text:
    FELICIA PIEROT BRODY v. CARY BRODY
    (AC 32197)
    DiPentima, C. J., and Espinosa and Pellegrino, Js.

      Argued January 30
    officially released July 17, 2012

      Steven D. Ecker, with whom, on the brief, were Ann Walsh Henderson, M. Caitlin S. Anderson and Gavan F. Meehan, for the appellant (defendant).

      Gary I. Cohen, for the appellee (plaintiff).
   Opinion

ESPINOSA, J.

The defendant, Cary Brody, appeals from judgments of the trial court rendered in connection with the underlying dissolution action awarding to the plaintiff, Felicia Pierot Brody, a $2.5 million lump sum alimony payment and granting the plaintiffs two postjudgment motions for contempt. The defendant claims that the trial court improperly (1) rendered its judgment dissolving the parties’ marriage on the basis of a finding of infidelity that was not supported by sufficient evidence, (2) awarded alimony on the basis of conduct that was the subject of a prior written stipulation between the parties that released claims arising from this same conduct, (3) used an award of alimony to effectuate an improper distribution of property in violation of the parties’ prenuptial agreement, (4) calculated the alimony award on the basis of cash flow rather than available net income, (5) found him in contempt on the basis of his compliance with a prior federal court order and (6) found him in contempt by applying the wrong standard of proof. We affirm the judgments of the trial court.

The following facts as found by the trial court are relevant to our resolution of this appeal. The parties met in 1997 and started dating shortly thereafter. The plaintiff was a securities trader and was engaged in the business of “flipping” initial public offerings of securities. The defendant had worked for two different hedge funds, and, in 1998, he started his own hedge fund, named Colonial Fund, LLC (fund). The plaintiff assisted the defendant in establishing the fund, making an initial investment of $250,000, loaning the fund $600,000 for working capital and introducing her brother, an investor, to the defendant. At its inception, the fund had approximately $3 million under its management.

In the fall of 1998, the defendant, the plaintiff and her three children moved into a rental home on Lindsay Drive in Greenwich (Lindsay Drive property). In April, 1999, the parties purchased the Lindsay Drive property for $2,656,265.49, sharing equally the costs of acquisition, renovation and related household expenses. In April, 2000, the parties decided to marry. The parties negotiated and signed a prenuptial agreement, under which they retained their separate assets as disclosed on financial statements that were attached to the prenuptial agreement. At the time of their marriage, the defendant’s net worth was approximately $46 million and the plaintiffs net worth was approximately $29 million. On April 29, 2000, the parties were married in Provence, Fiance.

In 2002, the parties listed the Lindsay Drive property for sale and jointly purchased a home on Husted Lane in Greenwich (Husted Lane property) for $5,950,000. Their first child was bom in September, 2002. The defendant expressed to the plaintiff that he did not want her to be employed because, as the president of his company, it “did not look good” for her to be so employed. Furthermore, the defendant stated that he did not want the plaintiffs employees walking through the parties’ home and that it was “no longer an option” for the plaintiff to continue working. Accordingly, the parties agreed that the plaintiff would close her business and focus on raising the children and maintaining the household and that the defendant would pay the family’s expenses. Pursuant to the agreement, the plaintiff continued to have her agents make discretionary trades of securities and her separate assets on her behalf, from which trading she received dividend income of approximately $100,000 per year.

After acquiring the Husted Lane property, the defendant voluntarily funded essentially all of the household’s common expenses. The parties enjoyed a comfortable lifestyle fueled by the defendant’s successes at work, and they had a second child. Between 2003 and 2004, the plaintiff made investments totaling $2,660,000 in the fund on behalf of herself and her children.

During this time, however, the parties began discussing what the plaintiff perceived as the excessive spending of the defendant. Between 2005 and 2008, the plaintiff expressed to the defendant her unhappiness with his purchases of two airplanes, a wine cellar costing in excess of $100,000 and Ferrari automobiles. The defendant was drinking alcoholic beverages more than he had earlier in the marriage, and he was becoming verbally abusive of the plaintiff. From 2007 to 2008, the defendant continued to be verbally abusive of the plaintiff and started to become aggressive sexually with her. The plaintiff made it clear to the defendant that she was unhappy with his behavior, but the defendant was unreceptive to her concerns.

Unknown to the plaintiff, the defendant’s income had started to decline in 2005. In 2007, the defendant’s partner in the fund called the plaintiff to inform her of significant losses in the fund and of hidden trades engaged in by the defendant. In October, 2007, the plaintiff learned, when it was announced publicly, that the Securities and Exchange Commission was prosecuting the fund and the defendant personally. The defendant had been aware of this investigation since July, 2003, but he had not told the plaintiff about it. The defendant assured the plaintiff that she did not have to worry, and the plaintiff continued to support the defendant. In May, 2008, the defendant accepted delivery of a new Ferrari.

The defendant was served with divorce papers on July 1,2008. At the time of trial, the plaintiff was carrying a net operating loss of $2 million. In a memorandum of decision issued March 12, 2010, the court, Munro, J., ordered, among other things, the dissolution of the parties’ marriage. In connection with the dissolution judgment, the court ordered the defendant to pay the plaintiff $2,500,000 in lump sum alimony, to be paid as follows: $1 million on or before June 1, 2010, $1 million on or before June 1, 2011, and $500,000 on or before June 1, 2012. The defendant appealed from that judgment on April 30, 2010. Additional facts will be set forth as necessary.

I

FINDING OF INFIDELITY

The defendant claims that the court’s judgment must be reversed because, according to him, it was based in part on a finding of infidelity that was not supported by sufficient evidence. The defendant notes three points in the court’s memorandum of decision where the corut mentions infidelity and asserts that it is clear that, on the basis of these statements, the court found that he had been unfaithful in his marriage to the plaintiff. He argues that, as a matter of law, this finding of infidelity was not supported by sufficient evidence. Furthermore, he asserts that, because this finding formed an essential basis of the court’s decision, this error requires reversal and a new trial. We are not persuaded.

The following additional facts found by the corut are relevant to this claim. In June, 2008, the plaintiff discovered unused condoms in the defendant’s toiletries bag when he returned from a five day trip to California. According to the plaintiffs testimony, the defendant had not used condoms in the marriage for the past three years. The court credited this testimony, rejecting as not credible the defendant’s various assertions that he used the condoms in the marriage when his sexually transmitted disease was active and that he used the condoms for comfort when he had ingrown hairs. The court found that the presence of condoms in the defendant’s toiletries bag was a sufficient basis for the plaintiff reasonably to believe that the defendant had been unfaithful to her. The court stated: “The court finds that the presence of condoms in his [toiletries bag] was a sufficient basis for the plaintiff to presume he was unfaithful to her. Further, the court having found him not credible on this regarding a substantial statutory factor, cause of the breakdown of the marriage, which the court must consider in weighing alimony claims. Further, the court considers this lack of credibility a substantial adverse factor where it is weighing the differing testimony of the parties and credibility is an issue.”

The court observed that the defendant’s credibility was damaged further by its finding that he had lied under oath in a prior dissolution proceeding. The plaintiff commenced an action for dissolution of marriage after an incident on October 31, 2000, but withdrew the action several weeks later, after the parties reconciled. During the pendency of the dissolution proceeding and while the parties were separated, however, the defendant removed the plaintiffs jewelry from the safe in the Lindsay Drive property. The defendant testified during the dissolution proceeding that he had not removed the jewelry, although he later admitted that he had. The court in the present case found that the defendant lied under oath at that proceeding and found that this had a negative impact on his credibility as a witness in the present proceeding.

Later in its memorandum of decision, the court addressed the defendant’s failure to produce certain financial records detailing advances against his trading allocations that he took from the fund. The court reviewed what it considered obstructionist tactics on the part of the defendant, stating that “[t]he defendant has intentionally and consistently sought to avoid disclosure of [the fund’s] soft dollar information in this action.” The court noted that, beyond failing to produce financial records, the defendant had tried to block discovery in the present action. One month after the plaintiff filed for dissolution of the parties’ marriage, the fund, represented by the defendant’s sister, attorney Lara Brody, brought an action against the defendant in New York in an attempt to prevent the defendant from submitting to the Connecticut court certain financial documents of the fund. In June, 2009, Lara Brody signed a retainer agreement with the defendant personally. She claimed that she had not provided the defendant with any legal advice in connection with the divorce proceedings.

The court determined that, under the totality of the circumstances, the defendant was not credible. It stated: “The defendant’s problem with telling the truth continued throughout this proceeding. The defendant admitted that while in the Stamford Superior Court in September, 2008, he testified, under oath, that the plaintiff was not an investor in [the fund]. This is the same person who took the plaintiffs jewelry in the first dissolution [action] and lied on the witness stand, at that time, in Stamford Superior Court. The sanctity of an oath of honesty is apparently of little importance to the defendant. The marital vow of fidelity proved no more binding on [the defendant].”

Additionally, the court determined that the defendant improperly and intentionally had failed to disclose reports detailing any expenses related to travel, food, transportation or entertainment. The court did not credit the defendant’s assertion that no such expense reports existed. The court concluded: “The marriage between the parties has broken down irretrievably, in large part because of the defendant’s dishonesty, probable infidelity and his increasingly abusive behavior toward the plaintiff. The defendant failed to comply in a timely manner with the plaintiffs discovery requests. The defendant withheld material information and made inaccurate statements of fact in his various responses to the plaintiffs requests for production of records. . . . The defendant’s various attempts to stonewall and prolong the discovery process in the matrimonial proceedings forced the plaintiff to expend far more on legal fees than she should have.”

“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 fight of the evidence and the pleadings in the record or as a whole. ... A finding of fact is clearly erroneous when there is no evidence to support it ... or when although there is evidence in the record to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. ... A fundamental principle in dissolution actions is that a trial court may exercise broad discretion in awarding alimony and dividing property as long as it considers all relevant statutory criteria. . . . This standard of review reflects the sound policy that the trial court has the opportunity to view the parties first hand and is therefore in the best position to assess all of the circumstances surrounding a dissolution action, in which such personal factors such as the demeanor and the attitude of the parties are so significant.” (Citation omitted; internal quotation marks omitted.) Wiegand v. Wiegand, 129 Conn. App. 526, 529-30, 21 A.3d 489 (2011).

General Statutes § 46b-40 (c), laying out the statutory grounds on which a court may render a judgment of dissolution of marriage, provides in relevant part: “A decree of dissolution of a marriage . . . shall be granted upon a finding that one of the following causes has occurred: (1) The marriage has broken down irretrievably ... (3) adultery . . . .”

The court’s judgment was not made on the basis of a finding of infidelity. Rather, the court explicitly found that the marriage had broken down irretrievably, and this was the statutory ground for dissolution listed on the judgment file. The court listed the defendant’s dishonesty, extravagant spending, excessive drinking and abusive behavior toward the plaintiff as factors that contributed to the breakdown of the marriage. To the extent that the court referenced the incident during which the plaintiff found unused condoms in the defendant’s toiletries bag, it is clear that the court merely was reviewing another cause of the breakdown of the marriage, in this instance, the plaintiffs belief that the defendant had been unfaithful to her. This reading of the court’s decision is supported further by the court’s later reference to “the defendant’s dishonesty, probable infidelity and his increasingly abusive behavior toward the plaintiff’ as factors that contributed to the breakdown of the marriage. The only other point at which the court mentioned infidelity — in the course of reviewing the defendant’s repeated noncompliance with the plaintiffs discovery requests for various financial records — does not lend any support to the defendant’s argument to the contrary. On the basis of the entire record, there is no support for the defendant’s contention that the court made a finding of infidelity. Accordingly, the defendant’s claim necessarily fails because it presumes that the court made such a finding.

II

ALIMONY AWARD

The defendant claims that the court’s lump sum alimony award to the plaintiff was improper on several grounds. Specifically, the defendant claims that the court improperly (1) awarded alimony on the basis of conduct that was the subject of a prior written stipulation between the parties that released claims arising from this same conduct; (2) used an award of alimony to effectuate an improper distribution of property in violation of the parties’ prenuptial agreement; and (3) calculated the alimony award using cash flow rather than available net income. We address each of these claims in turn.

A

Prior Written Stipulation

First, the defendant claims that the court improperly awarded alimony on the basis of conduct that was the subject of a prior written stipulation between the parties that released claims arising from this same conduct. The defendant argues that the parties signed a written stipulation settling in all respects a dispute regarding the plaintiffs investment in the fund. Specifically, he maintains that the stipulation released him from “any and all claims” arising out of the plaintiffs investment in the fund. He argues that this includes claims of alimony and that the court improperly considered the very conduct addressed by the stipulation in determining the amount of alimony to award to the plaintiff. We disagree.

The following additional facts are relevant to our consideration of this claim. In May, 2008, the plaintiffs brothers, who had invested in the fund, requested redemption of their investments. The fund informed them that, as of June 1, 2008, the fund had implemented a “30-70 holdback.” Pursuant to this holdback, if an investor attempted to redeem, that investor would receive only 30 percent of the investment; 70 percent would remain in the fund pending the conclusion of the litigation with the Securities and Exchange Commission. This was the first time that the plaintiff learned of the holdback, which also affected her investments in the fund that she had made on behalf of herself and her children.

On December 11, 2008, the plaintiff filed a statement of claim and demand for arbitration in New York against the defendant in his personal capacity; the fund; Colonial Asset Management, LLC (managing company), the company that manages the fund and pays for its expenses; Colonial Investment Management, LLC, the managing member of the fund; and Colonial Asset Management Advisers, Inc., the managing member of Colonial Investment Management, LLC. The statement of claim asserted that the defendant’s wrongful conduct and breaches of his fiduciary duties in managing the fund caused the plaintiffs investments to be at risk and demanded that the plaintiff be allowed to withdraw the full amount of these investments, not subject to the holdback.

The parties agreed to settle this dispute rather than proceed with arbitration and signed a stipulation in settlement of the plaintiffs claims. The stipulation provided in relevant part: “[The plaintiff] hereby releases Colonial Investment Management (CIM), Colonial Asset Management Advisers (CAMA), and [the fund] and [the defendant] from any and all claims arising out of [the plaintiffs] investment in [the fund] prior to July 17, 2009.” (Emphasis added.)

For purposes of this claim, the defendant can demonstrate that the court improperly ordered the alimony award only if he can demonstrate that a prior contractual agreement of the parties was controlling. Thus, the defendant’s claim presents a question of contractual interpretation over which our review is plenary. “[A] release, being a contract whereby a party abandons a claim to a person against whom that claim exists, is subject to rules governing the construction of contracts. . . . The intention of the parties, therefore, controls the scope and effect of the release, and this intent is discerned from the language used and the circumstances of the transaction.” (Internal quotation marks omitted.) Muldoon v. Homestead Insulation Co., 231 Conn. 469, 482, 650 A.2d 1240 (1994).

“Although ordinarily the question of contract interpretation, being a question of the parties’ intent, is a question of fact . . . [w]here there is definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law. ... 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. A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity .... Similarly, any ambiguity in a contract must emanate from the language used in the contract rather than from one party’s subjective perception of the terms.” (Citation omitted; internal quotation marks omitted.) Niehaus v. Cowles Business Media, Inc., 263 Conn. 178, 188-89, 819 A.2d 765 (2003).

We conclude, on the basis of our review of the plain language of the stipulation, that the stipulation unambiguously releases only those claims arising out of the plaintiffs investment in the fund. It does not encompass a claim for alimony, which arises out of the marriage and subsequent dissolution proceeding. The stipulation does not mention alimony despite the fact that the parties agreed to the stipulation on July 14,2009, well after the plaintiff had initiated the dissolution proceeding. Clearly, if the parties intended to release the plaintiffs claim to alimony in the dissolution proceeding, they could have drafted the stipulation to make such a release. They did not. Rather, they drafted a stipulation that released claims “arising out of [the plaintiffs] investment in [the fund] . . . .”

Our conclusion that the stipulation releases only claims arising out of the plaintiffs investment in the fund is supported by reading the stipulation in light of the circumstances under which it was drafted. The stipulation was drafted in connection with an arbitration proceeding that was separate and distinct from the dissolution action and that dealt with different issues than did the dissolution action. The plaintiffs claims in the arbitration proceeding stemmed from the defendant’s alleged misconduct and breaches of his fiduciary duties in managing the fond. The plaintiff named several defendants in her demand for arbitration, including the fund and other related corporate entities. The very clause that the defendant argues released him from any claim that the plaintiff had to alimony also released the fund and Colonial Investment Management, LLC. It is contrary to the plain language of the stipulation, especially in light of the circumstances attending its drafting, to suggest that it released the plaintiffs claim to alimony.

B

Distribution of Property

Next, the defendant claims that the court improperly used the award of alimony to effectuate an improper distribution of property in violation of the parties’ prenuptial agreement. The defendant argues that, in the event of a divorce, the parties’ prenuptial agreement expressly prohibits any transfers of assets from one party to the other unless that party’s net worth is greater than it was at the time of the marriage. He asserts that, because his net worth does not exceed his premarital net worth, the plaintiff is not entitled to any of his assets. Furthermore, he argues that his current, disposable net income is not sufficient to pay the alimony award ordered by the court, and, therefore, the award constitutes an impermissible requirement that he transfer his property to the plaintiff. We do not agree.

“A fundamental principle in dissolution actions is that a trial court may exercise broad discretion in awarding alimony and dividing property as long as it considers all relevant statutory criteria.” (Internal quotation marks omitted.) Lynch v. Lynch, 135 Conn. App. 40, 45, 43 A.3d 667 (2012). “An appellant who seeks to reverse the trial court’s exercise of judicial discretion assumes a heavy burden. . . . Decision making in family cases requires flexible, individualized adjudication of the particular facts of each case. . . . Trial courts have a distinct advantage over an appellate court in dealing with domestic relations, where all of the surrounding circumstances and the appearance and attitude of the parties are so significant. . . . Nothing short of a conviction that the action of the trial court is one which discloses a clear abuse of discretion can warrant our interference.” (Internal quotation marks omitted.) McRae v. McRae, 129 Conn. App. 171, 177, 20 A.3d 1255 (2011).

General Statutes § 46b-82 (a) provides in relevant part: “In determining whether alimony shall be awarded, and the duration and amount of the award, the court shall hear the witnesses, if any, of each party, except as provided in subsection (a) of section 46b-51, shall consider the length of the marriage, the causes for the . . . dissolution of the marriage . . . the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties and the award, if any, which the court may make pursuant to section 46b-81, and, in the case of a parent to whom the custody of minor children has been awarded, the desirability of such parent’s securing employment.”

“[T]he purpose of alimony [is] the obligation of support that spouses assume toward each other by virtue of the marriage. . . . This court has stated that [a]li-mony is always represented by money and is damages to compensate for loss of marital support and maintenance. ... In other words, alimony represents the court’s finding, measured in dollars, of the financial needs of the receiving spouse at the time of the dissolution.” (Internal quotation marks omitted.) Wiegand v. Wiegand, supra, 129 Conn. App. 535-36. “By contrast, [t]he purpose of a property division pursuant to a dissolution proceeding is to unscramble existing marital property in order to give each spouse his or her equitable share at the time of dissolution.” (Internal quotation marks omitted.) Dombrowski v. Noyes-Dombrowski, 273 Conn. 127, 133, 869 A.2d 164 (2005).

We conclude that the court did not abuse its discretion in awarding the plaintiff lump sum alimony. The court stated that the award reflected the fact that the plaintiff was not likely to earn as much as the defendant following the dissolution and that the parties had agreed that the plaintiff would focus on raising their children instead of working full-time. The court noted that the parties had enjoyed a comfortable lifestyle during their marriage and that, for the benefit of the plaintiff and the parties’ children, any award of alimony should reflect this quality of life. Furthermore, the court emphasized that it was the defendant’s conduct that led to the breakdown of the marriage. Citing § 46b-82, the court explicitly took all of these factors into consideration when fashioning the alimony award. We conclude that the award is consistent with the purpose of alimony and that the court properly considered the facts before it within the appropriate statutory framework. The defendant may elect to pay the award out of his separate assets, but how he chooses to satisfy his obligation under the court’s order is his decision. The court did not order him to pay the award out of his separate assets. That he plans to do so does not invalidate an otherwise valid award of alimony.

The defendant argues that the court’s requirement that he transfer to the plaintiff his interest in the Husted Lane property as security for the alimony award constitutes an impermissible transfer of legal title of his separate assets to the plaintiff. He asserts that the Husted Lane property is part of his premarital net worth under the parties’ prenuptial agreement and that, accordingly, any order transferring his interest to the plaintiff is improper. This argument is without merit.

The parties’ prenuptial agreement provides: “The parties knowingly and voluntarily agree that if a termination event occurs, all premarital net worth will remain the asset or debt of its separate owner and will not be considered marital net worth subject to distribution by a court under any circumstances whatsoever. The parties hereto waive, discharge and release any and all claims, demands, rights and interests to and are hereinafter precluded from seeking from each other a division or assignment of the other party’s premarital net worth as defined herein. It is the intention of the parties that the disposition of premarital net worth in this Agreement be deemed a disposition of property which would fully satisfy any claims which each party may have against the premarital net worth of the other under the laws of any jurisdiction including their rights to equitable distribution under [General Statutes §] 46b-81 and that the parties hereby specifically waive any equitable distribution with respect to the premarital net worth of the other.”

Nothing in the parties’ prenuptial agreement prevented the court from ordering that the Husted Lane property would serve as security for the court’s alimony award under § 46b-82. The prenuptial agreement, by its clear terms, is concerned with equitable distributions of property under § 46b-81, not alimony awards. The court was free to order, within its broad discretion to make alimony awards, that the defendant’s interest in the Husted Lane property would serve as security for his alimony obligation. See Stein v. Hillebrand, 240 Conn. 35, 41, 688 A.2d 1317 (1997) (“[The] provisions [of § 46b-82] were adopted in response to concerns that former spouses were frequently avoiding their alimony and support obligations. . . , To interpret the security language in § 46b-82 to exclude real property would, therefore, defeat the remedial purpose of this legislation by removing a stationary, valuable, and ascertainable form of property from the class of available security. This we decline to do.” [Citation omitted.]). Accordingly, we reject the defendant’s claim.

C

Calculation of Alimony

Finally, the defendant claims that the court improperly calculated the alimony award on the basis of cash flow rather than available net income. He argues that, accepting the court’s calculation of his net income as accurate, he will not be able to pay his alimony obligation. We are not persuaded.

The following additional facts as found by the court are relevant to this claim. The defendant is a managing partner of the fund, the managing company and various other hedge funds. The defendant receives a yearly salary of $250,000 from the managing company, and he also receives an incentive fee when the fund is performing above a certain level. He can take advances from the fund against his monthly trading. Between 2004 and 2008, in addition to his salary from the managing company, $7,114,000 was transferred directly from the fund into his personal bank accounts. The financial records submitted at trial did not reveal whether this amount reflected withdrawals of the defendant’s capital account, loans from the fund, salary or profit sharing.

The managing company takes advances from the fund. Between January 1, 2008, and the time of trial, the managing company had taken approximately $2 million in advances from the fund to cover the fund’s various expenses, including meals and entertainment, fish tank maintenance and travel expenses. The defendant and his partner in the fund determine how much money the managing company spends.

The defendant receives health care and other benefits as an employee of the fund, including the use of a driver, who provides both professional and personal services. The defendant did not disclose the value of these various benefits. Additionally, the defendant has a credit card through the managing company, on which he charges both business and personal expenses. He charged $1,693,000 in personal expenses to this credit card between 2004 and 2008 and $93,840 in personal expenses to it between January 1, 2009, and July 31, 2009. These charges were made in addition to the salary that he received from the managing company.

Between 2003 and May, 2009, the fund earned between $26 million and $27 million in gross soft dollar commissions, of which commissions $11 million were paid directly to the managing company. The defendant could not prove, however, what the managing company did with these soft dollar commissions. An expert for the plaintiff testified that, on the basis of the fact that the defendant had an $8 million loan balance on the fund’s 2007 audited financial statement, it was more likely than not that these soft dollar funds were paid directly to the defendant. The court found the expert credible and credited his testimony. The court also found that, as of May, 2009, the managing company had $2,600,000 in soft dollar credits available and that the defendant had the power to distribute this money. Despite the plaintiffs repeated requests for production of the managing company’s ledger, the defendant refused to produce it. As a result, it could not be shown during trial what happened to this $2,600,000 in soft dollar credits.

The defendant’s taxable income in 2003 exceeded $1,700,000. In 2004, his taxable income exceeded $8 million. Between August 31, 2008, and June 30, 2009, his net allocable income was approximately $615,000— this figure is in addition to his $250,000 salary from the managing company and withdrawals that the defendant makes from the fund. Between January 1, 2009, and July 31, 2009, the defendant withdrew $300,000 from the fund, and there was testimony at trial that, if the number included withdrawals made in August, 2009, the number would rise to $650,000.

On the basis of these facts, the court found that it was impossible to determine precisely the defendant’s present earnings. The court found that the defendant knowingly and improperly asserted that various financial records requested by the plaintiff did not exist when in fact they did. Noting that the defendant had not altered considerably his lifestyle over the course of the marriage or since, the court found that the defendant had access to financial resources sufficient to maintain the lifestyle of the parties and their children as established by the parties during their marriage.

“[T]he trial court may under appropriate circumstances in a marital dissolution proceeding base financial awards on the earning capacity of the parties rather than on actual earned income. . . . Earning capacity, in this context, is not an amount which a person can theoretically earn, nor is it confined to actual income, but rather it is an amount which a person can realistically be expected to earn considering such things as his vocational skills, employability, age and health. . . . [I]t also is especially appropriate for the court to consider whether the defendant has wilfully restricted his earning capacity to avoid support obligations .... Moreover, [l]ifestyle and personal expenses may serve as the basis for imputing income where conventional methods for determining income are inadequate.” (Internal quotation marks omitted.) Auerbach v. Auerbach, 113 Conn. App. 318, 334-35, 966 A.2d 292, cert. denied, 292 Conn. 901, 971 A.2d 40 (2009).

“[0]ur Supreme Court has emphasized the importance of using an expansive definition of income when formulating financial orders during the course of marriage dissolution proceedings. . . . Adopting a flexible definition of income, the court has explained, ensures that each spouse fulfills his or her continuing duty to support one another and each receives his or her equitable share of the marital assets. . . . Moreover, [w]here a party through his own wrongful conduct limits the financial evidence available to the court, that party cannot complain about the resulting calculation of a monetary award.” (Citations omitted; internal quotation marks omitted.) Brown v. Brown, 130 Conn. App. 522, 527-28, 24 A.3d 1261 (2011).

The court, faced with the defendant’s wrongful refusal to produce financial records that the plaintiff had requested, properly looked to other evidence of the defendant’s income, namely, his expenses and his lifestyle. The court noted that the defendant’s spending and lifestyle had not changed significantly throughout the course of the marriage. These were appropriate factors to weigh in determining, in the absence of conventional methods of calculating income, the proper amount of alimony to award. We conclude that the court did not abuse its discretion in its calculation of the amount of the plaintiffs alimony award.

Ill

CONTEMPT FINDINGS

The defendant claims that the court improperly found him in contempt on two separate occasions following the dissolution judgment. First, the defendant claims that, on November 29, 2010, the court, Munro, J., improperly found him in contempt on the basis of his compliance with a prior federal court order. Second, the defendant claims that, on April 28, 2011, the court, Wenzel, J., improperly found him in contempt of the remedial order made in connection with the November 29, 2010 finding of contempt.

“The abuse of discretion standard applies to a trial court’s decision on a motion for contempt. ... A finding of contempt is a question of fact, and our standard of review is to determine whether the court abused its discretion in [finding] that the actions or inactions of the [party] were in contempt of a court order. ... To constitute contempt, a party’s conduct must be wilful. . . . Noncompliance alone will not support a judgment of contempt. . . . We review the court’s factual findings in the context of a motion for contempt to determine whether they are clearly erroneous. ... A factual finding is clearly erroneous when it is not supported by any evidence in the record or when there is evidence to support it, but the reviewing court is left with the definite and firm conviction that a mistake has been made. . . . The resolution of conflicting factual claims falls within the province of the trial court. . . . 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. . . . We cannot retry the facts or pass on the credibility of the witnesses. ... A reviewing authority may not substitute its findings for those of the trier of the facts.” (Internal quotation marks omitted.) Oldani v. Oldani, 132 Conn. App. 609, 625-26, 34 A.3d 407 (2011).

Each finding of contempt relates to distinct conduct on the part of the defendant and is the basis of unique claims on appeal. Accordingly, we will address each finding of contempt separately.

A

November 29, 2010 Contempt

The defendant claims that, on November 29, 2010, the court improperly found him in contempt on the basis of his compliance with a prior federal court order. Specifically, he argues that the court, Munro, J., found him in contempt for conduct that was necessary to comply with a prior judgment that the Securities and Exchange Commission (commission) had obtained against him in federal district court. He asserts that he was put in the impossible position of either not satisfying the prior judgment in favor of the commission or being found in contempt of an ex parte restraining order that the court, Malone, J., issued in connection with the dissolution judgment. We disagree.

The following additional facts as found by the court are relevant to this claim. On July 7, 2009, the commission obtained a judgment in the amount of $1,330,054.32 against the defendant in New York federal district court. See Securities & Exchange Commission v. Colonial Investment Management, LLC, 659 F. Sup. 2d 467, 503 (S.D.N.Y. 2009), aff'd, 381 Fed. Appx. 27 (2d Cir. 2010). This judgment was disclosed to the court during the dissolution proceeding. On September 3, 2010, the court, Malone, J., granted the plaintiffs postjudgment motion for an ex parte restraining order. The order provided in relevant part: “That the [defendant is enjoined and restrained from spending, giving away, dissipating, pledging or in any other way, impairing his interest in any asset disclosed on his September 2, 2010 financial affidavit, including, but not being limited to, interests in investment accounts (including [the fund]), private placement partnerships, jewelry, wine, or other personal property or any other asset whatsoever, unless the [defendant first secures the permission of the [p]laintiff or an order of the court permitting him to invade or dispose of an interest in any such asset.”

On October 12,2010, the plaintiff filed a postjudgment motion for contempt. The motion alleged that, in response to the judgment in favor of the commission, the defendant transferred approximately $250,000 from his personal account in the fund to an account for Colonial Investment Management, LLC. After a hearing, the court, Munro, J., granted the motion for contempt in a written order issued November 29, 2010. The order stated in relevant part: “[T]he court finds that the defendant violated the restraining order by transferring funds to facilitate the payment of his court ordered obligation to the . . . [commission pursuant to a judgment entered against him. The defendant argues that his conduct was not contemptuous. Indeed it was. The defendant was subject to a clear and unambiguous order that he could comply with by doing nothing. Instead he made a transfer to facilitate the payment of a creditor he deemed more of a priority than the plaintiff. While one could argue it was a [Hobson’s] choice that the defendant faced, it was still in clear and wilful violation of the injunctive order issued by Judge Malone. Whichever burden of proof is applied, the plaintiff has satisfied it: by clear and convincing evidence this contempt is proven.” The defendant amended his appeal to include a challenge to this decision on December 20, 2010.

We conclude that the court did not abuse its discretion in finding the defendant in contempt for transferring funds from his account with the fund to the Colonial Investment Management, LLC, account. As an initial matter, if the defendant believed that it was necessary to transfer the funds in order to comply with the judgment rendered for the commission, the restraining order provided him with the appropriate procedure for doing so: by an application seeking the permission of the court. Nothing prevented the defendant from requesting the court’s permission to transfer the funds at issue, but he failed to do so.

Furthermore, this transfer was not required to comply with the judgment of the District Court. As that court noted in its decision on the commission’s motion to compel disbursement of the funds from the Colonial Investment Management, LLC, account: “Having deposited the sum in the [Colonial Investment Management, LLC] JPMorgan checking account, the asset is now in the hands of JPMorgan, not [the defendant]. ... A turnover order from this Court would not compel [the defendant] to do anything; it would compel JPMorgan to turn over the funds in the Account. Whether [the defendant] has violated the Connecticut order by moving money into the Account is not for this Court to decide, nor is it determinative of whether to order a turnover. If suffices that requiring JPMorgan to turnover the asset would not violate the Connecticut order.” (Citations omitted.) Securities & Exchange Commission v. Colonial Investment Management, LLC, United States District Court, Docket No. 07 Civ. 8849 (PKC) (S.D.N.Y. October 6, 2010). Nevertheless, the defendant took the affirmative step of transferring the funds out of an account to which the restraining order applied, admittedly out of a wilful attempt to prevent the plaintiff from receiving these funds rather than the commission. The court did not abuse its discretion in finding that this wilful violation of the restraining order was an adequate basis for a finding of contempt.

B

April 28, 2011 Contempt

Next, the defendant claims that, on April 28, 2011, the court improperly found him in contempt of its remedial order made in connection with the November 29, 2010 finding of contempt. Specifically, he argues that, in the April 28, 2011 finding of contempt, the court, Wenzel, J., applied the preponderance of the evidence standard of proof when it should have applied the heightened clear and convincing evidence standard of proof. Although this court previously has stated, on several occasions, that the preponderance of the evidence standard applies in the civil contempt context, the defendant asserts that these statements have been made in dicta and can be traced back to an erroneous interpretation of Baldwin v. Miles, 58 Conn. 496, 20 A. 618 (1890). We are not persuaded.

The following additional facts as found by the court are relevant to our consideration of this claim. As a remedial measure for its November 29, 2010 finding of contempt, the court provided: “The plaintiff is entitled to a reasonable attorney’s fee for prosecuting this motion and shall submit an affidavit for the same within [twenty-one] days. Within [twenty-one] days, the defendant shall inventory all of the watches and all of the wine at his residence, or in his possession or control, and turn over the inventory to the plaintiff. The defendant shall cause all of the same to be delivered to such location as the plaintiff designates at his cost for her to safe keep [pending] appeal; said sum shall be held as security for sums due her under the court’s decision until further order of the court.”

In a postjudgment motion for contempt dated January 27, 2011, the plaintiff alleged that, while retrieving the parties’ children from the defendant’s home, she observed that the defendant was wearing a gold A. Lange & Sohne watch. The plaintiffs motion asserted that the defendant previously had testified, in connection with the court’s November 29, 2010 finding of contempt ordering him to turn over his watches to a third party custodian, that he no longer had possession of this watch. The plaintiff maintained that the court should find the defendant in contempt for his failure to deliver this watch to the custodian designated by the plaintiff. After a hearing on this motion, the court, Wenzel, J., found the defendant in contempt in an order issued April 28, 2011. The court explicitly employed the preponderance of the evidence standard of proof in reaching its conclusion. The defendant amended his appeal to include a challenge to this decision on May 9, 2011.

“A finding of contempt is a question of fact . . . and our standard of review is to determine whether the court abused its discretion in finding that the actions or inactions of the party were in contempt of a court order. ... In a civil contempt proceeding, the movant has the burden of establishing, by a preponderance of the evidence, the existence of a court order and noncompliance with that order.” (Citations omitted; internal quotation marks omitted.) Statewide Grievance Committee v. Zadora, 62 Conn. App. 828, 831-32, 772 A.2d 681 (2001); see also Oldani v. Oldani, supra, 132 Conn. App. 626; Gravius v. Klein, 123 Conn. App. 743, 748-49, 3 A.3d 950 (2010). “[A] finding of indirect civil contempt must be established by sufficient proof that is premised upon competent evidence presented to the trial court in accordance with the rules of procedure as in ordinary cases.” (Internal quotation marks omitted.) Cologne v. Westfarms Associates, 197 Conn. 141, 155, 496 A.2d 476 (1985).

Our cases clearly have held that a party attempting to establish an indirect civil contempt must do so by a preponderance of the evidence. We are bound by our prior decisions on this point. See, e.g., Wilson v. Stamford, 81 Conn. App. 339, 345 n.3, 840 A.2d 553 (“[t]he doctrine of stare decisis counsels that a court should not overrule its earlier decisions unless the most cogent reasons and inescapable logic require it” [internal quotation marks omitted]), cert. denied, 268 Conn. 918, 847 A.2d 312 (2004). We reject the defendant’s invitation to distinguish these prior cases on the ground that they addressed in dicta the question of the appropriate standard of proof. As there is no assertion on appeal that the court otherwise abused its discretion in finding that the defendant’s actions were in contempt of the court’s November 29, 2010 order, the defendant’s claim must fail.

The judgments are affirmed.

In this opinion the other judges concurred.

       Although there was no claim at trial or on appeal that the court lacked subject matter jurisdiction over the marriage, we observe that the court found that one of the parties continually had resided in Connecticut for more than one year prior to the commencement of the present litigation. See General Statutes § 46b-44 (c) (“[a] decree dissolving a marriage . . . may be entered if: [1] One of the parties to the marriage has been a resident of this state for at least the twelve months next preceding the date of the filing of the complaint or next preceding the date of the decree”).

       Prior to trial, the parties stipulated to a custody agreement and a parenting plan, both of which were accepted by the court. Therefore, the court’s decision determined only financial matters.

       Additionally, the defendant argues that the plaintiffs counsel conceded at trial that the court could not consider in awarding alimony any conduct subject to the release in the stipulation. The defendant suggests that this concession is particularly apparent upon reviewing the following colloquy between the court and the plaintiffs counsel, which colloquy occurred at a hearing on a postjudgment motion for contempt:
      “The Court: That’s not how I understood [the] argument [of the defendant’s counsel]. I understood his argument to say that the court was not allowed to consider what happened in the entire investment of [the plaintiff] in [the defendant’s] businesses when alimony was ordered because the two [$835,000] payments extinguished all claims she had—
      “[The Plaintiffs Counsel]: I don’t argue with that. If that’s the intent, Your Honor, I don’t disagree with that.”
      We are not persuaded that the plaintiffs counsel conceded that the plaintiff was not entitled to alimony. Rather, it appears that the plaintiffs counsel was agreeing with the court’s characterization of the defendant’s counsel’s argument regarding the scope of the stipulation.

       There was undisputed testimony at trial that a soft dollar commission is a rebate on commissions paid to a brokerage firm for securities trades.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    CONNECTICUT HOUSING FINANCE AUTHORITY v. JOSEPH E. BROWN ET AL.
    (AC 33633)
    Gruendel, Sheldon and West, Js.
    Argued March 12
    officially released July 17, 2012

      Joseph E. Brown, pro se, the appellant (named defendant).

      Kevin J. Burns, for the appellee (plaintiff).
   Opinion

PER CURIAM.

The defendant Joseph E. Brown appeals from the judgment of foreclosure by sale rendered in favor of the plaintiff, the Connecticut Housing Finance Authority. On appeal, the defendant claims that the judgment should be vacated because of the mistaken placement of a foreclosure sign on his property prior to the judgment of foreclosure by sale. We dismiss the appeal as moot.

On April 30, 2010, the plaintiff commenced this action against the defendant seeking foreclosure of the mortgage on the defendant’s real property located at 108 South Main Street in Brooklyn. On August 3, 2010, the court granted the plaintiffs motion for summary judgment as to liability only. The plaintiff filed a motion for a judgment of strict foreclosure on April 25, 2011. The court held a hearing on the judgment of strict foreclosure on June 21, 2011. At that hearing, the defendant raised an issue regarding a foreclosure sign that was placed on his property. The court determined that the sign had been mistakenly placed on the defendant’s property. The court then addressed the plaintiffs motion for strict foreclosure and asked the defendant whether he challenged the amount of indebtedness calculated by the plaintiff, and the defendant responded in the negative. After considering the equity in the property and the claims of the other lien holders, the court rendered a judgment of foreclosure by sale. This appeal followed.

On August 22, 2011, the plaintiff filed a motion to terminate the appellate stay, which the trial court granted on November 3, 2011. The defendant timely filed a motion to review the court’s granting of the plaintiffs motion to terminate the appellate stay. We denied the defendant’s motion for review on December 14, 2011. On December 19, 2011, the plaintiff filed a motion to open the judgment and to extend the sale date. On April 2, 2012, the trial court vacated the judgment of foreclosure by sale and rendered a judgment of strict foreclosure.

“When, during the pendency of an appeal, events have occurred that preclude an appellate court from granting any practical relief through its disposition of the merits, a case has become moot.” (Internal quotation marks omitted.) Sweeney v. Sweeney, 271 Conn. 193, 201, 856 A.2d 997 (2004). “It is a well-settled general rule that the existence of an actual controversy is an essential requisite to appellate jurisdiction.” (Internal quotation marks omitted.) Id. Our Supreme Court, in RAL Management, Inc. v. Valley View Associates, 278 Conn. 672, 899 A.2d 586 (2006), distinguished between “opening a judgment to modify or to alter incidental terms of the judgment, leaving the essence of the original judgment intact, and opening a judgment to set it aside. Under the latter circumstances, the original judgment necessarily has been rendered void and any appeal therefrom would be rendered moot.” Id., 690; see also William G. Major Construction Co. v. DeMichely, 166 Conn. 368, 374-75, 349 A.2d 827 (1974) (original judgment void when trial court opened and set aside judgment of strict foreclosure, substituting judgment of foreclosure by private sale). In the present case, following the termination of the appellate stay, the trial court granted the plaintiffs motion to open the judgment and vacated the judgment of foreclosure by sale. The court then rendered a new judgment of strict foreclosure during the pendency of the defendant’s appeal. We conclude that the new judgment set aside the original judgment and renders the defendant’s appeal moot.

The appeal is dismissed.

       The Connecticut Housing Finance Authority and the state of Connecticut were also named as defendants. Because only Brown has appealed, we refer to him as the defendant in this opinion.

       Attorney Nancy Fraser was appointed as a committee of sale by the trial court’s order on June 21, 2011.

       Even though the issue of mootness was not raised in the briefs or at oral argument, this court has a duty to consider it sua sponte “because mootness implicates the court’s subject matter jurisdiction. It is, therefore, a threshold matter to resolve.” (Internal quotation marks omitted.) In re William D., 97 Conn. App. 600, 603, 905 A.2d 696 (2006), aff'd, 284 Conn. 305, 933 A.2d 1147 (2007).

       The court determined that the sign stated the incorrect house number on South Main Street. The sign stated that the property being foreclosed was 106 South Main Street and listed the docket number for the case of
        Connecticut Housing Finance Authority v. Hagge, Superior Court, judicial district of Windham, Docket No. CV-11-6003226-S. That case pertains to a property at 166 South Main Street. The defendant’s property is at 108 South Main Street. The court determined that the sign was for a different case and that the mistakenly placed sign was “not relevant to this case.”

       Following oral argument before this court on March 12, 2012, we took judicial notice of the pending motions before the trial court and the judgment rendered on April 2, 2012. See Syragakis v. Syragakis, 79 Conn. App. 170, 175, 829 A.2d 885 (2003) (court may take judicial notice of contents of file). We ordered the parties to provide supplemental briefs addressing the following: “Whether this appeal has been rendered moot by the entry of the new judgment of strict foreclosure.”

       The judgment of strict foreclosure set a new law day commencing June 4, 2012. Additionally, the court made new findings of debt, fair market value and attorney’s fees. No appeal was taken from that judgment and the defendant’s motion for stay pending this court’s decision was denied by the trial court.


author: PETERS, J.

text:
    JAMES LAPLANTE v. IVAN VASQUEZ, JR., ET AL.
    (AC 33373)
    Gruendel, Beach and Peters, Js.

      Argued April 10
    officially released July 17, 2012

      Timothy Brignole, with whom, on the brief, were Richard W. Mather and Juri E. Taalman, for the appellant (plaintiff).

      Theodore W. Heiser, with whom was Catherine Cordick Heiser, for the appellees (defendant Joseph A. Malick, Jr., et al.)
   Opinion

PETERS, J.

To encourage the settlement of civil cases, General Statutes § 52492a imposes sanctions on litigants who reject reasonable settlement offers by authorizing a trial court to order the payment of interest on a judgment if the amount recovered by the plaintiff exceeds or is equal to an offer of compromise tendered by the plaintiff and rejected by the defendant. See, e.g., Branford v. Santa Barbara, 294 Conn. 803, 816, 988 A.2d 221 (2010). The dispositive issue in this appeal is whether, pursuant to § 52492a, the trial court properly awarded interest on the $250,000 judgment rendered against the defendants in an action brought under General Statutes § 30-102, commonly known as the Dram Shop Act. We affirm the judgment of the court.

In a complaint filed on May 26, 2009, the plaintiff, James LaPlante, alleged, pursuant to the Dram Shop Act, that the defendants, Joseph A. Malick, Jr., and Piggy’s Café, Inc., were liable for damages that the plaintiff sustained as the result of a motor vehicle accident caused by Ivan Vasquez, Jr., a patron of Piggy’s Café. The defendants denied liability. After a jury verdict in favor of the plaintiff in the amount of $4.2 million, the court awarded the plaintiff damages in the amount of $250,000, the maximum amount recoverable under the Dram Shop Act. In addition, the court awarded the plaintiff offer of compromise interest pursuant to § 52-192a in the amount of $35,000 and costs. The plaintiff has appealed, and the defendants have cross appealed.

The jury reasonably could have found the following facts. The plaintiff was a Connecticut state trooper. On July 19, 2008, at approximately 2:15 a.m., the plaintiff parked and exited his police cruiser in the vicinity of exit 48, westbound, on Interstate 84, to attend to an Acura automobile that was pulled over on the right side of the highway. The plaintiff stood between the passenger side of the Acura and a concrete bridge abutment to speak to the Acura’s occupants.

At the same time, Ivan Vasquez, Jr., was driving his Ford pickup truck westbound on the highway. He was intoxicated, having just celebrated his birthday at Piggy’s Café, a bar in Hartford owned and operated by the defendants. While at Piggy’s Café, Vasquez had been served alcohol.

As the plaintiff stood next to the passenger side of the Acura, the truck operated by Vasquez struck the plaintiffs police cruiser, which was parked behind the Acura. The truck veered or was propelled left across the travel lanes of the highway. The truck hit the jersey barriers on the left side of the highway and careened back across the travel lanes to the right side of the highway, smashing into the driver side of the Acura. The force of the collision pinned the plaintiff between the passenger side of the Acura and the concrete bridge abutment, crushing and fracturing the plaintiffs legs and injuring his back, abdomen and other parts of his body.

Prior to trial, pursuant to § 52-192a, the plaintiff submitted an offer of compromise to the defendants in the amount of $250,000. The defendants rejected the plaintiffs offer. The jury returned a verdict in favor of the plaintiff, finding by a preponderance of the evidence that: (1) Vasquez was provided alcohol by the defendants on July 18 and/or July 19, 2008; (2) Vasquez was intoxicated at the time he was provided alcohol by the defendants; and (3) Vasquez’ intoxication was a substantial factor in causing the plaintiffs injuries. The jury awarded the plaintiff damages in the amount of $4.2 million. The court accepted the jury’s verdict and rendered judgment thereon, but reduced the damages award from $4.2 million to $250,000, the maximum amount recoverable under the Dram Shop Act. In addition, the court awarded the plaintiff offer of compromise interest in the amount of $35,000 and costs. The court based its award of offer of compromise interest on the $250,000 in damages that the plaintiff was permitted to recover under the Dram Shop Act.

The dispositive issue in the plaintiffs appeal and in the defendants’ cross appeal is the propriety of the court’s calculation of the interest to which the plaintiff was entitled under § 52-192a. The plaintiff claims that the award of offer of compromise interest should have been based on the jury’s verdict of $4.2 million. The defendants claim that the court improperly awarded any offer of compromise interest to the plaintiff because this award permitted him to recover damages in excess of the maximum amount authorized by the Dram Shop Act. We are not persuaded by either of these claims, and affirm the judgment of the court.

We begin by setting forth the applicable standards of review. The question of whether the trial court properly awarded interest pursuant to § 52-192a is one of law subject to plenary review. Willow Springs Condominium Assn., Inc. v. Seventh BRT Development Corp., 245 Conn. 1, 55, 717 A.2d 77 (1998). Insofar as the parties’ claims require us to interpret the text of § 52-192a and of the Dram Shop Act, statutory construction presents a question of law over which we exercise plenary review. 418 Meadow Street Associates, LLC v. Clean Air Partners, LLC, 304 Conn. 820, 829, 1 A.3d 1194 (2012). “When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. ... In seeking to determine that meaning, General Statutes § 1-2z 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. . . . When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter . . . .” (Internal quotation marks omitted.) Id. “The test to determine ambiguity is whether the statute, when read in context, is susceptible to more than one reasonable interpretation.” (Internal quotation marks omitted.) Weems v. Citigroup, Inc., 289 Conn. 769, 779, 961 A.2d 349 (2008).

I

THE PLAINTIFF’S APPEAL

The plaintiff claims that the amount of offer of compromise interest the court awarded him was improper. Specifically, he claims that the court should have calculated the award by reference to the jury’s verdict of $4.2 million, rather than by reference to the court’s judgment of $250,000. The defendants argue to the contrary. We conclude, in light of the plain language of § 52-192a (c), that the court awarded the plaintiff the legally correct amount of interest.

“[I]nterest [under § 52-192a] is to be awarded by the trial court when a valid offer of [compromise] is filed by the plaintiff, the offer is rejected by the defendant, and the plaintiff ultimately recovers an amount greater than the offer of [compromise] after trial. . . . [A]n award of interest under § 52-192a is mandatory, and the application of § 52-192a does not depend on an analysis of the underlying circumstances of the case or a determination of the facts. . . . The statute is admittedly punitive in nature. ... It is the punitive aspect of the statute that effectuates the underlying purpose of the statute and provides the impetus to settle cases. . . . [T]he strong public policy favoring the pretrial resolution of disputes ... is substantially furthered by encouraging defendants to accept reasonable offers of [compromise]. . . . Section 52-192a encourages fair and reasonable compromise between litigants by penalizing a party that fails to accept a reasonable offer of settlement. ... In other words, interest awarded under § 52-192a is solely related to a defendant’s rejection of an advantageous offer to settle before trial and his subsequent waste of judicial resources.” (Citation omitted; internal quotation marks omitted.) DiLieto v. County Obstetrics & Gynecology Group, P.C., 297 Conn. 105, 152-53, 998 A.2d 730 (2010).

The plain language of § 52-192a supports the court’s calculation of its award of offer of compromise interest by reference to the judgment amount of $250,000. Section 52-192a (c) provides in relevant part: “If the court ascertains from the record that the plaintiff has recovered an amount equal to or greater than the sum certain specified in the plaintiffs offer of compromise, the court shall add to the amount so recovered eight per cent annual interest on said amount . . . .” (Emphasis added.) In this case, the amount “recovered” by the plaintiff was not the amount of the jury verdict, $4.2 million, but $250,000, the amount to which that verdict was reduced by virtue of the Dram Shop Act’s limit on damages.

The plaintiff claims that “ ‘amount so recovered’ ” is ambiguous and that restricting offer of compromise interest to the amount actually recovered by the plaintiff undermines the public policy behind § 52-192a. We reject this claim. The language at issue was incorporated into the statute by amendment. Number 83-295, § 9, of the 1983 Public Acts amended what is now § 52-192a (c) by inserting “amount so recovered” in place of the word “verdict” and inserting “said amount” in place of the words “the amount of the verdict.” Thus: “If the court ascertains from the record that the plaintiff has recovered an amount equal to or greater than the sum certain specified in the plaintiffs offer of compromise, the court shall add to the amount so recovered eight per cent annual interest on said amount . . . .” (Emphasis added.) General Statutes § 52-192a (c). The language of the statute indicates plainly the intent of the legislature that offer of compromise interest is to be awarded only on the amount actually recovered by a plaintiff.

“We are not free ... to create ambiguity when none exists ... we cannot accomplish a result that is contrary to the intent of the legislature as expressed in [a statute’s] plain language. ... [A] court must construe a statute as written. . . . Courts may not by construction . . . add exceptions merely because it appears that good reasons exist for adding them. . . . The intent of the legislature, as [our Supreme Court] has repeatedly observed, is to be found not in what the legislature meant to say, but in the meaning of what it did say. ... It is axiomatic that .the court itself cannot rewrite a statute to accomplish a particular result. That is a function of the legislature.” (Citation omitted; internal quotation marks omitted.) Vincent v. New Haven, 285 Conn. 778, 792, 941 A.2d 932 (2008). “Thus, no matter how sympathetic or deserving the plaintiff may appear to be, it is the province of the legislature, not this court”; id.; to determine whether § 52-192a (c) should permit offer of compromise interest to be imposed on a jury verdict where the amount of the verdict is greater than the amount recoverable by the plaintiff.

II

THE DEFENDANTS’ APPEAL

In their cross appeal, the defendants claim that the court improperly awarded any offer of compromise interest to the plaintiff because it had awarded him damages in the maximum amount permitted by the Dram Shop Act. Specifically, the defendants claim that the statutory limit of $250,000 precludes an award of offer,of compromise interest once the court has rendered a judgment at the statutory ceiling on the plaintiffs underlying cause of action. We are not persuaded that the Dram Shop Act compels us to reach such a conclusion under the circumstances of this case.

The issue, as we see it, is whether the court’s imposition of offer of compromise interest on the $260,000 judgment in the present case furthered the public policy goals expressed in § 52-192a without contravening the policy set forth in the Dram Shop Act. “The legislature enacted § 30-102, the Dram Shop Act, in 1933, thereby creating a cause of action against liquor sellers for victims injured by intoxicated persons to whom the liquor sellers have served alcohol. ... In enacting § 30-102 and abrogating the common law bar to a cause of action [in negligence], the legislature thus allowed some measure of recovery to victims of acts of intoxicated persons.” (Citations omitted.) Kelly v. Figueiredo, 223 Conn. 31, 38, 610 A.2d 1296 (1992). “The underlying premise of the [Dram Shop Act] is that it is in the public interest to compensate citizens of this state for injuries received when a vendor sells alcohol to an intoxicated person who in turn brings about injuries as a result of such intoxication.” Kowal v. Hofher, 181 Conn. 355, 358, 436 A.2d 1 (1980).

The strict liability imposed by the Dram Shop Act is tempered by the $250,000 limitation that the statute imposes on the amount of damages recoverable. See General Statutes § 30-102; Gionfriddo v. Gartenhaus Cafe, 15 Conn. App. 392, 399-400, 546 A.2d 284 (1988), aff'd, 211 Conn. 67, 557 A.2d 540 (1989). Section 30-102 provides in relevant part: “If any person, by such person or such person’s agent, sells any alcoholic liquor to an intoxicated person, and such purchaser, in consequence of such intoxication, thereafter injures the person or property of another, such seller shall pay just damages to the person injured, up to the amount of two hundred fifty thousand dollars . . . .”

The defendants maintain that the $250,000 limitation is rendered meaningless if it does not serve as an absolute limitation on all aspects of a plaintiffs recovery under the act. The plaintiff argues that, as illustrated by the court’s reduction of the $4.2 million jury verdict in the present case, the $250,000 limit is fully effective as a ceiling on the compensatory damages a plaintiff may recover in a Dram Shop action. He maintains that the policy of encouraging settlement embodied in § 52-192a serves a different agenda that the Dram Shop Act did not purport to address. We agree with the plaintiff.

In our view, each of the parties has presented a facially reasonable interpretation of the text of the Dram Shop Act under the circumstances of this case. In effect, they have demonstrated that the text of the Dram Shop Act does not provide an unambiguous answer to the interaction between the act’s ceiling on recoverable damages and an award of offer of compromise interest. Accordingly, it is appropriate to consult legislative history to inform our interpretation of the statute. See 418 Meadow Street Associates, LLC v. Clean Air Partners, LLC, supra, 304 Conn. 829; Weems v. Citigroup, Inc., supra, 289 Conn. 779. Our review of that history discloses that the legislature’s central purpose in limiting the amount of recoverable damages was to ensure that dram shop sellers would have access to insurance coverage for the strict liability imposed on them by the act. See General Law Committee, Pt. 2, 2003 Sess., pp. 593-601; 9 H.R. Proc., Pt. 7, 1961 Sess., p. 3395; 9 S. Proc., Pt. 6, 1961 Sess., pp. 2097-98; Committee on Liquor Control, 1961 Sess., pp. 72-74, 79-89, 92-96; 8 S. Proc., Pt. 5, 1959 Sess., pp. 1906-10; Committee on Liquor Control, 1959 Sess., pp. 42-43. Establishing a definitive limit on the amount of compen-sable damages recoverable under the Dram Shop Act establishes predictable and stable levels of potential Lability, so that insurers can provide and sellers can obtain insurance coverage at affordable rates. General Law Committee, supra, pp. 594-95, 597-99.

We conclude, under the circumstances of this case, that the award of offer of compromise interest on a $250,000 judgment did not undermine the legislative purpose of the Dram Shop Act’s ceiling on recoverable damages. The potential liability of the defendants for compensatory damages did not exceed the statutory limit of $250,000. If the defendants had accepted the plaintiffs offer of compromise, their total liability would have been not one cent more than the ceiling amount for which they presumably maintained, or could have obtained, insurance coverage. Offer of compromise interest was awarded, in accordance with the provisions of § 52-192a (c), only to penalize the defendants for rejecting the plaintiffs reasonable settlement offer. See DiLieto v. County Obstetrics & Gynecology Group, P.C., supra, 297 Conn. 152-53.

The facts of the present case present a strong case for implementation of the sanction authorized by § 52-192a (c). Although the defendants were, of course, entitled to contest their responsibility for Vasquez’ inebriation, they were required by § 52-192a (c) to weigh that defense against the reasonableness of the plaintiffs $250,000 settlement offer. As it was, the case went to trial, thereby expending the time and resources of the judiciary, and resulted in a jury award of $4.2 million for the plaintiff. If the defendants are to prevail in their argument, then, in cases such as this, in which a plaintiff has sustained very serious injuries and damages that exceed $250,000, the defendants and others similarly situated have little incentive to accept an offer of compromise for the statutory limit, no matter how reasonable, because the amount offered represents the greatest potential liability that can be imposed upon them. The ability of the court to impose offer of compromise interest in such cases provides an incentive to accept a reasonable settlement offer and thereby conserves judicial resources. Accordingly, we are persuaded that the court’s award of such interest to the plaintiff was entirely proper.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 52-192a provides in relevant part: “(a) After commencement of any civil action based upon contract or seeking the recovery of money damages, whether or not other relief is sought, the plaintiff may, not earlier than one hundred eighty days after service of process is made upon the defendant in such action but not later than thirty days before trial, file with the clerk of the court a written offer of compromise signed by the plaintiff or the plaintiffs attorney, directed to the defendant or the defendant’s attorney, offering to settle the claim underlying the action for a sum certain. . . . (c) After trial the court shall examine the record to determine whether the plaintiff made an offer of compromise which the defendant failed to accept. If the court ascertains from the record that the plaintiff has recovered an amount equal to or greater than the sum certain specified in the plaintiffs offer of compromise, the court shall add to the amount so recovered eight per cent annual interest on said amount .... The interest shall be computed from the date the complaint in the civil action . . . was filed with the court . . . .”

       General Statutes § 30-102 provides in relevant part: “If any person, by such person or such person’s agent, sells any alcoholic liquor to an intoxicated person, and such purchaser, in consequence of such intoxication, thereafter injures the person or property of another, such seller shall pay just damages to the person injured, up to the amount of two hundred fifty thousand dollars, or to persons injured in consequence of such intoxication up to an aggregate amount of two hundred fifty thousand dollars, to be recovered in an action under this section . . .

       The plaintiffs four count complaint alleged claims against Joseph A. Malick, Jr., as permittee of Piggy’s Café, and Piggy’s Café, Inc., pursuant to § 30-102, and alleged claims against the named defendant, Ivan Vasquez, Jr., for negligence and recklessness. On June 30, 2009, Vasquez was defaulted for failure to appear, and the court granted the plaintiffs motion for judgment as to Vasquez on March 21, 2011. Vasquez is not a party to either of the present appeals. Accordingly, we refer to Piggy’s Café, Inc., and Joseph A. Malick, Jr., as the defendants.

       The plaintiffs offer of compromise was deemed rejected when the defendants did not accept it within thirty days. General Statutes § 52-192a (a) (“[i]f the offer of compromise is not accepted within thirty days and prior to the rendering of a verdict by the jury or an award by the court, the offer of compromise shall be considered rejected and not subject to acceptance unless refiled”).

       The court awarded the plaintiff a total of $290,554.08 in damages, which included $5554.08 in fees and $35,000 in interest pursuant to § 52-192a. The $35,000 award of offer of compromise interest represents eight percent annual interest on the amount recovered by the plaintiff, $250,000, from the date the plaintiffs complaint was filed to the date judgment was rendered by the court, a total of twenty-one months. The parties dispute only the $35,000 award.

       The plaintiff also claims that the trial court improperly failed to instruct the jury in accordance with his request to charge on the issue of substantial intoxication. There is no error in the court’s failure to administer the charge on “substantial intoxication” as such a charge has no basis in our statutory or common law. State v. Gant, 231 Conn. 43, 47, 646 A.2d 835 (1994) (“ ‘[a] request to charge . . . [that] is an accurate statement of the law must be given’ ”), cert. denied, 514 U.S. 1038, 115 S. Ct. 1404, 131 L. Ed. 2d 291 (1995). We note further that any error in refusing to administer the charge would be rendered harmless by virtue of the jury’s finding that the plaintiff had proved intoxication; see Matthiessen v. Vanech, 266 Conn. 822, 829, 836 A.2d 394 (2003); and, if the case were remanded to the trial court, that no additional relief could be afforded to the plaintiff because he already has recovered the maximum amount of damages permitted under the Dram Shop Act. See General Statutes § 30-102.

       General Statutes § 1-2z provides: “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.”

       At the time Public Act 83-295, § 9, was passed, it amended what was then subsection (b) of § 52-192a. Number 05-275, § 4, of the 2005 Public Acts redesignated what was then subsection (b) of § 52-192a as the current subsection (c).

       The defendants do not dispute that § 52-192a authorizes the award of offer of compromise interest in the present case. See General Statutes § 52-192a (c); Berchem, Moses & Devlin, P.C. v. East Haven, 133 Conn. App. 763, 770-71, 37 A.3d 796 (2012) (“[s]ection 52-192a authorizes an award of interest whenever: [1] a plaintiff files a valid offer of [compromise] within eighteen months of the filing of the complaint in a civil complaint for money damages; [2] the defendant rejects the offer of [compromise]; and [3] the plaintiff ultimately recovers an amount greater than or equal to the offer of [compromise]” [internal quotation marks omitted]). Rather, the defendants argue that it was improper for the court to award offer of compromise interest once it had rendered judgment for the plaintiff in the amount of $250,000, the maximum amount permitted by the Dram Shop Act, because the award of interest caused the total amount awarded to the plaintiff to exceed the statutory limit.

       [D]ram [S]hop [A]ct imposes a ‘tort liability’ not a penal liability. Sanders v. Officers Club of Connecticut, Inc., [196 Conn. 341, 348, 493 A.2d 184 (1985)]. Although it is designed to aid in the enforcement of state liquor laws as well as to protect the public, the main objective of the statute is to afford compensation for injuries to an individual. ‘While it may be said that in one sense the statute is penal, nevertheless it is primarily remedial because it gives a remedy enforceable by an individual in a civil action and allows the recovery of damages in an amount commensurate with the injuries suffered.’ Pierce v. Albanese, 144 Conn. 241, 249-50, 129 A.2d 606, appeal dismissed, 355 U.S. 15, 78 S. Ct. 36, 2 L. Ed. 2d 21 (1957). This interpretation follows from the explicit limitation of General Statutes § 30-102 that damages properly recoverable constitute ‘just damages’ not in excess of [$250,000]. ‘Just damages’ means simply compensatory rather than exemplary or punitive damages.” Gionfriddo v. Gartenhaus Cafe, supra, 15 Conn. App. 399-400.


author: DUPONT, J.

text:
    DOMENICK VALLEJO v. COMMISSIONER OF CORRECTION
    (AC 32769)
    DiPentima, C. J., Sheldon and Dupont, Js.

      Submitted on briefs May 31
    officially released July 17, 2012

      Joseph Visone, special public defender, filed a brief for the appellant (petitioner).

      Lisa A. Riggione, senior assistant state’s attorney, Kevin T. Kane, chief state’s attorney, and Brenda Hans, deputy assistant state’s attorney, filed a brief for the appellee (respondent).
   Opinion

DUPONT, J.

The petitioner, Domenick Vallejo, appeals from the denial of his petition for certification to appeal from the judgment of the habeas court denying his petition for a writ of habeas corpus. The petitioner claims that the habeas court abused its discretion in denying his petition for certification to appeal from that court’s finding that the petitioner had failed to demonstrate that the attorney who had represented him in an earlier habeas proceeding had rendered ineffective assistance of counsel. We dismiss the appeal.

The following procedural history underlies the present appeal. In 2003, pursuant to the trial court’s ruling, which granted the state’s motion for joinder, charges against the petitioner from two criminal cases with two separate docket numbers were tried together in one trial. Following the jury trial, the petitioner was convicted, in docket number CR-02-0116400-S, of the crimes of criminal possession of a firearm in violation of General Statutes § 53a-217, possession of a controlled substance in violation of General Statutes § 21a-279 (c) and possession of a controlled substance with intent to sell in violation of General Statutes § 21a-277 (b) and, in docket number CR-03-0116803-S, of the crimes of criminal attempt to commit assault in the first degree in violation of General Statutes §§ 53a-49 and 53a-59 (a) (1), criminal possession of a firearm in violation of § 53a-217 and possession of a weapon in a motor vehicle in violation of General Statutes § 29-38. The petitioner also had two counts of violation of probation pending at the time of the trial. The trial court sentenced the petitioner to a total effective sentence of twelve years imprisonment followed by eight years of special parole.

In 2004, the petitioner filed his first petition for a writ of habeas corpus. His amended petition claimed that the attorney representing him at the criminal trial, Richard Lafferty, had provided ineffective assistance of counsel. Following a trial on the merits, the habeas court restored the petitioner’s right to appeal his criminal convictions and seek review of his sentence, but denied the counts alleging ineffective assistance of counsel. See Vallejo v. Commissioner of Correction, Superior Court, judicial district of Tolland, Docket No. CV-04-0004363-S (July 27, 2006, Fuger, J.). Thereafter, the petitioner appealed his judgments of conviction, which were affirmed by this court. See State v. Vallejo, 102 Conn. App. 628, 926 A.2d 681, cert. denied, 284 Conn. 912, 931 A.2d 934 (2007).

In 2008, the petitioner filed his second petition for a writ of habeas corpus, which is the petition underlying the present appeal. In March, 2010, the petitioner filed an amended petition in which he claimed that the attorney who had represented him during the first habeas proceeding, Christopher Neary, had provided ineffective assistance of counsel by: (1) prematurely including claims of ineffective assistance of counsel by Lafferty in the petition prior to a decision regarding whether the petitioner’s appellate rights would be restored and failing to withdraw those claims without prejudice prior to trial in the first habeas proceeding; (2) failing to present evidence regarding the claim that Lafferty had rendered ineffective assistance by failing to object to the joinder of the two criminal cases and failing to move for their severance; and (3) failing to present evidence regarding the claim that Lafferty had rendered ineffective assistance by failing to properly argue the petitioner’s motion to suppress a gun seized from a car driven by the petitioner in one of the criminal cases. Following a trial on the merits, the habeas court, in a thorough memorandum of decision, rejected all counts of the petition. See Vallejo v. Warden, Superior Court, judicial district of Tolland, Docket No. CV-09-4002802-S (August 18, 2010, Nazzaro, J.). The court denied the petitioner’s petition for certification to appeal. This appeal followed.

“In an attempt to discourage frivolous appeals . . . our legislature enacted General Statutes § 52-470 (b), which provides that a petitioner may not appeal from an adverse judgment in a habeas proceeding unless the habeas court certifies that one or more questions ought to be considered by a reviewing court.” (Citation omitted.) Gibson v. Commissioner of Correction, 135 Conn. App. 139, 143, 41 A.3d 700, cert. denied, 305 Conn. 922, 47 A.3d 881 (2012). “Faced with a habeas court’s denial of a petition for certification to appeal, a petitioner can obtain appellate review of the dismissal of his petition for habeas corpus only by satisfying the two-pronged test enunciated by our Supreme Court in Simms v. Warden, 229 Conn. 178, 640 A.2d 601 (1994), and adopted in Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). First, he must demonstrate that the denial of his petition for certification constituted an abuse of discretion. . . . Second, if the petitioner can show an abuse of discretion, he must then prove that the decision of the habeas court should be reversed on its merits. . . .

“To prove an abuse of discretion, the petitioner must demonstrate that the [resolution of the underlying claim involves issues that] are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further. . . . The required determination may be made on the basis of the record before the habeas court and the applicable legal principles. ... If the petitioner succeeds in surmounting that hurdle, the petitioner must then demonstrate that the judgment of the habeas court should be reversed on its merits.” (Citation omitted; internal quotation marks omitted.) Vazquez v. Commissioner of Correction, 128 Conn. App. 425, 428-29, 17 A.3d 1089, cert. denied, 301 Conn. 926, 22 A.3d 1277 (2011).

In the present appeal to this court, the petitioner claims that the habeas court abused its discretion when it denied his petition for certification to appeal from that court’s finding that Neary’s failure, during the first habeas proceeding, to present evidence regarding the claim that Lafferty had rendered ineffective assistance at trial by failing to object to the state’s motion for joinder of the two criminal cases did not constitute ineffective assistance of counsel. The habeas court found that, irrespective of whether Neary’s performance was ineffective, the petitioner’s claim failed because he had not met his burden of demonstrating any resulting prejudice. Specifically, the court found that the petitioner had failed to establish that the outcome of the first habeas proceeding would have been different had Neary more effectively presented the claim of ineffective assistance against Lafferty for failing to object to the joinder of the two criminal cases.

“To succeed on a claim of ineffective assistance of counsel, a habeas petitioner must satisfy the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Strickland requires that a petitioner satisfy both a performance prong and a prejudice prong. . . . The claim will succeed only if both prongs are satisfied. ... As applied to a claim of ineffective assistance of prior habeas counsel, the Strickland standard requires the petitioner to demonstrate that his prior habeas counsel’s performance was ineffective and that this ineffectiveness prejudiced the petitioner’s prior habeas proceeding. Thus . . . the petitioner will have to prove that . . . prior habeas counsel, in presenting his claims, was ineffective and that effective representation by habeas counsel establishes a reasonable probability that the habeas court would have found that he was entitled to reversal of the conviction and a new trial . . . .” (Citation omitted; internal quotation marks omitted.) Williams v. Commissioner of Correction, 133 Conn. App. 96, 101-102, 33 A.3d 883, cert. denied, 303 Conn. 941, 37 A.3d 153 (2012).

With respect to joinder: “In deciding whether to [join informations] for trial, the trial court enjoys broad discretion, which, in the absence of manifest abuse, an appellate court may not disturb. . . . The defendant bears a heavy burden of showing that [joinder] resulted in substantial injustice, and that any resulting prejudice was beyond the curative power of the court’s instructions. . . . The court’s discretion regarding joinder, however, is not unlimited; rather, that discretion must be exercised in a manner consistent with the defendant’s right to a fair trial. Consequently, we have identified several factors that a trial court should consider in deciding whether a severance may be necessary to avoid undue prejudice resulting from consolidation of multiple charges for trial. These factors include: (1) whether the charges involve discrete, easily distinguishable factual scenarios; (2) whether the crimes were of a violent nature or concerned brutal or shocking conduct on the defendant’s part; and (3) the duration and complexity of the trial.” (Internal quotation marks omitted.) State v. Payne, 303 Conn. 538, 544-45, 34 A.3d 370 (2012).

Like the habeas court, we reject the petitioner’s claim under Strickland’s prejudice prong. Our review of the record leads us to conclude that, even if Neary had more effectively presented the claim that Lafferty’s failure to object to the joinder of the two criminal cases or thereafter to move for their severance constituted ineffective assistance of counsel, the petitioner has failed to establish that there is a reasonable probability that the court in the first habeas proceeding would have found that the petitioner was entitled to a reversal of his judgments of conviction and a new trial. As the habeas court noted, the crimes alleged in the two infor-mations occurred at different times, on different dates and at different locations. Neither incident was so shocking or brutal as to impair the jury’s ability to consider the charges against the petitioner in a fair manner. The three day trial was neither lengthy nor complex. Given these facts, we conclude that there is not a reasonable probability that, but for Lafferty’s failure to object, the two criminal cases would not have been joined for trial or would thereafter have been severed. See State v. Payne, supra, 303 Conn. 545-46.

We conclude that the petitioner has failed to establish that the issues he has raised are debatable among jurists of reason, that a court could have resolved them in a different manner or that the questions he has raised axe adequate to deserve encouragement to proceed further. See Simms v. Warden, supra, 230 Conn. 616. Accordingly, the habeas court did not abuse its discretion in denying the petition for certification to appeal.

The appeal is dismissed.

In this opinion the other judges concurred.

       The facts underlying the petitioner’s criminal convictions are set forth fully in the petitioner’s appeal from those convictions, State v. Vallejo, 102 Conn. App. 628, 926 A.2d 681, cert. denied, 284 Conn. 912, 931 A.2d 934 (2007).

       The petitioner did not appeal from the habeas court’s decision denying the counts alleging ineffective assistance of counsel.

       General Statutes § 52-470 (b) provides: “No appeal from the judgment rendered in a habeas corpus proceeding brought by or on behalf of a person who has been convicted of a crime in order to obtain such person’s release may be taken unless the appellant, within ten days after the case is decided, petitions the judge before whom the case was tried or, if such judge is unavailable, a judge of the Superior Court designated by the Chief Court Administrator, to certify that a question is involved in the decision which ought to be reviewed by the court having jurisdiction and the judge so certifies.”

       The petitioner does not claim that the habeas court abused its discretion in denying his petition for certification to appeal from that court’s finding that Neary’s failure to present evidence regarding the claim that Lafferty had rendered ineffective assistance at trial by failing to properly argue the petitioner’s motion to suppress and Neary’s failure to withdraw premature claims included in the habeas petition prior to trial in the first habeas proceeding did not constitute ineffective assistance of counsel.

       We note that the petitioner’s argument that “[t]he habeas court’s finding that the petitioner was not prejudiced by the joinder of his two cases is error” inaccurately characterizes the habeas court’s finding. The habeas court concluded that the petitioner had not established that he was prejudiced by Neary’s performance because there was not a reasonable probability that the court in the first habeas proceeding, had it reached the merits of the petitioner’s claim that Lafferty’s failure to object to the state’s motion for joinder constituted ineffective assistance, would have found that the petitioner was entitled to relief in the form of a reversal of his judgments of conviction and a new trial. This conclusion was based on the court’s finding that the petitioner had not proven that, but for Lafferty’s failure to object to the motion for joinder, the two cases would not have been joined for trial or thereafter would have been severed because, given the facts in the record and the applicable legal standard, it was not likely that the trial court would have concluded that joinder was inappropriate. The court, therefore, did not find that the petitioner was not prejudiced by the joinder of the two criminal cases. It found that the petitioner was not prejudiced by Lafferty’s failure to object to the motion for joinder.