author: DRANGINIS, J.

text:
    FRANK J. PRIAL III v. SUSAN PRIAL
    (AC 20709)
    Lavery, C. J., and Schaller and Dranginis, Js.
    Argued June 12
    officially released November 20, 2001

      John Wayne Fox, with whom, on the brief, was Patricia M. Gaug, for the appellant (defendant).

      Catherine P. Whelan, for the appellee (plaintiff).
   Opinion

DRANGINIS, J.

The defendant, Susan Prial, appeals from the trial court’s judgment granting the postjudgment motion for modification of alimony and child support filed by the plaintiff, Frank J. Prial III. On appeal, the defendant claims that the court improperly (1) considered factors other than the relocation of one of the children from the defendant’s home to the plaintiffs home, including a change in the plaintiffs income, as a substantial change in circumstances to support a reduction in child support and alimony, (2) applied an incorrect legal standard, relying on the Uniform Child Support Guidelines, in computing child support and (3) failed to find the plaintiff in contempt for his failure to pay the order of child support and alimony. We reverse the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of this appeal. A judgment of dissolution was rendered on May 14, 1999, pursuant to a separation agreement between the parties, which agreement was incorporated in the judgment in its entirety. At the time of the dissolution, the plaintiff filed a financial affidavit in which he stated that he had no income. At the same time, he agreed to pay $2350 per month in alimony and $2350 per month in child support, for a total of $4700. The alimony was time limited for six years, but was modifiable in amount during the period. The parties further agreed to “revisit” the order of child support and alimony in six months or when the plaintiff obtained full-time employment. The defendant retained her right to argue that the plaintiff was not utilizing his full earning capacity.

Five months later, the plaintiff filed a motion to modify, claiming that one of the minor children had relocated to his home, and “therefore, there has been a substantial change in circumstances.” He further claimed that he had found employment at Stratton Mountain in Vermont, and had “incurred a substantial change in financial circumstances affecting both his ability to pay alimony and child support.” On January 27, 2000, the defendant filed a motion for contempt, claiming that between August, 1999, and January, 2000, the plaintiff had failed to pay over $15,000 in court-ordered alimony and support.

The court found a substantial change in the financial circumstances of the plaintiff since the date of the dissolution, warranting a modification of alimony and support orders. The court further denied the defendant’s motion for contempt, finding that the plaintiffs failure to pay was not wilful. This appeal followed.

The standard of review in family matters is well settled. “An appellate court will not disturb a trial court’s orders in domestic relations cases unless the court has abused its discretion or it is found that it could not reasonably conclude as it did, based on the facts presented. ... In determining whether a trial court has abused its broad discretion in domestic relations matters, we allow every reasonable presumption in favor of the correctness of its action. . . . Appellate review of a trial court’s findings of fact is governed by the clearly erroneous standard of review. The trial court’s findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Citations omitted; internal quotation marks omitted.) Costa v. Costa, 57 Conn. App. 165, 168-69, 752 A.2d 1106 (2000).

I

The defendant first claims that the court improperly considered facts other than the one change in circumstances alleged in the motion to modify, that one minor child had elected to relocate to the plaintiffs home. The defendant claims that the only appropriate reduction in child support, based on the one minor child’s change of residence, would be a reduction by one-third, insofar as the parties did not consider the uniform support guidelines to be controlling. The defendant further claims that the court improperly found a substantial change in the plaintiffs income and assets since the time of the decree and inappropriately used her income from employment as a further ground for modification. We agree.

“Periodic alimony is based primarily on a continuing duty to support. . . . Modification of alimony, after the date of a dissolution judgment, is governed by General Statutes § 46b-86. . . . When . . . the disputed issue is alimony, the applicable provision of the statute is § 46b-86 (a), which provides that a final order for alimony [or child support] may be modified by the trial court upon a showing of a substantial change in the circumstances of either party. . . . Once there has been a showing of a substantial change, the final order for the payment of alimony may be continued, set aside, altered or modified.” (Citations omitted; internal quotation marks omitted.) Grosso v. Grosso, 59 Conn. App. 628, 631, 758 A. 2d 367, cert. denied, 254 Conn. 938, 761 A.2d 761 (2000).

“A final order for child support may be modified by the trial court upon a showing of a substantial change in the circumstances of either party. . . . The party seeking modification bears the burden of showing the existence of a substantial change in the circumstances.” (Citation omitted; internal quotation marks omitted.) Hayward v. Hayward, 53 Conn. App. 1, 9, 752 A.2d 1087 (1999). “The date of the most recent prior proceeding in which an alimony order was entered is the appropriate date to use in determining whether a significant change in circumstances warrants a modification of an alimony award.” (Internal quotation marks omitted.) Shearn v. Shearn, 50 Conn. App. 225, 228, 717 A.2d 793 (1998).

Some additional facts are necessary for our resolution of this claim. At the time the motion was filed, the plaintiff was living in Manchester, Vermont, in one of his mother’s houses, and his mother had been paying all of his expenses prior to his winter work at the mountain. Prior to the separation of the parties, the plaintiff had been the editor and business manager of a family owned newspaper, of which the plaintiff owned a 7 percent interest. He had been employed in the family business for twenty years prior to the divorce. He had earned between $193,000 and $225,000 in each of the four years prior to his voluntary termination of that employment in 1998.

The testimony revealed that he had never asked to be rehired at the newspaper, even though he had been admonished to do so in an earlier judicial proceeding prior to judgment. He could not produce any correspondence that might confirm his claim that he had sought employment in his field.

The record does not support the court’s finding that there was a substantial change in circumstances in the plaintiffs income and assets. It is clear that the plaintiff voluntarily terminated his employment in a family owned business, and that he continued to be supported by his family in significant ways even while he was neglecting his responsibilities to his children and to his former wife. At the time the decree entered, the plaintiff was unemployed and, nevertheless, agreed to support his family in much the same manner as he had during his employment at the family business. He was able and willing to do so despite his being unemployed. The parties’ agreement to revisit the issues of alimony and child support cannot contract away the statutory requirement that the party seeking modification demonstrate a substantial change in circumstances and excuse the failure to comply with the rules of practice with respect to the filing of such a motion. In this case, the only change of circumstance alleged in the motion to modify was the change in residence of one minor child from the defendant’s home to the plaintiffs home. The record does not disclose the use of the guidelines. In fact, it appears from the record that the parties agreed that this was not a guidelines case. The motion was predicated on one ground.

We conclude, on the basis of the plaintiffs failure to show a substantial change in his income and assets since the issuance of the dissolution decree, that the court could not reasonably find a substantial change in his financial circumstances based on the evidence presented. Further, we conclude that the court improperly considered the support guidelines and the defendant’s increase in income, as the plaintiff did not allege a substantial deviation from the guidelines or rely on the defendant’s increased income to support his request for a downward modification. Although whether to allow an amendment to a motion to modify is within the discretion of the trial court; see Cummock v. Cummock, 180 Conn. 218, 223, 429 A.2d 474 (1980); no such amendment was sought in this case. Practice Book § 25-26 (e) provides in relevant part: “Each motion for modification shall state the specific factual and legal basis for the claimed modification . . . .” The court therefore abused its discretion in considering grounds not raised in the motion to modify and incorrectly found a substantial change in circumstances on the facts of this record. See Gleason v. Gleason, 16 Conn. App. 134, 137-38, 546 A.2d 966 (1988).

II

The defendant next claims that the court improperly modified child support based on an application of the uniform support guidelines. We agree.

General Statutes § 46b-86 (a) provides that a court may modify an order for alimony or support pendente lite “upon a showing that the final order for the child support substantially deviates from the child support guidelines established pursuant to section 46b-215 (a).”

In this case, the parties did not apply the guidelines in the original decree, and the court ratified their agreement, adding to its declaration in the judgment that it was incorporating the agreement by reference, the statement that child support would be paid by contingent income withholding. The plaintiff did not predicate his motion to modify on a substantial deviation of the child support guidelines. The court’s application of the guidelines was improperly based on an earning capacity founded on facts not in the record. The record is devoid of any testimony, even by the plaintiff, that comparable employment would yield the plaintiff $62,000 per year, the figure adopted by the court for his earning capacity. The record discloses that the salary figure adopted by the court was based solely on counsel’s assertion in argument. A statement by counsel, however, is not regarded as evidence and does not establish any facts. State v. Sauris, 227 Conn. 389, 404, 631 A.2d 238 (1993); State v. Roman, 224 Conn. 63, 68, 616 A.2d 266 (1992), cert. denied, 507 U.S. 1039, 113 S. Ct. 1868,123 L. Ed. 2d 488 (1993). We therefore conclude that the trial court’s basis for finding the plaintiffs earning capacity was clearly erroneous and that the court abused its discretion in applying the guidelines.

Ill

Last, the defendant claims that the court improperly failed to find the plaintiff in contempt for his failure to pay alimony and child support as ordered. We agree.

A finding of contempt is a question of fact, and our standard of review is to determine “whether the court abused its discretion in failing to find that the actions or inactions of the [party] were in contempt of a court order.” Bunche v. Bunche, 36 Conn. App. 322, 324, 650 A.2d 917 (1994). “To constitute contempt, a party’s conduct must be wilful. . . . Noncompliance alone will not support a judgment of contempt.” (Citation omitted.) Bowers v. Bowers, 61 Conn. App. 75, 81, 762 A.2d 515 (2000), cert. granted on other grounds, 255 Conn. 939, 767 A.2d 1211 (2001).

The facts do not support the finding that the plaintiffs conduct was not wilful. The record discloses the voluntary unemployment of the plaintiff; his promise to pay regardless of that fact, which promise became part of the stipulated judgment; and, thereafter, his attempt to avoid his obligations by filing a motion to modify a mere five months after the dissolution judgment was rendered. The finding is clearly erroneous.

The judgment is reversed and the case is remanded with direction to reinstate the order of alimony in the judgment, to enter a child support order that is consistent with the judgment but takes into account the relocation of one of three children and to reconsider the motion for contempt, and for further proceedings to determine the plaintiffs arrearage.

In this opinion the other judges concurred.

       The plaintiff was paid $9 per hour working in ski rentals, but had an argument with the manager and quit in December, 1999, shortly after he had commenced that employment.

       The plaintiffs motion for modification also provided as a factual basis his newfound employment; however, by the time the motion was decided, the plaintiff was no longer working. See footnote 1.


source: Caselaw Access Project

author: SHEA, J. LANDAU, J.,

license: Public Domain

text:
    ANGELA D. RAYMOND v. FREEDOM OF INFORMATION COMMISSION ET AL.
    (AC 20400)
    Landau, Dranginis and Shea, Js.

      (One judge dissenting)

    Argued March 26
    officially released November 20, 2001

      Nancy Burton, for the appellant (plaintiff).

      Victor Perpetua, appellate attorney, with whom, on the brief, was Mitchell W. Pearlman, general counsel, for the appellee (named defendant).

      Thomas W. Beecher, with whom, on the brief, was Francis J. Collins, for the appellee (defendant zoning commission).
   Opinion

SHEA, J.

The plaintiff, Angela D. Raymond, appeals from the portion of the judgment of the trial court denying her request for reasonable fees and expenses that was filed pursuant to General Statutes (Rev. to 1995) § 4-184a (b). On appeal, the plaintiff claims that the court improperly concluded that the defendant freedom of information commission (commission) acted with substantial justification, and that the court thereby improperly denied her request for attorney’s fees and costs. We remand the case to the trial court for further articulation regarding that portion of the judgment relating to the plaintiffs request for reasonable fees and expenses.

The following facts are relevant to our resolution of the plaintiffs appeal. On July 13, 1996, a Saturday, the plaintiff sent a complaint via facsimile to the commission 3and sent a copy to the attorney for the defendant zoning commission of the town of Brookfield. The complaint alleged that the zoning commission had held an illegal meeting on June 13, 1996, in violation of the Freedom of Information Act, General Statutes (Rev. to 1995) § 1-7 et seq., now § 1-200 et seq., in which the zoning commission approved the extension of a quarrying permit on land adjoining the property of the plaintiff. The plaintiff claimed that she did not learn of the action taken by the zoning commission until two weeks later. At the bottom of each page of the complaint, there was a stamped printout by the commission’s fax machine showing the complaint as having been received on July 13, 1996. The complaint also was mailed to the commission on Saturday, July 13, 1996. Because the plaintiff faxed her complaint on a Saturday, a nonwork day, the commission did not know of, or view, the complaint until Monday, July 15, 1996.

A hearing on the complaint was held before a hearing officer on February 11,1997. The plaintiff and the zoning commission presented testimony on the merits of the complaint. At the conclusion of the hearing, the zoning commission raised the issue of whether the complaint, which it claimed was not filed until Monday, July 15, 1996, had been filed within the thirty day time requirement allowed for an appeal of the matter.

The hearing officer in her proposed decision of May 14, 1997, did not address the merits of the plaintiffs complaint, but dismissed it for lack of jurisdiction because she found that it had not been timely filed within thirty days after the alleged violation of the Freedom of Information Act. Claiming that her complaint was timely filed, the plaintiff filed a petition for reconsideration. The commission adopted the hearing officer’s decision and denied the plaintiffs petition for reconsideration. In its decision, the commission, which quoted statutory provisions and the Regulations of Connecticut State Agencies, concluded that “such notice of appeal shall be deemed to have been filed on the date it is received by said commission, or on the date it is postmarked, if received more than thirty days after the date of the denial from which such appeal is taken,” and also stated that Saturdays, Sundays, legal holidays and any day on which the office of the agency, the secretary of the state, is closed shall be excluded” in calculating the time allowed.

On July 31, 1997, the plaintiff appealed to the trial court from the commission’s denial of her petition for reconsideration, claiming that her complaint had been timely filed within the thirty days allowed by General Statutes (Rev. to 1995) § l-21i (b) (1), now § 1-206 (b) (1). The plaintiff relied on § 1-21J-15 of the Regulations of Connecticut State Agencies as it existed at the time she filed her complaint. Section l-21j-15 as it existed at that time provided: “Computation of any period of time referred to in these rules begins with the first day following that on which the act which initiates such period of time occurs, and ends on the last day of the period so computed. This last day of that period is to be included unless it is a day on which the office of the commission is closed, in which event the period shall run until the end of the next following business day. When such period of time, with the intervening Saturdays, Sundays and legal holidays counted, is five (5) days or less, the said Saturday, Sundays and legal holidays shall be excluded from the computation; otherwise such days shall be included in the computation.” The plaintiff then filed an amended complaint seeking, in pertinent part, all reasonable fees and expenses, including attorney’s fees, which resulted from the commission’s dismissal on the basis of lack of jurisdiction.

On December 13, 1999, the court filed its memorandum of decision in which it held that the record, contrary to the findings of the commission, “indicates that the plaintiff . . . did in fact fax a copy of her complaint to the commission on July 13, 1996, a Saturday. . . . [A]t the bottom of each page [of the complaint] appears a stamped printout by the commission’s fax machine [indicating its receipt] on [Saturday,] July 13, 1996 at 10:41 through 10:46. . . . The record further indicates and the parties do not dispute that the commission was closed for business on Saturday, July 13, 1996. Accordingly, pursuant to section l-21j-15 of the Regulations of [Connecticut] State Agencies, the appeal period did not [expire] until the end of the next following business day, Monday, July 15,1996.” Having found that the plaintiffs petition had been timely filed with the commission, the court sustained the plaintiffs appeal and remanded the case for further proceedings.

In its memorandum of decision, however, the court denied the plaintiffs request in her amended complaint for costs and attorney’s fees, pursuant to § 4-184a (b), on the ground that the plaintiff had failed to address the issue in her brief. The trial court relied on the principle that issues not adequately briefed are deemed to have been abandoned. The court also denied the request for attorney’s fees because it concluded that the commission’s action in this case was not undertaken without substantial justification, which is the prerequisite for an award of reasonable attorney’s fees and other expenses to the prevailing party pursuant to § 4-184a (b).

The plaintiff thereafter filed a motion for articulation of the court’s conclusion that the commission’s action “was not undertaken without any substantial justification,” as stated in the memorandum of decision, which the court denied. The plaintiff then filed with this court a motion for review of the denial of her motion for articulation, which we granted and then directed the trial court to further articulate its decision in accordance with the plaintiffs motion. This appeal followed.

The plaintiff contends that the court improperly found that the commission’s action was undertaken with substantial justification, and thereby improperly denied her motion for reasonable fees and expenses.

Our review of the court’s decision whether to award attorney’s fees is one of abuse of discretion. Burinskas v. Dept. of Social Services, 240 Conn. 141, 154, 691 A.2d 586 (1997). “In general, [t]he decision to award attorney’s fees for unjustified agency actions is within the discretion of the trial court. . . . Thus, § 4-184a (b) provides that the court may, in its discretion, award reasonable fees to the prevailing party if the court determines that the agency acted without any substantial justification.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Youngquist v. Freedom of Information Commission, 51 Conn. App. 96, 98, 719 A.2d 1210 (1998), cert. denied, 247 Conn. 955, 723 A.2d 812 (1999).

“Our Supreme Court has concluded that substantial justification . . . connotes reasonableness or a reasonable basis in law or fact . . . [and has] construed § 4-184a (b) as requiring an action that is entirely unreasonable or without any reasonable basis in law or fact. (Internal quotation marks omitted.) Id., 99. “[T]lús demanding standard . . . [strikes] a balance between compensating aggrieved litigants for unjustified agency action, and ensuring that not all agency actions that are subject to judicial reversal for legal error result in an a award of attorney’s fees.” Burinskas v. Dept. of Social Services, supra, 240 Conn. 156.

On October 27, 2000, the court filed an articulation of its memorandum of decision, which simply repeated the two grounds for the decision set forth in the memorandum of decision, namely, the failure of the plaintiff to brief the issue of attorney’s fees and the finding of the court that “the commission’s action in this case was not undertaken without any substantial justification.” Neither the memorandum of decision nor the court’s articulation specifies or even vaguely suggests what facts or other considerations were deemed by the court to constitute “substantial justification” for the commission’s action in this case.

Because the court has failed to set forth findings of fact sufficient to support the conclusion that “substantial justification” existed for the commission’s dismissal of the plaintiffs complaint, we are unable to glean adequately the rationale behind the court’s decision. In particular, we are unable to determine the basis “in law or fact” for the court’s conclusion that the commission’s action in dismissing the plaintiffs complaint as untimely filed “was not undertaken without any substantial justification,” in light of the court’s ultimate conclusion that it was timely filed and that the plaintiffs administrative appeal should be sustained. Therefore, we remand the case to the trial court to articulate the precise facts and circumstances constituting substantial justification for the commission’s action. See Practice Book § 60-5; see also, e.g., Keeney v. Old Saybrook, 237 Conn. 135, 167, 676 A.2d 795 (1996); Connecticut Bank & Trust Co. v. Winters, 225 Conn. 146,163, 622 A.2d 536 (1993); North Park Mortgage Services, Inc. v. Pinette, 27 Conn. App. 628, 632-34, 608 A.2d 714 (1992).

With respect to the alternate ground relied on by the court in denying the plaintiffs request for reasonable fees and expenses, namely, the failure of the plaintiff to brief the issue of attorney’s fees and other litigation expenses, it appears that the court overlooked the provision of § 4-184a (b) that provides that the court “may, in its discretion, award to the prevailing party, other than the agency, reasonable fees and expenses in addition to other costs if the court determines that the action of the agency was undertaken without any substantial justification.” Until the court’s decision on the merits was rendered in her favor, the plaintiff could not have claimed to be the “prevailing party,” and any briefing of the issue of attorney’s fees would have been premature as well as presumptuous. In Paranteau v. DeVita, 208 Conn. 515, 522-23, 544 A.2d 634 (1988), our Supreme Court adopted the “bright-line approach” followed by the United States Supreme Court in Budinich v. Becton Dickinson & Co., 486 U.S. 196, 202-203, 108 S. Ct. 1717, 100 L. Ed. 2d 178 (1988), holding that a judgment on the merits is final for purposes of appeal notwithstanding that a claim for attorney’s fees is unresolved. Because an award of attorney’s fees and other litigation expenses would require the presentation of evidence of the reasonableness as well as the amount thereof, it could not have been adequately briefed until additional proceedings to determine those issues had been completed.

The case is remanded with direction to articulate further the facts and circumstances constituting the substantial justification for the commission’s action with respect to the denial of the plaintiffs request for reasonable fees and expenses pursuant to General Statutes (Rev. to 1995) § 4-184a (b) and we retain jurisdiction for the purpose of appeal. Section 1-22 of the rules of practice requires that a different judge be assigned to preside at the further proceedings to be conducted in the trial court.

In this opinion DRANGINIS, J., concurred.

LANDAU, J.,

dissenting. Although I agree with the majority’s resolution of the issues considered in its opinion, I dissent because I do not think that it is necessary to remand the case to the trial court for further articulation.

In responding to this court’s order in granting the plaintiffs motion for review, the trial court articulated the facts and legal authority on which it based its decision. The court cited Nagy v. Employees’ Review Board, 249 Conn. 693, 708-709, 735 A.2d 297 (1999), and Burinskas v. Dept. of Social Services, 240 Conn. 141, 155-56, 691 A.2d 586 (1997). The court also stated: “The underlying facts on which this court relied were cited in this court’s decision. See Memorandum of Decision, pp. 2-3. The [Freedom of Information Commission] dismissed the plaintiffs complaint for lack of jurisdiction under General Statutes [Rev. to 1995] § l-21i (b) (1) [now § 1-206 (b) (1)]. In doing so, the [commission] adopted the hearing officer’s proposed final decision.” The court then cited seven paragraphs from the hearing officer’s decision, which were also included in the court’s memorandum of decision.

To me, it is clear that the court concluded that the substantial justification for the commission’s action in dismissing the plaintiffs complaint was its reliance on the hearing officer’s proposed final decision. For this reason, I respectfully dissent.

       General Statutes (Rev. to 1995) § 4-184a (b) provides: “In any appeal by an aggrieved person of an agency decision taken in accordance with section 4-183 and in any appeal of the final judgment of the superior court under said section taken in accordance with section 51-197b, the court may, in its discretion, award to the prevailing party, other than the agency, reasonable fees and expenses in addition to other costs if the court determines that the action of the agency was undertaken without any substantial justification.”

       General Statutes (Rev. to 1995) § 1-21i (b) (1), now § 1-206 (b) (1), provides in relevant part: “Any person . . . denied any other right conferred by sections 1-15, l-18a, 1-19 to 1-19b, inclusive, 1-20a and 1-21 to 1-21k, inclusive, may appeal therefrom to the Freedom of Information Commission, by filing a notice of appeal with said commission. A notice of appeal shall be filed within thirty days after such denial . . . .”

       General Statutes (Rev. to 1995) § l-21i (b) (1), now § 1-206 (b) (1), provides in relevant part: “Any person denied the right to inspect or copy records ... or wrongfully denied the right to attend any meeting of a public agency or denied any other right conferred by sections 1-15, l-18a, 1-19 to l-19b, inclusive, l-20a and 1-21 to l-21k, inclusive, may appeal therefrom to the Freedom of Information Commission, by filing a notice of appeal with said commission. A notice of appeal shall be filed within thirty days after such denial, except in the case of an unnoticed or secret meeting, in which case the appeal shall be filed within thirty days after the person filing the appeal receives notice in fact that such meeting was held. For purposes of this subsection, such notice of appeal shall be deemed to be filed on the date it is received by said commission or on the date it is postmarked . . . .” (Emphasis added.)

       General Statutes (Rev. to 1995) § 4-184a (b) provides: “In any appeal by an aggrieved person of an agency decision taken in accordance with section 4-183 and in any appeal of the final judgment of the superior court under said section taken in accordance with section 51-197b, the court may, in its discretion, award to the prevailing party, other than the agency, reasonable fees and expenses in addition to other costs if the court determines that the action of the agency was undertaken without any substantial justification.” (Emphasis added.)

       See footnote 4.

       In this appeal, the commission no longer contends that the plaintiffs complaint, to the commission was not timely filed and received. The commission has not filed an appeal to challenge the court’s decision on the merits. It has filed a brief in support of the court’s denial of the plaintiffs motion for reargument on the issue of awarding attorney’s fees and expenses in accordance with General Statutes (Rev. to 1995) § 4-184a (b). Consequently, the only remaining issue raised by the appeal is the propriety of the court’s denial of the plaintiffs demand for attorney’s fees and other expenses incurred in the prosecution of this litigation pursuant to § 4-184a (b).

       Practice Book § 60-5 provides in relevant part: “If the court deems it necessary to the proper disposition of the cause, it may remand the case for a further articulation of the basis of the trial court’s factual findings or decision. . . .”


author: PER CURIAM.

text:
    STATE OF CONNECTICUT v. DOUGLAS JONES
    (AC 21017)
    Foti, Landau and Dranginis, Js.
    Submitted on briefs September 12
    officially released November 20, 2001

      James M. Fox, special public defender, filed a brief for the appellant (defendant).

      James E. Thomas, state’s attorney, Nancy L. Chupak, assistant state’s attorney, and Vicki Melchiorre, senior assistant state’s attorney, filed a brief for the appellee (state).
   Opinion

PER CURIAM.

The defendant, Douglas Jones, appeals from the judgments of the trial court revoking his probation and sentencing him to six years imprisonment. On appeal, the defendant claims that the trial court improperly (1) found a violation of probation on the basis of inadmissible and insufficient evidence and (2) abused its discretion in sentencing the defendant to six years. We affirm the judgments of the trial court.

The following facts and procedural histoiy are necessary for our resolution of this appeal. On June 9, 1998, the defendant was sentenced to twenty years imprisonment, execution suspended after twelve years, with five years probation, on two counts of sexual assault in the first degree. The term of probation commenced on August 2, 1995. On September 26, 1999, the defendant was arrested after an incident that occurred between the defendant and his former girlfriend. He was arrested for breach of the peace in violation of General Statutes § 53a-181, assault in the third degree in violation of General Statutes § 53a-61, unlawful restraint in the second degree in violation of General Statutes § 53a-96, stalking in the second degree in violation of General Statutes § 53a-181d and criminal mischief in the third degree in violation of General Statutes § 53a-117. Thereafter, the state charged the defendant with one count of violation of probation as a result of his September 26 arrest. The state filed a second information charging the defendant with violation of probation after the defendant was subsequently arrested and charged with three counts of criminal violation of a protection order in violation of General Statutes (Rev. to 1999) § 53a-110b, as amended by Public Acts 1999, No. 99-240, § 4, for events that occurred on October 9 and 14,1999, and in violation of § 53a-110b for events that occurred on September 28,1999, with two counts of tampering with a witness in violation of General Statutes § 53a-151 and with one count of larceny in the sixth degree in violation of General Statutes § 53a-125b. On April 18, 2000, a hearing was held on the violation of probation charges. One of the conditions of the defendant’s probation was that he not violate any of the laws of the state of Connecticut. After a hearing, the court found the defendant in violation of probation on both informations. On June 8, 2000, the defendant was sentenced to six years in prison.

“[A] probation revocation hearing has two distinct components. . . . The trial court must first conduct an adversarial evidentiary hearing to determine whether the defendant has in fact violated a condition of probation. . . . General Statutes § 53a-32 (a). ... In this first stage, [t]he state must establish a violation of probation by a fair preponderance of the evidence.” (Citation omitted; internal quotation marks omitted.) State v. Shannon, 61 Conn. App. 543, 546, 764 A.2d 1281 (2001); see also State v. Young, 63 Conn. App. 794, 809, 778 A.2d 1015, cert. denied, 258 Conn. 903, 782 A.2d 140 (2001).

The defendant first argues that the court did not have sufficient evidence to establish a violation of probation, specifically, because the court improperly admitted and relied on certain testimony and other evidence. We disagree.

The defendant did not object to the admission of this evidence at trial, but seeks plain error review. “[P]lain error [review] is properly reserved for those extraordinary situations where the error is so obvious that the fairness and integrity of and public confidence in the judicial process would be impaired were we to fail to address an issue that was not raised or preserved at trial.” (Internal quotation marks omitted.) Dubois v. General Dynamics Corp., 222 Conn. 62, 69, 607 A.2d 431 (1992). “[P]lain error review 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. Berube, 256 Conn. 742, 749 n.7, 775 A.2d 966 (2001). On the basis of our thorough review of the record and briefs, we conclude that the trial court did not commit plain error by admitting the evidence at issue. The record reveals that the state adduced sufficient evidence to establish by a preponderance of the evidence that the defendant participated in all of the crimes charged. Any one of the offenses charged by the state sufficed to establish a violation of the terms of the defendant’s probation, specifically, that he not violate any criminal laws of this state.

Finally, the defendant argues that the court abused its discretion in sentencing him to six years incarceration. We are not persuaded.

Under § 53a-32, once the trial court determines that the evidence has established a violation of a condition of probation, it proceeds to the second component of probation revocation, the determination of whether the defendant’s probationary status should be revoked. “On the basis of its consideration of the whole record, the trial court may continue or revoke the sentence of probation . . . [and] . . . require the defendant to serve the sentence imposed or impose any lesser sentence. ... In making this second determination, the trial court is vested with broad discretion.” (Internal quotation marks omitted.) State v. Young, supra, 63 Conn. App. 809. “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 . . . [and] [r]eversal is required only where an abuse of discretion is manifest or where injustice appears to have been done.” (Internal quotation marks omitted.) State v. Shannon, supra, 61 Conn. App. 547. “In determining whether to revoke probation, the trial court shall consider the beneficial purposes of probation, namely rehabilitation of the offender and the protection of society. . . . The important interests in the probationer’s liberty and rehabilitation must be balanced, however, against the need to protect the public.” (Citation omitted; internal quotation marks omitted.) State v. Bostwick, 52 Conn. App. 557, 564, 728 A.2d 10, appeal dismissed, 251 Conn. 117, 740 A.2d 381 (1999).

On the basis of our review of the facts of this case, we conclude that the court did not abuse its discretion in revoking the defendant’s probation and sentencing him to the remaining six years of incarceration on the underlying conviction.

The judgments are affirmed.

       The defendant pleaded guilty pursuant to the Alford doctrine. See North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).

       The defendant also argues that his September 26, 1999 arrest does not properly serve as the basis for a violation of probation because the police did not act with speedy information. The defendant fails to provide either legal authority or analysis to support this claim. “We are not required to review issues that have been improperly presented to this court through an inadequate brief. . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly.” (Internal quotation marks omitted.) In re Shane P., 58 Conn. App. 234, 243-44, 753 A.2d 409 (2000). “We will not review claims absent law and analysis.” Altfeter v. Naugatuck, 53 Conn. App. 791, 796 n.5, 732 A.2d 207 (1999).

       See Practice Book § 60-5. The defendant does not seek review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). “[I]t is not appropriate to engage in a level of review that is not requested.” (Internal quotation marks omitted.) Ghant v. Commissioner of Correction, 255 Conn. 1, 17, 761 A.2d 740 (2000). Therefore, our review of the defendant’s claim is limited to whether the court committed plain error.


author: FOTI, J.

text:
    STATE OF CONNECTICUT v. WINSTON DUNCAN
    (AC 21058)
    Foti, Schaller and Dupont, Js.
    Argued September 24
    officially released November 20, 2001

      Ruben Rodriguez, with whom, on the brief, was, Michael L. Moscowitz, special public defender, for the appellant (defendant).

      Timothy J. Sugrue, senior assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and John P. Doyle, Jr., deputy assistant state’s attorney, for the appellee (state).
   Opinion

FOTI, J.

The principal issue in this appeal is whether the trial court properly denied the defendant’s motion to suppress evidence. The defendant, Winston Duncan, claims that police officers seized certain narcotics evidence during his arrest, and that their actions violated rights afforded him under the constitution of Connecticut, article first, §§ 7 and 9. We disagree and affirm the judgment of the trial court.

The state charged the defendant with possession of narcotics with intent to sell in violation of General Statutes § 2 la-277 (a) and assault of a peace officer in violation of General Statutes § 53a-167c (a) (l). The defendant filed a motion to suppress certain narcotics evidence that the police had seized during his arrest on the grounds that the police did not have a reasonable and articulable suspicion to detain him and that the search exceeded the lawful scope of an investigative detention. After an evidentiary hearing, the court denied his motion to suppress. The defendant then entered a conditional plea of nolo contendere to the charges pursuant to General Statutes § 54-94a. The court accepted the defendant’s conditional plea and rendered judgment on the basis of that plea.

At the hearing on the defendant’s motion to suppress, the court found the following facts. “On or about November 6, 1999, at approximately 7 p.m., Officer [Michael] Novella and [Officer Aelisa] Koleci of the New Haven police department were patrolling the Waverly Street housing complex, a public housing complex which is owned and managed by the New Haven housing authority. This location is well known as a high drug trafficking area where narcotics such as crack cocaine are sold daily and where numerous arrests have been made. A standing trespassing complaint had been filed with the New Haven police department by the New Haven housing authority to arrest those persons, other than tenants and their guests, who continued to enter the Waverly complex. ‘No trespassing’ signs are posted on exterior walls and alleyways of the buildings so that they can be viewed by people walking into the complex courtyard. While monitoring the complex [and] looking for trespassers, Officers Novella and Koleci were walking through the courtyard and observed the defendant, Winston Duncan, alone, leaning on a fence, behind one of the units of the complex, at either 24 or 25 Waverly Street. The defendant was not a stranger to the police: Officer Novella had known the defendant for nearly ten years and interacted with him numerous times, had arrested him before, knew the defendant’s nickname, ‘Triny,’ and also knew that the defendant did not reside at the complex. The defendant resided at ... an address located outside of the perimeter of the complex. Based on this information and [his] experience, Officer Novella approached the defendant to determine if he was trespassing. As the officer approached the defendant, the defendant placed an item or items in his mouth, turned away and appeared to be intensely chewing and swallowing something. Officer Novella questioned the defendant about his presence in the courtyard, grabbed him, and told him to spit out whatever he had in his mouth. Officer Novella repeatedly asked the defendant what he was doing in the courtyard. The defendant refused to respond to the officer’s repeated questions and remained silent and noncooperative while he continued to chew vigorously on something. Thereafter, Officer Novella arrested the defendant for criminal trespass in the third degree, taking the defendant into custody and handcuffing him. Shortly after he placed the item in his mouth, a white residue or substance emerged on the defendant’s lips and the corners of his mouth. Officer Novella believed the substance to be, and it appeared to be, consistent with crack cocaine. Officer Shafiq Abdussabur arrived on the scene subsequent to the arrest to assist Officers Novella and Koleci. Officer Abdussabur was informed by the officers that the defendant had something in his mouth and was attempting to swallow it. Officer Abdussabur observed a bulge on the side of the defendant’s mouth as well as a white pasty residue on the inner and outer part of his lips. Believing the substance was crack cocaine, Officer Abdussabur tried to clear the defendant’s mouth of the items with his hand. The defendant bit down on the policeman’s finger and, consequently, Officer Abdussabur was forced to use pepper spray on the defendant to remove his finger from the defendant’s mouth. Emergency medical services were called and took the defendant to a hospital because there was concern for his safety from the possibility of ingesting narcotics, but the defendant, however, refused treatment at the hospital. A search incident to the arrest revealed the following from the defendant’s pockets: One small, blue packet containing a white, rock-like substance resembling crack cocaine, one small, blue packet containing white residue, forty empty small, blue packets found in either a white envelope or a large plastic bag, and over one-hundred forty dollars ($141.26) in United States currency. The white rock-like substance produced a positive test for the presence of cocaine. No items were recovered from the defendant’s mouth.”

On appeal, the defendant concedes that a reasonable and articulable suspicion existed to justify his initial detention. He argues, however, that the police exceeded the lawful scope of an investigative detention.

“As a threshold matter, we set forth the appropriate standard pursuant to which we review a challenge to a trial court’s [ruling on] a suppression motion. This involves a two part function: where the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision; where the factual basis of the court’s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous. That is the standard and scope of this court’s judicial review of decisions of the trial court. ... In other words, to the extent that the trial court has made findings of fact, our review is limited to deciding whether those findings were clearly erroneous. Where, however, the trial court has drawn conclusions of law, our review is plenary, and we must decide whether those conclusions are legally and logically correct in light of the findings of fact.” (Citations omitted; internal quotation marks omitted.) State v. Velasco, 248 Conn. 183, 188-89, 728 A.2d 493 (1999).

Under our state constitution, a police officer may detain an individual for investigative purposes if he or she possesses a reasonable and articulable suspicion that such person “has committed or is about to commit a crime.” State v. Lamme, 216 Conn. 172, 184, 579 A.2d 484 (1990).

The defendant claims that the police officers exceeded the permissible scope of their investigative detention and enlarged the scope of the detention without proper justification. In that regard, he argues that Novella “attacked” him in the courtyard by grabbing him before asking him about his presence. We find no merit in the defendant’s argument. It is of no consequence whether he was “grabbed and then asked” or “asked and then grabbed” because either or both actions took place after Novella observed the defendant putting the items in his mouth.

We also cannot conclude that the court improperly found that the officer’s action in grabbing the defendant’s outer clothing constituted an unreasonable use of force, given the circumstances of an otherwise peaceful investigative detention supported by a reasonable and articulable suspicion. The court accepted as credible Novella’s testimony that he reasonably believed that the defendant may have ingested life threatening narcotics and was concerned for the defendant’s safety, and that on the basis of his training and experience, he believed the defendant had narcotics in his mouth for the purpose of avoiding detection. The amount of force was not unreasonable and, therefore, the investigative detention was not converted to an arrest at that time. The court’s conclusion is legally correct, and it is based on its factual findings, which were supported by the evidence, namely, that Novella did not exceed the justifiable parameters of an investigative detention.

In any event, the lawful search of the defendant incident to his arrest on the charge of criminal trespass in the third degree revealed the evidence that the defendant sought to suppress. Because the narcotics properly were seized during a search incident to a lawful arrest, we conclude that the court properly denied the defendant’s motion to suppress.

The judgment is affirmed.

In this opinion the other judges concurred.

       The constitution of Connecticut, article first, § 7, provides: “The people shall be secure in their persons, houses, papers and possessions from unreasonable searches or seizures; and no warrant to search any place, or to seize any person or things, shall issue without describing them as nearly as may be, nor without probable cause supported by oath or affirmation.”

       The constitution of Connecticut, article first, § 9, provides: “No person shall be arrested, detained or punished, except in cases clearly warranted by law.”

       The state also charged the defendant in a part B information with being a persistent narcotics offender because he had been convicted on June 30, 1995, of two counts of sale of narcotics in violation of General Statutes § 21a-277 (a).

       General Statutes § 54-94a provides: “When a defendant, prior to the commencement of trial, enters a plea of nolo contendere conditional on the right to take an appeal from the court’s denial of the defendant’s motion to suppress evidence based on an unreasonable search or seizure, motion to suppress statements and evidence based on the involuntariness of a statement or motion to dismiss, the defendant after the imposition of sentence may file an appeal within the time prescribed by law. The issue to be considered in such an appeal shall be limited to whether it was proper for the court to have denied the motion to suppress or the motion to dismiss. A plea of nolo contendere by a defendant under this section shall not constitute a waiver by the defendant of nonjurisdictional defects in the criminal prosecution.”

       The court sentenced the defendant on each count to a term of five years imprisonment and five years special parole to run concurrently.

       It does not appéar from the record that the state pursued that charge.

       The defendant made that concession during oral argument before this court, and in his reply brief he stated that “[i]n our case, Officer Novella was ten to thirty feet away when he first had [a] reasonable and articulable suspicion that [the defendant] was trespassing.”

       Although the defendant agrees that the evidence presented demonstrates that he was a “trespasser and that when approached by the police he turned away and put something in his mouth and began chewing it,” he claims that the court improperly found that “ ‘Novella questioned [him] about his presence in the courtyard, [then] grabbed him


text:
    STATE OF CONNECTICUT v. WILFREDO BENITEZ
    (AC 20721)
    Foti, Landau and Dranginis, Js.
    Argued September 20
    officially released November 20, 2001

      Neal Cone, assistant public defender, with whom, on the brief, was James B. Streeto, deputy assistant public defender, for the appellant (defendant).

      Eileen F. McCarthy, assistant state’s attorney, with whom were Jack Cronan, acting state’s attorney, and Matthew Gedansky, assistant state’s attorney, for the appellee (state).
   Opinion

FOTI, J.

The defendant, Wilfredo Benitez, appeals from the judgments of the trial court convicting him of three counts of sale of marijuana in violation of General Statutes § 21a-277 (b) and one count of attempt to sell a controlled substance in violation of General Statutes §§ 21a-277 (b) and 53a-49. After accepting the defendant’s guilty pleas, the court imposed a total effective sentence of six years imprisonment, suspended after thirty-three months served and three years of probation with special conditions. The only claim relied on for reversal of the judgment is that the court improperly canvassed the defendant when he pleaded guilty to the charges against him. Specifically, the defendant argues that the court’s canvass was defective on state constitutional grounds because the court did not inquire of him whether he understood that (1) he was presumed innocent, (2) if he elected to be tried before a jury, the court would instruct the jury concerning that presumption, (3) he was entitled to be tried before an impartial jury and (4) if he elected to be tried before a jury, it could find him guilty only by a unanimous verdict. We conclude that the defendant is not entitled to review of this unpreserved claim under the doctrine set forth m State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), for review of unpreserved constitutional claims. Accordingly, we affirm the judgments of the trial court.

We summarize the facts on which the defendant’s convictions are based as follows. The events underlying the three counts of sale of marijuana occurred on three separate occasions and at different locations in Vernon. On each occasion, the defendant sold green, leafy material, later determined to be marijuana, to undercover officers of the tritown narcotics task force (task force). The event underlying the count of criminal attempt to sell a controlled substance occurred on December 29, 1999, also in Vernon. On that occasion, officers in the task force made arrangements with the defendant to purchase marijuana. At that time, during a search incident to an arrest, officers discovered that the defendant was in possession of 12.1 grams of marijuana, and he later stated to officers that he had been selling marijuana for some time.

The defendant was arrested on those charges on December 29, 1999. The defendant appeared in court on the next day for an arraignment. The court set bond and subsequently appointed a public defender to represent the defendant. On March 8, 2000, the defendant appeared before the court for a plea hearing. The defendant’s father, whom the court previously had appointed to act as the defendant’s guardian, accompanied him to the hearing. At the hearing, the defendant pleaded guilty to each of the charges against him in accordance with a plea agreement he had made with the state. At the hearing, the prosecutor stated the facts underlying each charge and explained to the court the agreement for disposition that the state had reached with the defendant.

The court canvassed the defendant in accordance with Practice Book §§ 39-19 through 39-21. The defendant’s responses to the court’s inquiries disclosed that he had discussed the plea agreement with his attorney, and that he understood the nature and elements of the charges against him. The defendant indicated that he was satisfied with the advice, assistance and representation afforded him by his attorney, and indicated that the facts underlying the charges against him were correct. He was not under the influence of alcohol, drugs or any medication, and he was not receiving psychiatric treatment of any kind. He understood the court’s explanation that, if convicted, he could face a combined sentence of up to twenty-eight years of imprisonment and fines of up to $100,000. He also acknowledged that he understood that by pleading guilty in accordance with the plea agreement, he was required to serve thirty-three months in prison and three years of probation. He indicated that he was entering his guilty pleas of his own volition, without any force or threats by any other persons, and that he was certain that he wanted to plead guilty to the charges against him. The court canvassed the defendant in accordance with the requirements of Practice Book § 39-19, and the defendant responded to each inquiry by stating that he understood his constitutional rights and that he was waiving those rights by pleading guilty. The court found that the defendant entered his pleas knowingly, voluntarily, intelligently and with the assistance of counsel. The court further found that there was an adequate factual basis for the pleas and accepted the pleas. On March 13, 2000, the defendant appeared before the court for his sentencing hearing. The court sentenced the defendant in accordance with the plea agreement. The defendant did not raise his present claim before the court, and he did not move to withdraw his pleas at any time.

The defendant concedes, as he must, that he did not properly preserve his claim for appeal by moving to withdraw his pleas prior to sentencing pursuant to Practice Book § 39-27. He seeks review under the doctrine set forth in State v. Golding, supra, 213 Conn. 239-40. Under Golding, “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) Id.

“In the absence of any one of these conditions, the defendant’s claim will fail. The appellate tribunal is free, therefore, to respond to the defendant’s claim by focusing on whichever condition is most relevant in the particular' circumstances.” Id., 240. “The first two prongs of Golding address the reviewability of the claim, and the last two involve the merits of the claim.” State v. Brown, 56 Conn. App. 26, 31, 741 A.2d 321 (1999), cert. denied, 252 Conn. 927, 746 A.2d 790 (2000).

The defendant’s claim fails under the second prong of Golding because it is not of constitutional magnitude. It does not allege the violation of a fundamental right. Although the defendant claims that the court’s canvass was defective under our state constitution because it did not inquire as to the defendant’s waiver of certain rights, we conclude that the defendant did not have a fundamental right to be canvassed by the court concerning those matters. In other words, the defendant’s claim does not implicate due process concerns because he did not have a due process right to be canvassed as to the matters he raises in this appeal.

“The United States Supreme Court has held that for the acceptance of a guilty plea to comport with due process, the plea must be voluntarily and knowingly entered. Boykin v. Alabama, 395 U.S. 238, 243-44, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969). State v. Carter, 243 Conn. 392, 397, 703 A.2d 763 (1997). We are bound by our Supreme Court’s decision in [State v. Badgett, 200 Conn. 412, 512 A.2d 160, cert. denied, 479 U.S. 940, 107 S. Ct. 423, 93 L. Ed. 2d 373 (1986)], which requires us to focus our inquiry on whether the federal constitutional principles of [Boykin v. Alabama, supra, 243] were satisfied rather than on meticulous compliance with the provisions of the Practice Book. . . . Boykin requires that before accepting a defendant’s plea, a trial court must inform him of three core constitutional rights: His right to be free of compulsory self-incrimination, and his rights to a jury trial and to confront his accusers. . . . State v. Williams, 60 Conn. App. 575, 581, 760 A.2d 948, cert. denied, 255 Conn. 922, 763 A.2d 1043 (2000).” (Internal quotation marks omitted.) State v. Silva, 65 Conn. App. 234, 241, 783 A.2d 7, cert. denied, 258 Conn. 929, 783 A.2d 1031 (2001). Those rights also are guaranteed by the constitution of Connecticut, article first, § 8, as amended by article seventeen of the amendments.

Practice Book §§ 39-19 and 39-20 provide adequate safeguards to ensure that a defendant’s plea is made in both a knowing and voluntary manner. Our Supreme Court has stated that a court may validate a guilty plea with substantial, rather than literal, compliance with those sections of the rules of practice. State v. Malcolm, 257 Conn. 653, 662-63, 778 A.2d 134 (2001). As this court has explained, “ [b] efore he can enter a valid guilty plea, a defendant must be fully aware of the direct consequences of his plea. ... To ensure compliance with this constitutional mandate, Practice Book § 711 [now § 39-19] requires that the trial court address the defendant personally and determine that he fully understands the nature of the charge against him. The court must also advise him of (1) the mandatory minimum sentence, (2) the maximum possible sentence, and (3) the fact that he has the right to plead not guilty, the right to be tried by jury, the right to confront and cross-examine witnesses, and the right against self-incrimination. The court must also ensure that the plea is voluntary and is not the result of force or threats. Practice Book § 712 [now § 39-20].” (Citations omitted.) State v. Edwards, 22 Conn. App. 601, 604, 578 A.2d 664 (1990).

This court further explained: “The scope of ‘direct consequences’ is narrow and is limited to those consequences enumerated in Practice Book § 711 [now § 39-19]. . . . There is no requirement that the defendant be advised of every possible consequence of such a plea.” (Citations omitted.) State v. Edwards, supra, 22 Conn. App. 604. As our Supreme Court has stated, “[e]xcept for those inquiries either constitutionally mandated or required by our rules, the court is not obliged to assume the role of the defendant’s counselor.” State v. Gilnite, 202 Conn. 369, 383, 521 A.2d 547 (1987). Stated otherwise, “[t]he failure to inform a defendant as to all possible indirect and collateral consequences does not render a plea unintelligent or involuntary in a constitutional sense.” Id., 383 n. 17. “Our Supreme Court has rejected several claims that, in accepting a guilty plea, the trial court must advise the defendant of the consequences of his conviction beyond those prescribed by Practice Book ... § 39-19.” State v. Andrews, 53 Conn. App. 90, 98, 729 A.2d 232 (1999), aff'd, 253 Conn. 497, 752 A.2d 49 (2000).

In the present case, the defendant does not claim that the court failed to inquire of him or instruct him in accordance with Practice Book §§ 39-19 and 39-20. The defendant argues that our state constitution requires further inquiry of him and that he had a fundamental right to be so questioned. We disagree. In his brief, the defendant discusses, at great length, his right to be presumed innocent until proven guilty, his right to a jury instruction concerning his presumption of innocence, his right to an impartial jury and his right to be convicted only on a unanimous jury verdict. While we certainly do not dispute those rights, their existence is not at issue in this appeal. Our task in the present appeal is to ascertain whether the court was bound by our state constitution to inquire of the defendant whether he understood that as a consequence of his guilty pleas, he would be waiving those rights.

The defendant provides us with no support, either in our case law or otherwise, for his claim, and we are unable to find any. The federal and state constitutions, our statutes, and our rules and procedures afford criminal defendants a wide panoply of rights during a trial. Although our courts have held that due process requires certain inquiry of a defendant before a guilty plea may be characterized as having been both knowing and voluntary, that inquiry is not without its limits. Those limits have been delineated by the aforementioned rules, and our courts have, on several occasions, upheld their constitutionality. The court’s canvass in the present case was not constitutionally defective because the defendant did not have a fundamental right to be canvassed as to the rights he has raised in his appeal.

The judgments are affirmed.

In this opinion the other judges concurred.

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

       General Statutes § 53a-49 defines criminal attempt.

       “The Tri-Town Narcotics Task Force is a regional drug task force whose members are drawn from the police departments of South Windsor, Manchester and Vernon.” State v. Velez, 215 Conn. 667, 669 n.3, 577 A.2d 1043 (1990). The dates of the sales and the amounts of marijuana sold are as follows: On August 20, 1999, the defendant sold 13.3 grams, on August 27, 1999, he sold 8.4 grams and on November 8, 1999, he sold 19.7 grams.

       Practice Book § 39-19, titled “Acceptance of Plea; Advice to Defendant,” provides: “The judicial authority shall not accept the plea without first addressing the defendant personally and determining that he or she fully understands:
      “(1) The nature of the charge to which the plea is offered;
      “(2) The mandatory minimum sentence, if any;
      “(3) The fact that the statute for the particular offense does not permit the sentence to be suspended;
      “(4) The maximum possible sentence on the charge, including, if there are several charges, the maximum sentence possible from consecutive sentences and including, when applicable, the fact that a different or additional punishment may be authorized by reason of a previous conviction; and
      “(5) The fact that he or she has the right to plead not guilty or to persist in that plea if it has already been made, and the fact that he or she has the right to be tried by a jury or a judge and that at that trial the defendant has the right to the assistance of counsel, the right to confront and cross-examine witnesses against him or her, and the right not to be compelled to incriminate himself or herself.”

       Practice Book § 39-27 provides: “The grounds for allowing the defendant to withdraw his or her plea of guilty after acceptance are as follows:
      “(1) The plea was accepted without substantial compliance with Section 39-19;
      “(2) The plea was involuntary, or it was entered without knowledge of the nature of the charge or without knowledge that the sentence actually imposed could be imposed;
      “(3) The sentence exceeds that specified in a plea arrangement which had been previously accepted, or in a plea agreement on which the judicial authority had deferred its decision to accept or reject the agreement at the time the plea of guilty was entered;
      “(4) The plea resulted from the denial of effective assistance of counsel;
      “(5) There was no factual basis for the plea; or
      “(6) The plea either was not entered by a person authorized to act for a corporate defendant or was not subsequently ratified by a corporate defendant”

       The constitution of Connecticut, article first, § 8, as amended by article seventeen of the amendments provides: “In all criminal prosecutions, the accused shall have a right to be heard by himself and by counsel; to be informed of the nature and cause of the accusation; to be confronted by the witnesses against him; to have compulsory process to obtain witnesses in his behalf; to be released on bail upon sufficient security, except in capital offenses, where the proof is evident or the presumption great; and in all prosecutions by information, to a speedy, public trial by an impartial jury. No person shall be compelled to give evidence against himself, nor be deprived of life, liberty or property without due process of law, nor shall excessive bail be required nor excessive fines imposed. No person shall be held to answer for any crime, punishable by death or life imprisonment, unless upon probable cause shown at a hearing in accordance with procedures prescribed by law, except in the armed forces, or in the militia when in actual service in time of war or public danger.”


text:
    STATE OF CONNECTICUT v. JAMES GRAHAM
    (AC 21081)
    Lavery, C. J., and Dranginis and Daly, Js.
    Submitted on briefs September 10
    officially released November 20, 2001

      Thomas M. Conroy filed a brief for the appellant (defendant).

      Michael Dearington, state’s attorney, Robert J. O’Brien, supervisory assistant state’s attorney, and Michael E. O’Hare, assistant state’s attorney, filed a brief for the appellee (state).
   Opinion

DRANGINIS, J.

The defendant, James Graham, appeals from the judgment of conviction, following a jury trial, of larceny in the second degree in violation of General Statutes § 53a-123 (a) (3). On appeal, the defendant claims that the trial court improperly restricted his closing argument and, therefore, he is entitled to a new trial. We affirm the judgment of the trial court.

The following facts are relevant to our resolution of the defendant’s appeal. Late in the evening of December 11,1998, the victim, Jamie Jinks, needed transportation to his home after visiting with his girlfriend at her residence. The victim noticed that the defendant and Derrick Harris, whom he had known for several years, were sitting in a motor vehicle that was parked on the side of the road and asked them for a ride to his home. They agreed to give the victim a ride home, and the victim entered the car and sat in the backseat with another person, unknown to him, who slept throughout the incident.

The defendant drove the motor vehicle a short distance before stopping at the side of the road. Harris turned around and questioned the victim about whether he was wearing his gold necklace with a medallion. Harris then pointed a pistol at the victim and demanded that the victim give to him the necklace and his money. The victim asked the defendant if it “had to be like that,” to which the defendant responded, “It’s like that.” The victim gave his money to the defendant, while Harris, still pointing the pistol at the victim, took the victim’s necklace from his person. The defendant and Harris then told the victim to leave the car and, after the victim exited, the defendant drove away.

The defendant and Harris were subsequently arrested. The defendant was charged with robbery in the first degree in violation of General Statutes § 53a-134 (a) (2) and larceny in the second degree in violation of § 53a-123 (a) (3). A jury trial ensued. The defendant was convicted of larceny in the second degree. This appeal followed.

On appeal, the defendant contends that the court improperly precluded him from commenting in closing argument about the failure of the state to call Harris as a witness and, therefore, that this case should be remanded for a new trial. Specifically, the defendant claims that the court abused its discretion because his intended comment was appropriate and in accordance with the holding of our Supreme Court in State v. Malave, 250 Conn. 722, 739, 737 A.2d 442 (1999) (en banc), cert. denied, 528 U.S. 1170, 120 S. Ct. 1195, 145 L. Ed. 2d 1099 (2000). We disagree.

The following additional facts are relevant to our resolution of the defendant’s claim. Toward the conclusion of the trial, the defendant notified the court and the state that he intended to comment during closing argument about the state’s failure to call Harris as a witness pursuant to State v. Malave, supra, 250 Conn. 722. In support of his request to comment on the failure of the state to call Harris, the defendant stated, “It wasn’t my intention to argue that . . . this is someone the state would naturally call, and they [the jurors] should infer from this story that there would be testimony against the state. I would merely mention that this was someone whose testimony is not available, that had it been available, it might have assisted the jury in the deciding the facts of the case one way or the other. And since it isn’t here and because the state has the high burden of proof in this case, that’s something that the jury should consider. That would be my purpose in making that argument.” The court precluded the defendant from commenting in closing argument about the state’s failure to call Harris as witness, stating that “Malave . . . does not support the claims that the defendant is making with respect to the testimony of Derrick Harris as a witness.”

The defendant’s claim arises as a result of the decision of our Supreme Court in State v. Malave, supra, 250 Conn. 722. In Malave, our Supreme Court abandoned, in criminal cases, the Secondino , rule, also known as the missing witness rule, which sanctioned, under certain circumstances, a jury instruction that an adverse inference may be drawn from the failure of a party to produce a witness. Although our Supreme Court abandoned the Secondino rule, it did not intend to “prohibit counsel from making appropriate comment, in closing arguments, about the absence of a particular witness, insofar as that witness’ absence may reflect on the weakness of the opposing party’s case.” Id., 739. Comments in closing argument that do “not directly exhort the jury to draw an adverse inference by virtue of the witness’ absence” do not necessarily fall under the ambit of Secondino-, id.; and accordingly are not forbidden by Malave. Our Supreme Court further provided that “[o]f course, the trial court retains wide latitude to permit or preclude such a comment, and may, in its discretion, allow a party to adduce additional evidence relative to the missing witness issue.” Id., 740; see State v. Joyce, 243 Conn. 282, 305-306, 705 A.2d 181 (1997), cert. denied, 523 U.S. 1077, 118 S. Ct. 1523, 140 L. Ed. 2d 674 (1998).

The broad discretion vested in trial courts by Malave mirrors the general standards regarding the trial court’s ability to limit closing argument. “[T]he scope of final argument lies within the sound discretion of the court . . . subject to appropriate constitutional limitations. ... It is within the discretion of the trial court to limit the scope of final argument to prevent comment on facts that are not properly in evidence, to prevent the jury from considering matters in the realm of speculation and to prevent the jury from being influenced by improper matter that might prejudice its deliberations. . . . While we are sensitive to the discretion of the trial court in limiting argument to the actual issues of the case, tight control over argument is undesirable when counsel is precluded from raising a significant issue.” (Internal quotation marks omitted.) State v. Joyce, supra, 243 Conn. 305-306.

We conclude that the court did not abuse its discretion in precluding the defendant from commenting in closing argument about the failure of the state to call Harris as a witness. The defendant failed to explain how the state’s decision not to call Harris exposed a weakness in the state’s case, nor did the defendant make an offer of proof regarding the substance of Harris’ potential testimony. Rather, in justification of his request to comment, the defendant offered only a blanket statement that Harris’ failure to testify demonstrated a weakness in the state’s case.

“Counsel may comment [in closing argument] upon facts properly in evidence and upon reasonable inferences to be drawn from them. . . . Counsel may not, however, comment on or suggest [in closing argument] an inference from facts not in evidence.” (Citation omitted; emphasis in original; internal quotation marks omitted.) State v. Banks, 59 Conn. App. 112, 129, 755 A.2d 951, cert. denied, 254 Conn. 950, 762 A.2d 904 (2000). Similarly, a party cannot merely comment on the failure of the opposing party to present a witness without first providing a factual or evidentiary foundation from which to infer a weakness in the opposing party’s case. See id. Therefore, we cannot conclude that the trial court abused its discretion when the defendant failed to demonstrate how the state’s disinclination to call Harris as a witness reflects a weakness in the state’s case.

The defendant’s reliance on State v. Ross, 18 Conn. App. 423, 558 A.2d 1015 (1989), is misplaced. In Ross, the defendant sought, in pertinent part, to comment in closing argument on the weakness of the state’s case on the basis of the absence of testimony from the sole eyewitness to the charged crime. This court reversed the judgment of the trial court and, on remand, permitted the defendant to refer to the absence of the eyewitness’ testimony in closing argument. Contrary to the present case, the lack of the eyewitness’ testimony in Ross clearly exposed a weakness in the state’s case. In fact, the defendant in Ross attempted *6 to call several other witnesses whose testimony would have implicated the missing witness with the commission of the crime. Here, the defendant’s claim that the absence of Harris’ testimony constitutes a weakness in the state’s case was based on pure speculation and was made without factual or evidentiary support.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-123 (a) provides in relevant part: “A person is guilty of larceny in the second degree when he commits larceny, as defined in section 53a-119, and ... (3) the property, regardless of its nature or value, is taken from the person of another

       Pursuant to State v. Malave, supra, 250 Conn. 740, “[fjaimess . . . dictates that a party who intends to comment on the opposing party’s failure to call a certain witness must so notify the court and the opposing party in advance of closing arguments.”

         Secondino v. New Haven Gas Co., 147 Conn. 672, 165 A.2d 598 (1960).

       The state proffers the additional argument that the court did not abuse its discretion because Harris was an unavailable witness. Specifically, the state asserts that Harris was an unavailable witness because, although Harris pleaded guilty to the charges against him, he was awaiting sentencing at the time of the conclusion of the defendant’s trial and, therefore, would have invoked his fifth amendment privilege against self-incrimination. Our Supreme Court in Malave stated that “comment on the opposing party’s failure to call a particular witness would be improper if that witness were unavailable due to death, disappearance or otherwise.” State v. Malave, supra, 250 Conn. 740. Moreover, we note the case of State v. Young, 258 Conn. 79, 93-94, 779 A.2d 112 (2001), in which our Supreme Court held, in pertinent part, that a witness is unavailable for purposes of Secondino v. New Haven Gas Co., 147 Conn. 672, 165 A.2d 598 (1960), if it is apparent that the witness would have invoked the privilege against self-incrimination and refused to testify if called. The record here does not disclose whether Harris was awaiting sentencing at the time of the trial or was otherwise unavailable. Therefore, we will not address that argument.

       In State v. Ross, supra, 18 Conn. App. 424, the defendant was charged with manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (3). The sole eyewitness to the crime, Jose Burgos-Ortiz, disappeared after providing a statement implicating the defendant to the police. The defendant in Ross, which arose prior to Malave, did not seek a charge pursuant to Secondino v. New Haven Gas Co., 147 Conn. 672, 165 A.2d 598 (1960), because the missing eyewitness, Burgos-Ortiz, was unavailable.

       In State v. Ross, supra, 18 Conn. App. 431, we held, in pertinent part, that the trial court committed reversible error in preventing the defendant from presenting direct evidence through numerous witnesses suggesting that the missing eyewitness could have committed the crime.


text:
    JOHN O’BRYAN v. JANET O’BRYAN
    (AC 20825)
    Foti, Landau and Dranginis, Js.
    Submitted on briefs September 12
    officially released November 20, 2001

      Douglas A. Miller, Jr., filed a brief for the appellant (defendant).

      Brenden P. Leydon and Gary Oberst filed a brief for the appellee (plaintiff).
   Opinion

DRANGINIS, J.

The defendant, Janet O’Bryan, appeals from the judgment of the trial court granting the motion of the plaintiff, John O’Bryan, for modification of child support. On appeal, the defendant claims that the court lacked jurisdiction to modify support for the parties’ postmajority child. We reverse the judgment of the trial court.

The following facts and procedural history are necessary for our resolution of this appeal. On October 18, 1991, the parties entered into a separation agreement. On January 3, 1992, the court rendered a judgment of dissolution of the parties’ marriage that incorporated the parties’ separation agreement. In accordance with the separation agreement, the court awarded the parties joint legal custody of their two minor children. The defendant was granted physical custody with reasonable visitation in the plaintiff. The agreement provided in relevant part that the plaintiff would pay child support until the end of 2006, when the children would be ages twenty-seven and twenty-one, respectively.

On December 14, 1999, the plaintiff filed a motion to modify his child support payments by directing a portion of the support directly to the older child, who was then twenty and living independently. On February 14, 2000, the defendant filed a motion for modification seeking to increase child support due to a substantial change in circumstances, namely, an increase in the plaintiffs income. On April 10, 2000, the court granted both motions for modification. The court ordered that child support be increased by 20 percent and that 50 percent of the child support payment be paid directly to the older child and the other 50 percent to the defendant. This appeal followed.

The defendant argues that the court improperly modified the plaintiffs obligation to pay postmajority child support because the parties did not have a written agreement that provided that the court could modify postmajority child support as required by General Statutes § 46b-66. We agree.

At the outset, we note that the defendant’s argument equates the court’s jurisdiction with the court’s authority to act; however, our Supreme Court clarified the distinction between a trial court’s “jurisdiction” and its “authority to act” under a particular statute in Amodio v. Amodio, 247 Conn. 724, 727, 724 A.2d 1084 (1999). “Subject matter jurisdiction involves the authority of a court to adjudicate the type of controversy presented by the action before it. ... A court does not truly lack subject matter jurisdiction if it has competence to entertain the action before it. . . . Once it is determined that a tribunal has authority or competence to decide the class of cases to which the action belongs, the issue of subject matter jurisdiction is resolved in favor of entertaining the action. ... It is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged.” (Citations omitted; internal quotation marks omitted.) Id., 727-28.

“Although related, the court’s authority to act pursuant to a statute is different from its subject matter jurisdiction. The power of the court to hear and determine, which is implicit in jurisdiction, is not to be confused with the way in which that power must be exercised in order to comply with the terms of the statute.” (Internal quotation marks omitted.) Id., 728.

General Statutes § 46b-l provides the Superior Court with plenary and general subject matter jurisdiction over legal disputes in “family relations matters,” including custody and support. Section 46b-66 provides the court with jurisdiction to incorporate a separation agreement into its order or decree if on review it finds the agreement fair and equitable under the circumstances. Section 46b-66 further provides that “[i]f the agreement is in writing and provides for the care, education, maintenance or support of a child beyond the age of eighteen, it may also be incorporated or otherwise made a part of any such order and shall be enforceable to the same extent as any other provision of such order or decree . . . .” (Emphasis added.) Sections 46b-1 and 46b-66 provided the trial court with subject matter jurisdiction over the plaintiffs modification claim in this case. See Amodio v. Amodio, supra, 247 Conn. 729-30.

Having concluded that the court had jurisdiction over the plaintiffs motion for modification of postmajority support, we must now turn to the question of whether the court properly applied § 46b-66, that is, properly exercised its statutory authority to act. We conclude that the court did not have authority to modify the plaintiffs postmajority support obligation.

Connecticut courts repeatedly have held that, pursuant to § 46b-66, a prerequisite to a court’s modification of postmajority support is a written agreement providing for modification by the court, whether it is contained in a separation agreement that is then incorporated into the judgment of dissolution or exists as a separate agreement. See, e.g., Hirtle v. Hirtle, 217 Conn. 394, 399, 586 A.2d 578 (1991); Miner v. Miner, 48 Conn. App. 409, 411, 709 A.2d 605 (1998).

In the present case, the parties’ separation agreement was incorporated by reference into the dissolution decree. “A judgment rendered in accordance with such a stipulation of the parties is to be regarded and construed as a contract. . . . The construction of such an agreement by the trial court is subject to our review under the clearly erroneous standard. . . .

“A contract is to be construed as a whole and all relevant provisions will be considered together. . . . In giving meaning to the terms of a contract, we have said that a contract must be construed to effectuate the intent of the contracting parties. ... In ascertaining intent, we consider not only the language used in the contract but also the circumstances surrounding the making of the contract, the motives of the parties and the purposes which they sought to accomplish. . . . The intention of the parties to a contract is to be determined from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction. The question is not what intention existed in the minds of the parties but what intention is expressed in the language used. . . . This is so where the parties have their agreement in writing. ... In interpreting contract items, we have repeatedly stated that the intent of the parties is to be ascertained by a fair and reasonable construction of the -written words and that the language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract. . . . Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms. A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity and words do not become ambiguous simply because lawyers or laymen contend for different meanings.” (Citations omitted; internal quotation marks omitted.) Barnard v. Barnard, 214 Conn. 99, 109-10, 570 A.2d 690 (1990).

With these principles in mind, we turn to the trial court’s conclusion that the parties’ October 18, 1991 agreement provided for modification of child support of a postmajority child.

Article V of the parties’ separation agreement addresses child support. Paragraph 5.1 provides that “[t]he Husband shall pay to the Wife as child support the following sums as and for child support for the time frame indicated . . . .” (Emphasis added.) That paragraph further provides that payments shall be made through 2006 and that those payments shall occur until the death of the plaintiff, the defendant or the child. The agreement contains no language that could be interpreted as permitting the court to modify the amount of postmajority support or to whom the postmajority support would be paid. Rather, paragraph 5.1 contained additional language, which the parties crossed out, stating that child support payments shall continue until “the emancipation of a child for a reason other than age. The Husband shall have the burden of proving such emancipation.”

We conclude that the language of the agreement provides for support payments to be made directly to the defendant. It is evident, based on the excised language, that the parties anticipated the possibility that one or both of their children would become “emancipated” notwithstanding their age, but did not agree that the plaintiffs support obligations would be modifiable under such circumstances. Other provisions of the parties’ agreement also provide for modification of support by the court in certain defined circumstances. If the parties wanted to allow the court to modify postmajority child support, they knew how to do so. The parties’ agreement further provided, in article VII, paragraph 7.3: “Except as otherwise herein provided, a modification or waiver of any of the provisions of this agreement shall be effective only if made in writing and executed with the same formality as this agreement . . . .” We conclude therefore that the court acted outside of its authority under § 46b-66 when it redirected the plaintiffs payments from the defendant to the child and increased postmajority support by 20 percent.

Article III, paragraph two, does not require a different result. That section provides: “In the event that a decree dissolving the marriage of the parties hereto, or a decree of divorce between the parties hereto, shall be entered in any court of competent jurisdiction, a subsequent modification by any court of competent jurisdiction of such decree shall, to the extent that it varies the terms of this agreement be deemed to amend this agreement in accordance with the terms of such modification.” The trial court’s reliance on article III in support of its modification of postmajority support would render the language of article VII meaningless. “Parties generally do not insert meaningless provisions in their agreements and therefore every provision must be given effect if reasonably possible.” (Internal quotation marks omitted.) Id., 116.

The judgment is reversed and the case is remanded with direction to deny the motions for modification of child support.

In this opinion the other judges concurred.

       Article XI, titled “College Expenses,” paragraph 11.3, provides in relevant part: “A substantial change in circumstances of the husband shall be deemed to be income of less than $125,000.00 per year. Thereafter, the court shall have the power, if it deems appropriate, to modify the obligations of this article.”


author: LANDAU, J.

text:
    DOROTHY S. MITCHELL v. MORRIS SILVERSTEIN ET AL.
    (AC 21180)
    Landau, Schaller and O’Connell, Js.
    Argued September 19
    officially released November 20, 2001

      Morris Silverstein, pro se, the appellant (named defendant).

      Richard B. Laschever, with whom, on the brief, was Gordon Bednarz, for the appellee (plaintiff).

      David C. Rappe, with whom was Joseph E. Mascaro, for the appellees (defendant Howard, Kohn, Sprague and FitzGerald et al.).
   Opinion

LANDAU, J.

The defendant Morris Silverstein appeals from the judgment of the trial court ordering the partition of certain real property by sale. On appeal, the defendant claims that the court improperly approved the committee’s sale of the property to a nonparty due to (1) the constructive fraud perpetrated by the court and the committee, and (2) the court’s failure (a) to consider the minimal equitable interests of two owners in a portion of the property that is landlocked and (b) to approve the sale to the highest bidder. We affirm the judgment of the trial court.

The following facts are relevant to this appeal. In April, 1997, the plaintiff, Dorothy S. Mitchell, commenced an action against her brothers, the defendant and Samuel Silverstein, for an accounting, partition by sale and reimbursement with respect to certain real property in Bolton and Columbia in which each of the siblings had an interest acquired by an inheritance. The plaintiff subsequently filed a motion to cite in, as party defendants, David C. Rappe, an attorney, and Howard, Kohn, Sprague and FitzGerald (law firm) by virtue of an assignment to them of a portion of the plaintiffs interest in the real property. Rappe and the law firm each filed a counterclaim against the plaintiff seeking damages for nonpayment of legal services they had rendered to her. The defendant sequentially filed motions to dismiss and to strike the counts against the law firm and Rappe. The court denied the motions. The court rendered judgment on Rappe’s counterclaim pursuant to a stipulation between the plaintiff and Rappe. The court granted the plaintiffs motion for partition by sale, appointed a committee and rendered a written judgment ordering partition by sale dated April 4, 2000. The court granted the committee’s application to approve the sale of the property to Michael Taylor and rendered judgment thereon on August 24, 2000. The defendant appealed.

We decline to review the defendant’s claims on appeal for the following reasons. First, we note that the defendant has represented himself throughout these proceedings. “[I]t is the established policy of the Connecticut courts to be solicitous of pro se litigants and when it does not interfere with the rights of other parties to construe the rules of practice liberally in favor of the pro se party. . . . Although we allow pro se litigants some latitude, the right of self-representation provides no attendant license not to comply with relevant rules of procedural and substantive law.” (Citation omitted; internal quotation marks omitted.) Strobel v. Strobel, 64 Conn. App. 614, 617-18, 781 A.2d 356, cert. denied, 258 Conn. 937, 786 A.2d 426 (2001).

The defendant’s claims that (1) the court and the committee perpetrated a constructive fraud, and (2) the court failed to consider the minimal equitable interests of two owners in a portion of the property that is landlocked were raised for the first time on appeal. “This court will not consider claimed errors on the part of the trial court unless it appears that the question was distinctly raised at the trial.” (Internal quotation marks omitted.) Willow Springs Condominium Assn., Inc. v. Seventh BRT Development Corp., 245 Conn. 1, 22, 717 A.2d 77 (1998); see also Practice Book § 60-5. On the basis of our review of the record, we conclude that these claims are raised for the first time on appeal. We therefore refuse to review them. See Pantanella v. Enfield Ford, Inc., 65 Conn. App. 46, 57 n.9, 782 A.2d 141, cert. denied, 258 Conn. 930, 783 A.2d 1029 (2001).

As to the defendant’s claim that the court improperly approved the sale to a nonparty who was not the highest bidder, the record is inadequate for our review. The court did not write a memorandum of decision, and the defendant did not submit a signed copy of an oral decision. See Practice Book § 64-1. He also did not file a motion for articulation. “The duty to provide this court with a record adequate for review rests with the appellant. ... It is incumbent upon the appellant to take the necessary steps to sustain its burden of providing an adequate record for appellate review. ... It is not the function of this court to find facts. . . . Our role is ... to review claims based on a complete factual record developed by a trial court. . . . Without the necessary factual and legal conclusions furnished by the trial court. . . any decision made by us respecting [the defendant’s claims] would be entirely speculative. . . . We have, on occasion, reviewed claims of error in light of an unsigned transcript as long as the transcript contains a sufficiently detailed and concise statement of the trial court’s findings. . . . Where the transcript does not reveal the basis of the court’s factual conclusion, we will not review the appellant’s claims.” (Citations omitted; internal quotation marks omitted.) Strobel v. Strobel, supra, 64 Conn. App. 621.

The judgment is affirmed.

In this opinion the other judges concurred.

       Moras Silverstein is the only defendant who is a party to this appeal; and we will refer to him as the defendant throughout this opinion.

       In his brief to this court, the defendant identified six issues, three of which concern the propriety of the judgment of partition by sale and are nothing more than restatements of two issues this court dismissed previously. We therefore will not consider the following issues in the defendant’s brief: (1) Is the determination by the trial court that physical partition is impractical void for lack of jurisdiction because the trial court did not first attempt a physical division to establish and prove that a sale was necessary? (2) Is the determination by the trial court that a sale best serves the interests of the parties void for lack of jurisdiction because it lacks a finding of subordinate facts, or a sufficient finding of subordinate facts, as a foundation to establish and prove that a sale was necessary? (3) Is the determination by the trial court that physical partition is impractical improper because it is not supported by the actual facts?

       Apparently, there are long-standing disputes among the siblings that have been contested in both the Probate Court and the Superior Court.

       A judgment of partition by sale is an appealable final judgment. Neumann v. Neumann, 134 Conn. 176, 55 A.2d 916 (1947); Schmaling v. Schmaling, 48 Conn. App. 1, 707 A.2d 339, cert. denied, 244 Conn. 929, 711 A.2d 727 (1998).

       The plaintiff filed a brief and appeared at oral argument. The plaintiff, however, failed to file a cross appeal as required by Practice Book § 61-8. “If an appellee wishes to change the judgment in any way, the party must file a cross appeal.” Waterbury v. East Park Associates, Inc., 26 Conn. App. 326, 329 n.3, 600 A.2d 1050 (1992). We, therefore, have not considered the plaintiffs brief or argument. See id.