author: FLYNN, C. J. BERDON, J.,

text:
    ARAMIS RIOS ET AL. v. CCMC CORPORATION ET AL.
    (AC 28024)
    Flynn, C. X, and Bishop and Berdon, Js.

      Argued December 3, 2007
    officially released April 8, 2008

      Donald J. McCarthy, Jr., for the appellants (plaintiffs).

      Rebecca M. Harris, with whom was Donna R. Zito, for the appellees (defendants).
   Opinion

FLYNN, C. J.

In 2005, the General Assembly, by enacting Public Acts 2005, No. 05-275, § 2 (P.A. 05-275), required that persons filing legal actions claiming medical negligence, filed on or after October 1, 2005, must annex to the complaint a written and signed opinion of a similar health care provider stating that there appears to be evidence of medical negligence. The principal issue before us in this appeal is whether a complaint delivered to the serving marshal one day prior to the effective date of the public act, but not filed with the clerk of the Superior Court until after its October 1, 2005 effective date, was properly dismissed. We conclude that it was properly dismissed and, accordingly, affirm the judgment of the trial court.

In this medical malpractice action, the plaintiffs Betzabel Flores and her minor daughter, Aramis Rios, appeal from the judgment of the court granting the motion of the defendants, CCMC Corporation, doing business as Connecticut Children’s Medical Center, and CCMC Faculty Practice Plan, Inc., to dismiss the complaint for failure to include the opinion of a similar health care provider as required by General Statutes (Rev. to 2005) § 52-190a, as amended by P.A. 05-275, § 2 On appeal, the plaintiffs claim that the court improperly (1) granted the defendants’ motion to dismiss and (2) failed to find that a motion to dismiss was not the proper vehicle to address the defendants’ claim.

The following facts and procedural history are relevant to our resolution of the plaintiffs’ appeal. In this medical malpractice case, the plaintiffs claimed that the defendants were negligent in failing to diagnose appendicitis on October 18, 2003. On July 1, 2005, the plaintiffs, pursuant to General Statutes § 52-190a (b), petitioned the court for an automatic ninety day extension of the applicable three year statute of limitations. A clerk of the Superior Court granted the extension on the same day. The plaintiffs delivered a complaint and return of service to a marshal on September 30, 2005. A marshal served the defendants on October 28, 2005. The complaint was filed with the clerk of the Superior Court on November 4, 2005. Attached to the complaint was the plaintiffs’ petition pursuant to § 52-190a (b) and a certificate of good faith submitted by the plaintiffs’ attorney. The complaint did not include an opinion of a similar health care provider attesting to a good faith basis for the action, as required by § 52-190a (a) of all cases filed on or after October 1, 2005.

On November 21, 2005, the defendants filed a motion to dismiss the plaintiffs’ complaint due to the plaintiffs’ failure to include the opinion of a similar heath care provider with the complaint, as required by § 52-190a. The plaintiffs objected to the motion to dismiss, and oral argument was heard by the court on January 3, 2006. The plaintiffs’ attorney informed the court that he had not obtained an opinion of a similar health care provider prior to filing the action in court. At the conclusion of the hearing, the court indicated that it would “hold off ruling on this motion” and encouraged the plaintiffs to figure out a way to get an opinion of a similar health care provider submitted to the court. The plaintiffs, however, did not attempt to file an amended complaint with a health care provider’s written opinion or in any other way attempt to supplement their complaint with such an opinion. The court, however, did not issue a ruling on the defendants’ motion within 120 days; see Practice Book § 11-19 (a); and, on May 5,2006, the defendants moved to have the case reassigned to another judge.

The matter subsequently was reassigned, and, after hearing oral argument, the court, Stengel, J., granted the defendants’ motion to dismiss the plaintiffs’ complaint on August 15, 2006. The court found that the plaintiffs’ complaint was dated September 30,2005, and was filed November 4, 2005. The court reasoned that because the plaintiffs’ action was filed after October 1, 2005, the effective date of P.A. 05-275, § 2, the amended statute applied. The court, therefore, dismissed the plaintiffs’ action concluding that they had not complied with the requirements of the public act. The plaintiffs thereafter filed this appeal.

I

The plaintiffs first claim that the court improperly granted the defendants’ motion to dismiss. We disagree.

We first set forth our standard of review on a challenge to a ruling on a motion to dismiss. “When the facts relevant to an issue are not in dispute, this court’s task is limited to a determination of whether, on the basis of those facts, the trial court’s conclusions of law are legally and logically correct.” (Internal quotation marks omitted.) Scoville v. Shop-Rite Supermarkets, Inc., 86 Conn. App. 426, 430, 863 A.2d 211 (2004), cert. denied, 272 Conn. 921, 867 A.2d 838 (2005). Because there is no dispute regarding the basic material facts, this case presents an issue of law and our review is plenary. Id.

The plaintiffs’ claim, with respect to § 52-190a, presents an issue of statutory construction. “Statutory construction is a question of law and, therefore, our review is plenary. . . . The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.” (Internal quotation marks omitted.) Wilson v. Jefferson, 98 Conn. App. 147, 154, 908 A.2d 13 (2006).

Section 52-190a (a) provides that before filing a personal injury action against a health care provider, a potential plaintiff must make “a reasonable inquiry as permitted by the circumstances to determine that there are grounds for a good faith belief that there has been negligence in the care or treatment of the claimant. . . .’’In order to show good faith, the complaint, initial pleading or apportionment complaint is required to contain a certificate of the attorney or party filing the action stating that “such reasonable inquiry gave rise to a good faith belief that grounds exist for an action against each named defendant. ...” General Statutes (Rev. to 2005) § 52-190a (a), as amended by P.A. 05-275, § 2. Prior to the 2005 amendments, the statute provided that good faith may be shown if the plaintiffs or their counsel obtained a written opinion, not subject to discovery, from a similar health care provider that there appeared to be evidence of medical negligence. General Statutes (Rev. to 2005) § 52-190a (a). Prior to the amendment, the statute did not require plaintiffs to include with the complaint an opinion of a similar health care provider attesting to a good faith basis for an action.

Effective October 1, 2005, the statute was amended to require that in order to show the existence of good faith, claimants or their counsel, prior to filing suit, “shall obtain a written and signed opinion of a similar health care provider . . . that there appears to be evidence of medical negligence and includes a detailed basis for the formation of such opinion. ...” General Statutes § 52-190a (a). The amended statute also provides that claimants or their counsel “shall attach a copy of such written opinion, with the name and signature of the similar health care provider expunged, to such certificate. . . .” General Statutes § 52-190a (a). Subsection (c), which was added by P.A. 05-275, § 2, provides that “[t]he failure to obtain and file the written opinion required by subsection (a) of this section shall be grounds for the dismissal of the action.” P.A. 05-275 was “[e]ffective October 1, 2005, and applicable to actions filed on or after said date . . .

In this case, the complaint did not include an opinion of a similar health care provider attesting to a good faith basis for the action, as required by the 2005 amendment to § 52-190a (a). The writ of summons and complaint were delivered to a marshal for service of process on September 30, 2005, and were filed with the clerk of the Superior Court on November 4, 2005. The plaintiffs claim that the 2005 amendment to § 52-190a, as set forth in P.A. 05-275, does not apply to the present case because the action was filed before October 1, 2005, the effective date of the public act. Specifically, the plaintiffs contend that the action was “filed” within the meaning of P.A. 05-275 when the writ of summons and complaint were delivered to a marshal for service of process on September 30, 2005, one day before the effective date of the 2005 amendment to § 52-190a. We disagree.

The word “filed” is not defined expressly in P.A. 05-275. Nevertheless, statutes governing filing in the context of other court activities define the word “filed.” These provisions of the General Statutes indicate that the term refers to bringing a complaint or other pleading to the clerk of the court. See General Statutes § 52-121 (a) (“[a]ny pleading in any civil action may be filed after the expiration of the time fixed by statute or by any rule of court until the court has heard any motion for judgment by default or nonsuit for failure to plead which has been filed in writing with the clerk of the court in which the action is pending”); General Statutes § 51-343 (b) (“ ‘[f]iled’ means filed at the court location where there is a clerk designated to receive and maintain the record of the action regardless of the court location to which the writ is made returnable”).

The usage of the term “filed” in these statutory provisions to refer to the act of bringing a complaint or other pleading to the clerk of the court comports with the usage of the term in subsection (b) of the statute at issue. General Statutes § 52-190a (b) provides in relevant part: “Upon petition to the clerk of the court where the action will be filed, an automatic ninety-day extension of the statute of limitations shall be granted to allow the reasonable inquiry required by subsection (a) of this section.....” (Emphasis added.) “It is a familiar principle of statutory construction that where the same words are used in a statute two or more times they will ordinarily be given the same meaning in each instance.” (Internal quotation marks omitted.) Connecticut Light & Power Co. v. Dept. of Public Utility Control, 266 Conn. 108, 123, 830 A.2d 1121 (2003).

The plaintiffs’ argument that “filing,” for purposes of the effective date of the statute, refers to the delivery of the writ of summons and complaint to a state marshal for service, therefore, is unavailing. Our review of the text of the statute and its relationship to other statutes reveals that this reading is inappropriate. An action is not filed until the complaint is returned to court.

The plaintiffs argue, citing Rosenberg v. Planning Board, 155 Conn. 636, 236 A.2d 895 (1967), that delivery of a writ of summons and complaint to a proper serving officer constitutes “filing” of the thing to be filed. Rosenberg, however, did not concern a requirement of filing with the clerk of the Superior Court, nor did it deal with delivery of process to a serving officer. Instead, it concerned a claim that a proposed amendment to the master zoning plan had not been delivered timely to the town clerk. The Rosenberg court held that the trial court had found actual delivery to the town clerk by the defendant planning board. Id., 643. The court held that “[f]iling is accomplished by an actual delivery to the proper officer of the thing to be filed,” referring to a municipal officer, namely, the town clerk. Id. In employing that term, it did not refer to a process server. We, therefore, reject this argument.

Nowhere in their brief do the plaintiffs invoke General Statutes § 52-593a (a), which provides that a cause of action “shall not be lost” by virtue of the passage of a statute of limitations “if the process to be served is personally delivered to a state marshal authorized to serve the process and the process is served, as provided by law, within thirty days of the delivery.” This statute, had it been invoked, would not benefit the plaintiffs, in any event. Legal actions in Connecticut are “commenced” by service of process. See, e.g., Rocco v. Garrison, 268 Conn. 541, 553, 848 A.2d 352 (2004). There is a separate legal requirement for the return of the process so commenced to the clerk of the court after service of it by a marshal or other proper officer. See General Statutes § 52-46a. That statute deals with the filing of the process with the clerk after the action has been commenced.

The plain and unambiguous meaning of the term “filed” refers to the bringing of a complaint or other pleading to the clerk of the court. Accordingly, as correctly determined by the trial court, the plaintiffs filed their action on November 4, 2005, when the writ of summons and complaint were filed with the clerk of the Superior Court. As a result, P.A. 05-275, with its effective date of October 1, 2005, applied to the plaintiffs’ complaint. Because the plaintiffs failed to comply with the provision of the public act, requiring that an opinion of a similar health care provider attesting to a good faith basis for the action be included with the complaint, we conclude that the defendants’ motion to dismiss properly was granted.

II

The plaintiffs next claim that the court improperly failed to find that a motion to dismiss was not the proper vehicle to address the defendants’ claim. Specifically, the plaintiffs argue that the defendants’ motion to dismiss should have been denied, and the defendants should have been directed to file a motion to strike. We disagree.

This claim presents an issue of statutory construction over which our review is plenary. See Wilson v. Jefferson, supra, 98 Conn. App. 154.

The plaintiffs, citing LeConche v. Elligers, 215 Conn. 701, 579 A.2d 1 (1990), and Gabrielle v. Hospital of St. Raphael, 33 Conn. App. 378, 635 A.2d 1232, cert. denied, 228 Conn. 928, 640 A.2d 115 (1994), argue that a motion to dismiss is not the proper method of attacking the sufficiency of a good faith certificate in a medical malpractice case because the lack of a good faith certifícate is not a jurisdictional defect depriving the court of subject matter jurisdiction over the case. The plaintiffs reliance on Gabrielle and LeConche is misplaced because these cases interpret a prior version of the relevant statute. See LeConche v. Elligers, supra, 701 (holding that neither language of § 52-190a [Rev. to 1987] nor legislative history suggest that lack of good faith basis for action was ground for dismissal on jurisdictional grounds, thus absence of statutorily required good faith certificate from complaint renders complaint subject to motion to strike); Gabrielle v. Hospital of St. Raphael, supra, 378 (failure to attach certificate of good faith pursuant to § 52-190a [Rev. to 1987] subjects case to motion to strike complaint because failure to so attach not jurisdictional defect).

The 2005 amendment to the statute, however, rendered the line of cases which the plaintiffs cite inapplicable. Unlike the preceding revisions of the statute, the current revision of § 52-190a includes an additional subsection, (c), which was added by P.A. 05-275, and states that “[t]he failure to obtain and file the written opinion as required by subsection (a) of this section shall be grounds for the dismissal of the action.” (Emphasis added.) General Statutes § 52-190a (c). The plain language of this new statutory subsection, which was not in effect at the time of LeConche and Gabrielle, expressly provides for dismissal of an action when a plaintiff fails to attach a written opinion of a similar health care provider to the complaint, as required by § 52-190a (a). Accordingly, the court properly considered and granted the defendants’ motion to dismiss.

The judgment is affirmed.

In this opinion BISHOP, J., concurred.

BERDON, J.,

dissenting in part. Although I agree with the majority’s conclusion in part I, I disagree with the majority’s conclusion in part II that the failure of the attorney for the plaintiffs, Aramis Rios and her mother, Betzabel Flores, to attach a written opinion of a similar health provider to his good faith certificate, as set forth in General Statutes (Rev. to 2005) § 52-190a (a), as amended by Public Acts 2005, No. 05-275, § 2 (P.A. 05-275), renders the complaint subject to a motion to dismiss instead of a motion to strike. A motion to strike would allow a plaintiff, as a matter of right, to file a new complaint with an appropriate certificate within fifteen days, whereas the granting of a motion to dismiss puts the plaintiff out of court. In the latter situation, if the statute of limitations applicable to a medical malpractice action had expired, it may very well be that a plaintiff would be without a remedy merely because counsel, through inadvertence or neglect, failed to attach a document to his good faith certificate.

First, let me set the record straight. In reaching its conclusion, the majority erroneously relies on the claim that “[t]he plaintiffs’ attorney informed the [trial] court that he had not obtained an opinion of a similar health care provider prior to filing the action in court.” What actually transpired was the following:

“The Court: Why didn’t you file the certificate with the thing [that is, the attorney’s certification]?

“ [The Plaintiffs’ Counsel]: Well, I didn’t have a written letter at the time that brought this from the doctor.” (Emphasis added.)

This colloquy reveals that the plaintiffs’ counsel never admitted, as claimed by the majority, that he failed to obtain an opinion from a similar health care provider. Rather, counsel informed the court that he had not obtained the opinion in written form at the time that he brought the complaint. Accordingly, if a motion to strike was granted, this would have allowed the plaintiffs to plead over, and the plaintiffs’ attorney could have attached the written opinion of the similar health care provider to his good faith certificate.

I begin my analysis, as our Supreme Court did in LeConche v. Elligers, 215 Conn. 701, 579 A.2d 1 (1990), by recognizing “the premise that traditionally the Superior Court has had subject matter jurisdiction of a common law medical malpractice action.” Id., 709. The issue presented in the present case, therefore, is whether, in enacting the most recent amendment to § 52-190a, the legislature intended to subject a plaintiffs action to dismissal where his attorney has failed to attach the written opinion of a similar health care provider to his good faith certificate. It is well established that this “determination must be informed by the established principle that every presumption is to be indulged in favor of jurisdiction.” Id., 709-10.

Prior to the passage of P.A. 05-275, § 2, which amended § 52-190a, our Supreme Court considered the issue of whether a medical malpractice plaintiff’s failure to file an attorney’s good faith certificate as required by the 1987 revision of § 52-190a constituted a jurisdictional defect that rendered the complaint subject to a motion to dismiss. Id., 701. Although our Supreme Court acknowledged that the statute established a mandatory pleading requirement, the court determined that such a defect did not render the complaint subject to a motion to dismiss. Rather, characterizing the inclusion of a good faith certificate as “a pleading necessity akin to an essential allegation to support a cause of action”; id., 711; the Supreme Court concluded that a medical malpractice plaintiffs failure to file a good faith certificate rendered the complaint subject to a motion to strike for failure to state a claim upon which relief can be granted, a curable defect. Id.; see also Practice Book §§ 10-39 and 10-44 (party whose pleading has been stricken may file new pleading within fifteen days).

Although I recognize that LeConche v. Elligers, supra, 215 Conn. 701, addressed the inclusion of an attorney’s good faith certificate, the legislature’s amendment of § 52-190a did not overrule existing case law. Accordingly, if the plaintiffs had failed to attach a good faith certificate to the complaint, a pleading requirement set forth in § 52-190a (a), their complaint would have been subject to a motion to strike. See id., 711. In the present case, however, the plaintiffs failed to attach to that certificate a written opinion of a similar health care provider, and, under the majority’s conclusion today, this defect rendered the complaint subject to a motion to dismiss. In other words, if there was a complete failure of the attorney to file his good faith certificate, including the written opinion of a similar health care provider, the complaint would only be subject to attack by a motion to strike allowing the plaintiffs to file a new complaint within fifteen days in accordance with Practice Book § 10-44, but, according to the majority, when an attorney’s good faith certificate is filed that does not include the written opinion of a similar health care provider, the complaint is subject to dismissal. Surely, the legislature could not have intended such an anomalous result. See Broadnax v. New Haven, 284 Conn. 237, 249, 932 A.2d 1063 (2007) (recognizing overriding principle that statutes should be construed “so as to create a rational, coherent and consistent body of law” [internal quotation marks omitted]). “[W]e must seek a meaning which avoids a result which the legislature could not have intended even at the expense of departing from the literal meaning of the words used.” (Internal quotation marks omitted.) City Savings Bank v. Lawler, 163 Conn. 149, 157, 302 A.2d 252 (1972).

Moreover, in utilizing the word “dismissal” in subsection (c) of the current revision of § 52-190a, I cannot agree that the legislature intended to implement tort reform measures that would function in a manner such that a procedural technicality based on a defect in the pleadings, rather than applicable substantive law, would govern the outcome of a case. Such an interpretation of the statute is reminiscent of eighteenth century common-law pleading, a system plagued by archaic legalism and highly technical formality that Connecticut abandoned long ago. The general purpose of § 52-190a was to discourage the filing of baseless lawsuits against health care providers. See LeConche v. Elligers, supra, 215 Conn. 710. When a plaintiff has failed to include the written opinion of a similar health care provider, this policy is just as well served by interpreting § 52-190a to permit a medical malpractice defendant to file a motion to strike.

A “case should not be decided solely on the basis of the literal meaning of a word. As Justice Reed of the United States Supreme Court has said: When that meaning has led to absurd or futile results, . . . this Court has looked beyond the words to the purpose of the act. Frequently, however, even when the plain meaning did not produce absurd results but merely an unreasonable one plainly at variance with the policy of the legislation as a whole this Court has followed that purpose, rather than the literal words.” (Internal quotation marks omitted.) Simonette v. Great American Ins. Co., 165 Conn. 466, 474, 338 A.2d 453 (1973) (Bogdanski, J., dissenting), quoting United States v. American Trucking Assns., Inc., 310 U.S. 534, 543, 60 S. Ct. 1059, 84 L. Ed. 1345 (1940).

Accordingly, I would interpret § 52-190a in light of the existing case law and conclude that the plaintiffs’ failure to attach a written opinion of a similar health care provider to the attorney’s good faith certificate renders the complaint subject to a motion to strike. To rule otherwise effectively creates a procedural trap for unwary litigants that would not only disregard the plasticity of modem pleading practice but also would frustrate the fundamental policy preference in this state that seeks to “bring about a trial on the merits of a dispute whenever possible and to secure for the litigant his or her day in court.” (Internal quotation marks omitted.) Vollemans v. Wallingford, 103 Conn. App. 188, 198, 928 A.2d 586, cert. granted on other grounds, 284 Conn. 920, 933 A.2d 722 (2007).

For the reasons given, I dissent.

       Effective October 1, 2005, P.A. 05-275, § 2, amended General Statutes § 52-190a (a) to provide as follows: “No civil action or apportionment complaint shall be filed to recover damages resulting from personal injury or wrongful death occurring on or after October 1, 1987, whether in tort or in contract, in which it is alleged that such injury or death resulted from the negligence of a health care provider, unless the attorney or party filing the action or apportionment complaint has made a reasonable inquiry as permitted by the circumstances to determine that there are grounds for a good faith belief that there has been negligence in the care or treatment of the claimant. The complaint, initial pleading or apportionment complaint shall contain a certificate of the attorney or party filing the action or apportionment complaint that such reasonable inquiry gave rise to a good faith belief that grounds exist for an action against each named defendant or for an apportionment complaint against each named apportionment defendant. To show the existence of such good faith, the claimant or the claimant’s attorney, and any apportionment complainant or the apportionment complainant’s attorney, shall obtain a written and signed opinion of a similar health care provider, as defined in section 52-184c, which similar health care provider shall be selected pursuant to the provisions of said section, that there appears to be evidence of medical negligence and includes a detailed basis for the formation of such opinion. Such written opinion shall not be subject to discovery by any party except for questioning the validity of the certificate. The claimant or the claimant’s attorney, and any apportionment complainant or apportionment complainant’s attorney, shall retain the original written opinion and shall attach a copy of such written opinion, with the name and signature of the similar health care provider expunged, to such certificate. The similar health care provider who provides such written opinion shall not, without a showing of malice, be personally liable for any damages to the defendant health care provider by reason of having provided such written opinion. In addition to such written opinion, the court may consider other factors with regard to the existence of good faith. If the court determines, after the completion of discovery, that such certificate was not made in good faith and that no justiciable issue was presented against a health care provider that fully cooperated in providing informal discovery, the court upon motion or upon its own initiative shall impose upon the person who signed such certificate or a represented party, or both, an appropriate sanction which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion or other paper, including a reasonable attorney’s fee. The court may also submit the matter to the appropriate authority for disciplinary review of the attorney if the claimant’s attorney or the apportionment complainant’s attorney submitted the certificate.”

       General Statutes (Rev. to 2005) § 52-190a (b) provides: “Upon petition to the clerk of the court where the action will be filed, an automatic ninety-day extension of the statute of limitations shall be granted to allow the reasonable inquiry required by subsection (a) of this section. This period shall be in addition to other tolling periods.”

       General Statutes § 52-584 provides: “No action to recover damages for injury to the person, or to real or personal property, caused by negligence, or by reckless or wanton misconduct, or by malpractice of a physician, surgeon, dentist, podiatrist, chiropractor, hospital or sanatorium, shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of, except that a counterclaim may be interposed in any such action any time before the pleadings in such action are finally closed.”

       The trial court file reflects that the writ of summons and complaint were date stamped November 4, 2005.

       General Statutes (Rev. to 2005) § 52-190a (a) provides: “No civil action shall be filed to recover damages resulting from personal injury or wrongful death occurring on or after October 1, 1987, whether in tort or in contract, in which it is alleged that such injury or death resulted from the negligence of a health care provider, unless the attorney or party filing the action has made a reasonable inquiry as permitted by the circumstances to determine that there are grounds for a good faith belief that there has been negligence in the care or treatment of the claimant. The complaint or initial pleading shall contain a certificate of the attorney or party filing the action that such reasonable inquiry gave rise to a good faith belief that grounds exist for an action against each named defendant. For the purposes of this section, such good faith may be shown to exist if the claimant or his attorney has received a written opinion, which shall not be subject to discovery by any party except for questioning the validity of the certificate, of a similar health care provider as defined in section 52-184c, which similar health care provider shall be selected pursuant to the provisions of said section, that there appears to be evidence of medical negligence. In addition to such written opinion, the court may consider other factors with regard to the existence of good faith. If the court determines, after the completion of discovery, that such certificate was not made in good faith and that no justiciable issue was presented against a health care provider that fully cooperated in providing informal discovery, the court upon motion or upon its own initiative shall impose upon the person who signed such certificate or a represented party, or both, an appropriate sanction which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion or other paper, including a reasonable attorney’s fee. The court may also submit the matter to the appropriate authority for disciplinary review of the attorney if the claimant’s attorney submitted the certificate.”

       “The practice among state marshals varies as to whether the state marshal will make the return to the court or will return the process to the hiring attorney. The attorney must determine which practice the state marshal will use in order to ensure that the process is delivered to court at least six days before the return date, together with the entry fee.” W. Horton & K. Knox, 1 Connecticut Practice Series: Connecticut Superior Court Civil Rules (2008) § 8-1, authors’ comments, p. 400.

       Various statutes of limitations require that a particular course of action be commenced within a certain time frame. See, e.g., General Statutes § 52-581 (“[n]o action founded upon any express contract or agreement which is not reduced to writing, or of which some note or memorandum is not made in writing and signed by the party to be charged therewith or his agent, shall be brought but within three years after the right of action accrues. . . .”); General Statutes § 52-577 (“[n]o action founded upon a tort shall be brought but within three years from the date of the act or omission complained of’); General Statutes § 52-576 (“[n]o action for an account, or on any simple or implied contract, or on any contract in writing, shall be brought but within six years after the right of action accrues . . . .”).

       In their argument, the plaintiffs seem to presume incorrectly that motions to dismiss are limited to jurisdictional challenges. Both statutory and Practice Book provisions provide for dismissals on the basis of nonjurisdictional grounds. See, e.g., General Statutes § 52-549t (b) (case may be dismissed if all parties fail to appear at hearing); General Statutes § 33-724 (a) (providing that derivative proceedings brought by shareholders against corporation shall be dismissed on motion by corporation under certain enumerated conditions); Practice Book § 13-14 (discovery dismissal).

       There is no need to resort to legislative history where the meaning of a statute is plain and unambiguous. See General Statutes § l-2z. The legislative purpose was expressed in the statute’s plain language. It is worth noting, however, that in speaking on the floor of the Senate, Senator Andrew J. McDonald, the Senate chairman of the judiciary committee, stated that the provision being enacted into law “makes substantial improvements over the current system because it would require that [a] report be in writing and presented in a detailed fashion, and a copy of that report, with the name of the doctor supplying it expunged, would be attached to the complaint as an exhibit. The failure to attach such an opinion would require the court to dismiss the case.” (Emphasis added.) 48 S. Proc., Pt. 14,2005 Sess., p. 4411.

       In fact, it is implicit from this colloquy that the attorney for the plaintiffs did have in hand the “written and signed opinion of the health care provider” when the parties initially were heard on the motion to dismiss.

       A review of the record reveals that the plaintiffs did attach a good faith certificate to their complaint.


source: Caselaw Access Project

author: PETERS, J.

license: Public Domain

text:
    HECTOR HEREDIA v. COMMISSIONER OF CORRECTION
    (AC 27571)
    Gruendel, Lavine and Peters, Js.

      Argued February 8
    officially released April 8, 2008

      Ruth Daniella Weissman, special public defender, for the appellant (petitioner).

      Denise B. Smoker, senior assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Terence D. Mariani, senior assistant state’s attorney, for the appellee (respondent).
   Opinion

PETERS, J.

In this appeal from the denial of an amended petition for a writ of habeas corpus, the petitioner contends that he is entitled to a new trial because of the ineffectiveness of the legal assistance that he received from his trial counsel. In addition to the claims of ineffective assistance that he raised specifically in the habeas proceedings, he asks us to review additional claims on which the habeas court did not rule. Because we agree with the commissioner of correction that the additional claims being raised on appeal are not properly before us and that the habeas court properly denied the claims that the court had the opportunity to consider, we affirm the judgment of the habeas court.

On March 9, 2005, the petitioner, Hector Heredia, filed an amended petition for a writ of habeas corpus alleging that he had not received effective legal assistance from his trial counsel in the criminal proceedings that led to his conviction of attempt to commit murder in violation of General Statutes §§ 53a-49 and 53a-54a, assault in the first degree in violation of General Statutes § 53a-59 (a) (5), kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (B), and attempt to commit robbery in the first degree in violation of General Statutes §§ 53a-49 and 53a-134 (a) (2). See State v. Heredia, 253 Conn. 543, 754 A.2d 114 (2000). Following a habeas hearing at which the only witnesses who testified were the petitioner and his trial counsel, the habeas court denied the petition. Applying the governing principles of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the court held that the petitioner had failed to establish either ineffective performance by trial counsel or the likelihood that counsel’s representation had prejudiced the outcome of the petitioner’s criminal trial.

In his appeal to this court from the denial of his petition, the petitioner has raised six claims of ineffective assistance of counsel, including four claims that were not specifically raised in the proceedings before the habeas court. We will address these new claims separately before we consider those that were decided by the habeas court.

I

The petitioner urges us to undertake a review of his four new claims in the interest of judicial efficiency pursuant to our inherent supervisory powers. He argues that his new claims are related to those that he expressly raised in the habeas court and that it is wasteful to require him to file a further habeas petition to challenge the effectiveness of his habeas counsel. The respondent, the commissioner of correction, disagrees that these claims were sufficiently raised in the habeas court and urges us not to consider their merits. We agree with the respondent.

Our case law consistently has held that we are not bound “to consider claimed errors unless it appears on the record that the question was distinctly raised at trial and was ruled upon and decided by the court adversely to the appellant’s claim.” (Internal quotation marks omitted.) Copeland v. Warden, 26 Conn. App. 10, 13-14, 596 A.2d 477 (1991), aff'd, 225 Conn. 46, 621 A.2d 1311 (1993). Our Supreme Court only recently has reiterated its affirmation of this case law. See Johnson v. Commissioner of Correction, 285 Conn. 556, 580, 941 A.2d 248 (2008). In this case, the habeas court, not having been asked to do so, made no findings or rulings with respect to the alleged facts or merits of these claims. The petitioner filed no motion for articulation to supplement the habeas record. We decline to consider these four claims.

II

The petitioner properly asks for review of two claims of ineffective assistance by trial counsel that the habeas court found unpersuasive. He maintains that trial counsel (1) failed to conduct an adequate investigation to discover exculpatory evidence and (2) failed to communicate with him effectively prior to his criminal trial.

Our Supreme Court recently reiterated the standard of review that governs our consideration of the petitioner’s claim of ineffective assistance of counsel. “The underlying historical facts found by the habeas court may not be disturbed unless the findings were clearly erroneous. . . . Historical facts constitute a recital of external events and the credibility of their narrators. So-called mixed questions of fact and law, which require the application of a legal standard to the historical-fact determinations, are not facts in this sense. . . . Whether the representation a defendant received at trial was constitutionally inadequate is a mixed question of law and fact. ... As such, that question requires plenary review by this court unfettered by the clearly erroneous standard.” (Internal quotation marks omitted.) Id., 576.

In its assessment of the validity of the petitioner’s claims, the habeas court referred to the relevant facts recited in the decision on the petitioner’s plenary appeal. See State v. Heredia, supra, 253 Conn. 543. In that decision, our Supreme Court described testimony at trial that established that, in the early morning hours of June 30, 1996, the petitioner had attempted to rob a McDonald’s restaurant on Reidville Drive in Waterbury. He shot and wounded one McDonald’s employee and imprisoned another in a walk-in freezer. Summoned by other McDonald’s employees, the police found the petitioner in a densely wooded area behind the restaurant underneath some sheet metal. After the petitioner had been taken into custody, he was identified as the McDonald’s intruder by three McDonald’s employees. Id., 546-49.

A search of the rear of the restaurant yielded a small holster and four .38 caliber bullets. The next day, the police found in the wooded area behind the restaurant a .38 caliber handgun that they were able to trace to the petitioner. Id., 549.

On their arrival at the scene, the police had observed a black Oldsmobile in the parking lot of a nearby shopping plaza, which a later license plate check identified as belonging to the petitioner. The petitioner testified that he had had car trouble that night and that he had attempted to call a tow truck from the McDonald’s restaurant. He claimed that, as he had approached the rear door of the restaurant, he had been assaulted and robbed by an Hispanic male who was wearing sunglasses and holding a gun. According to the petitioner, his assailant then had pointed his gun at the petitioner and told him to run into the wooded area, where he was subsequently found by the police. Id., 548-49.

A

Inadequate Investigation Claims

Without challenging the material facts recited in the Supreme Court’s opinion, the petitioner argues that he is entitled to a new trial because trial counsel failed to investigate material evidence in three respects. He maintains that trial counsel should have (1) undertaken a forensic analysis of the head wound that he exhibited at the time of his arrest, which might have confirmed his story of what had transpired, (2) subpoenaed his former business partner, Hector Ortiz, to testify about the petitioner’s financial stability at the time of the attempted robbery and (3) engaged an automotive mechanic to corroborate his representation at trial that his car had malfunctioned on the night of the incident.

As Strickland permits, we may affirm the judgment of the habeas court without determining the deficiency of trial counsel’s performance if consideration of the prejudice prong will be dispositive of the ineffectiveness claim. See Griffin v. Commissioner of Correction, 98 Conn. App. 361, 366, 909 A.2d 60 (2006). To prevail, a petitioner who challenges a conviction on habeas must establish that there is a reasonable probability that, absent trial counsel’s alleged errors, the fact finder would have had a reasonable doubt respecting guilt. Id.

In this case, we agree with the habeas court that the petitioner has failed to demonstrate a reasonable probability of a different outcome. Preliminarily, we note that the petitioner faces a veritable Everest of inculpatory evidence that dramatically lessens the probability that he can show that additional evidence would have had a significant impact on the outcome of the trial. The petitioner’s argument is made even more problematic by the fact that the habeas record contains remarkably little supporting evidence. It is difficult to mount a persuasive challenge to forensic analysis of the head wound manifested by the petitioner at the time of his arrest when he did not introduce medical records of the injury or present testimony from the treating physician or an expert witness. Similarly, the claim that Ortiz should have been called to testify falters on the failure to present evidence that his testimony would have been favorable.

With respect to the condition of the petitioner’s car on the evening of the crime, trial counsel testified: “My investigator went to the car to check it out. . . . [D]ue to the passage of time, my best recollection was that we couldn’t determine [whether] any mechanical defect existed—that; the item had been—the property had languished, if you will, in an impound lot for well over a year.” To prevail in the face of this utter lack of potentially helpful evidence, the petitioner asks us to construe the evidence “that can no longer be retrieved” against “the spoliator,” as he characterizes both trial counsel and the state. In essence, the petitioner asks the court to infer from the absence of contemporaneous testing of the car that counsel failed to present persuasive evidence to the jury to support his explanation for his entry into the McDonald’s restaurant. We decline to engage in such speculation. “In a habeas corpus proceeding, the petitioner’s burden of proving that a fundamental unfairness had been done is not met by speculation but by demonstrable realities.” (Internal quotation marks omitted.) Hopkins v. Commissioner of Correction, 95 Conn. App. 670, 677, 899 A.2d 632, cert. denied, 279 Conn. 911, 902 A.2d 1071 (2006).

Without the benefit of this speculation, it is evident that the petitioner has not demonstrated a reasonable probability that the fact finder could have had a reasonable doubt respecting his guilt. Under the second prong of Strickland, therefore, his claims fail. We affirm the habeas court’s judgment with respect to the petitioner’s claims of inadequate investigation.

B

Lack of Communication Claim

In his amended habeas petition, the petitioner also claimed, and continues to claim on appeal, that his trial counsel’s assistance was ineffective because trial counsel did not discuss the case adequately with the petitioner prior to trial. Specifically, the petitioner claims that because trial counsel failed to ensure that the petitioner understood the ramifications of the proffered plea bargain, the petitioner made an uninformed decision to reject the plea. According to the petitioner, some of the findings made by the habeas court demonstrate his lack of understanding of the terms of the plea bargain and entitle him to favorable action on his habeas petition.

The petitioner’s argument rests on several findings by the habeas court. The court stated: “[Trial counsel] advised the petitioner to accept the offer and enter a guilty plea. The petitioner instead chose, as was his right, to proceed to trial.” Thereafter, the court stated: “[Assigning equal credibility to both the petitioner’s and counsel’s testimony, the court cannot conclude that [trial counsel’]s performance was deficient or that he committed any unprofessional errors.”

On appeal, the petitioner focuses on the habeas court’s assignment of equal credibility to both trial counsel and the petitioner. In his view, accepting the credibility of his testimony necessarily demonstrated that trial counsel’s description of the plea bargain was constitutionally inadequate. He maintains that this reasoning is particularly compelling because, at the habeas hearing, trial counsel was unable clearly to recall his pretrial conversations with the petitioner. On this state of the record, he argues, “[trial counsel’s] testimony cannot trump [the petitioner’s] as to this issue . . . .”

In response, the respondent contends that although the habeas court may have stated that it assigned equal credibility to each person’s testimony, “in reciting the facts relevant to the petitioner’s claim with respect to the plea bargain, [the court] clearly gave more weight to [trial counsel’s] version of events.” We do not find that answer directly dispositive.

According to the applicable standard of review, this court “does not retry the case or evaluate the credibility of the witnesses.” (Internal quotation marks omitted.) Orcutt v. Commissioner of Correction, 284 Conn. 724, 741, 937 A.2d 656 (2007). Regardless of the assessment of equal credibility by the habeas court, the narrow question before us is whether trial counsel provided constitutionally effective assistance by adequately explaining the plea bargain. That is simply not the same question as whether the petitioner fully understood trial counsel’s explanation of the ramifications of rejecting the plea.

The testimony at the habeas hearing demonstrates that trial counsel explained the plea agreement to the petitioner in some detail and offered legal advice with respect to its potential benefits for the petitioner. The petitioner testified that he understood from trial counsel that the state was offering a plea agreement of a fifteen year sentence in exchange for guilty pleas on two pending cases, the McDonald’s case and an unrelated arson case. The petitioner also testified: “[Trial counsel] told me that, considering the circumstances, it would have been better—best thing for me was to plead guilty.” Trial counsel testified: “I think I urged him to accept the plea bargain either with [an] Alford guilty plea or a nolo contendere plea.” (Emphasis added.)

The habeas court heard conflicting evidence about why the petitioner chose not to follow trial counsel’s advice. Trial counsel testified: “My recollection is [that] he was absolute in regard to his innocence and [that] this case will be tried.” The petitioner testified that he had refused the plea because “[trial counsel] didn’t tell me precisely what type of deal was working.”

Assuming equal credibility to both statements, we agree with the habeas court that, nevertheless, the petitioner’s second ineffective assistance claim must fail. Although the petitioner might have benefited from further explanation about the terms and consequences of the plea agreement, he has not demonstrated, as required under the first prong of Strickland, that trial counsel’s actual explanation and advice fell below an objective standard of reasonableness under prevailing professional norms. See Strickland v. Washington, supra, 466 U.S. 687-88. The petitioner’s testimony establishes that trial counsel explained the quid pro quo of the plea agreement and provided legal advice about its advisability. Accordingly, we affirm the judgment of the habeas court that trial counsel’s performance was not deficient in this regard.

The judgment is affirmed.

In this opinion the other judges concurred.

       The habeas court granted the petition for certification to appeal.

       The new claims are that defense counsel failed to move to suppress all eyewitness identifications, failed to cross-examine one of the state’s witnesses effectively, failed to argue in the motion for a judgment of acquittal a sufficiency of the evidence claim as to specific intent and failed to demonstrate in the postverdict motions that there was insufficient evidence proving that the petitioner was the suspect.

       Neither party has challenged the habeas court’s credibility findings under the requisite clearly erroneous standard of review.

       In plea bargains, certain safeguards help ensure that the defendant who enters a guilty plea “possesses an understanding of the law in relation to the facts.” McCarthy v. United States, 394 U.S. 459, 466, 89 S. Ct. 1166, 22 L. Ed. 2d 418 (1969). For instance, our judges are responsible for thoroughly canvassing the defendant who enters a nolo contendere or guilty plea. See Practice Book §§ 39-19,39-20. Furthermore, evidence that a plea was entered due to incorrect advice given by an attorney may provide constitutional grounds for permitting the plea to be withdrawn. State v. Collins, 207 Conn. 590, 599 n.6, 542 A.2d 1131 (1988); State v. Collins, 176 Conn. 7, 10, 404 A.2d 871 (1978). Similar safeguards do not exist, however, to protect defendants who reject proffered plea agreements. Rejection of plea bargains does not trigger a judicial obligation to canvass the defendant and cannot be reversed even if the rejection resulted from an attorney’s incorrect advice.

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


author: Per Curiam.

text:
    STATE OF CONNECTICUT v. CARLOS RODRIGUEZ
    (AC 27330)
    Harper, Lavine and Pellegrino, Js.
    Argued February 4
    officially released March 4, 2008
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. MABEL DANIELS
    (AC 28227)
    Gruendel, Lavine and Peters, Js.
    Argued February 8
    officially released March 4, 2008
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. MAURICE L.

    (AC 28276)
    DiPentima, McLachlan and Gruendel, Js.
    Argued January 22
    officially released March 4, 2008

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79-3, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Per Curiam.

The judgment is affirmed.


text:
    ARGENT MORTGAGE COMPANY, LLC v. GERALD F. SCULLY, JR., ET AL.
    (AC 28183)
    Bishop, Gruendel and Harper, Js.
    Submitted on briefs February 11
    officially released March 4, 2008
   Per Curiam.

The judgment is affirmed.


text:
    TONY CALTABIANO, JR. v. TREVOR VAN HISE
    (AC 28477)
    Flynn, C. J., and Robinson and Pellegrino, Js.
    Argued February 11
    officially released March 4, 2008
   Per Curiam.

The judgment is affirmed.


author: DiPENTIMA, J.

text:
    DAVID S. SUTHERLAND v. PAMELA A. SUTHERLAND
    (AC 27858)
    Flynn, C. J., and Bishop and DiPentima, Js.

      Argued September 24, 2007
    officially released April 15, 2008

      Marianne J. Charles, for the appellant (plaintiff).

      Howard J. Wicker, for the appellee (defendant).
   Opinion

DiPENTIMA, J.

The plaintiff, David S. Sutherland, appeals from the judgment of the trial court affirming the decision of the family support magistrate denying the plaintiffs motion for postjudgment modification of child support. The plaintiff claims that the magistrate improperly concluded that the parties’ separation agreement precluded the court from modifying its child support order. We agree with the plaintiff and reverse the judgment of the trial court.

The parties’ marriage was dissolved on January 26, 2000. On that date, the court approved a separation agreement between the parties and incorporated the terms of the separation agreement into the judgment. At the time of the dissolution, the parties had two minor children, bom February 16, 1986, and March 6, 1988. Pursuant to the terms of the agreement, the plaintiff was obligated to pay the defendant, Pamela A. Sutherland, “child support of $500.00 every two weeks (per pay check), payable bi-weekly by automatic electronic transfer from [the plaintiffs] bank account to [the defendant’s] bank account .... The foregoing sums shall be payable until the death, marriage, emancipation or [eighteenth] birthday of the youngest child or until the death of the [plaintiff], whichever first occurs. Notwithstanding the foregoing, the [plaintiff] shall continue to pay the [defendant] support for the youngest child past her [eighteenth] birthday in the event the child is attending high school, until the child completes high school, or until the child turns [nineteen] years of age, whichever comes first. The [plaintiff] shall not take any deductions from this amount for any reason.” The agreement contained no mechanism for dividing the $500 support amount between the children once the elder child reached majority.

On October 20, 2004, the plaintiff filed a motion for postjudgment modification of child support, alleging a substantial change in the circumstances of the parties, namely, that the elder child had reached the age of eighteen and had graduated from high school, and that the defendant’s earnings had increased substantially since the date of the dissolution. After a hearing, the family support magistrate denied the plaintiffs motion without addressing the merits of his claim. In his revised memorandum of decision, the magistrate found that the plaintiff was not entitled to seek a modification of the support order because the parties’ separation agreement contemplated postmajority support for both children; the plaintiffs motion sought the modification of postmajority support for the elder child; and pursuant to General Statutes § 46b-66, the support provision in the separation agreement was not modifiable by the court, notwithstanding any changes in the circumstances of the parties. On appeal pursuant to General Statutes § 46b-231 (n), the trial court concluded that “the magistrate’s decision was merited and supported by fact and law,” and affirmed the decision of the magistrate. This appeal followed.

The plaintiff claims on appeal that the magistrate made improper findings of fact and conclusions of law. Specifically, the plaintiff claims that the magistrate improperly (1) interpreted the child support provision of the parties’ separation agreement as a postmajority support order and (2) concluded that pursuant to statute, the terms of the agreement precluded modification of the child support provision, notwithstanding any changes in the circumstances of the parties. The defendant argues that the support provision clearly and unambiguously contemplates postmajority support of both children, and pursuant to statute, that provision is not modifiable by the court absent a written agreement between the parties. We agree with the plaintiff.

Resolution of the plaintiffs claims requires us to review both the court’s interpretation of multiple statutory provisions as well as its interpretation of the parties’ separation agreement. “Issues of statutory construction raise questions of law, over which we exercise plenary review. . . . The process of statutoiy interpretation involves the determination of the meaning of the statutory language as applied to the facts of the case, including the question of whether the language does so apply. . . . When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In seeking to determine that meaning, General Statutes § l-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.” (Emphasis added; internal quotation marks omitted.) Pritchard v. Pritchard, 103 Conn. App. 276, 283, 928 A.2d 566 (2007).

With respect to the separation agreement, “[i]t is familiar law that a marital dissolution agreement is a contract. . . . Thus, in reviewing it, we are guided by the law that the interpretation of a contract may either be a question of law or fact, depending on whether the language of the contract is clear and unambiguous. . . . When the language of the agreement is clear and unambiguous, its meaning is a question of law subject to plenary review.” (Citation omitted; internal quotation marks omitted.) Histen v. Histen, 98 Conn. App. 729, 732-33, 911 A.2d 348 (2006).

“[A] contract must be construed to effectuate the intent of the parties, which is determined from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction. . . . [T]he intent of the parties is to be ascertained by a fair and reasonable construction of the written words and . . . 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.” (Internal quotation marks omitted.) Id., 734.

I

The plaintiff first claims that the magistrate improperly interpreted the child support provision of the parties’ separation agreement as a postmajority support order. We agree.

“It is now axiomatic that support for a minor child extends to age eighteen years only . . . .” (Internal quotation marks omitted.) Lowe v. Lowe, 47 Conn. App. 354, 357, 704 A.2d 236 (1997). General Statutes § 46b-66, however, provides the court with the power to enter a postmajority support order “only if there is an agreement to do so and if it is in writing. . . . Absent ... a written agreement by the parties, the court does not have jurisdiction to order payment of child support beyond the age of majority and may not enforce such an order.” (Citations omitted; internal quotation marks omitted.) Lowe v. Lowe, supra, 357. Thus, we must examine the parties’ separation agreement to determine whether it included a provision for the postmajority support of the elder child. 6We conclude that the parties, by the language used in their agreement, did not intend to provide for the postmajoiity support of either child pursuant to § 46b-66.

General Statutes § 46b-84 (a) requires the parents of minor children, upon the dissolution of their marriage, to maintain the children according to their respective abilities. Where the parties have more than one child, our legislature has established a policy encouraging undivided child support orders for the benefit of all children. The legislature established the commission for child support guidelines (commission) to promulgate regulations to guide a court’s award of child support. General Statutes § 46b-215a. The guidelines provide for the calculation of current support as a single dollar amount for the support of all children rather than as a per child amount that is multiplied by the number of children being supported. See generally Regs., Conn. State Agencies § 46b-215a-l et seq.

As we previously have observed, “to regard an undivided child support order as equally divisible among the children is to ignore the fact that the requirements of the individual children may vary widely, depending on the circumstances.” (Internal quotation marks omitted.) Gillespie v. Gillespie, 8 Conn. App. 382, 386-87, 512 A.2d 238 (1986).* ******* Likewise, a support order that is not divided among several children and that does not provide for an automatic reduction as each child reaches the age of majority does not necessarily contemplate postmajority support of adult children. See Hughes v. Hughes, 95 Conn. App. 200, 209, 895 A.2d 274, cert. denied, 280 Conn. 902, 907 A.2d 90 (2006).

We conclude that by crafting a child support order that provided a single dollar amount for the support of all children, and did not provide a mechanism for dividing the support between the children once the elder child reached the age of majority, the parties clearly and unambiguously provided only for the support of minor children, as required by § 46b-84 (a), and did not enter into an agreement for postmajority support. Accordingly, at the time it rendered judgment, the dissolution court did not enter a postmajority support order pursuant to § 46b-66.

II

Having determined that the agreement did not provide for postmajority support, we now address whether the judgment nevertheless precluded the court from modifying the child support order. Pursuant to General Statutes § 46b-86 (a), a child support order is modifiable at any time upon a showing of a substantial change in the circumstances of either party or upon a showing that the support order substantially deviates from the child support guidelines established pursuant to statute, “[ujnless and to the extent that the decree precludes modification . . . .” Our Supreme Court has held that “[e]ven if preclusive language exists, however, because of inequities between the parties that may be inherent in the bargaining process of support agreements, and because of the volatile nature of respective personal circumstances, it has been recognized judicially that [provisions which preclude modification of alimony [or support] tend to be disfavored. . . . For example, support orders can be modified in spite of preclusion provisions when those provisions are ambiguous . . . and when the rights of interested parties are not protected adequately by the separation agreement.” (Citations omitted; emphasis added; internal quotation marks omitted.) Amodio v. Amodio, 247 Conn. 724, 730, 724 A.2d 1084 (1999); see also Guille v. Guille, 196 Conn. 260, 267-68, 492 A.2d 175 (1985) (minor child’s right to parental support has independent character, separate and apart from terms of support obligations as set out in judgment of dissolution, and court was without power to enter order that would permanently restrict unrepresented children’s rights). “If an award is intended to be nonmodifiable, it must contain express language to that effect. . . . There is no given set of words that must be used to preclude modification; an order is nonmodifiable if the decree distinctly and unambiguously expresses that it is.” (Citation omitted.) Sheehan v. Balasic, 46 Conn. App. 327, 332, 699 A.2d 1036 (1997), appeal dismissed, 245 Conn. 148, 710 A.2d 770 (1998).

The plaintiff argues that the separation agreement, as incorporated into the judgment, does not clearly and unambiguously preclude modification of child support pursuant to § 46b-86 (a). We agree.

Article XVII, § 17.2, of the agreement provides: “No modification or waiver of any of the terms of this agreement will be valid unless the same shall be in writing and executed with the same formality as this agreement.” The parties, by this language, clearly expressed their intent to preclude oral modification of the terms of the separation agreement. It is not clear, however, that they intended to bind the court to its original support order. See Bronson v. Bronson, 1 Conn. App. 337, 338-39, 471 A.2d 977 (1984). Further, no other provision in the agreement purported to limit the power of the court to modify the child support order.

We conclude that the plaintiff may be entitled, pursuant to § 46b-86 (a), to a modification of the child support order upon a showing of a substantial change in the circumstances of either party. Accordingly, the magistrate improperly denied the plaintiffs motion for modification without reaching the merits of the plaintiffs claim that a modification of the judgment was appropriate due to a substantial change in circumstances.

The judgment is reversed and the case is remanded with direction to remand the case to the family support magistrate for further proceedings consistent with this opinion.

In this opinion the other judges concurred.

       Although the court characterized its decision as a dismissal of the plaintiffs appeal, the court’s memorandum of decision addresses the merits of the plaintiffs claims and not the jurisdiction of the court. Accordingly, we review the plaintiffs claims as though the court had jurisdiction and affirmed the decision of the magistrate pursuant to General Statutes § 46b-231 (n) (7). See Bee v. Bee, 79 Conn. App. 783, 798-99, 831 A.2d 833 (construction of judgment is question of law for court and determinative factor is intention of court as gathered from all parts of judgment), cert. denied, 266 Conn. 932, 837 A.2d 805 (2003).

       The magistrate issued his original memorandum of decision on April 29, 2005. He issued a revised memorandum of decision on September 22, 2005, after the trial court remanded the matter.

       Specifically, the defendant claims that postmajority support of the elder child is contemplated by the language in the support provision that provides: “The foregoing sums shall be payable until the death, marriage, emancipation or [eighteenth] birthday of the youngest child or until the death of the [plaintiff], whichever first occurs.”

         General Statutes § 46b-66 (a) provides in relevant part: “In any ease under this chapter where the parties have submitted to the court an agreement. . . [i]f the court finds the agreement fair and equitable, it shall become part of the court file, and if the agreement is in writing, it shall be incorporated by reference into the order or decree of the court. ... If 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, notwithstanding the provisions of section 1-ld.”

       It is undisputed that at the time the dissolution court rendered its judgment incorporating the parties’ agreement, neither of the parties’ two children had reached the age of majority. Thus, the clear and unambiguous language of the agreement called for the support of two minor children, at least until the elder child became eighteen.

       We note that the agreement provides for “support for the [younger] child past her [eighteenth] birthday in the event the child is attending high school, until the child completes high school, or until the child turns [nineteen] years of age, whichever comes first.” Although this provision may be characterized as postmajoiity support.; see Hughes v. Hughes, 95 Conn. App. 200, 208 n.3, 895 A.2d 274, cert. denied, 280 Conn. 902, 907 A.2d 90 (2006); this language merely provides for the support mandated by General Statutes § 46b-84 (b). Therefore, it does not serve as a basis for a conclusion that the parties clearly and unambiguously intended § 46b-66 to govern any part of the child support provision.
      General Statutes § 46b-84 (b) provides in relevant part: “If there is an unmarried child of the marriage who has attained the age of eighteen, is a full-time high school student and resides with a parent, the parents shall maintain the child according to their respective abilities if the child is in need of maintenance until such time as such child completes the twelfth grade or attains the age of nineteen, whichever first occurs. . .

       General Statutes § 46b-84 (a) provides in relevant part: “Upon or subsequent to the annulment or dissolution of any marriage or the entry of a decree of legal separation or divorce, the parents of a minor child of the marriage, shall maintain the child according to their respective abilities, if the child is in need of maintenance. . . .”

       The preamble to the child support and arrearage guidelines, which the commission publishes in conjunction with the guidelines, explains: “In general, the economic studies have found that ... a diminishing portion of family income is spent on each additional child. . . . [This] observation apparently results from two factors. The first is economy of scale. That is, as more children are added to a family, sharing of household items is increased, and fewer of those items must be purchased. The second is a reallocation of expenditures. That is, as additional children are added, each family member’s share of expenditures decreases to provide for the needs of the additional members.” Child Support and Arrearage Guidelines, preamble, iii.

       The child support provision underlying the dispute in Giüespie was strikingly similar to the disputed provision in this case. That provision provided for “$75 per week for all of said minor children until the youngest living child reaches the age of 18 years . . . .” (Internal quotation marks omitted.) Gillespie v. Gillespie, supra, 8 Conn. App. 385-86. We observed that the court properly found an arrearage after the older children reached the age of majority because “[t]he language used . . . may be construed logically and reasonably as manifesting an intent by the parties that the $75 weekly payment was to be indivisible, not subject to a pro rata deduction as each child attained majority and was to continue in the amount of $75 per week until terminated by the youngest child reaching eighteen years. Thus, no part of the weekly payment was for the benefit of any adult child.” Id. Further, although the emancipation of one child does not automatically affect the liability of a parent for the full amount in support of the remaining minor children, a parent may obtain relief by seeking a modification of the decree if the full amount is deemed excessive. Id., 386.

       Although we conclude that the parties’ agreement is unambiguous, we point out that at that time it rendered judgment, the dissolution court made a finding “that the child support guidelines have been respected and that the [child support] figure is, in fact, on the guidelines.” “A judge in a dissolution proceeding performs a much greater role than that of a mere ministerial functionary. Under our statutes, a court has an affirmative obligation, in divorce proceedings, to determine whether a settlement agreement is fair and equitable under all the circumstances. . . . The presiding judge has the obligation to conduct a searching inquiry to make sure that the settlement agreement is substantively fair and has been knowingly negotiated.” (Citation omitted; internal quotation marks omitted.) Mitchell v. Mitchell, 194 Conn. 312, 323, 481 A.2d 31 (1984). Neither party alerted the court that they were seeking a postmajority support order pursuant to § 46b-66 and that the guidelines did not apply to the court’s assessment of the agreement’s equity and fairness. We conclude, therefore, that, even if we assume that the child support provision of the separation agreement contained an ambiguity, the magistrate’s finding that the separation agreement contemplated postmajority support for both children was clearly erroneous. See Histen v. Histen, supra, 98 Conn. App. 732-33.

       General Statutes § 46b-86 (a) provides in relevant part: “Unless and to the extent that the decree precludes modification . . . any final order for the periodic payment of permanent alimony or support . . . may at any time thereafter be continued, set aside, altered or modified by [the] court upon a showing of a substantial change in the circumstances of either party or upon a showing that the final order for child support substantially deviates from the child support guidelines established pursuant to section 46b-215a, unless there was a specific finding on the record that the application of the guidelines would be inequitable or inappropriate. . . .”

       The defendant does not argue, nor could we conclude under the facts of this case, that the child support provision itself contained language precluding modification of the support amount. See Burke v. Burke, 94 Conn. App. 416, 423-24, 892 A.2d 964 (2006).