author: Spallone, J. Borden, J.,

text:
    Blue Sky Bar, Inc., et al. v. Town of Stratford et al.
    (2883)
    Borden, Spallone and Daly, Js.
    Argued March 15
    decision released June 18, 1985

      Lawrence J. Merly, with whom were Nicholas E. Wocl and, on the brief, Rita A. Steinberger, for the appellants (plaintiffs).

      Carl E. Watt, assistant town attorney, for the appellees (defendants).
   Spallone, J.

This is an appeal from the trial court’s refusal to declare invalid and enjoin the enforcement of an ordinance enacted by the defendant town which prohibits vending from any type of motor vehicle upon streets or public property within its limits.

The plaintiff Blue Sky Bar, Inc. (Blue Sky Bar), engages in the business of selling ice cream and related products in southwestern Connecticut from specially designed mobile vending trucks during a vending season which runs approximately from March 18 to Octo- • ber 18 of each year. Most of the sales take place in residential neighborhoods with the balance taking place at recreation areas, playgrounds and beaches. The ice cream which Blue Sky Bar sells is purchased from suppliers in seven states. Blue Sky Bar’s trucks are leased for the vending season to individual vendor-drivers who purchase their supply of ice cream exclusively from Blue Sky Bar. Blue Sky Bar sells no ice cream products at retail.

The plaintiffs Michael A. McDougall and Brian Tomasko individually applied for and were issued permits by the defendant to vend ice cream from a motorized vehicle during the 1983 vending season. They each paid the town a permit fee of $100. McDougall and Tomasko also obtained, upon payment of a $50 fee, health permits to vend food in Stratford.

On May 23, 1983, the town passed the ordinance in question, effective upon passage, which provides in pertinent part: “It shall be unlawful for any person to vend or peddle upon the public streets, public property, and town property of the town of Stratford from any type of motor vehicle any commodity whatsoever.” Shortly thereafter, the plaintiffs brought this action to enjoin the defendants from enforcing the ordinance, and to obtain a declaratory judgment as to its validity. Upon application by the plaintiffs, the trial court issued a temporary order restraining the enforcement of the ordinance pending a full hearing on the merits. The case was heard on November 17, 1983, and, on December 16, 1983, the court rendered judgment for the defendants. In their appeal from that judgment, the plaintiffs claim that the trial court erred in concluding (1) that the defendant had the statutory authority to pass the ordinance, (2) that the ordinance was a reasonable exercise of the defendants’ police powers, and (3) that the ordinance was constitutionally permissible.

I

The resolution of the question of whether the defendants had the power to prohibit vending from motorized vehicles or, for that matter, to prohibit vending at all hinges upon the relationship between General Statutes §§ 21-37 and 7-148 (c) (7) (H) (iv). Section 21-37, which was enacted in 1909 and has remained in large part unchanged, provides, in part, that “[a]ny town may make reasonable ordinances with reference to the vending or hawking upon its public streets ... of any goods, wares or other merchandise at public or private sale or auction, or to the vending or peddling of such articles from house to house within its limits . . . .” Section 7-148 (c) (7) (H) (iv), which is part of the Home Rule Act and was adopted in 1982, states that any municipality has the power to “[pjrohibit, restrain, license and regulate the business of peddlers, auctioneers and junk dealers in a manner not inconsistent with the general statutes.”

The plaintiffs argue that the ordinance is invalid because it is inconsistent with § 21-37, which permits only the enactment of “reasonable ordinances” with reference to, rather than the prohibition of, vending. They further argue that § 21-37 is the more specific of the two statutes, and therefore is controlling.

When two statutes appear to conflict but can be construed together, both are given effect. Hirschfeld v. Commission on Claims, 172 Conn. 603, 607, 376 A.2d 71 (1977). In considering a potential conflict, it is presumed that the legislature intended to enact a consistent body of law. Warner v. Leslie-Elliott Constructors, Inc., 194 Conn. 129, 134, 479 A.2d 231 (1984). When conflicting statutes cannot reasonably be reconciled, it is a well settled principle of construction that the later statute repeals by implication the earlier one to the extent of the repugnance. Southern Connecticut Gas Co. v. Housing Authority, 191 Conn. 514, 521, 468 A.2d 574 (1983). A later enactment will be given that effect without regard to the characterization of either act as general or specific. Id. Since repeal by implication is generally disfavored, however, that route is incumbent upon us only when the two relevant statutes cannot stand together. Id.

In this case, we find that the two statutes are not irreconcilable. The trial court viewed, and so do we, § 7-148 (c) (7) (H) (iv) as an elaboration of the types of action a municipality may choose when enacting a reasonable ordinance in the exercise of its police powers under § 21-37. This construction gives both statutes efficacy. The mere overlap of the two statutes does not constitute the implied repeal of the earlier. State v. Carbone, 172 Conn. 242, 256, 374 A.2d 215, cert. denied, 431 U.S. 967, 97 S. Ct. 2965, 53 L. Ed. 2d 1063 (1977). We conclude that the trial court did not err in finding that the defendant possessed the statutory authority to prohibit vending from motorized vehicles.

II

The plaintiffs next argue that the trial court erred in finding that the ordinance was a reasonable exercise of its police powers. An ordinance is a municipal legislative enactment. Aaron v. Conservation Commission, 183 Conn. 532, 537, 441 A.2d 30 (1981). “It designates a local law of a municipal corporation, duly enacted by the proper authorities, prescribing general, uniform, and permanent rules of conduct relating to the corporate affairs of the municipality. 5 McQuillan, Municipal Corporations (3d Ed.) § 15.01.” Morris v. Newington, 36 Conn. Sup. 74, 80, 411 A.2d 939 (1979). For purposes of judicial review, an ordinance is subject to the same canons of construction as are applied to state statutes. Aaron v. Conservation Commission, supra; Manchester v. Manchester Police Union, 3 Conn. App. 1, 6, 484 A.2d 455 (1984).

Whether conditions require the degree of regulation imposed by an ordinance is a matter for the judgment of the legislative body of the municipality. Connecticut Theatrical Corporation v. New Britain, 147 Conn. 546, 553, 163 A.2d 548 (1960). “Where municipal authorities act in accordance with formal requirements, courts will interfere only ‘where fraud, corruption, improper motives or influences, plain disregard of duty, gross abuse of power, or violation of law, enter into or characterize . . . [the action taken].’ Whitney v. New Haven, 58 Conn. 450, 457, 20 A. 666 [1890]; LaTorre v. Hartford, 167 Conn. 1, 9, 355 A.2d 101 [1974]; 13 McQuillan, Municipal Corporations (3d Ed.) §§ 37.03, 37.26.” Pizzuto v. Newington, 174 Conn. 282, 286, 386 A.2d 238 (1978). The need, expediency and wisdom of a legislative enactment lies beyond the judicial realm; Karp v. Zoning Board, 156 Conn. 287, 297, 240 A.2d 845 (1968); and the propriety of an enactment is immaterial for purposes of our review. State v. Darazzo, 97 Conn. 728, 732, 118 A. 81 (1922).

The parties stipulated that the ordinance was enacted out of concern for public safety, and the record reveals that this concern focused upon the town’s children. Although the parties also stipulated that no incidents resulting in personal injuries involving Blue Sky Bar trucks had occurred during the 1983 vending season, there is no indication that any evidence was presented to the trial court to contradict the soundness of the defendant’s concern for public safety in the future.

Courts indulge every legal presumption and every reasonable inference of fact in favor of the validity of police power legislation. 6 McQuillan, Municipal Corporations (3d Ed.) § 24.31. The existence of facts justifying the enactment are assumed. Id. This strong presumption of legislative validity is overcome only when it plainly appears that the terms of the legislation are not reasonable or that they are not rationally adapted to the promotion of public health, safety, convenience or welfare. Young v. West Hartford, 111 Conn. 27, 31-32, 149 A. 205 (1930). The party challenging the enactment bears the burden of overcoming this presumption. Franklin Furniture Co. v. Bridgeport, 142 Conn. 510, 514, 115 A.2d 435 (1955). We find that the plaintiffs failed to meet this burden.

Ill

The plaintiffs further argue that the ordinance is in violation of the due process, equal protection and commerce clauses of the constitution of the United States. In their due process and equal protection claims, they contend that the ordinance infringes on their fundamental right to engage in a lawful business and impermissibly distinguishes between those who vend from motorized vehicles and those who vend from non-motorized vehicles and from fixed locations.

Legislative regulation in the economic sphere is accorded considerable deference by the courts; Caldor’s, Inc. v. Bedding Barn, Inc., 177 Conn. 304, 306, 417 A.2d 343 (1979); and is subject to the mildest review under the fourteenth amendment. Schieffelin & Co. v. Department of Liquor Control, 194 Conn. 165, 186, 479 A.2d 1191 (1984). If the enactment has a legitimate purpose and is designed to accomplish that purpose in a fair and reasonable way, it satisfies the constitutional requirements of due process and equal protection. Caldor’s, Inc. v. Bedding Barn, Inc., supra, 315. We presume the constitutionality of the statutory discriminations in economic legislation and require only that the classification be rationally related to a legitimate state interest. New Orleans v. Dukes, 427 U.S. 297, 303, 96 S. Ct. 2513, 49 L. Ed. 2d 511 (1976); Jackson Firefighters Assn. v. City of Jackson, 736 F.2d 209, 213 (5th Cir. 1984).

We have already found that the purpose of the ordinance is valid and that the means the defendant chose to accomplish that purpose are reasonable. Under the relaxed constitutional standard of review applied to economic regulation, we also find that the challenged classification is rationally related to the attainment of that goal.

The plaintiffs additionally argue that the legislative prohibition on sales from motorized vehicles constitutes an impermissible burden on interstate commerce. In support of this position, they point out that certain of the products they sell are purchased from out-of-state suppliers and are thus in the stream of interstate commerce.

State regulations which affect interstate commerce are presumptively valid where they are exercises of traditional police powers. L & L Started Pullets, Inc. v. Gourdine, 592 F. Sup. 367, 374 (S.D.N.Y. 1984). “A state statute must be upheld if it ‘regulates evenhandedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental . . . unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits.’ Pike v. Bruce Church, Inc., 397 U.S. 137, 142 [90 S. Ct. 844, 25 L. Ed. 2d 174] (1970), citing Huron Cement Co. v. Detroit, 362 U.S. 440, 443 [80 S. Ct. 813, 4 L. Ed. 2d 852] (1960).” Edgar v. Mite Corporation, 457 U.S. 624, 640, 102 S. Ct. 2629, 73 L. Ed. 2d 269 (1982).

Local laws successfully challenged as violative of the commerce clause generally involve economic protectionism by one state against neighboring states. See L & L Started Pullets, Inc. v. Gourdine, supra, 375, and cases cited therein. The ordinance in question clearly does not fall within that realm. It is rationally related to the general welfare of the community and its impact, if any, on interstate commerce is purely incidental. We consequently find that this ordinance does not impermissibly interfere with interstate commerce.

There is no error.

In this opinion Daly, J., concurred.

Borden, J.,

dissenting. I disagree with the majority’s decision that the defendant has the statutory power to prohibit the plaintiffs’ business of vending from a motor vehicle. Therefore, I dissent.

I agree with the majority that General Statutes §§ 21-37 and 7-148 (c) (7) (H) (iv) can and should be read together to give effect to both. In doing so, however, I reach the contrary result.

There is no doubt, and the majority does not question, that General Statutes § 21-37 does not authorize the defendant to prohibit outright the plaintiffs’ business. It provides in pertinent part: "Any town may make reasonable ordinances with reference to the vending . . . upon its public streets ... of any goods, wares or other merchandise . . . including the imposition of a fee . . . applicable with respect to any person engaged in such vending . . . for the privilege of so vending . . . such merchandise. Any ordinance adopted pursuant to this section which requires a permit may require that no such permit shall be issued to any person who has not obtained” a state sales tax permit. Under this statute a municipality’s power to prohibit street vendors is limited to those vendors seeking to ply their trade in violation of such "reasonable ordinances.” See also General Statutes § 21-38, which authorizes a fine for peddling in violation of any such ordinance.

Thus, the defendant’s power to prohibit outright the plaintiffs’ otherwise lawful business must derive, if at all, from General Statutes § 7-148 (c) (7) (H) (iv). That section, however, limits the power of the defendant to “[prohibit . . . the business of peddlers ... in a manner not inconsistent with the general statutes.” (Emphasis added.) Because of recognized principles of home rule and of statutory construction, this language simply throws the inquiry back to the defendant’s power to prohibit as limited by General Statutes § 21-37.

It is axiomatic that “[a] municipal corporation . . . has only the powers which are expressly conferred upon it by the general statutes or by some special act of the General Assembly and those which are fairly to be implied as necessary to carry into effect the powers expressly given.” Old Colony Gardens, Inc. v. Stamford, 147 Conn. 60, 62, 156 A.2d 515 (1959). It is equally axiomatic that “[a] statute which restricts the conduct of an occupation which was lawful at common law should be construed with reasonable strictness.” (Emphasis added.) Connecticut Chiropody Society, Inc. v. Murray, 146 Conn. 613, 617, 153 A.2d 412 (1959). “A statute granting to a city authority to do a particular thing, with a limitation on the power, must be construed so as to give effect to the limitation as well as to the power granted.” (Footnote omitted.) 2 McQuillin, Municipal Corporations (3d Ed.) § 10.18a.

Thus, in order for a statute to be read as authorizing the complete prohibition of an otherwise lawful occupation, it should be read strictly and should authorize such prohibition clearly and unambiguously. General Statutes § 7-148 (c) (7) (H) (iv) does not. Here, the town’s authority under General Statutes § 7-148 (c) (7) (H) (iv) is limited to prohibiting vending in violation of “reasonable ordinances” adopted pursuant to General Statutes § 21-37, a limitation which must be given effect.

It is also significant that General Statutes § 7-148 (c) (7) (H) (iv) is part of General Statutes § 7-148 (c) (7) (H), which has fourteen subparts defining local powers of public health and safety. Only two, subparts (iv) and (ix), restrict the exercise of the localities’ powers “in a manner not inconsistent with the general statutes.” The legislature’s selection of that restriction in some parts of General Statutes § 7-148 (c) (7) (H) and not in others means that it intended that the power to prohibit street vending be limited by General Statutes § 21-37.

I would therefore find error on this issue, and would not reach the other claims of the plaintiffs.

       The ordinance, in entirety, provides as follows: “It shall be unlawful for any person to vend or peddle upon the public streets, public property, and town property of the town of Stratford from any type of motor vehicle any commodity whatsoever.
      “Any person who violates this article shall be fined not less than one hundred dollars ($100.00).”

       The plaintiffs also claim that General Statutes § 7-148 (c) (7) (H) (iv) is unconstitutional to the extent that it prohibits the operation of a legitimate business. The record indicates that this claim was made for the first time on appeal. Pursuant to Practice Book § 3063, we are not bound to consider claims of error, even those raising constitutional questions, which were not distinctly raised at trial. The plaintiffs have not presented any exceptional circumstances which would justify our departure from this rule. Tucker v. Alleyne, 195 Conn. 399, 402 n.3, 488 A.2d 452 (1985); First New Haven National Bank v. Rowan, 2 Conn. App. 114, 116 n.4, 476 A.2d 1079 (1984).


source: Caselaw Access Project

author: Spallone, J.

license: Public Domain

text:
    John Russo, Trustee, et al. v. Town of East Hartford et al.
    (3030)
    Dupont, C.P.J., Hull and Spallone, Js.
    Argued March 5
    decision released June 18, 1985

      Marc C. Yellin, for the appellants (plaintiffs).

      James A. Kane, Jr., for the appellee (named defendant).

      Richard F. Webb, assistant attorney general, with whom, on the brief, were Joseph I. Lieberman, attorney general, and Robert A. Whitehead, assistant attorney general, for the appellee (defendant Stanley J. Pac).
   Spallone, J.

This is an appeal from a judgment for the defendants in an action claiming an unconstitutional taking of private property by inverse condemnation.

The property in question has been the subject of previous litigation. The 9.489 acre parcel, which the plaintiffs purchased for use as a landfill in 1966, was condemned by the defendant town of East Hartford on March 25,1975. The town filed a statement of compensation from which the plaintiffs appealed to the Superior Court. The trial court, in that action, reassessed the town’s statement of damages and found that the fair market value of the property on the date of the taking was $47,500. The plaintiffs appealed from that judgment to the Connecticut Supreme Court, which upheld the trial court’s finding. Russo v. East Hartford, 179 Conn. 250, 425 A.2d 1282 (1979), cert. denied, 445 U.S. 940, 100 S. Ct. 1334, 63 L. Ed. 2d 773 (1980) (Russo I).

We shall not repeat the facts set forth in Russo I except to note the following. The condemnation which led to the statement of compensation of which the plaintiffs complained was preceded by the enactment, in July, 1972, of the Inland Wetlands and Water Courses Act; General Statutes §§ 22a-36 through 22a-45; which classified the plaintiffs’ land as an inland wetland, and by the defendant town’s passage, also in 1972, of two amendments to its zoning regulations. One of the amendments prohibited a landowner from engaging in filling operations without a permit and the other rezoned the area in which the land was located to that of a flood plain in which excavation or filling was prohibited without prior approval of a site plan by the planning and zoning commission.

The plaintiffs mounted no challenge to these restrictions under the procedures established to contest them. “The plaintiffs did not request a permit to fill under the Inland Wetlands and Water Courses Act, nor did they appeal the classification of their property as an inland wetland to the Superior Court, a right provided by the act. The plaintiffs did not file an application with the department of environmental protection for permission to disturb the volume of earth within the channel encroachment boundaries [established under the Inland Wetlands and Water Courses Act], and never protested the establishment of the channel encroachment lines, even when the land was condemned in March 1975. The plaintiffs did not file an application with the town planning and zoning commission for a permit to fill as required by the 1972 zoning amendments. They did not pursue their administrative remedies by objecting to the amendments or exercise their statutory right of appeal. General Statutes §§ 8-6, 8-8 and 8-9.” Russo I, supra, 252-53.

In the present action, the plaintiffs do not contest the validity of the state and local restrictions, but rather claim that the regulations so affected the value of their land from the date they were instituted until the date of condemnation as to amount to an unconstitutional taking. The trial court disagreed and rendered judgment for the defendants. We find no error.

What the plaintiffs seek in this case is what they already sought, unsuccessfully, in Russo I. In that case, they claimed that the trial court’s assessment of the value of the condemned property at $47,500 was too low and thus not just compensation. Here, they claim that the restrictions on their property so reduced its value, prior to the date of condemnation, as to render the valuation of $47,500 an unconstitutional taking. It is their position that the condemnation in March, 1975, was illegal because the award they received under the eminent domain proceeding was not “just compensation.”

It is fundamental that the state government or any properly designated agency thereof may take private property under its power of eminent domain, if the taking is for a public use and if just compensation is paid therefor. Conn. Const., art. I, § 11; Gohld Realty Co. v. Hartford, 141 Conn. 135, 141, 104 A.2d 365 (1954). The single objective of an eminent domain proceeding “is to ensure that the property owner shall receive, and that the state shall only be required to pay, the just compensation which the fundamental law promises the owner for the property which the state has seen fit to take for public use.” Thomaston v. Ives, 156 Conn. 166, 174, 239 A.2d 515 (1968).

The right to just compensation is ancient, and our courts are clearly empowered to provide a remedy for a taking without just compensation. Karp v. Urban Redevelopment Commission, 162 Conn. 525, 529, 294 A.2d 633 (1972). Where our statutes provide an efficacious means for assuring just compensation, that procedure will be followed. Id. Only when the statutory procedure is inadequate to achieve this goal does a property owner have recourse to common law remedies. Id. The statutory procedure under which the plaintiffs proceeded in Russo I; General Statutes §§ 8-129 to 8-133; provides an efficient procedure for vindicating the common law right to compensation for a taking of property by eminent domain. Id., 530. We see no justification under the facts of this case for the institution of an independent action which seeks, in essence, only to relitigate the issues in Russo I.

We uphold the decision of the trial court in rendering judgment for the defendants. Although the trial court’s decision rested upon different grounds, the result reached was correct for the reasons stated in this opinion. We, therefore, affirm the judgment rendered. Cheshire v. McKenney, 182 Conn. 253, 261, 438 A.2d 88 (1980).

There is no error.

In this opinion the other judges concurred.

       The defendants are the town of East Hartford and Stanley J. Pac, commissioner of environmental protection.

       We recognize the limited scope of an appeal from a statement of compensation in an eminent domain proceeding; St. John v. Commissioner of Transportation, 172 Conn. 234, 239-40, 374 A.2d 190 (1977); and that there are circumstances which may warrant an independent action to determine questions which cannot be reached in such a proceeding. An independent action is justified, for example, where the negligence of a contractor which is a necessary, natural and proximate result of the taking has caused damage to remaining property; Plunske v. Wood, 171 Conn. 280, 284, 370 A.2d 920 (1976); or where there is a dispute over the payment of interest on funds deposited with the condemnor prior to the date of the actual taking. St. John v. Commissioner of Transportation, supra. Such circumstances are not present in this case.


author: Hull, J. Borden, J.,

text:
    Arthur I. Grayson v. Elyn K. Grayson
    (2614)
    Dupont, C.P.J., Hull and Borden, Js.
    Argued February 5
    decision released June 18, 1985

      Wesley W. Horton, with whom was Susan M. Cormier, for the appellant (defendant).

      Lawrence P. Weisman, with'whom, on the brief, was Ellen B. Lubell, for the appellee (plaintiff).
   Hull, J.

The defendant wife appeals from the judgment of the trial court denying her motion to open a judgment of dissolution on the ground of fraud in the plaintiff husband’s affidavit. The original judgment was based on the oral stipulation of the parties, made in open court. The defendant’s major claims are three: (1) that the defendant was denied a fair hearing because the court’s twenty-three paragraph factual statement was taken verbatim from the plaintiff’s proposed findings of fact submitted to the trial court after the hearing on the motion to open; (2) that the court’s findings of fact were unsupported by the evidence and thereby were clearly erroneous; and (3) that the court erred in its conclusion that the defendant did not meet the requirements for opening a judgment based on fraud. Boiled down, the latter two issues merge into the single issue of whether the court’s judgment was clearly erroneous. Practice Book § 3060D. We conclude that the defendant was not denied a fair hearing and that the judgment was not clearly erroneous. We, therefore, find no error.

There is no dispute about the procedural background of this case. On May 28,1981, the third day of the dissolution trial, the court, Hon. William L. Tierney, Jr., state trial referee, dissolved the thirty year marriage of the parties incorporating into the judgment an oral settlement, stipulated to by the parties, regarding the division of property and nonmodifiable alimony. The plaintiff, fifty-six years old at the time, was a graduate of the Wharton School of Finance and Columbia Law School who had been successfully involved for many years in business for himself. The defendant, fifty-three years old, was a graduate of Simmons College and is the sole shareholder and employee of Minuteman Realty Company. The parties have three grown children.

The plaintiffs chief vehicle for his various business interests was Grayson Associates, Inc., a Connecticut corporation of which he was the sole shareholder. With immaterial exceptions, all of his various forms of income and investment funneled through this conduit, which he controlled totally. He was a general partner in three limited partnerships operating three bowling centers, Nutmeg Bowl, Colonial Lanes, and Laurel Lanes, the profits from which were paid to Grayson Associates, Inc. He was also the sole shareholder in three corporations operating lounges associated with these bowling centers, the profits from which were turned over to the bowling centers. Grayson Associates, Inc., provided the plaintiff with a salary, a profit sharing plan which, among other investments, was also a limited partner in the three bowling centers, and a deferred benefit pension plan which was also a limited partner in the three bowling centers.

The stipulated judgment ordered the plaintiff to pay to the defendant lump sum alimony of $150,000, payable in installments of $50,000 by June 28, 1981, $50,000 by August 28, 1981, both of which have been paid, and $50,000 by February 28, 1982, which the plaintiff has paid into escrow pending the outcome of this appeal, together with nonmodifiable periodic alimony of $12,000 per year. The plaintiff was also ordered to pay $15,000 as part of the defendant’s attorney’s fees and to maintain a $50,000 life insurance policy on his life owned by the defendant and payable to her. The defendant was ordered to transfer her one half interest in a business building at 636 Kings Highway, Fairfield, to the plaintiff, the equity in which he claimed was $50,000. The defendant was required to relinquish her claim in the amount of $27,000 to a certificate of deposit managed by the plaintiff. The defendant was awarded full ownership of Daniel Oil, which the plaintiff’s affidavit claimed produced an income of $18,000 per year. Works of art valued by the plaintiff at $64,700 were ordered divided between the parties. Otherwise, each was to retain substantial other assets shown on their affidavits. The principal asset shown by the plaintiff’s affidavit is the valuation, after taxes due on liquidation, of his pension plan in Grayson Associates, Inc., at $340,152 and the principal asset shown by the defendant’s affidavit is the former family residence at 15 Berkeley Road, Westport, in which the claimed equity was $167,000.

On September 23,1981, the defendant moved to open the judgment rendered on May 28,1981 on the ground that the stipulated agreement was based upon a fraudulent affidavit of May 26,1981, submitted by the plaintiff to the court and to the defendant. Extensive discovery was conducted by the defendant prior to the dissolution and the evidentiary hearing on this matter. Depositions were taken, and the defendant used the services of an accountant, an actuary and a bowling expert. Her accountant examined records at the office of the plaintiff. The trial court, Jacobson, J., held hearings on the motion to open on June 1, June 2, July 27, and August 17, 1983.

The plaintiff filed a memorandum on September 1, 1983, including a requested finding of facts of twenty-three numbered paragraphs. The defendant filed no such request and did not object to the plaintiffs filing of such a request. On September 19, 1983, the court filed a memorandum of decision which adopted the plaintiffs requested findings of fact verbatim except that in paragraph nineteen there is an apparent typographical error in that the reference to the plaintiffs 1981 income should refer to his 1982 income.

At the hearing on this appeal, the defendant did not argue that this procedure denied her a fair trial, in view of the holding in Cameron v. Avonridge, Inc., 3 Conn. App. 230, 235, 486 A.2d 661 (1985). The defendant claimed, however, that the present case points out the wisdom of the Cameron court’s reference to the “hazards that may result from such a practice.” More specifically, she argues that the findings were advocate oriented, were found without evidence, and were ambiguous.

The court stated in Cameron that “[t]he plaintiffs, relying on United States v. Forness, 125 F.2d 928 (2d Cir.), cert. denied sub nom. City of Salamanca v. United States, 316 U.S. 694, 62 S. Ct. 1293, 86 L. Ed. 1764 (1942), claim that the trial court erred in adopting the language in the defendant’s brief as its memorandum of decision. United States v. Forness, supra, 942, states that ‘a comparison of the findings with the opinion seems to show that the findings proposed by the defendants were mechanically adopted, with the consequence that some of the findings made by the district court are not supported by the evidence and not substantially in accord with the opinion.’ The case does not condemn the use of language in a brief of one of the parties but points out the hazards that may result. Here, the trial court specifically acknowledged in its memorandum of decision that it relied heavily on the defendant’s trial brief because the facts and legal theories advanced therein were consistent with the court’s views, and it did not believe that it could improve on the defendant’s language. Although we do not approve of this practice, we cannot find that it resulted in less than a fair trial. Nor was there any manifest abuse of discretion or injustice. See Long v. Schull, 184 Conn. 252, 257-58, 439 A.2d 975 (1981).” Cameron v. Avonridge, Inc., supra, 235.

In the leading case of United States v. Forness, supra, the court, while reversing the District Court on other grounds, stated the reasons for disapproving such a practice, in part, as follows: “We stress this matter because of the grave importance of fact-finding. The correct finding, as near as may be, of the facts of a law suit is fully as important as the application of the correct legal rules to the facts as found. An impeccably ‘right’ legal rule applied to the ‘wrong’ facts yields a decision which is as faulty as one which results from the application of the ‘wrong’ legal rule to the ‘right’ facts. The latter type of error, indeed, can be corrected on appeal. But the former is not subject to such correction unless the appellant overcomes the heavy burden of showing that the findings of fact are ‘clearly erroneous.’ ” Id., 942.

“It is sometimes said that the requirement that the trial judge file findings of fact is for the convenience of the upper courts. While it does serve that end, it has a far more important purpose—that of evoking care on the part of the trial judge in ascertaining the facts.” Id.

We can add little to this statement except to note that the practice of adopting parties’ proposed findings of fact invites error or sloppy analysis on the judge’s part. More importantly, the appearance of justice is just as important as the reality, and a verbatim adoption of the facts proferred by one of the advocates invites a public suspicion of the trial court’s decision. The perceptions by the public and by the losing litigant of our system of justice are surely not enhanced by such a practice.

In expressing our strong disapproval of such a procedure, we in no way impugn the trial judge in this case. Counsel at the hearing on this appeal made it clear that no attack was being made on the integrity or competency of the trial judge.

The court in Cameron v. Avonridge, Inc., supra, noted that the trial court specifically acknowledged its heavy reliance on the defendant’s trial brief in its memorandum of decision. No comment to that effect was made by the trial court in this case. Although the use of such a statement does not entirely vitiate the hazards in such a practice, it does have the very practical effect of showing that the trial court was consciously aware of the problems in this sensitive area and, presumably, that it acted in accordance with such awareness.

The propriety or impropriety of verbatim adoption is discussed in an annotation entitled “Findings Prepared by Prevailing Party,” 54 A.L.R.3d 868. The author points out that no reported case has been found in which the objection has met with actual success at the appellate level. Id., 870. Nor have we found any such case. We concur with the unanimous authority that verbatim adoption of the findings submitted by the prevailing party is not, per se, a ground for finding that the losing party did not have a fair trial.

The issue, therefore, is whether the trial court’s findings are supported by the evidence and are in substantial accord with the opinion: “The defendants finally object to the findings on the ground that they were mainly taken verbatim from the government’s brief. The findings leave much to be desired in light of the function of the trial court. See United States v. Forness, [supra], 942-43. But they are nonetheless the findings of the District Court. And they must stand or fall depending on whether they are supported by evidence. We think they are.” United States v. Crescent Amusements Co., 323 U.S. 173, 184-85, 65 S. Ct. 254, 89 L. Ed. 160 (1944). The ultimate test as to the adequacy of findings is whether they are sufficiently comprehensive and pertinent to the issues to provide a basis for the decision and whether they are supported by evidence. See United Nuclear Corporation v. General Atomic Co., 96 N.M. 155, 629 P.2d 231 (1980). Although a few cases have held that the appellate court should scrutinize more carefully or give less weight to such prepackaged findings; 54 A.L.R.3d 868, 887, and supplement thereto; see Garter-Bare Co. v. Munsingwear, Inc., 650 F.2d 975 (9th Cir. 1980); we do not adopt the reasoning of these few cases because a conscientious appellate court will make such examination of the record as is necessary in every case in which it is claimed that the finding is not supported by the evidence.

This court, after a meticulous examination of the parties’ detailed factual claims and the entire record, has concluded that there was credible evidence for all of the court’s findings and that the findings were substantially in accord with the opinion. Therefore, we find that the defendant was not denied a fair trial by the verbatim adoption of the prevailing party’s proposed findings.

Clear judicial guidelines exist for our task of deciding whether or not the court’s judgment in this case is clearly erroneous. It is in the application of these well established principles that the difficulty arises.

Dispositions of property made at the time of the decree under General Statutes § 46b-81 are not subject to modification even if there should be a change of circumstances. General Statutes § 46b-86 (a); Viglione v. Viglione, 171 Conn. 213, 215, 368 A.2d 202 (1976).

In dissolution actions particularly, both counsel and the court have special responsibilities with respect to agreements submitted by the parties. There must be reasonable inquiry into the wishes as well as the objective best interests of the client, and counsel have a special responsibility for full and fair disclosure and for a searching dialogue about all of the facts which materially affect the client’s rights and interests. Monroe v. Monroe, 177 Conn. 173, 183, 413 A.2d 819, appeal dismissed, 444 U.S. 801, 100 S. Ct. 20, 62 L. Ed. 2d 14 (1979). “Although the law will intervene to insure that substantial justice is done where fraud has been perpetrated, the frequency and extent of this intervention must be tempered by a sometimes conflicting adjudicative proposition that mandates the ultimate conclusion of all legal controversy. Thus, the setting aside of a judgment on the basis of fraud ‘will only be granted if the [movant] is not barred by any of the following restrictions: (1) There must have been no laches or unreasonable delay by the injured party after the fraud was discovered. (2) There must have been diligence . . . in trying to discover and expose the fraud. (3) There must be clear proof of the perjury or fraud. (4) There must be a substantial likelihood that the result of the new trial will be different. James, Civil Procedure (1965) § 11.7, pp. 540-42; [note,] 36 Ill. L. Rev. 894, 896-97 (1942).’ Varley v. Varley, 180 Conn. 1, 4, 428 A.2d 317 (1980).” Jucker v. Jucker, 190 Conn. 674, 677, 461 A.2d 1384 (1983); see also Jackson v. Jackson, 2 Conn. App. 179, 189, 478 A.2d 1026, cert. denied, 194 Conn. 805, 482 A.2d 710 (1984). We conclude that the defendant did not meet the high standard of clear proof required for fraud. Considering the other three elements set forth in Varley v. Varley, supra, we note the following: (1) there was no question of laches on the part of the defendant; (2) since we sustain the trial court’s judgment that there was not clear proof of fraud, we do not reach the issues of whether or not there was diligence on the defendant’s part in trying to discover and expose the fraud or a substantial likelihood that the result of the new trial would be different.

Where the parties are in agreement as to the division of the marital property and as to alimony and support, the sworn financial statements of the parties assume great significance since they are submitted in lieu of testimony under oath. Accordingly, compliance with the rules concerning the filing of financial affidavits is essential in order for the court to make a reasoned decision with respect to such orders. See Winick v. Winick, 153 Conn. 294, 298, 216 A.2d 185 (1965). “Fraud consists in deception practised in order to induce another to part with property or surrender some legal right, and which accomplishes the end desired.” Alexander v. Church, 53 Conn. 561, 562, 4 A. 103 (1886), quoting Cooley, Torts, p. 474.

“The case of Miller v. Appleby, 183 Conn. 51, 54-55, 438 A.2d 811 (1981), summarized the necessary elements of fraud as follows: ‘The essential elements for an action in fraud . . . are: (1) that a false representation was made as a statement of fact; (2) that it was untrue and known to be untrue by the party making it; (3) that it was made to induce the other party to act on it; and (4) that the latter did so act on it to his injury.’ ” Jackson v. Jackson, supra, 193. A court is entitled to rely upon the truth and accuracy of the sworn statements required by § 463 of the Practice Book, and a misrepresentation of assets and income is a serious and intolerable dereliction on the part of the affiant which goes to the very heart of the judicial proceeding. Casanova v. Casanova, 166 Conn. 304, 305, 348 A.2d 668 (1974).

The defendant focused her claim of fraud in the plaintiff’s affidavit on the following summary of undisputed evidence:

“Plaintiff’s Affidavit (May 26, 1981)
Amount Received (1981)
Amount Undisclosed (May 26, 1981)
INCOME:
Salary from Grayson Associates
$82,000
$108,200
$26,200
(July 31, 1981)
Income from Management Fees from Georgetown Paid to Grayson Associates
-0-
$42,879
$42,897
(August 1981)
Commission from Leslie Barth
-0-
$15,000
$15,000
(August 1981)
TOTAL INCOME
$82,000
$166,079
$84,079
ASSETS:
Georgetown at Enfield: .17% interest
959.76
8% interest
$46,080
$165,553
$99,553
(8.17% valued
(July 1981)
at $66,000 gross in Plaintiffs testimony)
TOTAL ASSETS:
$47,039.76
$165,553
$99,553”

In calculating the $99,553 amount, the defendant used the figure more favorable to the plaintiff, i.e., the gross value of the 8.17 percent interest testified to by the plaintiff in 1981 rather than the amount listed on his affidavit.

The defendant stresses four principal instances in which she claims that the court’s findings were unsupported by, or were contrary to the evidence. First, she cites the plaintiff’s statement that his 1981 income would be the same or slightly less than his 1980 income when, in fact, his income for 1981 from Grayson Associates, Inc., was $108,200 rather than the salary of $82,000 from this source shown on his affidavit. Second, she questions finding number 19 that “[n]o evidence whatsoever has been offered regarding the plaintiff’s 1981 or 1983 income,” and the related finding, number 23, that “the plaintiff’s 1981 income derived in part from an unusual set of circumstances (i.e. the Georgetown at Enfield distributions) and there is no evidence whatsoever that plaintiff’s 1981 income level has ever been achieved before or since.” Third, she challenges finding number 10 concerning the increase in the plaintiff’s actual income over his projected income due to the payment of accrued management fees to Grayson Associates, Inc., by Georgetown at Enfield Associates in August, 1981, in the amount of $42,879, in light of the plaintiff’s statement on his affidavit, in paragraph four under the heading of “Income,” that “no income in the future will be received from Georgetown at Enfield Associates.”

Fourth, the defendant questions finding number 10 (c), concerning the valuation of the plaintiff’s interest in Georgetown at Enfield Associates. The value listed in the affidavit was $46,080, although the defendant’s summary of claimed misrepresentations used the figure of $66,000 based on the plaintiff’s testimony in 1981. The plaintiff actually received $165,533 in July, 1981, largely as a result of his taking a one half rather than a one third share in the proceeds of the payoff of a mortgage to the investors after more than 50 percent of the condominium units had been sold. The defendant argues that this chain of events demonstrates that the plaintiff controlled the distribution of proceeds and knew, when he filed the affidavit, that such a distribution would be forthcoming. The defendant has also raised several other objections to the trial court’s findings which we have considered and which we conclude are without merit. Concerning the defendant’s specific challenges to the court’s findings as described above we conclude as follows:

(1) Concerning the plaintiff’s 1981 income from Grayson Associates, Inc., in the amount of $108,200, we note that Grayson Associates, Inc.’s tax return was filed on a fiscal year basis ending July 31, 1981, and the plaintiff was on a calendar tax year. The court found, in finding number 10 (b) that this larger income was due to an increase in fees for the management of the three bowling centers, proposed by the plaintiff in September, 1981, and subsequently agreed to by 100 limited partners. The defendant questions how a September, 1981 increase could account for a larger payout from Grayson Associates, Inc., as of July 31,1981. The defendant is correct that this is a questionable finding. Our review of the transcript reveals testimony of Martin Ruffkess, C.P.A., which would largely attribute this increase to the reimbursement, earlier than had been the practice in the past, to Grayson Associates, Inc., from the bowling alleys for amounts advanced for resurfacing the alleys. We conclude, however, that this questioned finding does not shake the underpinning of the court’s judgment.

(2) The court’s finding number 19, that no evidence whatsoever has been offered regarding the plaintiff’s 1981 (the parties agree this should read 1982) and 1983 income, was not entirely correct. The plaintiffs exhibit 15, the 1982 tax return of Grayson Associates, Inc., shows a salary to the plaintiff of $106,000. This deficiency in the finding is not a substantial one since the court’s corollary finding, that there was no evidence that the plaintiff’s 1981 income had ever been achieved before or since, is substantially supported in the record if “income” is taken in its ordinary sense to be money received from all sources, including capital, which amount the defendant herself claims was $166,079 in 1981 rather than the $82,000 shown on plaintiff’s affidavit.

(3) The claim concerning misrepresentation in the statement on the plaintiff’s affidavit that no income in the future will be received from Georgetown at Enfield is the most serious challenge to the evidentiary underpinning of the court’s judgment.

The defendant points out that finding 10 (a), concerning management fees paid by Georgetown at Enfield to Grayson Associates, Inc., states only that “the fees were fully disclosed in financial statements available to the defendant at the time of trial, but the date of payment of which was unknown at the time of trial, as it depended on the acts of third parties.” The defendant stresses that the finding did not say that the plaintiff did not know the amount to which he was entitled but only that he did not know the date of the payment.

The statement on the plaintiff’s affidavit that no income in the future will be received from Georgetown at Enfield Associates is misleading, at best, in the light of the court’s failure to find that the management fees later received by the plaintiff were not known to him on May 25,1981. The defendant apparently argues that such a categorical misstatement in an affidavit is a mandatory basis for opening the judgment on the ground of fraud, regardless of the defendant’s other knowledge concerning the matter gleaned from extensive discovery by the defendant. Two considerations dispose of this argument. Although the defendant is correct in pointing out the court’s omission and the reasonable implication to be drawn from this, that the plaintiff knew on May 25, 1981, of the increased payments to be made to him, she failed to move to articulate the memorandum of decision under Practice Book § 3082 concerning the issue involved. In re Juvenile Appeal (85-1), 3 Conn. App. 158, 161, 485 A.2d 1355 (1985). More significantly, we decline to adopt a rule that any misrepresentation in an affidavit, if it be one, automatically requires a finding of fraud on the court’s part. The legal framework for consideration of such a fraud claim has been carefully delineated in the cases cited above. Here, the court stressed the defendant’s detailed knowledge of the Georgetown at Enfield situation. It was for the court to decide, on the basis of the totality of the circumstances, whether or not there was clear proof of fraud under the criteria referred to.

(4) Finding number 13 provides that “the plaintiff did not know on May 26, 1981 that the distributions listed in [finding] 10 above [concerning Georgetown at Enfield] would occur in calendar year 1981, nor was he able to predict with reasonable certainty what the precise amounts of those distributions would be.” Once again the finding stressed the defendant’s knowledge of the Georgetown at Enfield mortgage. Further, the defendant points out that the court did not find that the plaintiff did not know, on May 26,1981, of further distributions coming from Georgetown at Enfield. The same comment as previously made concerning her failure to file a motion to articulate the memorandum of decision is pertinent at this point.

The claim that this finding undermines the court’s conclusion of the absence of fraud is without merit. When it is confined to the equity distribution at Georgetown at Enfield there is substantial credible evidence in the record to sustain such a finding. Here, we are faced, not with a categorical statement akin to “no income in the future will be received,” but rather with the statement on the plaintiffs affidavit about “equity to be received in the future” at a figure which turned out to be substantially less than that actually received.

Overall, the defendant’s claim of fraud is based on occurrences after the dissolution which resulted in substantially larger income to the plaintiff than his affidavit indicated could be expected. Since there is no direct proof of such fraud, her case necessarily rests on inferences which she claims the court should have drawn from the evidence.

There is certainly present in this case a high degree of suspicion that the plaintiff, on May 26, 1981, contemplated or had prearranged the larger payments. The plaintiff’s business structure and experience as a sophisticated businessman made it possible for him to pump up the financial pipelines to his benefit. Mere speculation or suspicion as to such an inference is not, however, sufficient to mandate a finding of clear evidence of fraud. It is axiomatic that the credibility of witnesses, the finding of facts, and the drawing of inferences are all in the trier’s province. “It is futile to assign error involving the weight of testimony or the credibility of witnesses.” Slattery v. Maykut, 176 Conn. 147, 149, 405 A.2d 76 (1978); see also Piantedosi v. Floridia, 186 Conn. 275, 277, 440 A.2d 977 (1982); Filosi v. Hawkins, 1 Conn. App. 634, 641, 474 A.2d 1261 (1984); Zolan, Bernstein, Dworken & Klein v. Milone, 1 Conn. App. 43, 46, 467 A.2d 938 (1983).

From our appellate perch, the temptation to second guess the trial court’s factual conclusions is very seductive. We must be ever mindful, however, of our limited role in such a case. We must not operate as some sort of judicial piranha nibbling away at the court’s findings. The question is not whether this court might have reached the same conclusion concerning the subordinate facts found or reasonable inferences therefrom but whether the trial court could not reasonably have concluded as it did. We conclude that there was sufficient credible evidence to justify the trial court’s finding of subordinate facts and that the finding of no clear evidence of fraud was not clearly erroneous.

The defendant strenuously argues that the case of Jackson v. Jackson, 2 Conn. App. 179, 478 A.2d 1026 (1984), supports her position. The defendant claims that her case is even stronger than that of the successful appellant in Jackson wherein the court found that the trial court’s refusal to open the dissolution judgment on the ground of fraud was clearly erroneous. In Jackson, the defendant had stipulated to a dissolution judgment in the mistaken belief that she was to get slightly less than one half of what the plaintiff’s affidavit represented was 4277 shares of stock in C 3, Inc. In fact, during the negotiations leading to the stipulation, the plaintiff had received a three-for-one stock split so that at the time of the dissolution he owned 12,831 shares rather than the 4277 shares shown on his affidavit. This split was unknown to the defendant despite due diligence on the part of her and her attorney. As a result, the defendant received one sixth of the stock worth approximately $400,000, rather than almost exactly one half of it. The court in Jackson noted that the disparity in the division of the stock was very substantial. Id., 181. This was particularly so in view of the very modest other financial arrangements of the parties.

The defendant misreads Jackson as it relates to this case. In Jackson, the court’s decision reversing the trial court’s finding of no fraud grew out of very compelling evidence to the contrary. The three-for-one stock certificates in the plaintiff husband’s hands constituted the “smoking gun” of fraud practiced by the plaintiff in his affidavit at the time of the dissolution. It was crystal clear that Mr. Jackson knew Mrs. Jackson did not know of the stock split because before the final stipulation leading to the dissolution she wrote to her lawyer asking him to try to get 2138 of the shares rather than 2000 shares because 2138 shares represented more exactly one half of the plaintiff’s stock. Id., 185. The Jackson case reeked of fraud, unlike the case here.

The defendant in this case is attempting to move Jackson to the next plateau. She seeks a holding that the trier must infer that prior knowledge of financially favorable events which occur soon after the filing of a party’s financial affidavit existed at the time of the filing. Although a trial court may, upon review of all of the facts, including the fact of a party’s rapid improvement in financial condition, conclude that fraud was present as of the date of dissolution, the trial court did not do so here. Such a fact, standing alone, carries no mandatory inference.

We must steer a careful course between the Scylla of Jucker v. Jucker, 190 Conn. 674, 461 A.2d 1384 (1983), where the court sustained the trial court’s finding of no fraud, and the Charybdis of Jackson v. Jackson, supra, where the fraud leaped out of the record.

To do so, we must balance two fundamental principles of law. We are well aware of the limited role of this court in reviewing factual findings of the trial court, particularly in domestic cases. “A factual finding may be rejected by this court only if it is ‘clearly erroneous.’ Practice Book § 3060D.” Kaplan v. Kaplan, 186 Conn. 387, 392, 441 A.2d 629 (1982). The trier of fact has wide latitude in its interpretation of the evidence and the conclusions to be drawn therefrom. “ ‘[TJrial courts have a distinct advantage over an appellate court in dealing with domestic relations, where all of the surrounding circumstances and the appearance and attitude of the parties are so significant.’ ” Figlar v. Figlar, 174 Conn. 151, 153, 384 A.2d 1 (1978). “This court may not substitute its own opinion . . . for the factual finding of the trial court.” Kaplan v. Kaplan, supra.

“We are equally aware of the danger of opening the floodgates to a wave of motions to open dissolution judgments by dissatisfied litigants. Where, as in this case, however, a clear case is made under applicable law that a fraudulent and material misrepresentation by one party resulted in a substantial injustice to the other party, we must not hesitate to act. This is such a case.” Jackson v. Jackson, supra, 196.

In view of the necessary deference to the findings of the trial court in dissolution cases and the companion need for finality in judgments, we conclude that this is not such a case. The judgment of the trial court was not clearly erroneous.

There is no error.

In this opinion Dupont, C.P.J., concurred.

Borden, J.,

dissenting. I dissent.

I

I would apply to the “findings” of the trial court in this case a more exacting standard than employed by the majority. I would, as some jurisdictions have done, apply a test of strict scrutiny. See, e.g., Garter-Bare Co. v. Munsingwear, Inc., 650 F.2d 975 (9th Cir. 1980) and cases cited therein; annot., 54 A.L.R.3d 868, 887-88. This standard of review of the trial court’s factual determinations requires more than deciding, as we normally do under a “clearly erroneous” standard, whether the findings are supported by some credible evidence. It requires us to make “a scrupulous examination of the record to ascertain whether such . . . finding[s] [are] supported by substantial evidence.” (Emphasis added.) State v. Zayas, 3 Conn. App. 289, 297, 489 A.2d 380 (1985). I would employ this heightened standard in this case because of a coalescence of three factors: the important purposes of factual findings of a trial court; the fact that this is a marital dissolution case; and the way in which these findings were adopted and expressed.

First, as the majority recognizes, United States v. Forness, 125 F.2d 928 (2d Cir.), cert. denied sub nom. City of Salamanca v. United States, 316 U.S. 694, 62 S. Ct. 1293, 86 L. Ed. 1764 (1942), in an opinion authored by Judge Jerome Frank and joined by Judges Augustus Hand and Charles Clark, identified the two central purposes of requiring a trial judge to file factual findings: to facilitate appellate review; and to ensure that the trial judge takes care in ascertaining the facts. “It is sometimes said that the requirement that the trial judge file findings of fact is for the convenience of the upper courts. While it does serve that end, it has a far more important purpose—that of evoking care on the part of the trial judge in ascertaining the facts. For, as every judge knows, to set down in precise words the facts as he finds them is the best way to avoid carelessness in the discharge of that duty: Often a strong impression that, on the basis of the evidence, the facts are thus-and-so gives way when it comes to expressing that impression on paper. The trial court is the most important agency of the judicial branch of the government precisely because on it rests the responsibility of ascertaining the facts. When a . . . trial judge sits without a jury, that responsibility is his. And it is not a light responsibility since, unless his findings are 'clearly erroneous/ no upper court may disturb them. To ascertain the facts is not a mechanical act. It is a difficult art, not a science. It involves skill and judgment. As fact-finding is a human undertaking, it can, of course, never be perfect and infallible. For that very reason every effort should be made to render it as adequate as it humanly can be.” Id., 942-43; see also International Controls Corporation v. Vesco, 490 F.2d 1334, 1341 n.6 (2d Cir. 1974), cert. denied, 417 U.S. 932, 94 S. Ct. 2644, 41 L. Ed. 2d 236 (1974) (disapproving and “roundly condemning]” trial judge’s adoption in toto of factual findings submitted by counsel).

Second, this is a marital dissolution case. Few, if any, judicial proceedings match such a case for emotion-laden content. “Analogies drawn from commercial litigation fail to respond adequately to the situation of emotional trauma commonly associated with the irretrievable breakdown of a marriage.” Monroe v. Monroe, 177 Conn. 173, 182, 413 A.2d 819, appeal dismissed, 444 U.S. 801, 100 S. Ct. 20, 62 L. Ed. 2d 14 (1979). It “put[s] two persons, who once shared life’s tenderest intimacies, in a position of combat.” Jackson v. Jackson, 2 Conn. App. 179, 186-87, 478 A.2d 1026 (1984). These considerations compel the conclusion that, perhaps more than in other types of cases, in marital cases “the continued vitality of our judicial system rests in part on the continued perception on the part of its participants of the basic fairness of its procedures.” Gennarini v. Gennarini, 2 Conn. App. 132, 138, 477 A.2d 674 (1984).

Because of these considerations, a trilogy of our precedents has established the principle that, in the settlement of marital disputes, full and frank disclosure of essential facts is required among all the participants in the process: counsel, clients and court. In Monroe v. Monroe, supra, 183, the Supreme Court emphasized the need for that disclosure between counsel and client. In Baker v. Baker, 187 Conn. 315, 445 A.2d 912 (1982), that court applied the principle to the disclosures required between the litigants and their counsel, on one hand, and the court on the other. Not long ago, this court applied the same principle to the requirements of disclosure between the adversary sides. “Only full and frank disclosure can facilitate such settlements. Whatever the situation may be in contested dissolution actions, there should be at least a Geneva Convention of rules of war where the parties are able to work out the matter themselves.” Jackson v. Jackson, supra, 188.

The reasons for this principle are obvious. It is essential to the implementation of our strong policy that the “private settlement of the financial affairs of estranged marital partners is a goal that courts should support rather than undermine.” Baker v. Baker, supra, 322; Hayes v. Beresford, 184 Conn. 558, 568, 440 A.2d 224 (1981); Lavigne v. Lavigne, 3 Conn. App. 423, 426, 488 A.2d 1290 (1985). Our support of that goal will be effective only if we instill confidence in marital litigants that we require, as a concomitant of the settlement process, such full and frank disclosure from both sides, for then they will be more willing to forego their combat and to settle their dispute privately, secure in the knowledge that they have all the essential information. In addition, this principle of disclosure facilitates the task of the court to ensure that settlement agreements are substantively fair and knowingly negotiated. Baker v. Baker, supra, 321. Finally, and most poignantly, the settlement of a marital dissolution case is not like the settlement of an accident case. It stamps with finality the end of a marriage. “Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects.” Griswold v. Connecticut, 381 U.S. 479, 486, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965). Courts simply should not countenance either party to such a unique human relationship dealing with the other at arms’ length. Whatever honesty there may, or should, have been during the marriage should at least be required by the court at its end.

These are the teachings of our cases. They represent the distilled wisdom of most judges who have presided over such unhappy proceedings. The approach of the majority in this case is an unfortunate step back from the sunshine of those teachings. I cannot square that approach with the clear step which this court so wisely took in Jackson v. Jackson, supra.

Third, unlike Cameron v. Avonridge, Inc., 3 Conn. App. 230, 235, 486 A.2d 661 (1985), here the trial court mechanically adopted all the proposed findings of the plaintiff and added none of its own, without any recognition in its memorandum of decision that it was doing so and without any explanation for such a radical departure from the norm of the judicial process. Indeed, following a hearing lasting four days, it filed its memorandum of decision within eighteen days after the plaintiff submitted his posthearing brief, an alacrity of decision making which, under other circumstances, would be admirable, given the heavy caseload under which our trial court judges labor. It adopted verbatim the twenty-three critical paragraphs of facts articulated by the plaintiff, apparently without even proofreading them for improper grammar or misspelling. See footnote 3 to the majority opinion: finding number 8 (“by a certified public account”); finding number 20 (“The defendent’s”); finding number 21 (“Defendent’s”); and finding number 22 (“Defendent”). It adopted the plaintiff’s proposed findings in toto, a practice which persuasive and respected judicial authority has “expressly disapproved.” Apex Oil Co. v. Vanguard Oil & Service Co., 760 F.2d 417, 421-22 (2d Cir. 1985) (Newman, J.), citing International Controls Corporation v. Vesco, supra.

Such a process can only foster in the litigants’ minds deep skepticism that the findings of the trial judge were truly “ ‘the product of the workings of [his] mind . . . .’” Apex Oil Co. v. Vanguard Oil & Service Co., supra, 422. This can only undermine the marital litigants’ perception of the basic fairness of the process by which their claims were decided, a perception which is essential to the continued vitality of our judicial system. Gennarini v. Gennarini, supra, 138. Therefore, we as an appellate court have an obligation to review the results of that process with strict scrutiny, so as to attempt to redress that perceived unfairness.

I disagree with the basis of the majority’s rejection of the strict scrutiny standard, namely, that a conscientious appellate court will always scrupulously examine the trial court record. The issue is not whether we scrupulously examine the record. The issue involves the standard by which we gauge what that examination yields. I believe that, under the unique circumstances of this case, we should require that the findings be supported, not just by some credible evidence, but by substantial evidence.

We are quite accustomed to applying that more exacting scope of review of factual determinations of the trial court when strong reasons of policy demand it. See, e.g., State v. Zayas, 3 Conn. App. 289, 297, 489 A.2d 380 (1985) (record upon which finding of waiver of Miranda rights based must be scrupulously examined to ascertain whether finding supported by substantial evidence); see also Jazlowiecki v. Cyr, 4 Conn. App. 76, 78, 492 A.2d 516 (1985) (“charge of judicial bias or prejudice strikes at the very core of judicial integrity and requires that the record be examined with infinite care”). This standard is a useful tool of the appellate trade, when supported by strong reasons of policy. The circumstances of this case compel its use.

II

Applying the strict scrutiny standard to the “findings” of the trial court, I conclude that they do not pass muster. It would serve little purpose in this dissent to go through them item by item and compare them to the evidence, as the majority has done. Indeed, even the majority views three of the four challenged factual determinations of the trial court as “questionable,” “not entirely correct” and “misleading at best,” and the majority, even from its “appellate perch,” perceives “a high degree of suspicion” about the plaintiff’s truthfulness in his financial affidavit. Despite the Herculean effort of the majority to insert a firm foundation under an already crumbling edifice, I am persuaded that critical findings are not supported by substantial evidence, and that a new hearing is warranted.

I would, therefore, find error and remand the case for a new hearing on the defendant’s motion to open the judgment.

       The defendant also briefed the issue of whether the trial court utilized a different standard in weighing her testimony as opposed to that of the plaintiff. We conclude that this claim is without merit.

       Pertinent parts of the plaintiff’s affidavit of May 26, 1981, provide:
      “I. INCOME
      “The plaintiff shall set forth to the best of his ability his projected income for 1981:
      “1. Grayson Associates, Inc.
      1980 gross income $82,000.00
      Less: tax and social
      security (approximately) 24,000.00
      Net per annum $58,000.00”
      The plaintiff noted that “[t]he amount of gross income from Grayson Associates, Inc., in 1981 may be slightly less by reason of the bowling business trends.”
      “4. Georgetown at Enfield Associates $-0-
      “NOTE: No income in the future will be received. Depicted under assets are distributions to which the plaintiff will be entitled.
      “II. ASSETS:
      “1. General partnership interest of .17% Georgetown at
      Enfield Associates to be received in the future $ 959.76
      8% limited partnership interest in Georgetown at
      Enfield Associates—equity to be received in the future $46,080.00”
      The plaintiff also noted that these interests in Georgetown at Enfield were “[ajfter contemplated income tax repercussions to be caused by reason of distribution.” He further noted that the “[fjunds are presently undistributed and invested in certificates of deposit and earning interest thereby. As a result, said sums will be enhanced to some degree by accumulation of interest.”

       For a proper understanding of the issues in this case it is necessary to reproduce the court’s findings in toto.
      “The following facts are found:
      “(1) The marriage of the parties was dissolved by judgment of this court (Tierney, J.) on May 28, 1981.
      “(2) The judgment of the court incorporated by reference a settlement agreement negotiated by the parties with the assistance and participation of counsel.
      “(3) Both parties were present in court where the settlement agreement was read into the record by defendant’s counsel and both parties affirmed that they understood and agreed to its terms.
      “(4) The settlement agreement was preceded by a trial which commenced on May 26, 1981 and which continued through May 27, 1981.
      “(5) At the trial the plaintiff testified and was cross examined by counsel for the defendant.
      “(6) The defendant also testified and presented as witnesses in her behalf, an expert on bowling centers operation, an actuary and a Certified Public Accountant employed in the plaintiff’s business.
      “(7) The defendant, through counsel, engaged the services of a Certified Public Accountant (Robert Gervasoni) to review and evaluate the material which had been obtained by her counsel through discovery.
      “(8) Defendant’s counsel conducted discovery in advance of trial, including depositions of the plaintiff, Nancy Mollo (the plaintiff’s present wife), Estelle Josem (the plaintiff’s bookeeper), and Thomas Montanile (an employee of the plaintiff); the filing of interrogatories and requests for production of five years’ documentation; at least two site visits to plaintiffs office by a certified public account [sic] (Robert Gervasoni) and a bowling center expert to inspect the plaintiff’s books and records and those of his corporation; review of financial affidavits, tax returns, limited partnership agreements, pension and profit sharing plans, real estate records, bank statements, checks, credit card charges, personal and corporate financial records produced by the plaintiff; and, personal interviews with the plaintiff’s present and former business associates, including managers and bar maids.
      “(9) The plaintiff filed a financial affidavit dated May 26,1981, in which he:
      “(a) estimated that his income for the calendar year 1981 would be the same as or slightly less than his income for 1980, based upon his educated prediction that the recession would adversely affect the bowling business.
      “(b) listed the net, after tax values of his interest in a limited partnership known as Georgetown at Enfield Associates as that interest appeared in the limited partnership agreement;
      “(c) listed his interest in a closely held corporation known as Grayson Associates at book value with an explanatory note to the effect that the corporation’s assets would be employed ‘to pay future income to the plaintiff, for funding the pension plan and to meet expenses of doing business’; and,
      “(d) listed his interest in a pension plan at its gross and net (after tax) values as at April 15, 1981.
      “(10) To the extent that the plaintiffs actual income for the calendar year exceeded the sum projected on his May 26,1981 financial affidavit the difference was attributable to:
      “(a) the payment of management fees by Georgetown at Enfield Associates to the plaintiffs corporation—which fees were fully disclosed in financial statements available to the defendant at the time of trial, but the date of payment of which was unknown at the time of trial, as it depended on the acts of third parties—and the subsequent distribution of those funds to the plaintiff in the form of increased salary:
      “(b) an increase in the fees for management of three bowling centers by the plaintiff’s corporation which was proposed by the plaintiff in September, 1981 and subsequently agreed to by approximately 100 limited partners in those bowling centers subsequent to May 28, 1981;
      “(c) an increase in the percentage of plaintiff’s partnership distribution from Georgetown at Enfield Associates (from 33 1/3% to 50%) taken by the plaintiff in July, 1981, at the time money became available for distribution, as compensation for plaintiffs disproportionate responsibility in the administration of the limited partnership; (This adjustment of the partners’ interests was effectuated without the prior agreement of plaintiff’s partners and was objected to by one of them (Leslie Barth) as testified to in the trial on this motion and as evidenced by a letter which is an Exhibit in this case.); and
      “(d) the payment by one of the plaintiff’s partners in Georgetown at Enfield Associates of a $15,000.00 ‘finder’s fee’ in connection by Georgetown at Enfield Associates.
      “(11) All of the information pertaining to Georgetown at Enfield Associates was available to the defendant at the time of trial (Ruffkess testimony).
      “(12) Defendant also had access to plaintiff’s partners in Georgetown at Enfield Associates, one of whom (Leslie Barth) was present in the courthouse at the time of trial of the dissolution action at defendant’s request.
      “(13) The plaintiff did not know on May 26, 1981 that the distributions listed in paragraph 10 above would occur in calendar year 1981, nor was he able to predict with reasonable certainty what the precise amounts of those distributions would be. (The terms of the Georgetown at Enfield mortgage and the plaintiffs share in those mortgage proceeds which were fully disclosed and known to the defendant on May 25,1981 (Ruffkess testimony), required payment in full by the mortgagees upon conversion of 50% of the units to condominiums and the sale of those units or, upon the expiration of five (5) years from the date of sale (August, 1984). Plaintiff could not have predicted on May 26,1981, when the conversions and sales would take place).
      “(14) On May 26,1981, the defendant had access to all information which was then available to the plaintiff regarding Georgetown at Enfield Associates, the plaintiff’s pension plan, Grayson Associates, Inc., the operation of the bowling centers, plaintiff’s assets and his financial prospects.
      “(15) Defendant maintained and attempted to demonstrate through actuarial testimony at the time of trial that plaintiff had understated the value of his pension plan.
      “(16) Plaintiff did know and did fail to disclose on his financial affidavit that he was entitled to a ‘finder’s fee’ (paragraph lOd above), although the amount of that fee had not been agreed upon and the plaintiff did not know at the time of trial when it might be paid.
      “(17) There are no material misrepresentations in the plaintiffs May 16, 1981 affidavit.
      “(18) There is no evidence of fraud in connection with the plaintiffs May 26, 1981 affidavit.
      “(19) No evidence whatsoever has been offered regarding the plaintiffs 1981 or 1983 income and therefore the court cannot conclude that there is a substantial likelihood that the new trial would produce a different result.
      “(20) The defendent’s [sic] financial affidavit of April 30, 1981, used in the trial of this case, understated her income to the extent of $34,000.00 per year.
      “(21) Defendent’s [sic] counsel had all necessary information available to them at the time they advised the defendant to agree to the terms of the negotiated settlements.
      “(22) Defendent [sic] actively participated in the settlement negotiations and, by her own testimony, ‘sent her attorneys back’ on several occasions in the course of those negotiations.
      “(23) The plaintiffs 1981 income derived in part from an unusual set of circumstances (i.e. the Georgetown at Enfield distributions) and there is no evidence whatsoever that plaintiffs 1981 income level has ever been achieved before or since.”

       The adoption of findings proposed by the parties is not new to our system of justice. Until July 1,1979, the longstanding practice in the preparation of the record for appeal was for the trial court to consider proposed findings and counter-findings, submitted by the parties, in preparing the findings of fact in the case. See Practice Book, 1963, §§ 613-620.

       The disparity in distribution may not only be circumstantial evidence of fraud but is also highly relevant to the fourth criterion of the necessary elements to open a dissolution judgment on the ground of fraud; that is that there must be a substantial likelihood that the result of the new trial will be different. Varley v. Varley, 180 Conn. 1, 4, 428 A.2d 317 (1980);
        Jucker v. Jucker, 190 Conn. 674, 677, 461 A.2d 1384 (1983); Jackson v. Jackson, 2 Conn. App. 179, 191, 478 A.2d 1026 (1984). Regarding disparity, see Baker v. Baker 187 Conn. 315, 320 n.5, 445 A.2d 912 (1982).

       Likewise, we are equally capable of subjecting, in appropriate circumstances, factual determinations of the trial court to a less critical eye than is the norm. See Babiarz v. Hartford, Special, Inc., 2 Conn. App. 388, 480 A.2d 561 (1984).


text:
    Raymond F. Lamont, Sr., et al. v. Town of New Hartford
    (3029)
    Dupont, C.P.J., Borden and Spallone, Js.
    Argued April 9
    decision released June 18, 1985

      Michael P. Barry, for the appellants (plaintiffs).

      John W. Pickard, for the appellee (defendant).
   Spallone, J.

The plaintiffs have appealed from a judgment of the trial court dismissing their appeal to the Superior Court from the board of tax review of the defendant town of New Hartford.

The plaintiffs’ property, consisting of two parcels of land and a building, was originally assessed at $87,320. The plaintiffs appealed from that assessment to the board of tax review which reduced the total assessment to $83,670, arrived at as follows:

Land
$13,030
Building
65,930
Other Land
4,710
$83,670

The plaintiffs then appealed to the Superior Court, claiming that the assessment as adjusted was unlawful and excessive. At trial, each party produced a real estate appraiser to testify as to the value of the property. The plaintiffs’ appraiser testified that the assessed value of the building and land was $61,600. The defendant’s appraiser testified that the assessed value was $77,800. The defendant’s appraiser also testified that the defendant’s adjusted assessment of the land at $13,030 and the building at $65,930 resulted in an overvaluation of the property by $980. Upon cross-examination, however, he stated that he did not consider that overvaluation significant.

The trial court dismissed the appeal, finding in a memorandum of decision dated December 22, 1983, that the assessment as adjusted was fair, just and reasonable. The plaintiffs thereafter moved to set aside the judgment on the ground that it was not supported by the evidence. The court refused to vacate the judgment, but on its own motion filed a substitute memorandum of decision in which it corrected its terminology with regard to the fair market value of the property.

In their appeal to this court, the plaintiffs claim that the trial court erred, first, in ruling that the overvaluation was not significant enough to justify sustaining their appeal and, second, in filing the corrected memorandum of decision, rather than granting their motion to set aside the judgment. We find no error.

The $980 variance in valuation arose from the difference between the assessed value of the property and its appraiser’s opinion of what the value should be. The valuation of property for assessment purposes presents a question of fact. Gorin’s, Inc. v. Board of Tax Review, 178 Conn. 606, 607, 424 A.2d 282 (1979). In determining the value of property, a court is aided ordinarily by the opinions of expert witnesses. Hartford Federal Savings & Loan Assn. v. Tucker, 196 Conn. 172, 183, 491 A.2d 1084 (1985). “It is axiomatic that the determination of the credibility of expert witnesses and the weight to be accorded their testimony is within the province of the trier of facts, who is privileged to adopt whatever testimony he reasonably believes to be credible.” Id. While the court is legally required to consider everything that might legitimately affect value, it is not bound by the opinion of expert witnesses. New Haven Savings Bank v. West Haven Sound Development, 190 Conn. 60, 69, 459 A.2d 999 (1983).

“In valuating property the trial court is charged with the duty of making an independent valuation of the property involved. E & F Realty Co. v. Commissioner of Transportation, 173 Conn. 247, 253, 377 A.2d 302 (1977). The trier is not limited to arbitrating the differing opinions of the witnesses but is to make determinations in the light of all the circumstances, the evidence, his general knowledge and his viewing of the premises. Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 220, 435 A.2d 24 (1980); Birnbaum v. Ives, 163 Conn. 12, 21, 301 A.2d 262 (1972). The trier may accept or reject the testimony of an expert, offered by one party or the other, in whole or in part. Smith v. Smith, 183 Conn. 121, 123, 438 A.2d 842 (1981); Richard v. A. Waldman & Sons, Inc., 155 Conn. 343, 348, 232 A.2d 307 (1967); see also Pandolphe’s Auto Parts, Inc. v. Manchester, supra, 221. Ultimately, the determination of the value of real estate is a matter of opinion, which eventually depends upon the considered judgment of the trial judge who takes into account the different opinions expressed by the various witnesses. Moss v. New Haven Redevelopment Agency, 146 Conn. 421, 425, 151 A.2d 693 (1959).” Filipetti v. Filipetti, 2 Conn. App. 456, 458-59, 479 A.2d 1229 (1984); see Hartford Federal Savings & Loan Assn. v. Tucker, supra, 183. The trial court did not err in refusing to sustain this appeal on the basis of the appraiser’s testimony that the property had been overassessed by $980.

There is no merit in the argument that the trial court erred in correcting its memorandum of decision. The original memorandum of decision erroneously used the term “assessment” when it should have used “fair market value” in referring to the testimony of the appraisers. This error was brought to the attention of the trial court when the plaintiffs moved to set aside the judgment. The trial court denied the motion, stating that the error did not affect the outcome of the case and that if the plaintiffs appealed it would file a corrected memorandum. On February 23,1984, after this appeal was taken, the trial court filed, sua sponte, a corrected memorandum in which the proper terms were used.

“It is axiomatic that courts have the power and the duty to correct judgments which contain clerical errors or judgments which have issued due to inadvertence or mistake.” American Trucking Assns. v. Frisco Transportation Co., 358 U.S. 133, 145, 79 S. Ct. 170, 3 L. Ed. 2d 172 (1958); see Practice Book § 326; Steve Viglione Sheet Metal Co. v. Sakonchick, 190 Conn. 707, 710, 462 A.2d 1037 (1983). If a memorandum incorrectly formalizes the decision that was reached in deliberation, it should be corrected. “Their correction does not undercut the decisional process but seeks to give its outcome accurate expression.” Restatement (Second) Judgments § 71(e); see Sibley v. Middlefield, 143 Conn. 100, 109, 120 A.2d 77 (1956). The correction which the trial court made in this case was, in legal effect, one of form, rather than substance. It did not change the import of the judgment. See Harrison v. Harrison, 94 Conn. 280, 283, 108 A. 800 (1920).

The action of a trial court in refusing to vacate a judgment falls generally within the court’s judicial discretion. Steve Viglione Sheet Metal Co. v. Sakonchick, supra, 711. Where the exercise of judicial discretion is required, its exercise will not be disturbed on appeal unless it clearly appears that this discretion has been abused. Id.; Montanaro Bros. Builders, Inc. v. Snow, 4 Conn. App. 46, 54, 492 A.2d 223 (1985). Reversal on the ground of abuse of discretion “will be required only where the abuse is manifest or where injustice appears to have been done.” Montanaro Bros. Builders, Inc. v. Snow, supra. This is not such a case.

There is no error.

In this opinion the other judges concurred.

       The value of the “other land” was never in dispute.


text:
    Harvey Altholtz v. Connecticut Dental Commission
    (2867)
    Dupont, C.P.J., Hull and Spallone, Js.

      Argued April 3
    decision released June 18, 1985

      Joseph A. Lorenzo, with whom, on the brief, was Sandra A. Trionfini, for the appellant (plaintiff).

      Richard J. Lynch, assistant attorney general, with whom, on the brief, were Joseph I. Lieberman, attorney general, and Stanley K. Peck, assistant attorney general, for the appellee (defendant).
   Spallone, J.

The plaintiff is appealing from the dismissal of his administrative appeal from a decision by the defendant to suspend his license to practice dentistry.

The administrative proceeding against the plaintiff arose from a letter of complaint filed with the defendant by a senior dental claim examiner from Connecticut General Life Insurance Company (Connecticut General). In that letter, the claim examiner, Jerry D. Fix, advised the defendant that the plaintiff had billed his company for dental work that either had not been performed or had been performed unsatisfactorily. After meeting with the plaintiff in December, 1979, in an unsuccessful attempt to resolve the matter informally, the defendant issued a formal statement of charges in January, 1980. In the statement of charges, the defendant alleged that the plaintiff had violated General Statutes (Rev. to 1979) § 20-114 (2) and (15) by overbilling and rendering endodontic treatment in an unskillful manner. Pursuant to that statement, the defendant issued a notice of hearing through the department of health services ordering the plaintiff to appear and defend.

At the hearing, the defendant called two witnesses in support of its charges. The first was Fix, who testified that Connecticut General had retained two dentists to evaluate independently the dental work performed by the plaintiff. The reports of both of those dentists were introduced into evidence over the plaintiff’s objection that they were hearsay. The second witness called by the defendant was Michael J. Zazzaro, a dentist employed by the department of health services to investigate complaints. Zazzaro, also over the plaintiff’s objection, testified as to his interpretation of the reports submitted by the independent dentists.

At no point did the plaintiff claim that he did not know that the reports would be offered, request a recess or continuance in order to secure the presence at the hearing of either of the dentists who had prepared the reports, or request that the defendant subpoena the dentists under General Statutes (Rev. to 1979) § 20-115. The plaintiff, moreover, acknowledged during direct testimony that the conclusions in the reports by both dentists with regard to his billing and dental work were correct. After the hearing, the defendant voted unanimously to suspend the plaintiff’s dental license for two consecutive six month periods for violating General Statutes (Rev. to 1979) § 20-114 (2) and (15). The plaintiff appealed from that decision to the Superior Court, which found no merit in his claims and dismissed the appeal.

In his appeal to this court from the judgment rendered upon that dismissal, the plaintiff contends that the trial court erred in finding (1) that his equal protection and due process rights under the United States and Connecticut constitutions were not violated because the doctors who prepared the reports were not present at the hearing; (2) that the defendant’s reliance on hearsay evidence was not an abuse of discretion and a violation of his due process rights; (3) that it is for the legislature to determine whether a license to practice dentistry is a substantial property right the deprivation of which would be a violation of procedural due process where there is no opportunity to cross-examine witnesses; and (4) that General Statutes (Rev. to 1979) § 20-114 was not unconstitutionally vague. We find no error.

Judicial review of administrative process is intended to assure that the evidence upon which an administrative agency acts is probative and reliable and that the action taken is fundamentally fair. Feinson v. Conservation Commission, 180 Conn 421, 429, 429 A.2d 910 (1980). It is well settled that “ ‘[conclusions reached by an administrative body must be upheld by the court if they are supported by the evidence that was before the administrative body. Balch Pontiac-Buick, Inc. v. Commissioner of Motor Vehicles, 165 Conn. 559, 563, 345 A.2d 520 [1973]. The credibility of witnesses and the determination of issues of fact are matters within the province of the administrative agency. Jaffe v. State Department of Health, 135 Conn. 339, 343, 64 A.2d 330 [1949]. It is not the function of the court to retry the case. The question is not whether the trial court would have reached the same conclusion but whether the record before the commission supports the action taken. Conley v. Board of Education, 143 Conn. 488, 492, 123 A.2d 747 [1956].’ Williams v. Liquor Control Commission, 175 Conn. 409, 414, 399 A.2d 834 (1978).” Hospital of St. Raphael v. Commission on Hospitals & Health Care, 182 Conn. 314, 318, 438 A.2d 103 (1980).

General Statutes § 4-178, which is part of the Uniform Administrative Procedure Act; General Statutes §§ 4-166 through 4-189; permits the admission of written evidence in contested cases unless it will substantially prejudice a party. Carlson v. Kozlowski, 172 Conn. 263, 266, 374 A.2d 207 (1977). General Statutes § 4-183 (g) (1) provides that a court may reverse or modify an agency decision which is in “violation of . . . statutory provisions.” The plaintiffs first two claims on appeal raise, in their essence, the question of whether the trial court erred in failing to find that the admission of the reports by the two independent dentists was substantially prejudicial to him and, therefore, in violation of General Statutes § 4-178.

In Carlson v. Kozlowski, supra, where the plaintiff challenged the suspension of his operator’s license by the commissioner of motor vehicles, the same basic question was raised. In that case, hearsay evidence in the form of affidavits by witnesses to an accident in which the plaintiff was involved was admitted at an administrative proceeding, even though the witnesses were not present. The Supreme Court found, under the facts of that case, that the affidavits were insufficiently trustworthy and substantially prejudicial under General Statutes § 4-178. Id., 268.

In arriving at that conclusion, the court looked to Richardson v. Perales, 402 U.S. 389, 91 S. Ct. 1420, 28 L. Ed. 2d 842 (1971), for guidance as to the standard by which the trustworthiness of hearsay evidence is to be measured in an administrative proceeding. Carlson v. Kozlowski, supra, 267. In this case, too, Richardson v. Perales, supra, provides useful guidance.

In Richardson, the challenged evidence comprised medical reports introduced in a social security disability hearing at which the doctors who prepared the reports were not present. In determining that the reports were trustworthy although hearsay, the United States Supreme Court stated “that a written report by a licensed physician who has examined the claimant and who sets forth in his report his medical findings in his area of competence may be received as evidence in a disability hearing and, despite its hearsay character and an absence of cross-examination, and despite the presence of opposing direct medical testimony and testimony by the claimant himself, may constitute substantial evidence supportive of a finding . . . adverse to the claimant, when the claimant has not exercised his right to subpoena the reporting physician and thereby provide himself with the opportunity for cross-examination of the physician.” Richardson v. Perales, supra, 402.

The written reports of the dentists in this case fall squarely within the standard set forth in Richardson. The reports were made by dentists with no bias or interest in the case, were based on personal consultation and examination and contained no facial inconsistency. Richardson v. Perales, supra, 403-404; cf. Carlson v. Kozlowski, supra, 268. Furthermore, the reports were not the only evidence of the plaintiffs culpability. The plaintiff testified that the conclusions in the reports were correct, that he did not always keep his records “up to snuff” and that several root canals which he performed went “less of the distance down the root than I would have liked to.” We conclude that the hearsay evidence used in this case clearly met the level of the evidence held to be trustworthy in Richardson and did not substantially prejudice the plaintiff.

As to the plaintiff’s third claim of error, the trial court was correct in stating that any change in our procedures governing the conduct of administrative proceedings which involve a property right as substantial as the one at issue is a matter for legislative consideration. Administrative due process requires, in its essence, that a party be given notice of the case against him and an opportunity to be heard by a fair and impartial body. The procedure must be tailored, in light of the decision to be made, to the circumstances of those who are to be heard to insure that the hearing is, in fact, meaningful. Mathews v. Eldridge, 424 U.S. 319, 349, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976); Pagano v. Board of Education, 4 Conn. App. 1, 6-7, 492 A.2d 197 (1985). The procedure used in this case sufficiently ensured the plaintiffs constitutional right of due process. If our legislature wishes to provide further procedural safeguards to fortify those already in effect, it may do so. This is not a matter for judicial determination.

The final claim which the plaintiff has raised is that the statute under which the defendant acted is unconstitutionally vague. The statute, General Statutes (Rev. to 1979) § 20-114, provided that “ft]he dental commission may suspend or revoke any license . . . for any of the following causes ... (2) proof that such person has become unfit or incompetent or has been guilty of cruelty, unskillfulness, gross negligence or indecent conduct toward patients . . . (15) unprofessional conduct . . . . ” The plaintiff argues that the terms “unfit,” “incompetent,” and “unprofessional conduct” are not defined in the statutes and, therefore, that the statute is void for vagueness.

The terms of a statute which is penal in nature; see Brazo v. Real Estate Commission, 177 Conn. 515, 526, 418 A.2d 883 (1979); “must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties.” Amsel v. Brooks, 141 Conn. 288, 297, 106 A.2d 152, appeal dismissed, 348 U.S. 880, 75 S. Ct. 125, 99 L. Ed. 693 (1954). In applying this test, we look at the statute’s applicability to the particular facts at issue. State v. Smith, 183 Conn. 17, 19, 438 A.2d 1165 (1981). Generally, if a practical or sensible effect may be given to such a statute, it will be sustained. Amsel v. Brooks, supra.

General Statutes § 1-1 (a) provides that “words and phrases shall be construed according to the commonly approved usage of the language; and technical words and phrases . . . shall be construed and understood accordingly.” Terms associated with the trade or business with which a given statute is concerned should be accorded the meaning which they would convey to an informed person in that trade or business. Berger, Lehman Associates, Inc. v. State, 178 Conn. 352, 357, 422 A.2d 268 (1979). We presume that members of a professional health licensing board are competent to decide on the basis of such terms whether certain conduct is in derogation of professional standards. See Jaffe v. State Department of Health, 135 Conn. 339, 349, 64 A.2d 330 (1949). It is also our view that what constitutes “unprofessional conduct” and what renders a professional “unfit” or “incompetent” are to be determined “by those standards which are commonly accepted by those practicing the same profession in the same territory.” Leib v. Board of Examiners for Nursing, 177 Conn. 78, 88-89, 411 A.2d 42 (1979), quoting Cherry v. Board or Regents, 289 N.Y. 148, 158, 44 N.E.2d 405 (1942). These standards are part of the ethics of the profession, and every member of the profession should be regarded as an expert with regard to the determination of their meaning. Leib v. Board of Examiners for Nursing, supra, 89.

Considering the record as a whole, we conclude that there was substantial evidence before the defendant to support its decision and that the trial court was correct in dismissing the appeal.

There is no error.

In this opinion the other judges concurred.

       Although employed by the defendant, Zazzaro was not a participant in the defendant’s deliberations with regard to complaints received.

       General Statutes (Rev. to 1979) § 20-115 was repealed by Public Acts 1980, No. 80-484, § 175, effective July 1, 1980. See General Statutes § 19a-10.

       As to the claimed overbilling, the plaintiff, upon receiving a complaint from Connecticut General, voluntarily refunded $698.

       The Supreme Court in Carlson v. Kozlowski, 172 Conn. 263, 374 A.2d 207 (1977), acknowledged that under federal law, the standard by which a reviewing court may set aside an agency finding is different from ours. Id., 266-67. “Federal law requires a reviewing court to set aside an agency finding if the finding is not supported by ‘substantial evidence.’ 5 U.S.C. § 706 (2) (E). Our statute differs in that it provides that a court may reverse or modify an agency decision if substantial rights of the appellant have been prejudiced because the administrative findings are clearly erroneous in view of the reliable, probative and substantial evidence on the whole record. General Statutes § 4-183 (g) (5).” Carlson v. Kozlowski, supra. That court felt, however, as do we, that the standard set forth in Richardson v. Perales, 402 U.S. 389, 91 S. Ct. 1420, 28 L. Ed. 2d 842 (1971), is not irrelevant in applying General Statutes § 4-183 (g). Carlson v. Kozlowski, supra, 267.