internal quotation marks omitted]), cert. denied, 270 Conn. 905, 853 A.2d 521 (2004).


author: BERDON, J.

text:
    STATE OF CONNECTICUT v. WILLIAM A. CYRTA
    (AC 28114)
    DiPentima, Harper and Berdon, Js.
    Argued March 18
    officially released May 13, 2008

      Christopher Y. Duby, for the appellant (defendant).

      Eileen F. McCarthy, senior assistant state’s attorney, with whom, on the brief, were David I. Cohen, state’s attorney, and Michael A. DeJoseph, assistant state’s attorney, for the appellee (state).
   Opinion

BERDON, J.

The defendant, William A. Cyrta, appeals from the judgment of conviction, rendered after a jury trial, of assault of a peace officer in violation of General Statutes § 53a-167c (a) (1). On appeal, the defendant claims that the evidence adduced at trial was insufficient to establish that his actions caused the injury sustained by one of the police officers involved with his arrest. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. At approximately 6:45 a.m. on November 9, 2004, four uniformed state police troopers, David Febbraio, Jose Orama, John Jacobi and Wayne Rogalski, were having breakfast at the Diamond Deli, a restaurant located in Norwalk. Shortly before 7 a.m., the defendant, who recently had lost his job, entered the deli, purchased a cup of coffee and began to shout and scream about the United States’ immigration policies. The defendant shouted at the troopers and demanded that they return illegal immigrants to their country of origin. Orama, who remained seated at his table, informed the defendant that his behavior was inappropriate and asked the defendant to leave the deli. The defendant complied with this request. Approximately five minutes later, the defendant drove his car back into the deli’s parking lot and parked it in front of the deli’s front door, thereby obstructing the flow of traffic in the crowded lot. The defendant exited his car and reentered the deli, where he began to scream and yell about the presence of immigrants. The defendant walked to the troopers’ table, slapped his fist on the table and shouted profanity.

The troopers, who were concerned that the defendant’s conduct could turn violent, concluded that some course of action was necessary. Orama and Febbraio subsequently stood up at their table and Orama attempted to calm the defendant down by asking him what was wrong and informing him that the deli was not the appropriate forum for such behavior. The defendant again left the building but continued to shout profanity as he walked outside. The troopers left their table and followed the defendant out of the deli. With Febbraio standing nearby, Orama approached the defendant and asked him if he had a problem. The defendant responded by taunting Orama. The defendant then informed the troopers that he was going to leave the parking lot. Orama asked the defendant to remain where he was. The defendant ignored Orama and opened the driver’s side door of his vehicle. Orama, who was holding a cup of hot coffee, reached for the car door, and the defendant put his hand on Orama’s chest and pushed him away. Orama informed the defendant that he was under arrest for breach of the peace.

After the defendant began to struggle with the troopers, Febbraio attempted to subdue him by putting him in an “arm bar” position, which consisted of grabbing the defendant’s right arm, raising it behind the defendant’s back and pushing the defendant up against the defendant’s car. The defendant, who was much larger than Febbraio, continued to struggle. At this point, Jacobi shouted that he was prepared to dispense pepper spray. After another warning, Jacobi released pepper spray. The majority of the pepper spray landed in Febbraio’s face, and the defendant turned around and put Febbraio in a “bear hug” by wrapping his arms underneath Febbraio’s arms and across his chest. The defendant pulled Febbraio upward and Febbraio screamed out in pain as his left upper arm bone dislocated from his shoulder socket.

After Febbraio’s shoulder was dislocated, the defendant lowered his grasp to Febbraio’s waist. The two men continued to struggle and fell to the ground, where the defendant fell on top of Febbraio. In an attempt to get the defendant off him, Febbraio used his right fist to punch the defendant. The other troopers were then able to pull the defendant off Febbraio. The defendant was arrested, and Febbraio was taken to Norwalk Hospital via ambulance, where X rays revealed a severe dislocation of his left shoulder and a spiral fracture on the outer top portion of his right hand. The dislocated shoulder was reset in the emergency room, and a hand surgeon repaired the fractured hand.

The jury found the defendant guilty of assaulting Febbraio, a peace officer, and the court sentenced the defendant to ten years incarceration, execution suspended after six years, and five years probation. This appeal followed.

The defendant claims on appeal that there was insufficient evidence to support his conviction of assault of a peace officer. Specifically, the defendant argues that the evidence was insufficient to prove beyond a reasonable doubt that Febbraio was injured by any of the defendant’s actions. We disagree.

As a preliminary matter, we note that the defendant’s claim of evidentiary insufficiency is reviewable even if it may not have been properly preserved at trial. “Unpreserved sufficiency claims are reviewable on appeal because such claims implicate a defendant’s federal constitutional right not to be convicted of a crime upon insufficient proof. . . . Our Supreme Court has stated that Jackson v. Virginia, [443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)], compels the conclusion that any defendant found guilty on the basis of insufficient evidence has been deprived of a constitutional right, and would therefore necessarily meet the four prongs of [State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989)]. . . . Thus . . . there is no practical reason for engaging in a Golding analysis of a claim based on the sufficiency of the evidence . . . .” (Internal quotation marks omitted.) State v. Sam, 98 Conn. App. 13, 32 n.17, 907 A.2d 99, cert. denied, 280 Conn. 944, 912 A.2d 478 (2006). We will review the defendant’s challenge to the sufficiency of the evidence as we do any properly preserved claim.

“The standard of review we apply to a claim of insufficient evidence is well established. . . . [W]e apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [jury] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Ramirez, 107 Conn. App. 51, 62, 943 A.2d 1138 (2008). “In conducting our review, we are mindful that the finding of facts, the gauging of witness credibility and the choosing among competing inferences are functions within the exclusive province of the jury, and, therefore, we must afford those determinations great deference.” (Internal quotation marks omitted.) State v. Leggett, 94 Conn. App. 392, 398, 892 A.2d 1000, cert. denied, 278 Conn. 911, 899 A.2d 39 (2006).

Pursuant to § 53a-167c (a), to prove assault of apeace officer, the state must establish beyond a reasonable doubt that the defendant “with intent to prevent a reasonably identifiable peace officer . . . from performing his or her duties, and while such peace officer ... is acting in the performance of his or her duties . . . causes physical injury to such peace officer . . . .” General Statutes § 53a-167c (a); see also State v. Casanova, 255 Conn. 581, 592, 767 A.2d 1189 (2001).

At trial, Febbraio testified that he felt his left arm dislocate from his shoulder immediately after the defendant put him in a bear hug. Febbraio testified that when he felt the dislocation, he experienced pain. Febbraio further testified that he could not use his left arm until after he received treatment at Norwalk Hospital. The jury also heard from Orama, Jacobi and Rogalski, who corroborated Febbraio’s testimony regarding the struggle with the defendant.

Construing the evidence in a light most favorable to sustaining the verdict, we conclude that the jury reasonably could have found that the defendant was guilty beyond a reasonable doubt of assaulting a peace officer. The jury had ample evidence before it from which it could conclude that the defendant’s actions were a proximate cause of Febbraio’s injuries. To the extent that the defendant asks us to conclude that the administration of pepper spray was an efficient, intervening cause that produced Febbraio’s injuries and that his own volitional conduct, therefore, was not a proximate cause of these injuries, our Supreme Court has cautioned that “[i]n reviewing a sufficiency of the evidence claim . . . we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the jury’s verdict of guilty.” (Internal quotation marks omitted.) State v. Silva, 285 Conn. 447, 459, 939 A.2d 581 (2008).

The judgment is affirmed.

In this opinion the other judges concurred.