author: SHELDON, J.

text:
    SARA SOCCI ET AL. v. JEFFREY PASIAK
    (AC 32778)
    Graendel, Beach and Sheldon, Js.

      Argued April 25 —
    officially released August 21, 2012

      Miles N. Esty, with whom, on the brief, was Peter C. Bowman, for the appellant (defendant).

      Daniel M. Young, with whom, on the brief, was Christine D. Salmon, for the appellees (plaintiffs).
   Opinion

SHELDON, J.

The defendant, Jeffrey Pasiak, appeals from the judgment of the trial court denying his motion to set aside the verdict of a jury awarding $835,700 in damages to the plaintiff Sara Socci for injuries and losses she claimed to have suffered due to his tortious conduct toward her during an incident at his home office on May 9,2006. The plaintiff claimed, more particularly, and the jury found, by its general verdict, that the defendant caused her injuries and losses in the subject incident by conduct constituting false imprisonment, negligence and/or intentional, reckless or negligent infliction of emotional distress. The defendant claims that the court erred in denying his motion to set aside the jury’s verdict because (1) the court improperly denied his request for a jury instruction on the doctrine of superseding cause, instead improperly instructing the jury on sole proximate cause; (2) the evidence was insufficient to prove that the defendant intentionally or negligently inflicted emotional distress upon the plaintiff; (3) the amount of damages was excessive; (4) the evidence was insufficient to support an award of punitive damages; and (5) the court improperly excluded evidence of the injuries that the defendant sustained during the incident at issue in this case. We affirm the judgment of the trial court.

The following facts, as set forth in the court’s memorandum of decision on the defendant’s motion to set aside the verdict and which the jury reasonably could have found, and procedural history are relevant to our resolution of the issues on appeal. “The plaintiff . . . was employed by Jeffrey Pasiak Construction Service, LLC, to work from his home office at 217 Soundview Avenue [in Stamford]. The defendant . . . was the owner and operator of the business and it was his home that served as the office. On May 9, 2006, the plaintiff reported to work at the house and was alone in the second floor office when a man with a gun and mask entered the office and told her to open the safe. The plaintiff did not know that there was a safe [in the defendant’s home] and was not able to give this man the combination to the safe. He brought her to the bedroom area and demanded the combination to the safe. He tied her hands . . . gagged her and blindfolded her. . . . [W]hen she was unable to give the combination for the safe, he put a gun to her head and told her that he knew her family and would kill them if she did not give him the combination. She was unable to do so. During his efforts to get to the safe, [the man] cut his hand and [left] his blood ... on [the plaintiffs] clothing. At some point, [the defendant] returned to the home/office and was attacked by [the intruder]. [The defendant] testified that his head was cut during this struggle. . . . [During] the struggle, the mask covering [the intruder’s] face was pulled off and the defendant recognized [the assailant as his friend, Richard Kotul-sky]. The defendant then began talking to Kotulsky and at some point inquired about ‘the girl,’ meaning [the plaintiff]. The defendant and Kotulsky entered the bedroom where the plaintiff was on the floor and [the defendant] picked [her] up. . . . The restraints were removed [from the plaintiff] after some disagreement as to who should remove them. [The plaintiff] was crying and hysterical about the incident. At this point, the defendant continued conversing with Kotulsky and had the plaintiff sit with them. The plaintiff asked to leave and was told by [the defendant], not Kotulsky, to stay and sit down. The defendant, after further discussion, allowed Kotulsky to leave the house. [The plaintiff then] told the defendant about the threats that Kotulsky made to her and her family. The defendant did not call police at this time. When asked if she could leave without fear of harm, [the plaintiff] was told to stay [by the defendant]. [The defendant] did not want [the plaintiff] to call the police or discuss this incident. For many hours thereafter, the plaintiff remained with the defendant, [fearing that] ... if she left, something [might] happen to her or [her family]. It was only after [driving the plaintiff to Greenwich and] discussing the matter with a mutual friend that the defendant allowed the plaintiff to leave. The plaintiff contacted her husband who picked up their children and returned [to their] home. ... On the evening of these events, [the plaintiff told her husband what had happened and he] insisted that they talk to [the defendant] about contacting the police. They did and the police were contacted, came to the [defendant’s] home/office and thereafter took statements at the police station. On that same night, [the defendant] talked to Kotulsky on the phone in an effort to have him go to the police. During this conversation, [the defendant] told Kotulsky that the [plaintiff] had given him up to the police. The [plaintiff and her husband] were very disturbed by this conversation. Kotulsky was eventually caught by the police and is now serving a prison sentence. As a result of the events, the plaintiff . . . [has become] very fearful and [has] lost her trust in everyone. She would not stay alone and [had] had difficulty sleeping and functioning on a daily basis. Her husband became responsible for most of the household duties as well as taking care of the children. [The plaintiff] began therapy as a result of her inability to cope and continues to see Dr. [Rebecca] Timlin-Scalera [a neuropsychologist]. She was diagnosed with post-traumatic stress disorder by both Tim-lin-Scalera and Dr. [Walter] Borden [a forensic psychiatrist]. She has been unable to return to work because of her fears and is still under the care of Tim-lin-Scalera.”

By way of a six count complaint, the plaintiff filed this action against the defendant claiming false imprisonment, negligence and intentional, reckless and negligent infliction of emotional distress. The sixth count alleges damages for loss of consortium on behalf of the plaintiffs husband. On February 23, 2010, after eleven days of trial and a little more than one day of jury deliberation, the jury returned a verdict in favor of the plaintiff, awarding her damages in the amount of $835,700, comprised of $128,200 in economic damages, $500,000 in noneconomic damages, $175,000 in punitive damages and $32,500 to her husband for loss of consortium.

Thereafter, the defendant filed a “motion to set aside the verdict, motion for judgment notwithstanding the verdict and motion for remittitur” (motion to set aside). The defendant claimed in his motion to set aside that the court improperly denied his request for a jury instruction on the doctrine of superseding cause and, instead, improperly instructed the jury on sole proximate cause; that the evidence was insufficient to prove that the defendant intentionally or negligently inflicted emotional distress upon the plaintiff; that the amount of damages was excessive; that the court should have set aside the award of punitive damages; and that the court improperly excluded evidence of the injuries that the defendant sustained during the incident here at issue. In a thorough memorandum of decision filed on September 28, 2010, the court denied the defendant’s motion to set aside. This appeal followed.

The defendant’s claims on appeal are identical to those that he raised in his motion to set aside. “The proper appellate standard of review when considering the action of a trial court in granting or denying a motion to set aside a verdict is the abuse of discretion standard. ... In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court’s ruling. . . . Reversal is required only [when] an abuse of discretion is manifest or [when] injustice appears to have been done. . . . [T]he role of the trial court on a motion to set aside the jury’s verdict is not to sit as [an added] juror . . . but, rather, to decide whether, viewing the evidence in the light most favorable to the prevailing party, the jury could reasonably have reached the verdict that it did. ... In reviewing the action of the trial court in denying [or granting a motion] ... to set aside the verdict, our primary concern is to determine whether the court abused its discretion. . . . The trial court’s decision is significant because the trial judge has had the same opportunity as the jury to view the witnesses, to assess their credibility and to determine the weight that should be given to [the] evidence. Moreover, the trial judge can gauge the tenor of the trial, as [this court], on the written record, cannot, and can detect those factors, if any, that could improperly have influenced the jury.” (Internal quotation marks omitted.) Patino v. Birken Mfg. Co., 304 Conn. 679, 698-99, 41 A.3d 1013 (2012). With these principles in mind, we address the defendant’s claims in turn.

I

We begin with the defendant’s claims of instructional error. The defendant claims that the court erred in denying his request for an instruction on the doctrine of superseding cause and, instead, instructed the jury on sole proximate cause. We disagree.

A

We first address the defendant’s claim that the court improperly denied his request for an instruction on the doctrine of superseding cause. “In determining whether the trial court improperly refused a request to charge, [w]e . . . review the evidence presented at trial in the light most favorable to supporting the . . . proposed charge. ... A request to charge which is relevant to the issues of [a] case and which is an accurate statement of the law must be given. ... If, however, the evidence would not reasonably support a finding of the particular issue, the trial court has a duty not to submit it to the jury. . . . Thus, a trial court should instruct the jury in accordance with a party’s request to charge [only] if the proposed instructions are reasonably supported by the evidence.” (Internal quotation marks omitted.) State v. Arroyo, 284 Conn. 597, 607-608, 935 A.2d 975 (2007).

A superseding cause has been defined “in 2 Restatement (Second), Torts § 440 (1965) and Doe v. Manheimer, [212 Conn. 748, 759, 563 A.2d 699 (1989)], to describe any cause intervening between the time of the defendant’s allegedly tortious conduct and that of the plaintiffs claimed injury which, although not disproving that the defendant’s conduct proximately caused the plaintiffs claimed injury, prevented the defendant’s conduct from being considered a legal cause of that injury. Such superseding causes . . . are limited to intentionally harmful acts, forces of nature, or criminal events, unforeseeable by the defendant, which intervene in the sequence of events leading from the defendant’s alleged negligence to the plaintiffs alleged injury and proximately cause that injury. See Barry v. Quality Steel Products, Inc., [263 Conn. 424, 439 n.16, 820 A. 2d 258 (2003)] (confirming the continuing viability of the superseding cause doctrine in cases where the defendant claims that an unforeseeable intentional tort, force of nature, or criminal event supersedes its tortious conduct).” (Internal quotation marks omitted.) Connecticut Civil Jury Instructions § 3.1-8, Notes (revised to January 1, 2008), available at http://www.jud.ct. gov/ ji/civil/part3/3. l-8.htm (last visited August 3, 2012). In other words, in addition to the limitation of the doctrine of superseding cause to intentional or criminal conduct, it also has a temporal limitation. The doctrine applies only to conduct that intervenes in or disrupts the causal connection between the alleged tortious conduct and the alleged injury; it does not apply to antecedent conduct.

Here, the defendant claims that the superseding cause that gave rise to the injuries sustained by the plaintiff was the intentional and criminal conduct of Kotulsky. Because Kotulsky’s conduct occurred prior to the defendant’s conduct, however, it cannot be said to have disrupted the causal connection between the defendant’s conduct and the injuries sustained by the plaintiff. Thus, because the evidence could not reasonably support a finding that Kotulsky’s actions superseded the defendant’s tortious conduct, the court properly denied the defendant’s request to charge on the doctrine of superseding cause.

B

The defendant next claims that the court improperly instructed the jury on sole proximate cause. The plaintiff asserts that this claim of instructional error was not properly preserved for appeal. The defendant counters that he preserved this claim by submitting a written request to charge on the doctrine of superseding cause, and thus he was not required to voice an objection as to the instruction on sole proximate cause. In other words, the defendant claims that because he submitted a request to charge on causation, the court was on notice that he objected to any instruction on causation that was not in precise accordance with his request. We disagree.

“To preserve an exception to a jury instruction for farther review under Practice Book § 16-20, a party must either submit a written request to charge or state distinctly the matter objected to and the ground of objection.” (Emphasis added; internal quotation marks omitted.) State v. Darryl W., 303 Conn. 353, 370, 33 A.3d 239 (2012). “It is our long-standing position that [t]o review [a] claim, which has been articulated for the first time on appeal and not before the trial court, would result in a trial by ambuscade of the trial judge.” (Internal quotation marks omitted.) Id., 371.

Based on our review of the transcript of the charge conference, it is clear that the court provided copies of its intended instructions to counsel for both parties and discussed the contents of those instructions in detail with counsel. The defendant did not object or take an exception to the court’s instruction on sole proximate cause. In fact, he raised his objection to this instruction for the first time in his postjudgment motion to set aside. As the court noted in its memorandum of decision denying that motion, “[d]uring the course of the charging conference, the court addressed the issue and its proposal to include a charge about the sole proximate cause. The defendant contends that this charge is illogical and confusing but on two separate times when the causation charge was discussed and this charge specifically, defense counsel sat mute.” Indeed, the defendant not only failed to object to the instruction on sole proximate cause, but engaged with the court in discussing the phrasing and the substance of that instruction.

The defendant asserts that his objection to the court’s sole proximate cause instruction was preserved because he filed a request to charge on superseding cause. We disagree. To credit the defendant’s argument in this regard would be to discount the well settled requirement that a party distinctly state the portion of the instruction that is being challenged and the basis for that challenge. There is nothing in the record from which the trial court could have ascertained that the defendant objected to an instruction on sole proximate cause. Because the defendant failed to state distinctly the matter objected to and the ground of objection as required, and thus failed to alert the court to the deficiencies in the charge now advanced, his claim was not preserved for appellate review.

Alternatively, the defendant claims that the court’s instruction on sole proximate cause constituted plain error. “[T]he plain error doctrine ... is not ... a rule of reviewability. It is a rule of reversibility. That is, it is a doctrine that this court invokes in order to rectify a trial court ruling that, although either not properly preserved or never raised at all in the trial court, nonetheless requires reversal of the trial court’s judgment, for reasons of policy. . . . [T]he plain error doctrine is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” (Internal quotation marks omitted.) State v. Darryl W., supra, 303 Conn. 371-73. On the basis of the facts of this case, we cannot conclude that the court’s instruction on sole proximate cause constituted plain error.

II

The defendant next claims that there was insufficient evidence to prove that he intentionally or negligently inflicted emotional distress upon the plaintiff. The jury rendered a general verdict in favor of the plaintiff. “[T]he general verdict rule is a rule of appellate jurisprudence designed to further the general principle that it is the appellant’s responsibility to provide a record upon which reversible error may be predicated. . . . Under the general verdict rule, if a jury renders a general verdict for one party, and no party requests interrogatories, an appellate court will presume that the jury found every issue in favor of the prevailing party. . . . Thus, in a case in which a general verdict rule operates, if any ground for the verdict is proper, the verdict must stand; only if every ground is improper does the verdict fall. ... A party desiring to avoid the effects of the general verdict rule may elicit the specific grounds for the verdict by submitting interrogatories to the jury.” (Internal quotation marks omitted.) Gregory v. Gregg, 135 Conn. App. 463, 465-66, 41 A.3d 1202 (2012).

Here, no interrogatories were submitted to the jury, and we therefore are unable to determine the basis of the jury’s verdict, e.g., whether the jury found that the defendant negligently or intentionally inflicted emotional distress on the plaintiff. It is possible that the jury did not find the defendant liable under either of those theories of liability, but, rather, based its verdict on one or more of the plaintiffs other theories of liability. We are thus unable to review these claims because the record is insufficient for our review.

in

The defendant contends that the jury’s award was excessive. “Because an award of damages is a matter peculiarly within the province of the trier of facts, we have held consistently that a court should exercise its authority to order a remittitur rarely — only in the most exceptional of circumstances. ... In determining whether to order remittitur, the trial court is required to review the evidence in the light most favorable to sustaining the verdict. . . . Upon completing that review, the court should not interfere with the jury’s determination except when the verdict is plainly excessive or exorbitant. . . . The ultimate test which must be applied to the verdict by the trial corut is whether the jury’s award falls somewhere within the necessarily uncertain limits of just damages or whether the size of the verdict so shocks the sense of justice as to compel the conclusion that the jury [was] influenced by partiality, prejudice, mistake or corruption. . . . The court’s broad power to order a remittitur should be exercised only when it is manifest that the jury [has] included items of damage which are contrary to law, not supported by proof, or contrary to the court’s explicit and unchallenged instructions.” (Citation omitted; internal quotation marks omitted.) Patino v. Birken Mfg. Co., supra, 304 Conn. 705-706.

The defendant claims that “if the jury determined there was joint and concerted activity [by the defendant and Kotulsky], then [the] plaintiffs damages were limited to those damages that were proximately caused by that joint and concerted activity.” The defendant argues that “the only time period during which there could have been joint and concerted intentional conduct was after the defendant arrived home, but before the assailant left. This period of time was approximately one hour long . . . .” To be sure, the jury reasonably could have determined that the plaintiff had suffered a great deal during that one hour period of time during which the defendant and Kotulsky, who had repeatedly threatened to harm the plaintiff and her family, discussed together what they were going to do with the plaintiff now that Kotulsky’s identity had been discovered. There was also evidence before the jury, however, that the defendant continued to have telephone contact with Kotulsky after Kotulsky left the defendant’s home specifically to discuss what the defendant planned to do with the plaintiff and whether he had released her.

The defendant also claims that the verdict was excessive because the defendant’s conduct, relative to that of the assailant, was “de minimis.” The plaintiffs treating mental health professional, Timlin-Scalera, testified that the plaintiffs therapy has focused to a great extent on the conduct of the defendant due to her relationship with him, that he had betrayed her trust and that he significantly prolonged the duration of the continuing threat that was perceived by the plaintiff. On the basis of this testimony, we reject the defendant’s attempt to minimize the contribution of his reprehensible conduct to the plaintiffs long-term emotional injuries.

IV

The defendant claims that the evidence was insufficient to support an award of punitive damages because the plaintiff did not offer any evidence to prove that the defendant’s conduct was outrageous or that it was animated by an evil motive or accompanied by violence. The defendant did not object, at any time prior to the filing of his motion to set aside, to submitting to the jury the option to award punitive damages. He did not argue to the trial court that an instruction on punitive damages should not be given to the jury on the basis that the evidence did not support such an instruction. Based on the evidence presented regarding the defendant’s conduct, we cannot conclude that jury improperly awarded punitive damages to the plaintiff.

V

Finally, the defendant claims that the exclusion of evidence of injuries that he sustained as a result of his physical altercation with Kotulsky on the date in question limited his ability to challenge the plaintiffs assertion that he and Kotulsky were close friends who were working in concert during the incident at issue. We disagree.

“We review the trial court’s decision to admit [or exclude] evidence, if premised on a correct view of the law ... for an abuse of discretion. . . . The trial court has wide discretion to determine the relevancy of evidence and the scope of cross-examination. . . . Thus, [w]e will make every reasonable presumption in favor of upholding the trial court’s ruling[s] [on these bases] .... In determining whether there has been an abuse of discretion, the ultimate issue is whether the court . . . reasonably [could have] concludefd] as it did.” (Citations omitted; internal quotation marks omitted.) State v. Davis, 298 Conn. 1, 10-11, 1 A.3d 76 (2010).

The physical altercation took place before the defendant had unmasked Kotulsky, so the defendant’s relationship with Kotulsky had no bearing on the injuries he sustained during the physical altercation during which he was unaware of his assailant’s identity. Additionally, the defendant himself testified that he had known Kotulsky for at least fifteen years, that he had a few pictures of Kotulsky hanging on the walls throughout his house and that he is the godfather of Kotulsky’s oldest child. Thus, based upon the defendant’s own testimony, he and Kotulsky had a close friendship. Because evidence of the injuries sustained by the defendant was not relevant to the issues at trial, the court properly excluded that evidence.

On the basis of the foregoing, we conclude that the court properly denied the defendant’s motion to set aside.

The judgment is affirmed.

In this opinion the other judges concurred.

       Sara Socci’s husband, Kraig Socci, filed a loss of consortium claim and was awarded $32,500 in damages on that claim, which is included in the total amount of damages of $835,700. Because Kraig Socci’s claim is derivative of his wife’s claims, for the sake of clarity, we refer in this opinion to Sara Socci as the plaintiff.

       The parties agreed that the only submission to the jury would be a general plaintiffs verdict form and a defendant’s verdict form. There were no interrogatories provided to the jury on any of the plaintiffs claims.

       The defendant asks this court to modify the existing case law regarding superseding cause, as expressed in Barry v. Quality Steel Products, Inc., supra, 263 Conn. 424, by expanding it to “include such unforeseeable intentional tort, force of nature, or criminal event that precedes the plaintiffs injuries that so affect the plaintiff, which would prevent any further or subsequent negligent conduct from causing the plaintiff additional harm.” In so requesting, the defendant concedes that the existing law regarding superseding conduct is not applicable to the facts of the present case, and thus that the court properly declined to give such an instruction to the jury.

       During the charge conference, counsel for the defendant addressed the court’s intended instruction on sole proximate cause as follows: “The first comment is that the second to the last paragraph states: ‘The defendant has also filed what is called a special defense alleging that any claims for damages and/or injuries were the sole proximate cause.’

        “It actually, with all due respect should read: ‘Alleging that plaintiffs damages and/or injuries were the sole proximate cause.’ It’s not the claims that are the sole proximate cause.”
      Later in the charge conference, the court and counsel engaged in a more detailed discussion about the instruction on causation as follows:
      “[The Defendant’s Counsel]: Your Honor, I would just point out that when you revisit the issue of superseding or sole proximate cause, depending on what you do and where you insert it into the charge, I just want to make sure that the jury is not confused, because you’re talking about the burden of proof on cause and then all of a sudden you’re talking about my burden on sole proximate cause.
      “The Court: And it is and it was and that’s where I specifically pointed it out, because if they do find the sole proximate cause based on your special defense and I think the burden does shift, and I think that you’ve provided the testimony in that regard. And that’s why I specifically indicated to them that if they’re going to look at that, that the burden has shifted to you to show that Mr. Kotulsky was the sole proximate cause.
      “[The Defendant’s Counsel]: But that inquiry is separate and distinct from their initial determine as to whether the plaintiff—
      “The Court: That’s correct.
      “[The Defendant’s Counsel]: Okay, I just want to make sure, however, it’s folded into the charge that the difference is clear.
      “The Court: Okay.
      “[The Defendant’s Counsel]: That’s all.
      “The Court: Anything else in relation to the causation? You generally know that I am going to give them a charge regarding the sole proximate cause and independent acts.”

       The court further pointed out that the defendant asserted at trial that the plaintiffs injuries arose solely from the actions of Kotulsky and that his conduct did not contribute to the plaintiffs injuries. Our review of the record supports the court’s characterization of the defendant’s theory of the case as tried to the jury.

       Assuming arguendo that the jury did find that the defendant negligently or intentionally inflicted emotional distress upon the plaintiff, we are puzzled by the defendant’s claim that he did not know or have reason to know that requiring the plaintiff to remain in his presence for several hours under the threat of harm against her and her family would cause her emotional distress.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    JERROLD M. METCOFF ET AL. v. NCT GROUP, INC., ET AL.
    (AC 33228)
    Lavine, Sheldon and Peters, Js.

      Argued May 24 —
    officially released August 21, 2012

      Michael J. Parrella, Sr., pro se, the appellant (defendant).

      Michael P. Berman, with whom was Suzanne LaPlante, for the appellees (plaintiffs).
   Opinion

PER CURIAM.

In this action arising from a corporate merger, the defendant Michael J. Parrella, Sr., appeals from the judgment of the trial court, rendered after a jury trial, in which the jury awarded damages to the plaintiffs, Jerrold M. Metcoff and David B. Wilson, for losses they sustained as a result of misrepresentations made to them by the defendant in and at the time of the merger agreement. On appeal, the defendant challenges the court’s denial of his motion to set aside the jury’s verdict and the court’s own subsequent awards of attorney’s fees and punitive damages based upon certain of the jury’s findings. We affirm the judgment of the trial court.

The plaintiffs were the principals and majority stockholders of Midcore Software Inc. (Midcore Software), a company that developed and marketed certain computer software called Midpoint. The defendant was the chief executive officer and chairman of NCT Group, Inc. (NCT Group), and its two subsidiaries, NCT Midc-ore, Inc. (NCT Midcore), and Artera Group, Inc. (Art-era). On August 29, 2000, the plaintiffs and the defendant executed an agreement providing for the merger of Midcore Software into NCT Midcore. Pursuant to the terms of the agreement, which were negotiated by Wilson and the defendant, the plaintiffs were to receive shares of NCT Group stock and royalties generated by NCT Group from the postmerger sale of Midcore products.

The plaintiffs filed this action, claiming that they never received the stock or royalties promised to them by the defendant in the merger agreement and in the defendant’s false representations to them. The defendant filed an answer and special defenses, asserting, inter alia, that the plaintiffs’ claims were barred by the statute of limitations. Following a trial, the jury found that the defendant had made negligent misrepresentations to the plaintiffs both as to the availability of NCT Group stock and as to NCT Group’s ability to issue the stock to them, as required under the merger agreement. On that claim, the jury awarded damages to Metcoff in the amount of $559,982 and to Wilson in the amount of $496,318. The jury also found that the defendant had intentionally misrepresented to the plaintiffs that, after the merger, NCT Midcore would operate in the same manner as Midcore Software, and thus would continue the business of Midcore Software. On that claim, the jury awarded damages to Metcoff in the amount of $113,855 and to Wilson in the amount of $143,434. Finally, the jury found that by making intentional misrepresentations to the plaintiffs concerning the continuation of Midcore Software business after the merger, the defendant violated the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. As a result of that finding, the jury determined that the plaintiffs should recover punitive damages and attorney’s fees in an amount to be determined by the court.

On April 30, 2010, the defendant filed a “motion to set aside [the] verdict and for judgment notwithstanding [the] verdict and to reduce excessive damage awards” (motion to set aside). As grounds for his motion, the defendant claimed that “no reasonable jury could interpret Sections 5 and 9 (b) of the [m]erger [agreement as [the] plaintiffs alleged, nor fail to find the action not barred by the statute of limitations, nor award the damages set forth in the verdict as a matter of law; no reasonable jury, on the evidence submitted at trial, could have found that [the] plaintiff [s] met their burden of proof on any element of negligent misrepresentation . . . any element of fraud . . . any element of CUTPA ... or the damages awarded under [those claims]; no reasonable jury could have found, on the evidence submitted at trial, that the action was not barred by the three (3) year statute of limitations in [General Statutes] § 52-577, or that [the] [plaintiffs met their burden of proof of fraudulent concealment or continuous course of conduct to toll said limitations.” The defendant further claimed in his motion to set aside that, “[t]he jury appears to have disregarded the [c]ourt’s instructions on the law and rendered verdicts based on speculation and conjecture for claims not alleged in the [c]omplaint as instructed by the [c]ourt.” On August 10, 2010, the court summarily denied the defendant’s motion to set aside and rendered judgment on the jury’s verdict. The defendant did not ask the trial court to articulate the basis for its denial of his motion to set aside.

After a separate posttrial hearing, the court issued a memorandum of decision as to the plaintiffs’ claims for attorney’s fees, costs and punitive damages. On the plaintiffs’ CUTPA claims, the court awarded attorney’s fees of $540,000, $270,000 for each plaintiff, and punitive damages of $257,289, $128,644.50 for each plaintiff. In addition, the court awarded common-law punitive damages to the plaintiffs in the amount of $17,089, $8544.50 for each plaintiff. This appeal followed.

The defendant first challenges on appeal the denial of his motion to set aside. “The standard of review governing our review of a trial court’s denial of a motion to set aside the verdict is well settled. The trial court possesses inherent power to set aside a jury verdict [that], in the court’s opinion, is against the law or the evidence. . . . [The trial court] should not set aside a verdict [when] it is apparent that there was some evidence [on] which the jury might reasonably reach [its] conclusion, and should not refuse to set it aside [when] the manifest injustice of the verdict is so plain and palpable as clearly to denote that some mistake was made by the jury in the application of legal principles. . . . Ultimately, [t]he decision to set aside a verdict entails the exercise of a broad legal discretion . . . that, in the absence of clear abuse, we shall not disturb.” (Internal quotation marks omitted.) Costanzo v. Gray, 112 Conn. App. 614, 625-26, 963 A.2d 1039, cert. denied, 291 Conn. 905, 967 A.2d 1220 (2009). “[T]he trial court is uniquely situated to entertain a motion to set aside a verdict as against the weight of the evidence because, unlike an appellate court, the trial [court] has had the same opportunity as the jury to view the witnesses, to assess their credibility and to determine the weight that should be given to their evidence. . . . [T]he trial judge can gauge the tenor of the trial, as we, on the written record cannot, and can detect those factors, if any, that could improperly have influenced the juiy.” (Internal quotation marks omitted.) State v. Scott C., 120 Conn. App. 26, 38, 990 A.2d 1252, cert. denied, 297 Conn. 913, 995 A.2d 956 (2010).

We have reviewed the defendant’s claims of error regarding the jury’s verdict, which essentially mirror the claims raised in his motion to set aside, and conclude that, in light of the evidence presented at trial, the jury reasonably could have found as it did on all issues presented to it for decision. Moreover, the defendant did not ask the trial court to articulate the factual and legal bases underlying its summary denial of his motion to set aside. “It is well established that [i]t is the appellant’s burden to provide an adequate record for review. ... It is, therefore, the responsibility of the appellant to move for an articulation or rectification of the record [when] the trial court has failed to state the basis of a decision ... to clarify the legal basis of a ruling ... or to ask the trial judge to rule on an overlooked matter.” (Internal quotation marks omitted.) Mickey v. Mickey, 292 Conn. 597, 609, 974 A.2d 641 (2009). On the basis of the record before us, we cannot conclude that the trial court abused its discretion in denying the defendant’s motion to set aside.

The defendant also challenges the court’s award of common-law punitive damages and attorney’s fees and punitive damages pursuant to CUTPA. “[A]warding punitive damages and attorney’s fees under CUTPA is discretionary . . . and the exercise of such discretion will not ordinarily be interfered with on appeal unless the abuse is manifest or injustice appears to have been done.” (Internal quotation marks omitted.) Votto v. American Car Rental, Inc., 273 Conn. 478, 486, 871 A.2d 981 (2005).

We have examined the record on appeal and considered the briefs and the arguments of the parties and conclude that the trial court did not abuse its discretion in awarding attorney’s fees and punitive damages to the plaintiffs and, thus, that the judgment of the trial court should be affirmed. The trial court issued thorough and well reasoned decisions regarding the factual and legal bases for its award of attorney’s fees and punitive damages. Because those decisions fully address the defendant’s claims with respect to those awards, we adopt them as a statement of the issue and the applicable law concerning that issue. See Metcoff v. NCT Group, Inc., 52 Conn. Sup. 363, 50 A.3d 1004 (2011); Metcoff v. NCT Group, Inc., 52 Conn. Sup. 388 (2011). It would serve no useful purpose for us to repeat, the discussion contained therein. See, e.g., Clinch v. Generali-U.S. Branch, 293 Conn. 774, 777-78, 980 A.2d 313 (2009).

The judgment is affirmed.

      NCT Group, Inc., Midcore Software, Inc., Artera Group, Inc., Carole Salkind and Morton Salkind are also defendants in this action. Because they are not parties to this appeal, we refer to Parrella as the defendant.

       The plaintiffs also alleged that the defendant made intentional misrepresentations about the availability of NCT Group stock and NCT Group’s ability to issue the stock to the plaintiffs as required under the agreement; that he made negligent misrepresentations that after the merger, NCT Midc-ore would operate in the same manner as Midcore Software and would continue the business of Midcore Software; and that the defendant, acting in his capacity as the chief executive officer and chairman of Artera, tortiously interfered with the plaintiffs’ right to receive royalties under the merger agreement and conspired to defraud the plaintiffs from receiving the royalties that they were entitled to under the merger agreement. The jury returned a verdict in favor of the defendant on all of these claims.

       The defendant made an oral request for articulation at oral argument before this court, which was denied.

       The defendant also claims that the court improperly denied his request to instruct the jury on the business judgment rule. The defendant did not assert a defense under the business judgment rule until just a few days prior to the commencement of trial when he sought to amend his answer and special defenses to so include such a claim. Due to the untimeliness of the defendant’s request for leave to amend, the court denied it. The defendant has not challenged on appeal the court’s denial of his request to amend. Because the business judgment rule was not in the case, the court properly refused to instruct the jury on the business judgment rule.
      We also note that the defendant’s brief of this claim consists simply of one sentence in which he alleges that “[t]he judge should have instructed the jury on the business judgment rule,” followed by two citations to case law. In similar fashion, the defendant also claims that, “[t]he damages awarded were excessive under Connecticut law because there was no evi-dentiary basis in the record for those awards as discussed above.” Following that bald assertion, the defendant refers to what presumably purports to be the name of a case that might support his position. The name of the case is unaccompanied by any citation indicating the jurisdiction in which or the date on which it was decided. It is axiomatic that “[ajssignments of error which are merely mentioned but not briefed beyond a statement of the claim will be deemed abandoned and will not be reviewed by this court.” (Internal quotation marks omitted.) Paoletta v. Anchor Reef Club at Branford, LLC, 123 Conn. App. 402, 406, 1 A.3d 1238, cert. denied, 298 Conn. 931, 6 A.3d 491 (2010).


text:
    STATE OF CONNECTICUT v. ANNE M. BRADLEY
    (AC 33370)
    Gruendel, Robinson and Sheldon, Js.

      Argued May 29 —
    officially released August 21, 2012

      Anne M. Bradley, pro se, the appellant (defendant).

      Lisa A. Riggione, senior assistant state’s attorney, with whom, on the brief, were Kevin D. Lawlor, state’s attorney, and Kevin S. Russo, supervisory assistant state’s attorney, for the appellee (state).
   Opinion

PER CURIAM.

In this matter, the defendant, Anne M. Bradley, was found guilty by a jury of breach of the peace in the second degree in violation of General Statutes § 53a-181 (6). The defendant thereafter moved for a judgment of acquittal, which the trial court granted on July 7, 2008. The state then filed a motion requesting permission to appeal, which the trial court granted. The state appealed and this court reversed the judgment of the trial court and remanded the case with direction to reinstate the jury’s guilty verdict and to proceed to sentencing. See State v. Bradley, 124 Conn. App. 197, 4 A.3d 347, cert. denied, 295 Conn. 917, 990 A.2d 867 (2010). On March 21, 2011, the trial court sentenced the defendant to six months of incarceration, execution suspended, and two years of probation. This appeal followed.

On appeal, the defendant claims that her constitutional right against double jeopardy was violated when, on the state’s appeal from the posttrial judgment of acquittal entered for her by the trial court, this court reversed the trial court’s judgment and remanded the case with direction to reinstate the jury’s verdict. The defendant’s claim is controlled by our Supreme Court’s decision in State v. Avcollie, 178 Conn. 450, 453, 423 A.2d 118 (1979), cert. denied, 444 U.S. 1015, 100 S. Ct. 667, 62 L. Ed. 2d 645 (1980), in which the court held: “[W]hen a case has been tried to a jury, the principle of double jeopardy does not prohibit an appeal by the prosecution providing that a retrial is not required in the event the prosecution is successful in its appeal. Thus, where a jury returns a verdict of guilty but the trial court thereafter renders a judgment of acquittal, an appeal is permitted and double jeopardy does not attach.” Id., 453. Because this court directed the trial court to reinstate the jury’s guilty verdict after it reversed the judgment of acquittal, and no new trial of her case was thereby necessitated, the court’s order did not place the defendant twice in jeopardy for the same offense. Accordingly, the defendant’s claim must fail.

The judgment is affirmed.

       The defendant also claims that the court erred in denying her motion to review her sentence and that it considered improper matters at her sentencing hearing. During the pendency of this appeal, the defendant successfully completed her sentence of probation. There is thus no practical relief that we can afford the defendant as to her sentence. Accordingly, the defendant’s claims regarding her sentence are moot. See State v. Boyle, 287 Conn. 478, 486-87, 949 A.2d 460 (2008); see also State v. Scott, 83 Conn. App. 724, 726-27, 861 A.2d 353 (2004) (defendant’s challenges to judgment of conviction were not moot due to his completion of sentence but his challenge to terms of conditional discharge was moot because court could not afford practical relief as to such claim).


author: ESPINOSA, J.

text:
    MARK C. LANGLEY v. OXANA V. LANGLEY
    (AC 32664)
    Bear, Espinosa and Sullivan, Js.

      Argued April 19 —
    officially released August 21, 2012

      Daniel H. Miller, for the appellant (plaintiff).

      Elisa J. Pens avalle, for the appellee (defendant).
   Opinion

ESPINOSA, J.

The plaintiff, Mark C. Langley, appeals from the judgment of the trial court rendered in connection with the underlying dissolution action in which the trial court entered several financial orders. The plaintiff claims that the trial court, in fashioning its financial orders, improperly (1) considered the entire length of the parties’ relationship, rather than the length of the marriage at issue in the underlying dissolution action; (2) gave undue weight to the command of the English language held by the defendant, Oxana V. Langley, and to the amount of time she would need to obtain a greater command of the language; and (3) based the financial orders on the plaintiffs gross income. We affirm the judgment of the trial court.

The following facts as found by the trial court are relevant to our resolution of this appeal. The parties met in 2003 through an online social network. They developed an online relationship and regularly communicated with each other by means of the Internet. During that period, the plaintiff lived in Connecticut and the defendant lived in Moscow, Russia. The parties met in person when the plaintiff traveled to Russia later in 2003. In 2004, they agreed to marry. The plaintiff arranged for the defendant’s relocation to the United States and lived with her in a rural part of Connecticut. The parties married for the first time in 2004.

On October 12, 2006, the plaintiff filed for divorce. When the defendant questioned the plaintiff about the dissolution summons and complaint, the plaintiff told her that she did not have to do anything. On March 1, 2007, the plaintiff went to court without the defendant and obtained a dissolution of marriage by default. Later that evening, the plaintiff informed the defendant that they were no longer married. On March 8, 2007, seven days later, the parties remarried.

The plaintiff filed a complaint for the dissolution of the parties’ second marriage on February 9, 2009. In a memorandum of decision issued August 13, 2010, the court, Suarez, J., ordered the dissolution of the parties’ second marriage. In connection with the underlying dissolution action, the court issued several financial orders, which the plaintiff now challenges on appeal. The plaintiff filed the present appeal on September 1, 2010. Additional facts will be set forth as necessary.

We first set forth the standard of review that governs all three of the plaintiffs claims. “We review financial awards in dissolution actions under an abuse of discretion standard. ... In order to conclude that the trial court abused its discretion, we must find that the court either incorrectly applied the law or could not reasonably conclude as it did. ... In making those determinations, we allow every reasonable presumption . . . in favor of the correctness of [the trial court's] action.” (Internal quotation marks omitted.) Loughlin v. Loughlin, 93 Conn. App. 618, 624, 889 A.2d 902, aff'd, 280 Conn. 632, 910 A.2d 963 (2006). “A fundamental principle in dissolution actions is that a trial court may exercise broad discretion in awarding alimony and dividing property as long as it considers all relevant statutory criteria.” (Internal quotation marks omitted.) Wiegand v. Wiegand, 129 Conn. App. 526, 529, 21 A.3d 489 (2011). “[W]e do not review the evidence to determine whether a conclusion different from the one reached could have been reached. . . . Thus, [a] mere difference of opinion or judgment cannot justify our intervention. Nothing short of a conviction that the action of the trial court is one which discloses a clear abuse of discretion can warrant our interference.” (Internal quotation marks omitted.) Auerbach v. Auerbach, 113 Conn. App. 318, 330, 966 A.2d 292, cert. denied, 292 Conn. 901, 971 A.2d 40 (2009).

I

LENGTH OF THE PARTIES’ RELATIONSHIP

The plaintiff claims that the court, in fashioning its financial orders, improperly considered the entire length of the parties’ relationship, rather than the length of the marriage at issue in the underlying dissolution action. The plaintiff argues that we must infer that the court improperly considered the parties’ first marriage and prior period of cohabitation because the court mentioned these periods in its memorandum of decision. We disagree.

The following additional facts found by the court are relevant to this claim. In its memorandum of decision, the court stated: “The marriage between the parties was volatile since the beginning. . . . The plaintiff married a person he barely knew. . . . After considering all the statutory criteria set forth in [General Statutes §] 46b-62 as to attorney’s fees; [General Statutes §] 46b-81 as to assignment of property and transfers of title; [General Statutes §] 46b-82, as to the award of alimony; together with applicable case law, [e] specially, Loughlin v. Loughlin, 280 Conn. 632 [910 A.2d 963] (2006), as to the length of the marriage criterion prescribed in §§ 46b-81 and 46b-82 with respect to prior marriages between the same parties; and the evidence presented here, the court hereby enters the following orders . . . .” The court then issued the financial orders that the plaintiff now challenges in this appeal.

When issuing financial orders that involve the assignment of property and the award of alimony, a trial court must consider the relevant statutory criteria set forth in §§ 46b-81 (c) and 46b-82 (a), respectively. Loughlin v. Loughlin, supra, 280 Conn. 640. Section 46b-81 (c) provides in relevant part: “[T]he court . . . shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate . . . and needs of each of the parties . . . .” See also General Statutes § 46b-82 (a). “The court must consider all of these criteria. ... It need not, however, make explicit reference to the statutory criteria that it considered in making its decision or make express finding[s] as to each statutory factor.” (Internal quotation marks omitted.) Dombrowski v. Noyes-Dombrowski, 273 Conn. 127, 137, 869 A.2d 164 (2005).

“[T]he ‘length of the marriage’ criterion prescribed in §§ 46b-81 and 46b-82, as a matter of law, does not include prior marriages or cohabitation preceding the marriage . . . .” Loughlin v. Loughlin, supra, 280 Conn. 647. “[Consideration of a period of cohabitation that precedes a marriage as part of the statutory factor of ‘length of the marriage’ in a dissolution action is improper.” Id., 644. Consideration of a prior marriage as part of the statutory “length of the marriage” factor also is improper. Id., 650-51. Nevertheless, “a dissolution court properly may consider events that occur during a period of cohabitation as indirectly bearing on other statutory criteria [listed in § § 46b-81 and 46b-82].” (Emphasis in original.) Id., 644.

We conclude that the court in this case did not consider the parties’ prior marriage or period of cohabitation as part of the length of the marriage criterion in §§ 46b-81 and 46b-82. The plaintiffs argument that we must infer that the court considered the parties’ entire relationship because the court mentioned the parties’ prior marriage and period of cohabitation incorrectly presumes that the mere mention of a fact in the court’s decision indicates that the court considered it in the calculation of its financial orders. Our careful review of the court’s memorandum of decision leads us to conclude that the court referred to the parties’ previous marriage and period of cohabitation for purposes of providing factual and procedural background in its deci-sión and that it did not base its financial orders on these historical facts. See State v. Carter, 122 Conn. App. 527, 533, 998 A.2d 1217 (2010) (“[a]bsent evidence to the contrary, we presume that the court properly applied that law”), cert. denied, 300 Conn. 915, 13 A.3d 1104 (2011).

Affording the court every reasonable presumption in favor of the correctness of its actions in calculating its financial orders, we decline to infer, absent a clear indication to the contrary, that it improperly considered the parties’ prior marriage or period of cohabitation. See id. Additionally, we note that the court explicitly took Loughlin v. Loughlin, supra, 280 Conn. 632, into consideration. Therefore, we conclude that the court did not abuse its discretion when considering the length of the marriage criterion in the calculation of its financial orders.

II

DEFENDANT’S COMMAND OF THE ENGLISH LANGUAGE

Next, the plaintiff claims that the court erred in determining the duration of the defendant’s alimony award. Specifically, the plaintiff claims that, in evaluating the defendant’s employability to determine the appropriate duration of the award, the court gave undue weight to the defendant’s limited grasp of the English language and the amount of time that she would need to obtain a greater command of the language. The plaintiff claims that the court gave undue weight to these considerations because the court failed to account for (1) the defendant’s past refusal to take English lessons, despite the plaintiffs encouragement, and (2) the defendant’s existing ability to communicate with others in English. We are not persuaded.

The following additional facts found by the court are relevant to this claim. The defendant took English lessons in 2010, but had a limited command of the English language at the time of the trial court’s decision. The defendant earned $70 per week cleaning houses. She had $228 in her checking accounts. She had a 1997 Mazda Millennium valued at approximately $1000. She did not have any other assets. In connection with the dissolution judgment, the court ordered the plaintiff to pay the defendant $175 per week in periodic alimony for a period of five years from the date of judgment. The court found five years to be a “sufficient time for the defendant to obtain a greater command of the English language and be able to support herself in the community.” The court found “based on all the evidence presented by the plaintiff that he has the ability to pay support and that the defendant has the need of support.”

In addition, the defendant testified, through an interpreter, as follows: “I understand in order to five in this country I need to speak English fluently, so if I finish the fifth session of English now, so I have to finish the fifth level of English. And in order to take another subject, I have to finish English 101 and then some other courses and then they will let me take some other subjects. So, to obtain some elementary skills I have to be in college for at least three years.”

The plaintiff also presented the following testimony: “When we spoke on the phone, [the defendant’s] English was broken, but it was — it was fairly good. When she got here, early on I tried to enroll her— actually, encouraged her to enroll in an ESL class, English as second language class in Colchester, Connecticut, and that lasted for about three weeks. She basically determined that the teacher was not good enough and she refused to go to the ESL classes . . . .” The court did not find the plaintiff to be a credible witness.

The broad discretion given to trial courts in awarding alimony and dividing property “reflects the sound policy that the trial court has the opportunity to view the parties first hand and is therefore in the best position to assess all of the circumstances surrounding a dissolution action, in which such personal factors such as the demeanor and the attitude of the parties are so significant.” (Internal quotation marks omitted.) Wiegand v. Wiegand, supra, 129 Conn. App. 529-30. “In determining whether alimony shall be awarded, and the duration and amount of the award, the court shall hear the witnesses, if any, of each party, except as provided in subsection (a) of section 46b-51, [and] shall consider the . . . employability ... of each of the parties . . . .” General Statutes § 46b-82 (a).

“The trial court is not required to give equal weight to each of the specified criteria it considers in determining its award, nor is any single criterion preferred over the others. . . . Where ... it is apparent that the trial court considered all mandatory factors in fashioning its orders, we are not permitted to vary the weight that the trial court placed upon the statutory criteria in reaching its decision.” (Citation omitted.) Graham v. Graham, 25 Conn. App. 41, 45, 592 A.2d 424, cert. denied, 220 Conn. 903, 593 A.2d 969 (1991); see also Chyung v. Chyung, 86 Conn. App. 665, 669, 862 A.2d 374 (2004) (“[t]he court is to consider these factors [in § 46b-82] in making an award of alimony, but it need not give each factor equal weight”), cert. denied, 273 Conn. 904, 868 A.2d 744 (2005).

After specifically stating that it considered all of the statutory criteria in §§ 46b-62, 46b-81 and 46b-82, the court found that “[f]ive years should be sufficient time for the defendant to obtain a greater command of the English language and be able to support herself in the community.” It is apparent from the court’s finding that it believed that the defendant’s command of the English language directly would influence her employability, particularly if she seeks employment that requires her to speak English. Therefore, we interpret the court’s finding regarding the defendant’s command of English in conjunction with her ability to support herself as a consideration of the defendant’s employability, a mandatory statutory criterion that the court was required to consider in issuing its financial orders. See General Statutes § 46b-82 (a).

The plaintiff argues that the court erred by affording too much weight to the defendant’s command of English because the court failed to account for the fact that the defendant previously refused to take English lessons, despite encouragement to do so from the plaintiff. The plaintiff also argues that the court ignored the defendant’s existing ability to communicate with others in English. Preliminarily, these arguments are predicated on testimony of the plaintiff, whom the court specifically found to be a noncredible witness. As the trier of fact in this case, the court was free to disregard any of the plaintiffs testimony that it did not find credible.

Further, the court reasonably could have concluded that five years was an appropriate duration for the periodic alimony payments at issue. In its memorandum of decision, the court found that the plaintiff had the ability to pay support and that the defendant had the need of support. The court noted that the defendant had a limited command of English, earned only $70 per week, had $228 in her checking accounts and owned no other assets besides a 1997 Mazda Millennium valued at approximately $1000. The defendant also testified that she needed to complete additional English language courses and attend at least three years of college to learn elementary skills. On the basis of these facts, the court reasonably concluded that five years was a sufficient and appropriate duration for the periodic alimony payments.

The court was free, within its broad discretion to issue alimony awards and divide property, to allocate what it determined to be the proper amount of weight to each of the relevant statutory criteria, including the plaintiffs employability, so long as the court considered all of the mandatory criteria. See Graham v. Graham, supra, 25 Conn. App. 45 (“[t]he trial court is not required to give equal weight to each of the specified criteria it considers in determining its award, nor is any single criterion preferred over the others”). On the basis of our review of the court’s memorandum of decision, it is apparent that the court considered all of the mandatory criteria. Accordingly, we are not permitted to vary the weight that the court placed upon the statutory criteria in reaching its decision. See id. Because the court was free to determine the appropriate weight to attribute to the defendant’s command of the English language and reasonably could have found five years tó be a proper duration for the alimony payments, we conclude that the trial court did not abuse its discretion.

in

PLAINTIFFS EARNING CAPACITY

Finally, the plaintiff claims that the court improperly based its financial orders on his gross income. Specifically, the plaintiff argues that the court applied the wrong legal standard by basing its financial orders on the plaintiffs earning capacity in terms of gross income, despite the fact that the court had the means to estimate the plaintiffs net income. We disagree.

The following additional facts found by the court are relevant to this claim. The plaintiffs April 16, 2010 financial affidavit showed that he had a combined gross weekly income of $420 and a net weekly income of $420. The plaintiff did not show any deductions from his pay. The plaintiffs financial affidavit did not show a personal or business bank account. The plaintiff had a 2003 Volkswagen Jetta valued at approximately $5000 and a 1993 Ford Ranger truck valued at approximately $2000. The plaintiff had an individual retirement account valued at $1430. The court found that the plaintiffs financial affidavit was “less than adequate for the court to make financial orders.” Therefore, the court looked at the plaintiffs earning capacity in order to enter its financial orders fairly and equitably.

At the time of the court’s decision, the plaintiff was forty-nine years old and in good health. The plaintiff has a high school education and some vocational education in the heating, ventilating and air conditioning field. The plaintiff has a special limited sheet metal license from the state. The plaintiff was self-employed and ran two types of businesses. The plaintiffs only assets were his businesses. The plaintiffs “Profit and Loss Standard from January 1 through November 2009” indicated that the plaintiffs business had a gross income of $72,082 and a net profit of $43,888 for the period. The plaintiffs “Profit and Loss Previous] Year Comparison from January 1, 2010 to April 8, 2010” indicated that the plaintiffs business had a total income of $19,767, a gross profit of $16,818 and a net income of $9032 for the period. “Taking into consideration the downturn in the economy, the court [found] that the plaintiffs business, from which he runs all his expenses, has an earning capacity of $60,000 in gross income.” The plaintiffs 2008 federal income tax return showed $82,258 in gross receipts and $60,323 in gross income from the plaintiffs business. The plaintiffs 2007 federal income tax return showed $33,294 of total income and $26,492 in adjusted gross income. The court also noted that the plaintiff was able to pay for the defendant’s medical care, the defendant’s car and several vacations and trips for the defendant.

“[T]he trial court may under appropriate circumstances in a marital dissolution proceeding base financial awards on the earning capacity of the parties rather than on actual earned income. . . . Earning capacity, in this context, is not an amount which a person can theoretically earn, nor is it confined to actual income, but rather it is an amount which a person can realistically be expected to earn considering such things as his vocational skills, employability, age and health. . . . [I]t also is especially appropriate for the court to consider whether the defendant has wilfully restricted his earning capacity to avoid support obligations .... Moreover, [l]ifestyle and personal expenses may serve as the basis for imputing income where conventional methods for determining income are inadequate.” (Internal quotation marks omitted.) Auerbach v. Auerbach, supra, 113 Conn. App. 334-35.

“It is well settled that a court must base . . . alimony orders on the available net income of the parties, not gross income. . . . Whether or not an order falls within this prescription must be analyzed on a case-by-case basis. Thus, while our decisional law in this regard consistently affirms the basic tenet that support and alimony orders must be based on net income, the proper application of this principle is context specific.” (Citation omitted.) Hughes v. Hughes, 95 Conn. App. 200, 204, 895 A.2d 274, cert. denied, 280 Conn. 902, 907 A.2d 90 (2006). “[T]he mere notation by the court of a party’s gross earnings is not fatal to its support and alimony orders so long as its orders are not based on the parties’ gross earnings.” Id., 206.

“[T]he fact that the alimony . . . order was ultimately a function of gross income does not, alone, stand for the proposition that the order was based on gross income. . . . [W]e differentiate between an order that is a function of gross income and one that is based on gross income.” Id., 207. “By ‘function of gross income,’ we mean that the court used gross income to calculate its orders, which is distinguishable from the court basing its order on gross income.” Medvey v. Medvey, 98 Conn. App. 278, 284, 908 A.2d 1119 (2006).

In Hughes v. Hughes, supra, 95 Conn. App. 207, this court “found no case in which an order for support or alimony has been reversed on review simply because it was expressed as a function of a party’s gross income. We believe that the term ‘based’ as used in this context connotes an order that only takes into consideration the parties’ gross income and not the parties’ net income. Consequently, an order that takes cognizance of the parties’ disposable incomes may be proper even if it is expressed as a function of the parties’ gross earnings.”

In contrast, our Supreme. Court and this court have found reversible error when courts have calculated financial orders solely on the basis of the parties’ gross incomes. See, e.g., Morris v. Morris, 262 Conn. 299, 307, 811 A.2d 1283 (2003) (“because the trial court expressly and affirmatively stated that it relied on gross income in determining the defendant’s support obligation, the trial court abused its discretion because it applied the wrong legal standard”); see also Cleary v. Cleary, 103 Conn. App. 798, 803-804, 930 A.2d 811 (2007) (“Although the court had before it evidence of the parties’ net incomes, it appears that the court chose not to rely on such information. The court’s decision is devoid of any mention of the parties’ net incomes, and the court expressly stated that its finding as to the defendant’s income was based on his gross income. Because the court relied solely on the defendant’s gross income in fashioning the financial orders, we conclude that the court improperly designed its financial orders by relying on the defendant’s gross income rather than on his net income.”).

Because we cannot conclude that the court based it financial orders on the plaintiffs gross income, we likewise cannot conclude that the court in this case abused its discretion in calculating the financial orders at issue. Unlike the trial court in Morris, the court in the present case did not state that it relied on the plaintiffs gross income to form the basis of it financial orders. Contrary to the plaintiffs assertion, the court did not state that it drafted its financial orders based on the plaintiffs gross earning capacity. Instead, like the trial court in Hughes, the court in the present case merely referred to the plaintiffs gross income in demonstrating his ability to pay support.

The court had before it evidence of the plaintiffs gross and net income and referred to both in its memorandum of decision. Specifically, the court referred to the plaintiffs April 16, 2010 financial affidavit, which showed that the plaintiff had a “combined gross weekly income of $420 and a net weekly income of $420.” (Emphasis added.) Because the court found the plaintiffs financial affidavit to be “less than adequate for the court to make financial orders,” the court looked to the plaintiffs earning capacity to enter the financial orders fairly and equitably. The court assessed the plaintiffs earning capacity based on what he realistically could be expected to earn considering his vocational skills, employability, age and health, as well as documentation of his gross and net income.

The court considered documentation of the plaintiffs business profits and losses for 2009 and the first quarter of 2010. These documents showed the total income, gross profit and net income of the plaintiffs business for the relevant time periods. The court also considered the plaintiffs federal income tax returns for 2007 and 2008, which showed the plaintiffs total income and adjusted gross income. In addition, the court acknowledged the plaintiffs ability to pay for the defendant’s needs including her medical care, a car and multiple vacations and trips. Although the court found that the plaintiffs business had “an earning capacity of $60,000 in gross income,” this finding related to the plaintiffs business and appears to have been only one factor in the court’s assessment of the plaintiffs overall earning capacity. At most, the court’s financial orders were, in part, a function of the plaintiffs gross income, meaning that the court did not base its orders on gross income, but merely used gross income in the calculation of its orders.

Moreover, the court specifically stated that it considered all of the statutory criteria set forth in the applicable statutes and the evidence presented by the parties. Affording the court every reasonable presumption in favor of the correctness of its decision, we assume that the court relied on the evidence relevant to each statutory criteria, including evidence of the plaintiffs net income. In light of the evidence presented and the court’s findings, we conclude that the court did not base its financial orders on the plaintiffs gross income. Therefore, we also conclude that the court did not abuse its discretion in fashioning its financial orders.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff challenges only the court’s judgment with respect to its financial orders. The plaintiff does not challenge the court’s judgment dissolving the marriage.

       General Statutes § 46b-81 (c) provides: “In fixing the nature and value of the property, if any, to be assigned, the court, after hearing the witnesses, if any, of each party, except as provided in subsection (a) of section 46b-51, shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income. The court shall also consider the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates.”

       General Statutes § 46b-82 (a) provides in relevant part: “At the time of entering the decree, the Superior Court may order either of the parties to pay alimony to the other, in addition to or in lieu of an award pursuant to section 46b-81. ... In determining whether alimony shall be awarded, and the duration and amount of the award, the court shall hear witnesses, if any, of each party, except as provided in subsection (a) of section 46b-51, shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties and the award, if any, which the court may make pursuant to section 46b-81 . . . .”

       In addition, § 46b-62 permits the court to order either spouse to pay the reasonable attorney’s fees of the other, provided the court does so in accordance with the parties’ respective financial abilities and the same criteria set forth in § 46b-82.

       The plaintiff states that the issue on appeal is “[wjhether a trial court errs when it considers a party’s command of the English language when drafting its financial orders.” Nevertheless, the plaintiffs argument and corresponding analysis do not address whether it was permissible, under §§ 46b-81 and 46b-82, for a court to consider a party’s command of language in drafting its financial orders. Accordingly, we do not reach this issue. See Rana v. Terdjanian, 136 Conn. App. 99, 120 n.9, 46 A.3d 176 (2012) (“[assignments of error which are merely mentioned but not briefed beyond a statement of the claim will be deemed abandoned and will not be reviewed by this court” [internal quotation marks omitted]).

       We note that the court ordered the plaintiff to pay $175 per week in periodic alimony payments, which is equivalent to $9100 annually. The plaintiffs “Profit and Loss Previous] Year Comparison from January 1,2010 through April 8, 2010” showed that the plaintiffs business had a net income of $9032 for that period, which accounted for roughly one quarter of the 2010 year. This figure is substantially similar to the annual equivalent of the weekly periodic alimony payments ordered by the court. The court reasonably could have arrived at its $175 alimony figure based on the net income of the plaintiffs business. This further supports the likelihood that the court reasonably relied on the plaintiffs net income, not gross income, in calculating its financial orders.