author: Dupont, C. J.

text:
    State of Connecticut v. Henry Montgomery, Jr.
    (8460)
    Dupont, C. J., Daly and Norcott, Js.
    Argued April 3
    decision released July 17, 1990

      Otto P. Witt, special public defender, for the appellant (defendant).

      Judith Rossi, assistant state’s attorney, with whom, on the brief, were JohnM. Bailey, state’s attorney, and Herbert Carlson, Jr., assistant state’s attorney, for the appellee (state).
   Dupont, C. J.

The defendant was convicted, after a jury trial, of one count of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (1), three counts of attempted assault in the first degree in violation of General Statutes §§ 53a-49 and 53a-59 (a) (1), one count of conspiracy to commit manslaughter in the first degree in violation of General Statutes §§ 53a-48 (a) and 53a-55 (a) (1) and one count of conspiracy to commit assault in the first degree in violation of General Statutes §§ 53a-48 (a) and 53a-59 (a) (1). The defendant filed a motion for judgment of acquittal, which was denied. The court sentenced the defendant to twenty years on each of the six counts, with all terms to run concurrently, for a total effective sentence of twenty years. On appeal, the defendant claims (1) that his conviction of either conspiracy to commit assault in the first degree or conspiracy to commit manslaughter in the first degree must be set aside, (2) that the prosecutor’s summation to the jury was prejudicial to him because it contained statements that were not in the record, (3) that the jury should have specified whether it found him guilty as a principal or an accessory, (4) that his conviction on three counts of attempted assault constitutes double jeopardy, and (5) that the evidence was insufficient for the jury to find beyond a reasonable doubt that he was guilty of manslaughter in the first degree. We reverse in part and affirm in part the judgment of the trial court.

The jury could reasonably have found certain relevant facts. On the evening of November 17, 1987, the victim drove with three companions to the Martin Luther King, Jr., housing project in Hartford. The four young men stood near the victim’s car, across from building 97, drinking beer.

Around the same time that evening, the defendant met his girl friend, Kelly Plummer, and Cheryl Moreno near a neighboring housing project. When the defendant hugged his girl friend, Plummer and Moreno heard a gun fire. The defendant removed what the young women described as an “automatic” handgun from the front of his pants and the defendant said that he thought he had just accidentally shot himself. He unloaded the gun, then placed it once again in the front of his pants. He and the women then walked to the Martin Luther King, Jr., project, where they met Lome Dyson, Kyler Roberts, and two others. Dyson also had a handgun.

When the group was informed that some men from Albany Avenue were near the project, the young men discussed the possibility of shooting the Albany Avenue men. Dyson said to the defendant, “Want to get them?” and “You with it?” The defendant replied, “Yeah,” or “Yeah, yeah, yeah.” When Roberts objected to the idea of shooting anyone, saying that it was not right and that he would not want anyone to shoot at him, the defendant said, “Ha.” The defendant and Dyson became angry at Roberts, who, at that point, left the group.

The defendant and Dyson then checked their guns and the defendant reloaded his gun. The defendant said, “Let’s just scare them,” or “Let’s go scare them,” whereupon Dyson, the defendant and another man headed toward the dumpster adjacent to building 97. Other males were also standing near the dumpster. The testimony was that two of the men standing in the same location were holding guns.

Between four and ten shots were heard, apparently fired from the dumpster area at the four men standing near the victim’s car, several hundred feet away, but no one saw who was firing. Two types of gunfire were reportedly heard—one fast and the other louder and slower. The victim was struck in the temple by a .22 calibre bullet, although an expert witness later testified that it could not be determined whether the shot was fired from any of the six spent .22 calibre cartridges found near the dumpster or whether it had been fired from a revolver, an automatic or even a rifle.

Also around this time, the defendant’s girl friend and Moreno, who were still at the neighboring housing project, heard between four and six shots fired, and observed Dyson and the defendant running toward them. The two young men ran down the stairs into a basement area, where they changed their clothes, and a few minutes later, rejoined the young women. Moreno testified that the young men said something like, “We shouldn’t have done that. We only meant to scare them.”

The victim died seventeen days after this incident as a result of the gunshot wound. No weapon was ever found, but at the autopsy a .22 calibre bullet was removed from the victim’s brain.

I

The defendant claims that the prohibition against double jeopardy is violated by his convictions of both conspiracy to commit manslaughter in the first degree and conspiracy to commit assault in the first degree. Before we reach that issue, however, we must determine the effect of the acquittal of the defendant’s alleged coconspirator of both conspiracy charges. We must also address the state’s concession that conspiracy to commit manslaughter under General Statutes § 53a-55 (a) (1) may not be a cognizable crime.

Conspiracy is a crime that, by its very nature, requires two participants. State v. Robinson, 213 Conn. 243, 253, 567 A.2d 1173 (1989). The concept of a conspiracy of one can be likened to the sound of one hand clapping—it is an impossibility. Here, the defendant was convicted of conspiracy to commit assault in the first degree after his only alleged coconspirator had been found not guilty of the same charge. Without a coconspirator, the defendant’s conviction of conspiracy to commit assault in the first degree cannot stand.

The state concedes that conspiracy to commit manslaughter under General Statutes § 53a-55 (a) (1) may not be a legally cognizable crime. A conspiracy conviction requires that the defendant have intended to commit the elements of the offense. State v. Beccia, 199 Conn. 1, 3-4, 505 A.2d 683 (1986). Manslaughter in the first degree entails an intent to inflict serious bodily injury where an unintended death results. General Statutes § 53a-55 (a) (1). Conviction of that crime does not encompass an intent that death, an element of the crime, result. It is, therefore, not logically possible to conspire to commit that crime, one element of which is an unintentional killing. In other words, it is impossible to intend to commit an act unintentionally. The conviction of conspiracy to commit manslaughter in the first degree must, therefore, be set aside.

Because we reverse these two convictions, we do not reach the defendant’s double jeopardy claim.

II

The defendant next claims that the prosecutor’s summation to the jury was prejudicial to him because it contained statements that were not in the record. Specifically, he complains of the prosecutor’s statement in his summation that Moreno, on direct examination, said that Dyson and the defendant talked the loudest and most about the shooting and of the prosecutor’s statement in his rebuttal that “there is plenty of evidence, including the words, ‘Let’s go get them; let’s kill, let’s shoot’ or however it’s phrased.”

The defendant made no objection, during or immediately after the summation, to the words or behavior attributed to the defendant by the state. When the trial court excused the jury for the day, however, defense counsel did object to the earlier comments and correctly stated that there was no testimony indicating that the defendant had uttered the words, “Let’s kill.” Characterizing the prosecutor’s statement as “very prejudicial,” the defendant requested that the court review Moreno’s testimony, instruct the jury to disregard the prosecutor’s statement and give a curative instruction. The court, in response to that request, gave a curative instruction, to which the defendant again objected because, in it, the court failed to tell the jury specifically that Moreno did not testify that either Dyson or the defendant had said, “Let’s shoot them” or “Let’s kill them.” The court then reinstructed the jury for the second time specifically indicating that Moreno had given no such testimony. The defendant neither objected to the second curative instruction, nor moved for a mistrial.

The claimed inadequacy of the second curative instruction was not raised at trial and, on appeal, the defendant does not claim review under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). We do not review this claim.

Ill

The defendant next claims that the jury should have specified whether it found him guilty as a principal or as an accessory to the attempted assault and manslaughter charges. As the state indicates, however, the court did not instruct the jury on accessorial liability on the attempted assault counts. Thus, the claim as to this issue could relate only to the conviction of manslaughter.

The defendant argues that commission of a crime as a principal and the commission of a crime as an accessory constitute alternative means of committing that crime. He, therefore, argues that it was a violation of his due process rights for the jury to find him guilty of these crimes without specifying which type of liability it attributed to him. He contends that some jurors may have found him guilty as a principal and some as an accessory, thereby making it possible for the jury to have convicted him of the crimes when they did not agree on the theory under which he was liable.

The case law is clear that “ ‘there is no practical significance in being labeled an “accessory” or a “principal” for the purpose of determining criminal responsibility. . . . The modern approach “is to abandon completely the old common law terminology and simply provide that a person is legally accountable for the conduct of another when he is an accomplice of the other person in the commission of the crime. . . .” Connecticut has taken the same approach through General Statutes § 53a-8.’ ” (Citations omitted.) State v. Foster, 202 Conn. 520, 532-33, 522 A.2d 277 (1987).

In State v. Smith, 212 Conn. 593, 563 A.2d 671 (1989), the defendant appealed his conviction of murder and conspiracy to commit murder. He argued that the trial court should have required that the jury reach unanimous agreement on whether he was guilty as an accessory or as a principal. The court, quoting State v. Bailey, 209 Conn. 322, 334, 551 A.2d 1206 (1988), held that “ ‘ “[w]here a trial court charges a jury that the commission of any one of several alternative acts would subject a defendant to criminal liability, a unanimity charge on a specific act is required only if two conditions are met: (1) the alternative acts are conceptually distinct from each other; and (2) the state has presented supporting evidence on each alternative act.” ’ ” (Emphasis in original.) State v. Smith, supra, 604-605.

The Smith court also held that where the two ways in which the crime may be committed are practically indistinguishable, the alternative bases of liability, either as principal or accessory, are not conceptually distinct. Id., 605. Both the courts in United States v. Petersen, 768 F.2d 64 (2d Cir.), cert. denied, 474 U.S. 923, 106 S. Ct. 257, 88 L. Ed. 2d 264 (1985), and in State v. Smith, supra, 605, found that in a case involving potential accessory liability, a jury verdict should be considered unanimous even if some jurors had found the defendant guilty as a principal, and others, as an accessory. The defendant’s claim must, therefore, fail.

IY

The defendant next challenges his convictions on three counts of attempted assault in the first degree. The defendant claims that the evidence was insufficient to support each count of attempted assault. He claims that failure to specify the alleged victim of each of the three counts respectively in either the information or the verdict rendered him unable to defend himself against the three separate charges and resulted in the failure of the state to prove each element of the charge as to each victim. He further claims that, because the three alleged assaults arose from the same transaction, they constitute the same offense, and that conviction for three separate attempted assaults, therefore, constitutes multiple punishment for the same offense, violating the prohibition against double jeopardy.

In reviewing a claim of insufficient evidence, we first view the evidence in the light most favorable to sustaining the verdict. State v. Folson, 10 Conn. App. 643, 654, 525 A.2d 126 (1987). Then we determine whether, on the basis of the evidence presented and all the reasonable inferences that could have been drawn from it, the jury could reasonably have concluded beyond a reasonable doubt that the defendant was guilty. Id.

Evidence was presented at trial that three companions were standing near the victim at the time of the shooting and that one of them, in fact, heard a bullet whizzing past him, near his head. The evidence further indicated that multiple shots were heard, that the defendant was present with a loaded gun in his possession, that six spent shells found near the dumpster after the shooting could have been fired from the type of gun described by the two young women as having been in the defendant’s possession, that the defendant suggested trying to scare the group of young men from Albany Avenue who were fired on shortly thereafter, that he participated in the discussion about “getting,” shooting or killing someone, and that immediately after the shooting, the defendant came running back from the area from which the shots were fired saying, “I don’t believe we did this,” and ran into a basement to change his clothes. The evidence introduced was sufficient for the jury to conclude that the defendant fired his gun at the group of four young men intending to cause them serious physical injury.

The prosecutor stated in his closing argument that Bennie Pierce, Jerry Pierce and Bobby Shipman, in that order, were the victims of the attempted assaults. In its charge to the jury, the court stated: “[Tjhose three counts are . . . that these attempted assaults were against Bennie Pierce, Jerry Pierce and Bobby Ship-man.” Thus, both the defendant and the jury had to have known who was the intended victim of each respective count. Neither the presentation of a defense nor the deliberations of the jury could have been impaired by any lack of specificity about which count related to which alleged victim.

The defendant argues that because the three counts arose out of a single incident, they constituted a single offense for which only a single punishment could be imposed. That argument is also unavailing. In State v. Couture, 194 Conn. 530, 565-66, 482 A.2d 300 (1984), cert. denied, 469 U.S. 1192, 105 S. Ct. 967, 83 L. Ed. 2d 971 (1985), where the defendant claimed that his sentence to three consecutive terms for murder arising out of a single incident constituted double jeopardy, the court stated: “The statute refers to the death of ‘[another] person’ in the singular. A fundamental purpose of the criminal law is to protect individual citizens from the criminal conduct of another. People are neither fungible nor amorphous. Where crimes against persons are involved, a separate interest of society has been invaded for each violation. Therefore, when two or more persons are the victims of a single episode there are as many offenses as there are victims. ... As the Wyoming Court so aptly stated [in Vigil v. State, 563 P.2d 1344, 1351 (Wyo. 1977)]: ‘It must be noted that “any human being” is in the singular and there is no indication that the defendant can get a bargain rate if he assaults a group of human beings.’ ” (Citation omitted.)

The statute under which the defendant in the present case was charged, § 53a-59 (a) (1), is also phrased in the singular. Measured under the previously discussed standard for review of a claim of sufficiency of the evidence, the evidence, also previously discussed, was sufficient for the jury to have concluded that the defendant fired at the group of men with the intent to cause serious physical injury to each of them. There are, therefore, three victims and three crimes of attempted assault. The convictions of the defendant on three counts of attempted assault in the first degree, therefore,' did not constitute double jeopardy.

Y

Finally, the defendant claims that the evidence presented was insufficient for the jury to have found beyond a reasonable doubt that he was guilty of intentional manslaughter in violation of § 53a-55 (a) (1). That section provides: “A person is guilty of manslaughter in the first degree when: (1) With intent to cause serious physical injury to another person, he causes the death of such person or a third person.” The state, therefore, had to prove beyond a reasonable doubt both that the defendant possessed the requisite intent and that he, in fact, caused the victim’s death.

On the basis of our review of the evidence previously discussed, we conclude that the jury could reasonably have found that the defendant in this case, with the intent to cause serious physical harm, caused the death of the victim.

The judgment is reversed as to the convictions on the charges of conspiracy to commit manslaughter in the first degree and conspiracy to commit assault in the first degree and the case is remanded with direction to render judgment of acquittal thereon. The judgment is affirmed as to the conviction of three counts of attempted assault in the first degree and of manslaughter in the first degree.

In this opinion the other judges concurred.

       The defendant specifically claims prejudice in that the remarks to which he objects “were critical to the issue of intent.” The jury, however, ultimately convicted the defendant not of murder, but of the lesser included offense of first degree manslaughter, requiring an intent only to inflict serious bodily injury, rather than an intent to cause death. The jury, therefore, did not believe that the defendant intentionally murdered the victim, and the defendant was not prejudiced in this respect by any misstatement in the summation.

       The defendant first objected only to the words “Let’s kill” being attributed to him. When he subsequently objected to the first curative instruction given, however, he objected to the words “Let’s shoot them” and “Let’s kill them.”

       The defendant was charged by short form information and failed to ask for a bill of particulars.

       Because the defendant’s twenty year sentences on the two convictions on which we reverse were to run concurrently with the twenty year sentences on each of the other charges, we need not order that the defendant be resentenced. State v. Thomas, 210 Conn. 199, 213 n.13, 554 A.2d 1048 (1989).


source: Caselaw Access Project

author: Foti, J.

license: Public Domain

text:
    Mary Lou Sciola v. Robert Shernow
    (7850)
    Spallone, Foti and Lavery, Js.

      Argued April 17
    decision released July 17, 1990

      Elizabeth A. Gallagher, with whom were Cynthia C. Bott and, on the brief, William F. Gallagher, Timothy C. Moynahan and Samuel Broque, for the appellant (plaintiff).

      Wesley W. Horton, with whom were Robert M. Shields, Jr., James G. Williams and, on the brief, William R. Moller and Sherman M. Tonkonow, for the appellee (defendant).
   Foti, J.

The plaintiff in this medical malpractice and intentional assault case appeals from the trial court’s order of remittitur of the jury’s damage award and the court’s denial of the plaintiff’s motion for sanctions.

The jury could reasonably have found the following facts. The defendant had been the plaintiff’s dentist for over ten years and had consistently advised her that nitrous oxide was the appropriate means of sedation for her during treatment. On April 19,1984, the plaintiff visited the defendant’s office to have a molar filled. Before beginning any dental work on the plaintiff, the defendant administered nitrous oxide to her. He did this without first checking to see if she was on any medication that would conflict with the nitrous oxide. He also administered a dangerously high concentration of the gas and kept her under its effects more than twice the usual length of time. In addition, the defendant had not checked the accuracy of the machine with which he administered the gas for at least three years.

When the nitrous oxide had been administered to the plaintiff in the past, she felt mildly dazed, but completely aware of her surroundings. When the nitrous oxide was administered on this occasion she heard a loud ringing noise, felt as if her head was flying up to the ceiling and then lost consciousness. During the course of the one hour and fifteen minutes she was under the effects of the gas she regained consciousness three times. On the first occasion she felt the defendant’s tongue in her mouth and experienced pain in her breasts. When she attempted to resist the defendant she observed him turning up the concentration of nitrous oxide and again lost consciousness.

She awoke a second time to find the defendant on top of her. She was having difficulty breathing, the defendant’s tongue was in her mouth and she was experiencing pain in her breasts. Once again she attempted to resist the defendant and saw him turn up the gas. The painful ringing returned to her ears and she once again slipped into an unconscious state.

The third time the plaintiff regained consciousness, she kept her eyes closed so the defendant would not turn up the gas again. At this time, the defendant was still on top of her, and his tongue was in her mouth. She was frightened and felt violently ill. Once the defendant realized that she was awake he assisted her out of the chair. He then approached her from behind, grabbed her breasts and kissed her neck. She was aware that he had an erection at this time. She did not recall any dental work being performed during the entire course of this visit.

The plaintiff was disoriented when she left the defendant’s office. She was nauseated and experienced a burning sensation in her nose, throat, palate and chest. She had a severe headache, her breasts were sore and she felt violated. After she was home, one side of her nose bled periodically.

Four days after the incident, the plaintiff visited her family physician. She was still suffering from headaches, her breasts were bruised and she was lethargic. The burning sensation in her throat and chest persisted and her nausea continued. She was referred to a pulmonary specialist who concluded that during her excessive exposure to nitrous oxide she had aspirated stomach acid into her lungs which left her with a permanent asthma condition and a permanent loss of 35 to 40 percent of her lung capacity.

The plaintiff also was seen by a psychiatrist who determined that she suffered from a posttrauma stress disorder. He further concluded that as a result of the events of April 19, 1984, she has a phobia of medical and dental personnel, and suffers from periodic sleeplessness, depression, fearfulness, and heightened anxiety. In addition, her sense of self-reliance, her self-image and her ability to interact effectively with males has been impaired.

Before this incident, the plaintiff was the lead singer in her own six piece band and a professional entertainer. Since the incident, her income has been significantly reduced due to her diminished lung capacity and endurance.

After hearing the above evidence, the jury returned a plaintiffs verdict awarding her $300,000 in general damages and $100,000 in punitive damages. The defendant submitted interrogatories to the jury and it responded with the damages that it had assigned to each count. On a separate sheet of paper the jury indicated that it had found a plaintiff’s verdict and a total damage award of $400,000.

Two days after the jury verdict was returned, the defendant filed a motion to set aside the verdict and requested an order of remittitur. The plaintiff filed a bill of costs at this time. Approximately six weeks later, the plaintiff filed a motion for sanctions because the defendant had failed to disclose and produce an excess liability insurance policy in the amount of $1,000,000.

The court held a hearing on these motions. It granted the motion to set aside the verdict and ordered a remittitur of $323,833.34, thus reducing the plaintiffs award to $76,166.66. The plaintiffs motion for sanctions was denied and costs of $15,074.67 were allowed. In its memorandum of decision, the trial court stated that the jury’s award was “so large as to be ridiculous and must have resulted from either prejudice or mistake. Its amount offends the sense of justice and shocks the conscience.” The court went on to explain that the verdict was “some sixteen times” its own estimate of the value of the case and concluded that the jury had “gone astray” because “[i]t is completely irrational to think that a kiss and a touching of the breast could produce asthma and there was not a scintilla of evidence to support such a conclusion.”

The court further concluded that the plaintiff’s claim of diminished earning capacity was unjustified first because “there was no evidence whatsoever that her income had decreased,” and second because after the incident she was able to earn a living by operating a travel agency and managing her own income producing property.

The court then sua sponte declared its own instructions to the jury to be “plain error.” It then concluded that the jury was improperly compelled by a sense of outrage to punish the defendant with an erroneous and unjustified verdict.

The plaintiff has appealed the court’s order of remittitur and its denial of her motion for sanctions.

I

The plaintiff first claims that the court abused its discretion in determining that the jury verdict of $400,000 was excessive and in ordering an 81 percent remittitur. We agree. Our discussion will first respond to the court’s general statements in its memorandum of decision. We will then address the court’s findings of plain error in its own charge to the jury.

When a trial judge disagrees with a jury’s verdict we are faced with a vexing question and we are bound to review the judge’s actions in setting aside the verdict rather than the actions of the jury in rendering it. Wochek v. Foley, 193 Conn. 582, 585, 477 A.2d 1015 (1984). Further, because the judge’s actions involve the court’s exercise of broad legal discretion, it will not be disturbed unless that discretion has been abused. Id.

We also recognized, however, that the plaintiff in this action had a constitutional right to have the issues raised in her complaint tried by a jury. Conn. Const., art. I, § 19; Lo Sacco v. Young, 20 Conn. App. 6, 19, 564 A.2d 610 (1989). When there is room for fair-minded persons to have a reasonable difference of opinion as to the amount to be awarded, this constitutional right dictates that the jury, rather than the court, pass upon the factual issue of damages. Wochek v. Foley, supra, 586. The evidence presented at trial must be viewed in a light most favorable to sustaining the jury’s verdict; Mather v. Griffin Hospital, 207 Conn. 125, 139, 540 A.2d 666 (1988); and a jury’s determination of damages should be set aside only when the verdict is clearly exorbitant and excessive; Wochek v. Foley, supra; or the size of the verdict is so shocking to a sense of justice that it leads us to the conclusion that the jury was influenced by prejudice, partiality, mistake or corruption. Mather v. Griffin Hospital, supra.

A

Although the court in the present case arbitrarily declared that the jury must have been directed by prejudice or mistake, this conclusion is not supported by the record before us. First, the trial court clearly invaded the province of the jury when it declared that the jury’s award was sixteen times greater than its own estimate of the case and then reduced the award accordingly.

Second, the court ignored a substantial portion, if not all, of the medical evidence placed before the court by the plaintiff when it declared that a kiss and a touch on the breast could not produce asthma. Clearly the court had overlooked the testimony of both the plaintiff and her family physician as to the bruises on her breasts which indicated that the defendant had more than merely touched her. The court also overlooked the testimony of the pulmonary specialist who attributed the plaintiffs permanent asthma condition and loss of lung function to the defendant’s excessive use of nitrous oxide rather than to a kiss and a touch.

In addition, the court overlooked, or chose to ignore, the evidence submitted by the plaintiff indicating that her annual income from singing dropped from $18,000 before the incident to $2400 at the time of trial.

Finally, the court attempted to negate the permanent lung damage the plaintiff suffered by indicating that she had access to other income. It is possible, however, that the jury believed that she was nonetheless entitled to compensation for lost wages and impairment of her future earning capacity as a singer.

B

The memorandum of decision also indicates that the court set aside the jury verdict when it found, sua sponte, that its supplemental charge to the jury was “plain error.” Its finding specifically referred (1) to its instructions cautioning the jury not to “double up on damages,” (2) to its failure to instruct the jury that the plaintiff had a duty to mitigate damages by making reasonable efforts to find alternate income, and (3) to its failure to instruct the jury that any award for diminished earning capacity is tax free.

The court explained in its charge that the jury would be bringing the plaintiff’s complaint into its deliberations, and told the jurors that the complaint was written in two counts, one alleging assault and battery and one alleging medical malpractice. The court informed the jury that if it found the defendant liable on both counts, the plaintiff could receive only one amount for damages because her complaint alleged identical harm in both counts. The jury was also informed that they could add punitive damages to the award because these were requested in the prayer for relief in the first count. The jury also brought interrogatories that were prepared by the defendant into its deliberations.

After deliberations began, the jury sent a note to the court stating: “We require clarification on how to determine the two different types of monetary damage awards.” The court reinstructed the jury as it had earlier and ended its instructions by asking if it had clarified the issue or confused the jurors further. After a brief exchange between the court and the jury, the jury foreman responded “I can’t really come up with a question” and another juror stated “I think we can go back.” It is the supplemental instructions that the court later, sua sponte, declared to be plain error.

An error must have two characteristics before it can be classified as “plain error.” First, the error must be discernible from the face of a factually accurate record. Cahill v. Board of Education, 187 Conn. 94, 100-101, 444 A.2d 907 (1982). Second, the court’s recognition of the error must be “in the interests of justice.” Practice Book § 4185.

Although a trial judge may set aside a verdict for misstatements in his charge to the jury, this must be done with great caution, and only if he is entirely satisfied, upon an authoritative or statutory basis, that he has committed unmistakable error that has caused unquestionable harm. Gaul v. Noiva, 155 Conn. 218, 220, 230 A.2d 591 (1967); Brunetto v. Royal Exchange Assurance Co., 126 Conn. 569, 572, 13 A.2d 138 (1940). It is difficult for a court to review its own charge with sufficient detachment from its own impressions received during the course of the trial and its own opinion of what result the jury should have reached. Id.

The complaint in this action was structured to lead the jury to the conclusions (1) that the unconsented sexual contact alleged in the first count was gained through the defendant’s inappropriate and excessive use of nitrous oxide as alleged in the second count, and (2) that the plaintiff suffered one set of injuries from this one incident. Clearly, in response to this complaint, it was neither an injustice nor a matter of plain error for the court to caution the jury that the plaintiff was not entitled to double damages. Further, our exhaustive search of cases and statutes has failed to reveal a definitive ruling upon which the court could have relied when declaring its instructions to be plain error. In the absence of prior precedent on this point of law, it was impossible for the court to have found an adequate basis for its conclusion that it had committed unmistakable error that resulted in unquestionable harm.

The court’s second and third assignments of plain error in its memorandum of decision can be disposed of quickly. The court’s assignment of error to its failure to instruct the jury as to the plaintiff’s duty to mitigate damages is without merit. Our review of the transcipt indicates that the court did, in fact, instruct the jury on this point of law. Likewise, the court’s ruling that it should have instructed the jury that any award to the plaintiff would be tax free was also faulty. Our Supreme Court has held that “ ‘whether the plaintiff has to pay a tax on the award is a matter that concerns only the plaintiff and the government’ Gorham v. Farmington Motor Inn, 159 Conn. 576, 581, 271 A.2d 94 (1970); and to instruct the jury as to the plaintiff’s tax liability would only cause more problems than it would solve. Id.

We conclude that, contrary to its own opinion, the trial court did not commit plain error in its instructions to the jury.

II

The plaintiff next claims that the trial court should not have denied her motion for sanctions. The plaintiff’s motion was based upon the defendant’s failure to disclose a $1,000,000 excess liability insurance policy until fifteen days after the jury had returned its verdict.

The plaintiff acknowledges in her brief that the decision to impose sanctions rests within the broad discretion of the trial court and that decision will not be overturned unless the court has abused its discretion. See Practice Book § 231; and Corosa Realty v. Covenant Ins. Co., 16 Conn. App. 684, 689, 548 A.2d 473 (1988). The ultimate issue in determining whether that discretion has been abused is whether the court could have concluded as it did. Sturdivant v. Yale-New Haven Hospital, 2 Conn. App. 103, 108, 476 A.2d 1074 (1984).

Our review of the record leads us to conclude that the court did not abuse its discretion in denying the plaintiff’s motion for sanctions.

The judgment is reversed and the case is remanded with direction to render judgment on the verdict returned by the jury.

In this opinion the other judges concurred.

       The following interrogatories were supplied by the defendant, who apparently did not anticipate that the court would instruct the jury to find only one amount for damages. The jury’s responses are also supplied here to show that the jury understood the court’s instructions and followed them carefully.
      “1. Did the defendant, Robert Shernow, D.D.S., injure the plaintiff by making unconsented sexual contact with her, as alleged in the First Count of the Complaint?
      “ANSWER: Yes
      “If your answer to the above interrogatory is ‘no,’ do not answer question number 2 and return a verdict in favor of Robert Shernow, D.D.S., on the the first count. If your answer to the above interrogatory is ‘yes,’ proceed to the next interrogatory, interrogatory number 2.
      “2. What is the amount of damage proximately caused by the defendant’s conduct as alleged in the First Count of the Complaint, if any?
      “ANSWER: $400,000.00
      “3. Did the Defendant, Robert Shernow, D.D.S., breach the standard of care in providing professional treatment to the [plaintiff], Mary Lou Sciola, as alleged in the Second Count of plaintiff’s complaint? If your response to this interrogatory is “no” do not proceed to the following interrogatories and return a verdict in favor of the Defendant, Robert Shernow, D.D.S., on the second count of plaintiff’s complaint. If your response to this interrogatory is in the affirmative, proceed to the next interrogatory.
      “ANSWER: Yes
      “4. Although we, the jury, find that Robert Shernow breached the standard of care in providing professional treatment to Mary Lou Sciola, we do/do not find that the Plaintiff, Mary Lou Sciola, suffered damage proximately caused by this breach of the applicable standard of care. If the answer to this interrogatory is in the negative, proceed no further. If the answer to this interrogatory is in the affirmative, proceed to the following interrogatory.
      “ANSWER: Do
      “5. What damages do you find the plaintiff suffered as alleged in Count Two of Plaintiffs Complaint?
      “ANSWER: $300,000.00”
      The jury returned a separate sheet of paper that stated “Verdict for the plaintiff” on which the foreperson wrote “$400,000” before he signed it and gave it to the court.

       The court charged the jury as follows: “In considering—If you get beyond liability, if you get beyond causation, and you decide that, in fact, she was harmed, one of the things you have to take into consideration is that a person in her situation is under a duty of what we call minimizing damages. Now, for instance, one of her claims has to do with interference with her capacity to earn a living and so forth and so on. I think it’s quite clear that she has demonstrated from her testimony that she’s capable of earning a living in many different fields, she’s been a bookkeeper, she’s been a deli manager, she’s been a purchasing agent, she’s been a travel agent, she’s been a singer and so forth and so on and having those various abilities, even if she was harmed by some act of the doctor which is actionable, you have to consider whether or not she could compensate for any impairment to carry on her singing career in other ways. I don’t recall any testimony which indicated that she was given advice as to medical treatment which might alleviate her condition which she refused to go along with. And if I’m right on that, why, you simply ignore that question. If, on the other hand, you do recall that there was such, a person isn’t under an obligation to follow the advice of a doctor. You make that—You’re entitled to make a reasonable decision as to whether or not that’s an acceptable course of conduct or not.”


author: Spallone, J.

text:
    Scott W. Holcombe v. Susan S. Holcombe
    (8593)
    Dupont, C. J., Spallone, and Daly, Js.
    Argued May 7
    decision released July 17, 1990

      Lawrence P. Weisman, with whom, on the brief, was Laura A. Volpe, for the appellant (plaintiff).

      John Lackland, with whom, on the brief, was Peter A. Nalewaik, for the appellee (defendant).
   Spallone, J.

This appeal arises from a dispute between the parties over the terms of the property settlement ordered in the judgment of dissolution of their marriage. On the defendant’s motion, the trial court issued an order clarifying the disposition of the proceeds realized from the sale of the marital home. The plaintiff raises several claims on appeal, essentially arguing that the trial court lacked the authority to modify the dissolution judgment or, in the alternative, that the modification was inconsistent with the judgment. We affirm the judgment of the trial court.

The parties’ marriage was dissolved by judgment in March, 1988. The state trial referee, Hon. William L. Tierney, Jr., sitting as the trial court, ordered the parties to sell the marital home and to apply the proceeds to the debts specifically listed in the memorandum of decision. Included on the list was a debt of $134,000 then owed as principal, interest and late charges on the home’s first mortgage. Also included was a debt of $150,000 owed by the plaintiff as the principal due on a second mortgage secured by his half interest in the home. The plaintiff was awarded a liquidated sum to cover debts separately listed on his financial affidavit, but the parties were to be respectively liable for all other obligations shown on their affidavits and not included in the orders.

After the dissolution, the parties could not agree on who was to pay the interest debt and late charges accruing on the second mortgage. The plaintiff insisted that these payments, like those due on the first mortgage, be borne jointly and paid from the proceeds realized from the sale of the home. The defendant claimed that the second mortgage was solely in the plaintiffs name and that the dissolution orders made the payments a part of the liabilities to be paid personally by the plaintiff. The defendant moved for clárifícation of the orders in February, 1989, but Judge Tierney postponed consideration of the motion until such time as the home was sold.

The motion was finally argued to the court, Coppeto, J., in the fall of 1989, Judge Tierney having passed away. In its clarification, the court found the dissolution orders to be silent with respect to interest and late charges on the second mortgage. It found, however, that the orders clearly enumerated the specific items to be paid from the proceeds of the home sale. The court concluded that interest and penalties on the second mortgage were not so enumerated, appeared as monthly expenses on the plaintiffs financial affidavit and were therefore obligations personally payable by the plaintiff.

The plaintiff argues on appeal that because a motion for clarification is not recognized under our rules of practice, the clarification order was, in effect, a modification of the dissolution judgment. He claims that the court, therefore, should not have modified the judgment rendered by a different judge and should not have modified a property distribution more than four months after judgment. The plaintiff claims in the alternative that the clarification order misinterpreted the terms of the judgment.

The plaintiff’s first two claims attack the trial court’s authority to clarify a judgment. We need not dwell on the absurdity of the plaintiff’s claim that Judge Tierney, although deceased, is the only judge empowered to clarify his dissolution orders. If a judge dies during the pendency of any proceeding, any other judge has the statutory authority to proceed as if the matter had originally been brought before him. General Statutes § 51-1831 This claim would be without merit even if no matter were pending or even if Judge Tierney were alive to rule on the motion for clarification. There is no requirement that the same judge rule on all matters arising after a dissolution judgment. See, e.g., Barnard v. Barnard, 214 Conn. 99, 100, 570 A.2d 690 (1990); Kolkmeyer v. Kolkmeyer, 18 Conn. App. 336, 337, 558 A.2d 253 (1989).

The plaintiffs second claim fails because we do not accept his premise that the motion for clarification was improper. Motions for interpretation or clarification, although not specifically described in the rules of practice, are commonly considered by trial courts and are procedurally proper. See, e.g., Barnard v. Barnard, supra; Cattaneo v. Cattaneo, 19 Conn. App. 161, 163, 561 A.2d 967 (1989); Schott v. Schott, 18 Conn. App. 333, 334-35, 557 A.2d 936 (1989); Miller v. Miller, 16 Conn. App. 412, 415, 537 A.2d 922 (1988).

There is no time restriction imposed on the filing of a motion for clarification. See Barnard v. Barnard, supra (motion for clarification filed sixteen months after judgment); Cattaneo v. Cattaneo, supra (motion for clarification filed six and one-half years after judgment). Although a judgment may not be opened or set aside after four months; Practice Book § 326; Blake v. Blake, 211 Conn. 485, 495, 560 A.2d 396 (1989); under the common law, judgments may be “corrected” at any time. Id., 494.

The defendant’s motion for clarification, filed nineteen months after judgment, was therefore timely, and the court had the power to clarify matters not of substance. See id.; Miller v. Miller, supra, 415-16. We find that no impermissible change was made in the substance of the dissolution orders. The defendant sought only to clarify a perceived ambiguity in the language of the judgment. The trial court agreed that the terms of the judgment were silent as to whether the proceeds of the sale of the marital home should be applied to the carrying costs of the second mortgage. The court’s clarification order merely determined that the original judgment intended to make the parties separately responsible for items not specifically listed. The court’s determination that these carrying charges were not so specifically listed did not alter the property division or result in a modification of the original judgment.

Finally, we do not agree with the plaintiff that the trial court’s clarification order was inconsistent with the term of the dissolution judgment awarding the plaintiff a liquidated sum from the proceeds of the sale of the jointly owned real estate. Court orders in domestic relations cases will not be overturned on appeal unless the court abused its discretion or reached an unreasonable conclusion from the facts presented. Rostain v. Rostain, 214 Conn. 713, 716, 573 A.2d 710 (1990). Our review of the record fails to disclose that the court’s interpretation of the terms of the judgment was an abuse of discretion or unreasonable.

The judgment is affirmed.

In this opinion the other judges concurred.


text:
    Ann L. Paddock v. Gaylord A. Paddock
    (8436)
    Dupont, C. J., Borden and Daly, Js.
    Argued March 14
    decision released July 17, 1990

      Dominick J. Thomas, Jr., for the appellant (defendant).

      Heidi G. Winslow, for the appellee (plaintiff).
   Dupont, C. J.

The defendant appeals from the order of the trial court modifying the amount of periodic alimony that had been awarded to the plaintiff upon the dissolution of the marriage of the parties. The issues are whether the court abused its discretion in reducing that award, and whether the trial court was authorized to make that modification retroactive.

The parties’ thirty year marriage was dissolved in 1982. At that time, the trial court ordered the defendant to pay the plaintiff $250 per week in periodic alimony pursuant to the parties’ separation agreement. In August, 1987, the plaintiff filed a motion for contempt, alleging that the defendant had failed to pay the full amount of the alimony as ordered and seeking recovery of the amount in arrears. In October, 1987, while the contempt motion was pending, the defendant sought a modification of the periodic alimony award based on an alleged substantial decrease in his income and his assets. The trial court, Moraghan, J., denied the defendant’s motion and ordered the defendant to sell certain property and to use the proceeds to pay the arrearage. The defendant complied with that order.

In May, 1988, the defendant filed another motion for modification of the periodic alimony award, again alleging a substantial decrease in his income and his assets. On November 21, 1988, the court, Stodolink, J., granted the defendant’s motion and modified the periodic alimony to $30 per week. Neither the plaintiff nor her attorney was present when the judgment was rendered, but both arrived approximately thirty minutes later, having been delayed en route to court. The following day, the plaintiff filed a motion to open and vacate the modification order, explaining the reasons for the late arrival.

On May 8,1989, after a hearing, the same trial court vacated the prior modification “based on the lack of opportunity of the plaintiff or her recently appointed conservator to be heard.” In its memorandum of decision, the court ruled that a modification was not barred by the terms of the original dissolution. It found that the plaintiff’s economic needs were substantially unchanged since the time of the dissolution and that the defendant’s economic circumstances had changed substantially.

At the time of the hearing, both of the parties were fifty-eight years old. The plaintiff had never been employed outside of the home after the marriage. Hers is a history of mental illness and alcohol abuse and her conservator testified that she had been hospitalized for treatment of these problems almost yearly since the dissolution. According to her financial statement of April, 1988, her assets totaled $82,516, including equity of $58,000 in her home. Her weekly income was $272, of which $250 was alimony. Her weekly expenses were $284.

At the time of the dissolution, the defendant was earning approximately $40,000 a year. In 1984, this employment was terminated, and, at the time of the hearing, the defendant was working as a sales representative on commission and earning about $15,500 annually, as found by the court. He has remarried and has a four year old son. According to his financial statements, his weekly income in March, 1989, was $246; his weekly expenses, including the $30 alimony payment, totaled $428. His assets were valued at $3452 with liabilities of $4483.

The trial court found that the reduction in the defendant’s income was substantial and was not by design. In its memorandum of decision the court also stated: “[T]he defendant, however, is not precluded from securing additional part-time work.” On the basis of its findings and in an effort “to balance the needs of the plaintiff and the ability to pay by the defendant,” the court vacated the prior modification and reduced the weekly periodic alimony payment from $250 to $175, retroactive to November 21, 1988, the date the court had ordered the weekly payment of $30. The court further ordered that the defendant pay an additional $25 per week towards the difference between $30 and $175 for the period the $30 payment was in effect.

On appeal, the defendant claims that the modification to $175 is arbitrary and unsupported by the evidence. He does not, of course, challenge the trial court’s finding of a substantial change in his circumstances, but argues that the reduction in alimony does not adequately reflect the extent of the reduction in his income. The defendant also claims that there was no evidence concerning his availability for and his ability to obtain part-time employment.

In appropriate circumstances in marital dissolution proceedings, a trial court may base its financial awards on the earning capacity rather than the actual earned income of the parties. Johnson v. Johnson, 185 Conn. 573, 576, 441 A.2d 578 (1981); Hart v. Hart, 19 Conn. App. 91, 94, 561 A.2d 151 (1989). Such circumstances include those where there is evidence that a party voluntarily quit or avoided employment in his or her field of expertise and where there is evidence of that party’s previous earnings. Miller v. Miller, 181 Conn. 610, 612-13, 436 A.2d 279 (1980); McKay v. McKay, 174 Conn. 1, 2, 381 A.2d 527 (1977); Hart v. Hart, supra, 94, 95. A periodic alimony order, however, “disobedience of which invokes the penalty of contempt, should not exceed the current financial ability to meet it of the party on whom it is imposed . . . .” Rubin v. Rubin, 204 Conn. 224, 237, 527 A.2d 1184 (1987).

It is apparent that the trial court in the present case found the defendant’s current income insufficient to support the ordered weekly alimony payment of $175 and that it intended that the defendant supplement that income with earnings from part-time employment. The court found that the defendant had not voluntarily left his previous employment, and that his reduced income was not intentional. The evidence showed that at the time of the hearing, he was working in a field closely related to his prior employment. There was no evidence that the defendant had the ability or the time to obtain a part-time job to supplement his income. The only evidence of a potential increase in the defendant’s income was his own testimony that he hoped that his sales and consequent commissions would increase in the future. He also testified that he did not believe that it was realistic to start a new occupation at his age.

Our standard of review in a domestic relations case is well settled. We will not substitute our judgment for that of the trial court and will not disturb an order of the trial court absent an abuse of discretion or findings lacking a reasonable basis in the facts. Cattaneo v. Cattaneo, 19 Conn. App. 161, 166, 561 A.2d 967 (1989). Here, however, we conclude that the trial court’s order of $175 per week cannot stand because it is based upon the court’s implicit finding that the defendant should or could supplement his income with part-time employment, a proposition for which no evidence was introduced.

The defendant also argues that the facts before the trial court did not present a sufficient basis for opening and vacating its November 21,1988 order. We disagree. The authority to open and vacate a judgment is within the inherent power of the trial courts. Steve Viglione Sheet Metal Co. v. Sakonchick, 190 Conn. 707, 710, 462 A.2d 1037 (1983). A motion to open and vacate should be granted when the court, acting reasonably, finds good cause to do so. Id., 711. The decision to grant or deny the motion lies within the court’s discretion and we will not disturb such a decision, absent an abuse of discretion. Costello v. Hartford Institute of Accounting, Inc., 193 Conn. 160, 167, 475 A.2d 310 (1984). In the present case, the trial court opened and vacated the November order to give the plaintiff an opportunity to be heard. This concern, implicating the due process rights of a party, offers sufficient support for the trial court’s decision to reconsider its earlier order.

The defendant also argues that the trial court should not have made the new award retroactive. The trial court vacated its prior award of $30 per week and ordered the defendant to pay $175 per week from the date of that prior award. It further ordered the defendant to pay an additional $25 per week “on any arrearage that has accumulated since November 21,1988, as a result of the $30 per week order vacated above.”

The trial court’s orders amounted to a retroactive modification of its prior alimony award. General Statutes § 46b-86 has been construed as not authorizing such a retroactive modification. Darak v. Darak, 210 Conn. 462, 479, 556 A.2d 145 (1989); Sanchione v. Sanchione, 173 Conn. 397, 406-407, 378 A.2d 522 (1977).

The plaintiff argues, however, that this case is distinguishable from both Darak and Sanchione in that those cases involved retroactive reductions of the amount of alimony payable, resulting in adverse consequences for the alimony recipient. She asserts that the retroactive modification in the present case actually prevented the recipient from suffering adverse consequences. It is true that both decisions rested on an underlying desire to “prevent hardship to alimony recipients by protecting their expectations and enabling them to rely upon the continuing alimony obligation of the paying spouse.” Sanchione v. Sanchione, supra, 405-406; see Darak v. Darak, supra.

There are other equally compelling reasons, however, supporting the rule against retroactive modification of alimony. One reason is that an order for alimony is in the nature of a final judgment and cannot be retroactively disturbed. Sanchione v. Sanchione, supra, 405. Also, an alimony decree that can be modified retroactively is not entitled to full faith and credit in a foreign state unless it has been reduced to a money judgment for an arrearage. Id., 406. “Yet another consideration is that trial courts asked to modify retroactively the original alimony order might well become engaged in what would essentially be appellate review of another trial court’s judgment, or in ‘second-guessing’ another trial court.” Id. Furthermore, a paying spouse should be able to rely upon the amount of an alimony award he. or she is required to pay, and should not be subject to an accumulating arrearage of an unknown amount.

Even though this case is factually distinguishable from Sanchione and Darak, in that it involves a retroactive increase in alimony payments, we decline to depart from the well reasoned rule of those cases prohibiting retroactive modification of alimony. We conclude, therefore, that the trial court should not have ordered the defendant to pay $175 per week as of November 21, 1988.

Because the court vacated its judgment of November 21,1988, however, the question remains as to the amount for which the defendant should be held accountable for the period between that date and May 8,1989. Two alternatives exist. Either the $30 award remained in effect until the $175 judgment was rendered, or the $30 award was made invalid by the subsequent grant of the plaintiffs motion to vacate, leaving the original $250 judgment in effect until May 8, 1989. Any other figure, including $175, would amount to an impermissible retroactive modification of alimony. See Darak v. Darak, supra.

Usually, when a judgment is vacated and a new judgment is ordered, the new judgment completely replaces the original judgment and becomes the only valid judgment in the case. See Coxe v. Coxe, 2 Conn. App. 543, 547, 481 A.2d 86 (1984). The Darak court, however, provided an exception to that rule. There, after the trial court reversed its prior modification, finding that it had been rendered illegally, it attempted to eliminate the consequences of that order by allowing the plaintiff to apply a credit of $5 per week against his alimony obligations until he was fully reimbursed for the amount he had overpaid pursuant to the modification. On appeal, the Supreme Court agreed that the earlier order could not be enforced in the future. Darak v. Darak, supra, 478-79. It allowed the modification to remain intact for the period between the date it was ordered and the date it was reversed, however, because it found that the plaintiff, rather than the defendant, was better able to bear the hardship ensuing from the mistaken ruling. Id., 479. The Supreme Court, therefore, did not remand the case to the trial court for any further proceedings.

In the present case, on the basis of Darak, we also conclude that no remand concerning the retroactive payment is necessary. The relevant facts, including the financial condition of the parties for the time in question, are contained in the trial court record and the equities arising therefrom can as easily be weighed by this court as by the trial court. We recognize that any resolution based upon the evaluation of the equities will necessarily cause some hardship to one or both of the parties.

The defendant moved to modify the periodic alimony when his income decreased substantially, the plaintiff moved to vacate the $30 judgment the day after it was rendered, and neither party caused the six month delay before the motion to vacate was heard. The trial court found that the defendant had an annual income of $15,500 as of May 8,1989. A weekly alimony payment of $250 would amount to $13,000 per year and would leave the defendant with $2500 per year to support himself and his new family. The court also found that the plaintiffs financial needs had not changed since the original $250 decree of alimony and the record shows that she has no other significant source of income.

On the basis of these particular facts, we conclude that the $30 judgment, although subsequently vacated, remained in effect for the period between November 21,1988, and May 8,1989. Holding the defendant accountable for $250 per week for that period would cause undue hardship and subvert the economic expectations of the parties. This resolution does not end our inquiry, however, for we must determine the effect of the court’s remedial order of an additional $25 per week.

In Dar ok, the defendant wife obtained a stay of execution of the judgment ordering the $5 credit. When the Supreme Court deleted that part of the judgment, no further action was necessary. In this case, the record does not indicate that the defendant either sought or obtained a stay of execution of the May 8,1989 judgment. See Practice Book § 4047. The defendant, therefore, may have complied with this order and paid an additional $25 per week from the date of the order to the present. Although we have already determined that this order should never have been made, we decline to disturb it to the extent that payments pursuant to it have already become due. The plaintiff, having already borne the burden of the erroneous $30 judgment, should not be required to reimburse the defendant for these payments.

The judgment modifying the alimony payment to $175 per week and ordering an additional payment of $25 per week is reversed, and the case is remanded for a rehearing on the question of the modification of alimony consistent with this opinion.

In this opinion the other judges concurred.

       In her motion, the plaintiff argued that under the terms of the separation agreement incorporated into the judgment of dissolution, the periodic alimony was nonmodifiable unless the plaintiff’s gross annual income from employment exceeded $12,000. The plaintiff has abandoned this argument on appeal.

       The plaintiff was not present at the hearing as she was hospitalized in the psychiatric unit of Danbury Hospital at the time. The only evidence presented by the plaintiff’s counsel at the hearing was the testimony of the plaintiff’s conservator, who is also the parties’ son.

       The defendant testified that he netted only $7500 annually, after business expenses.

       The defendant further challenges the second order because the trial court had the parties’ financial information before it in November, and that information was essentially unchanged in May. The trial court was free, however, to consider evidence presented at the May hearing not contained in the parties’ financial statements.

       General Statutes § 46b-86 provides in pertinent part: “Unless and to the extent that the decree precludes modification, any final order for the periodic payment of permanent alimony or support or an order for alimony or support pendente lite may at any time thereafter be continued, set aside, altered or modified by said court upon a showing of a substantial change in the circumstances of either party.”


author: Norcott, J.

text:
    St. Paul Fire and Marine Insurance Company v. Robert Shernow
    (8623)
    Spallone, Daly and Norcott, Js.
    Argued May 3
    decision released July 17, 1990

      Kenneth J. McDonnell, for the appellant (plaintiff).

      Charles E. Oman III, with whom was Sherman Tonkonow, for the appellees (named defendant et al.).
   Norcott, J.

The plaintiff insurer appeals from the trial court’s dismissal of its complaint seeking a declaratory-judgment that the defendant insured is not entitled to indemnification for the damages awarded to the intervening defendant, Mary Lou Sciola, the plaintiff in an underlying civil action. The facts relating to the underlying action for assault and battery and for medical malpractice are fully set forth in Sciola v. Shernow, 22 Conn. App. 351, 577 A.2d 1081 (1990).

The defendant held an insurance policy issued by the plaintiff. The policy contained the following relevant provisions. “Insuring Agreement 42—Dentists Professional Liability Protection” provides “protection against professional liability claims which might be brought against [Shernow] in [his] professional practice as a dentist.” The coverage is for “damages resulting from: 1. [Shernow’s] providing or withholding of professional services, while this agreement is in effect.” There are no specific exclusions in this section and the coverage limits are $100,000 per injured person with a total limit of $300,000 per policy year. “Insuring Agreement 51—Office Liability Protection” provides coverage for damages Shernow is “legally responsible for because of bodily injury, personal injury or damage to other people’s property caused by an accidental event.” An “accidental event” must be something Shernow “didn’t expect or intend to happen.” There is an exclusion for “any personal injury that results when [Shernow] knowingly break[s] any law.” There is also an exclusion for “injury or damage caused by the providing or withholding of any professional service.” The limit of coverage under Insuring Agreement 51 is $1,000,000 for all injuries and damages that result from all accidental events that occur in one policy year.

Pursuant to this policy, the plaintiff insurer defended the defendant in the civil lawsuit, with a reservation of its rights on the question of indemnity. The jury found for Sciola on both counts, awarding her $400,000 in damages. The defendant moved to set aside the verdict and for a new trial. The trial court, Hon. James T. Healey, state trial referee, ordered the verdict to be set aside and a new trial granted unless Sciola filed a remittitur within fifteen days. Sciola did not file the remittitur and filed her appeal from the trial court’s order. That appeal was the subject of Sciola v. Shernow, supra.

The plaintiff insurer then instituted this declaratory judgment action seeking a declaration that the defendant is not entitled to indemnification under its policy for any part of the damages awarded to Sciola. The trial court, Langenbach, J., dismissed the declaratory judgment action based on its conclusions that (1) the action was premature because the civil action was on appeal, and (2) it was impossible to determine from the jury verdict whether the defendant intended to cause the injury that resulted to Sciola. From this ruling, the plaintiff insurer appeals.

The plaintiff insurer claims that the trial court should not have dismissed its complaint and refused to decide the issue presented in the declaratory judgment action. It argues, first, that the action was not premature and, second, that the issue could have been resolved based upon the jury verdict. We agree.

The plaintiff contends that the declaratory judgment action was not premature because, regardless of the outcome of the Sciola appeal, the question of indemnity must be answered. This issue has now been rendered moot by our recent decision in Sciola v. Shernow, supra, in which we reinstated the jury verdict, and clearly now, the issue of prematurity does not exist. Nonetheless, the trial court’s conclusion that the plaintiff’s action was premature during the pendency of the appeal warrants discussion.

There is no question that a declaratory judgment action is a suitable vehicle to test the rights and liabilities under an insurance policy. See Shelby Mutual Ins. Co. v. Williams, 152 Conn. 178, 179, 205 A.2d 372 (1964). The issue presented here is whether the timing of this action affected its propriety. We conclude that it did not.

The plaintiff filed its action for declaratory relief after a full trial had been held on the underlying civil action. Sciola, in the underlying action, presented evidence to support her claims of assault and battery and malpractice, and the jury returned a verdict in her favor on both counts. The fact that the trial court ordered Sciola to file a remittitur or face a new trial does not affect the plaintiff insurer’s right to know whether it must indemnify the defendant.

Judge Healey’s ruling was based upon his conclusion that the jury award of damages was “so large as to be ridiculous,” and not upon any concern towards the issue of liability. It is clear from the allegations in Sciola’s complaint, as well as from the evidence presented to support those allegations, just what acts she claimed the defendant had performed. The only question that the plaintiff insurer requested the trial court to address was whether those acts fell within the defendant’s policy, thereby obligating it to indemnify the defendant from any judgment rendered against him.

“The purpose of a declaratory judgment action is to secure an adjudication of rights where there is a substantial question in dispute or a substantial uncertainty of legal relations between the parties.” Connecticut Assn. of Health Care Facilities, Inc. v. Worrell, 199 Conn. 609, 613, 508 A.2d 743 (1986); see also Doublewal Corporation v. Toffolon, 195 Conn. 384, 391-92, 488 A.2d 444 (1985). “It is axiomatic that no insurer is bound to provide indemnification or defense beyond the scope of the coverage described in the insurance contract, the policy.” Plasticrete Corporation v. American Policyholders Ins. Co., 184 Conn. 231, 235-36, 439 A.2d 968 (1981). The plaintiff insurer sought to have the trial court make a determination that fulfilled the purpose of a declaratory judgment. It requested only that the trial court decide the issue of whether these claims made by Sciola fell under the coverage provided by the defendant’s policy. We, therefore, disagree with the trial court’s conclusion that it could not address this issue because it was premature.

Having concluded that the trial court should have addressed the question of indemnity presented in the defendant’s declaratory judgment action, we now consider the plaintiff’s second claim. The plaintiff also claims that the trial court should not have concluded that it was impossible to determine from the jury verdict whether the defendant intended to cause injury to Sciola, and that it, therefore, could not conclude whether the defendant was entitled to indemnity. Our review of the record reveals that the trial court’s conclusion was clearly erroneous. Practice Book § 4061; Bowman v. 1477 Central Avenue Apartments, Inc., 203 Conn. 246, 256-57, 524 A.2d 610 (1987).

In the underlying civil action, Sciola alleged in count one of her complaint “that the defendant, in the discharge of his duties did assault and batter [her] by making unconsented sexual contact with her,” and that the defendant later admitted the assault and battery. In count two of her complaint, she alleged that the defendant negligently failed to “render those professional services with the requisite standard of care and practice.” Sciola further alleged that she sustained injuries as a result of these actions. A full trial was held on these claims, and the jury returned a verdict in Sciola’s favor on both counts.

The issue of indemnification was not presented or in any way addressed in the underlying action, and the only way that the determination of the rights of the insurer and the defendant can be made is through a declaratory judgment. Compare Halpern v. Board of Education, 196 Conn. 647, 654-55, 495 A.2d 264 (1985) (where declaratory judgment action was dismissed because the same underlying rights were to be adjudicated in the other pending action). As noted above, a declaratory judgment action is a suitable, and here the only appropriate, vehicle to test the rights and liabilities under an insurance policy. Shelby Mutual Ins. Co. v. Williams, supra.

The trial court must construe an insurance policy, like any other contract, in a reasonable way, giving the words their common, ordinary and customary meaning. Gottesman v. Aetna Ins. Co., 177 Conn. 631, 634, 418 A.2d 944 (1979). In a case involving the question of indemnity, the court must determine whether the coverage in question in fact exists. Id., 636-37; see also Izzo v. Colonial Penn Ins. Co., 203 Conn. 305, 309, 524 A.2d 641 (1987). The trial court concluded that the absence of a special verdict in which the jury stated its determination as to whether the defendant intended to cause injury to Sciola and the ambiguity in the special interrogatories that were asked made it impossible to decide this issue. We disagree. The trial court had before it sufficient facts from which it could determine whether the defendant’s actions were covered by his insurance policy. It is clear from both Sciola’s complaint and the evidence that she presented at trial what her claims were. It is also clear that the jury found in her favor.

The jury returned a general verdict for Sciola while answering affirmatively the special interrogatories that it was directed to answer. “[A] general verdict for one party raises a presumption that the jury found every issue in favor of ‘ “the prevailing party.” ’ Alfano v. Insurance Center of Torrington, 203 Conn. 607, 613, 525 A.2d 1338 (1987).” Holbrook v. Casazza, 204 Conn. 336, 345, 528 A.2d 774 (1987), cert. denied, 484 U.S. 1006, 108 S. Ct. 699, 98 L. Ed. 2d 651 (1988). Furthermore, the special interrogatories directed to the jury were straightforward and unambiguous. The following special interrogatories were submitted to the jury: “(1) Did the Defendant, Robert Shernow, D.D.S., injure the Plaintiff by making unconsented sexual contact with her, as alleged in the First Count of the Complaint? ... (2) What is the amount of damage proximately caused by the Defendant’s conduct as alleged in the First Count of the Complaint, if any? (3) Did the Defendant, Robert Shernow, D.D.S., breach the standard of care in providing professional treatment to the [plaintiff] Mary Lou Sciola, as alleged in the Second Count of Plaintiff’s Complaint? ... (4) Although we, the jury, find that Robert Shernow breached the standard of care in providing professional treatment to Mary Lou Sciola, we do/do not find that the Plaintiff, Mary Lou Sciola, suffered damage proximately caused by this breach of the applicable standard of care. . . . (5) What damages do you find the Plaintiff suffered as alleged in Count Two of Plaintiffs complaint?” The jury answered interrogatories numbers one, three and four affirmatively and found under numbers two and four that the plaintiff suffered $400,000 damages under count one and $300,000 under count two.

Even if any ambiguity could be found in these interrogatories, the general verdict rule would create the presumption in favor of Sciola. See Holbrook v. Casazza, supra. Moreover, if the court finds any ambiguity relating the indemnity question, such ambiguity should be construed against the insurer. Izzo v. Colonial Penn Ins. Co., supra; see also Smedley Co. v. Employers Mutual Liability Ins. Co., 143 Conn. 510, 513, 123 A.2d 755 (1956); Lyon v. Aetna Casualty & Surety Co., 140 Conn. 304, 307, 99 A.2d 141 (1953).

The judgment is reversed and the case is remanded to the trial court with direction to decide the issue of indemnity.

In this opinion the other judges concurred.

       The trial court also based its conclusion that it was impossible to decide the issue of indemnity on the fact that the trial court, Hon. James T. Healey, J., state trial referee, found his own jury instructions to contain plain error. The error that the court noted, however, related only to his instructions on damages, and had nothing to do with the issue of liability. This fact, therefore, would have no bearing on the determination of whether the defendant’s actions are covered under his insurance policy.


text:
    Marlyn H. V. Kelehear, Administratrix (Estate of Daniel F. Vargas) v. Larcon, Inc., et al.
    (8512)
    Dupont, C. J., Daly, and Norcott, Js.
    Argued April 3
    decision released July 17, 1990

      Daniel K. Lamont, for the appellant (plaintiff).

      M. John Strafaci, for the appellee (named defendant).
   Norcott, J.

The plaintiff administratrix of the estate of Daniel Vargas brought this dram shop action against the named defendant, the corporate owner of the Bach Dor Tavern in Chaplin, and the defendant C. Lawrence Constantine, sole shareholder of the corporation, alleging that, on February 5,1987, Daniel Vargas and Mark Marden attended the “happy hour” at the tavern and became noticeably intoxicated. The plaintiff claimed that Vargas subsequently died in a motor vehicle accident while a passenger in Marden’s pickup truck as a result of the sale to Marden of intoxicating beverages in violation of General Statutes § 30-102.

At the close of the plaintiffs case, the named defendant moved for a directed verdict, which the trial court granted. The trial court also denied the plaintiff’s motion to open the judgment in order to produce further evidence. The court rendered judgment on the verdict, and this appeal ensued.

On appeal, the plaintiff claims that the trial court should not have (1) granted the defendant’s motion for a directed verdict at the close of the plaintiff’s case, concluding that the plaintiff failed to present sufficient evidence to establish the defendant’s sale of an alcoholic beverage to an intoxicated person under the Dram Shop Act, and (2) denied the plaintiff’s motion to open. We reverse the judgment of the trial court.

With respect to the plaintiff’s first claim, the standards for review of a trial court’s directed verdict are clear. “A verdict may be directed only where the jury could not reasonably reach any other conclusion . . . or where the decisive question is one of law.” (Citations omitted.) Commercial Union Ins. Co. v. Frank Perrotti & Sons, Inc., 20 Conn. App. 253, 256, 566 A.2d 431 (1989). Generally, directed verdicts are disfavored; see Boehm v. Kish, 201 Conn. 385, 394, 517 A.2d 624 (1986); and are justified only “if on the evidence the jury could not reasonably and legally reach any other conclusion than that embodied in the verdict as directed; [Petyan v. Ellis, 200 Conn. 243, 244, 510 A.2d 1337 (1986)]; McDonald v. Connecticut Co., 151 Conn. 14, 17, 193 A.2d 490 (1963); or if the evidence is so weak that it would be proper for the court to set aside a verdict rendered for the other party.” Id., 389. Finally, when reviewing the decision of the trial court to direct a verdict, we consider the evidence presented in the light most favorable to the plaintiff. Commercial Union Ins. Co. v. Frank Perrotti & Sons, Inc., supra, 259.

The plaintiff contends that, against these standards, the trial court should not have directed a verdict because the jury could reasonably have concluded from the evidence presented that the plaintiff had proven the essential elements of an action brought under the Dram Shop Act. We agree.

The elements of a cause of action based on the Dram Shop Act are (1) a sale of intoxicating liquor, (2) to an intoxicated person, (3) who, in consequence of such intoxication, causes injury to the person or property of another. See Nelson v. Steffens, 170 Conn. 356, 360, 365 A.2d 1174 (1976). Considering the evidence in the light most favorable to the plaintiff, we find the evidence to be undisputed that Vargas and Marden attended “happy hour” at the Bach Dor Tavern on the evening of February 5, 1987, and, at some point during that evening, both were noticeably intoxicated. The key witness in this trial, bartender Joseph Fournier, testified that around 11 p.m. that evening, Marden was “real sloppy, hanging all over the bar, being quite obnoxious, and real loud.”

Our Supreme Court has defined intoxication in pertinent part as meaning “an abnormal mental or physical condition due to the influence of intoxicating liquors, a visible excitation of the passions and impairment of the judgment, or a derangement or impairment of physical functions and energies.” Sanders v. Officers Club of Connecticut, Inc., 196 Conn. 341, 349, 493 A.2d 184 (1985). The defendant in this case does not question the matter of Marden’s intoxication at the tavern, nor does it argue that Marden’s intoxicated condition at the time of the motor vehicle accident was the proximate cause of the death of his friend, Vargas. Rather, the defendant argued in support of its motion for a directed verdict, and the trial court found, that the plaintiff had failed to present evidence that the defendant sold intoxicating liquor to Marden when he was intoxicated.

The essence of the trial court’s ruling was that the plaintiff failed to prove the “element of sale to an intoxicated person” either before or after Marden was identified by Fournier to be intoxicated. The court reached this conclusion notwithstanding the fact that, according to Fournier’s own testimony, Marden was “shut off,” that is, served no more liquor.

We agree with the defendant that the evidence of a sale to Marden after the crucial point in time so described by Fournier was an insufficient basis from which the jury could reasonably conclude that the defendant’s bartenders served Marden anything. After he was shut off by the bartenders, Fournier observed Marden with a beer bottle in his hands. This was the sole evidence regarding Marden and his condition after he was shut off. Fournier testified that neither he nor any other bartender sold Marden anything else after shutting him off. There was no evidence as to where or when Marden got the bottle or what the bottle contained. The court was correct in concluding that the jury could only speculate as to a sale to Marden after he was shut off.

We cannot agree, however, that the jury could not reasonably have found, from the evidence presented, that Marden had not been served intoxicating beverages while he was in an intoxicated state.

Fournier testified as follows:

“Q. And, did there come a time when Mark Marden was cut off that night?
“A: Yes, there was.
“Q: And, what time was that?
"A: It was shortly thereafter—maybe fifteen, twenty minutes difference.
“Q: Towards eleven?
“A: Yes.
“Q: And, what was the reason that Mark Marden was cut off from drinking?
“A: Well, Mark Marden came to me—at the bar at the end of the bar and he was real sloppy, hanging all over the bar, being quite obnoxious, and real loud. So I figured that he had enough and I wasn’t going to serve him any more. . . .
“Q: Do you recall whether Mark Marden had anything to drink that night at the bar after he was shut off?
“A: I didn’t sell him any more liquor after that point, after I shut him off.
“Q: All right. And, to your knowledge, did he have anything to drink at the bar after he was shut off?
“A: After he was shut off? We didn’t sell him any more liquor after he was shut off.”

From this testimony and Fournier’s testimony describing Marden’s inebriated condition, we find that the jury could reasonably have concluded that Marden was sold and served intoxicating beverages, that is, beer, leading up to and while he was in an intoxicated condition.

“Although a jury cannot base its conclusion upon ‘mere guess or speculation,’ it is entitled to draw reasonable inferences from the evidence before it. Lemmon v. Patterson Construction Co., 137 Conn. 158, 163, 75 A.2d 385 (1950).” Commercial Union Ins. Co. v. Frank Perrotti & Sons, Inc., supra. We cannot, nor should the trial court, rule out the possible inference to be drawn from this evidence that the last drink served to Marden before he was shut off was served to him while he was intoxicated. The ultimate question of whether a driver’s intoxication resulted from his activities at the defendant’s bar and whether the bar violated the Dram Shop Act by continuing to serve an already intoxicated driver is for the jury. See Sanders v. Officers Club of Connecticut, Inc., supra; see also Futterleib v. Mr. Happy’s, Inc., 16 Conn. App. 497, 548 A.2d 728 (1988). Here, the trial court took this function away from the jury by granting the defendant’s motion for a directed verdict.

Finally, in support of its argument that the trial court properly granted the directed verdict, the defendant points to the fact that the fatal accident occurred approximately two hours after the defendant’s bartender refused to serve Marden any more beverages. Given the posture of this case, this claim can only be interpreted as a challenge to the plaintiff’s proof on the element of causation. Any claim that it applies to the other elements of the Dram Shop Act would be without merit.

Before addressing the merits of this claim, we must first determine what law applies to this case. At the time of this incident, the Dram Shop Act included a section (b), since repealed, which provided as follows: “In any civil action brought pursuant to subsection (a) of this section for injury to person or property occurring on or after October 1,1986, there shall be a rebut-table presumption that the seller who sold alcoholic liquor to the intoxicated person prior to and most proximate in time to the occurrence of the injury is solely liable for any damages payable to the person injured.” Public Acts 1986, No. 86-338, §§ 7,17, effective October 1,1986, repealed by Public Acts 1987, No. 87-227, §11. The plaintiff claims that because it was the law in effect at the time of the incident, this law must be applied at trial. We disagree.

While there is a general presumption that legislation is intended to apply prospectively; Rudewicz v. Gagne, 22 Conn. App. 285, 287-88, 582 A.2d 463 (1990); a procedural change will be given retroactive effect. Id., 288. Rebuttable presumptions fall within the parameters of the rules of evidence; see C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) § 5.1.4; and, therefore, are procedural. State v. Almeda, 211 Conn. 441, 454, 560 A.2d 389 (1989). We must, therefore, apply the statute as it existed at the time of the trial, after subsection (b) had been repealed. Accordingly, the rebuttable presumption language is not applicable.

In addressing the merits of this issue, we reach the following conclusions. “The delict defined by § 30-102 is not the sale of liquor to create a condition of intoxication. It is rather the sale of liquor to one who is already intoxicated. No causal relationship between the sale and the injury is required.” Sanders v. Officers Club of Connecticut, Inc., supra, 348-49.

Any evidence that the time lapse in this case may have adversely affected the element of causation was for the jury to decide. It is for the jury to determine what weight should be accorded to that evidence. Milano v. Sayers, 6 Conn. App. 491, 498, 506 A.2d 162, cert. denied, 199 Conn. 810, 508 A.2d 771 (1986). “ ‘While the ruling of the trial court on a motion [taking the verdict away from the jury] is entitled to great weight because of the court’s familiarity with the facts and circumstances of the case; Nielson v. D’Angelo, 1 Conn. App. 239, 244, 471 A.2d 965 (1984); the parties are entitled to have issues upon which fairminded persons may differ decided by the jury.’ ” Id.

Because we have concluded that the trial court should not have granted the defendant’s motion for a directed verdict, we need not reach the plaintiff’s alternative claim that the court should have opened the judgment.

The judgment of the trial court is reversed and the case is remanded for a new trial.

In this opinion the other judges concurred.

       General Statutes (Rev. to 1987) § 30-102 provides: “dram shop act; LIQUOR SELLER LIABLE FOR DAMAGE BY INTOXICATED PERSON, (a) If any person, by himself or his 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 twenty thousand dollars, or to persons injured in consequence of such intoxication up to an aggregate amount of fifty thousand dollars, to be recovered in an action under this section, provided the aggrieved person or persons shall give written notice to such seller within sixty days of the occurrence of such injury to person or property of his or their intention to bring an action under this section. In computing such sixty-day period, the time between the death or incapacity of any aggrieved person and the appointment of an executor, administrator, conservator or guardian of his estate shall be excluded, except that the time so excluded shall not exceed one hundred twenty days. Such notice shall specify the time, the date and the person to whom such sale was made, the name and address of the person injured or whose property was damaged, and the time, date and place where the injury to person or property occurred. No action under the provisions of this section shall be brought but within one year from the date of the act or omission complained of.
      “(b) In any civil action brought pursuant to subsection (a) of this section for injury to person or property occurring on or after October 1,1986, there shall be a rebuttable presumption that the seller who sold alcoholic liquor to the intoxicated person prior to and most proximate in time to the occurrence of the injury is solely liable for any damages payable to the person injured.”

       No evidence was introduced on the count against the individual defendant, and no claim is made as to him on appeal. As used in this opinion, defendant refers to the named defendant only.

       The action was not commenced until January, 1988, and the trial did not begin until September, 1989.


author: Lavery, J.

text:
    Salvatore Caristia v. Florence Marceline Caristia
    (8420)
    Norcott, Lavery and Landau, Js.
    Argued May 4
    decision released July 24, 1990

      Susan M. Cormier, with whom were Alexandra Davis and, on the brief, Wesley W. Horton, for the appellant (plaintiff).

      Norman F. Fishbein, for the appellee (defendant).
   Lavery, J.

The plaintiff appeals challenging the financial orders issued by the state trial referee acting as the trial court in a dissolution action. The plaintiff claims that the trial court abused its discretion in its financial orders. We affirm the judgment of the trial court.

The following facts are relevant to this appeal. The parties were married on December 20,1952. The four children born to the marriage had reached majority by the time of the dissolution. The plaintiff and the defendant adopted a grandchild, Christopher Michael Caristia, born December 4, 1978. Christopher has juvenile diabetes, is insulin dependent and lives with the defendant, who was awarded custody. The defendant, who has a tenth grade education, worked during the marriage almost exclusively as a homemaker and mother. At the time of the trial, the defendant was fifty-seven years old and the plaintiff fifty-six. Both were in good health. The plaintiff is a long time employee of Pratt and Whitney, has an annual income of between $44,000 and $48,000, depending on overtime pay, and has vested pension rights. He also has $75,000 in a retirement savings account separate from the pension.

The plaintiff and the defendant jointly owned a home valued at approximately $249,000, with a mortgage obligation of approximately $33,000. The plaintiff owned two cars, an airplane, and about $3000 in cash. The defendant owned a car, $18,500 in cash, and furniture. The trial court found that the plaintiff had withdrawn $22,942.20 from a joint brokerage account.

The trial court ordered the plaintiff to quitclaim to the defendant his interest in the marital home, including all furniture and furnishings therein. The defendant was ordered to pay the plaintiff $60,000 at 5 percent interest per annum, payable in installments of $500 plus interest every six months until fully paid. If the defendant remarried, died, or sold the house, the full amount was to become due immediately. The plaintiff was also ordered to assume and pay all debts and encumbrances affecting the marital property.

The plaintiff was ordered to pay the defendant $150 per week alimony until his retirement, at which time he is to pay the defendant 50 percent of his retirement benefits, but in no event less than $150 per week. .The plaintiff was ordered to maintain the defendant’s coverage under his existing health and medical insurance for three years. The plaintiff was also ordered to pay the defendant $150 per week child support and to maintain the child’s coverage under his existing health, medical and dental insurance plan. In addition, the plaintiff is to pay for all unreimbursed medical expenses. The plaintiff is to pay the defendant $11,471.10, which represents one half of the withdrawals made by the plaintiff from the jointly held brokerage account. Both parties retained ownership of their respective automobiles. The plaintiff also retained ownership of the airplane.

The court’s orders prohibit the plaintiff from withdrawing from his pension fund or terminating contributions to it except to receive retirement benefits or because of a layoff in employment. Last, the court ordered both parties to pay their own attorney’s fees.

In a response to a motion for articulation, the trial court stated that the plaintiff must pay the monthly mortgage payment, that the plaintiffs retirement savings were not included in the award to the defendant of 50 percent of the plaintiffs pension benefits and that the mortgage from the defendant to the plaintiff on the family home contain the standard clauses used in mortgage transactions.

The standard of review in dissolution appeals is well settled. Febbroriello v. Febbroriello, 21 Conn. App. 200, 202, 572 A.2d 1032 (1990). This court “ ‘will not reverse a trial court’s rulings regarding financial orders unless the court incorrectly applied the law or could not reasonably have concluded as it did.’ ” (Emphasis in original.) Id. The trial court has the best opportunity to observe the parties, pass on the credibility of witnesses and weigh and interpret the evidence. Rostain v. Rostain, 214 Conn. 713, 716, 573 A.2d 710 (1990). In determining whether the trial court’s broad legal discretion is abused, “ ‘ “ ‘great weight is due to the action of the trial court and every reasonable presumption should be given in favor of its correctness.’ . . ’ ” (Citations omitted.) Timm v. Timm, 195 Conn. 202, 206, 487 A.2d 191 (1985).

At argument, it was clear that both the plaintiff and the defendant misinterpreted the trial court’s decision as it refers to the retirement savings account and the plaintiff’s contribution to it. The trial court in its articulation said that it did not include the plaintiff’s retirement savings account in the 50 percent pension award made to the defendant. The parties were under the mistaken impression that the plaintiff had to continue to contribute $102.07 weekly to his retirement savings account. Since the trial court awarded the plaintiff the retirement savings account, and the defendant has no interest in it, the plaintiff is free to contribute to it or not as he chooses.

When we add the savings account back onto the plaintiff s side of the ledger and when we review the transcripts, the record and the exhibits and the court’s finding of facts, we cannot say that the trial court abused its discretion. The trial court stated that it had considered the provisions of General Statutes § 46b-81 as to division of marital assets, § 46b-82 as to awarding alimony, § 46b-62 as to awarding attorney’s fees and § 46b-84 as to child support. Our review discloses that the trial court’s factual findings are supported by the evidence and its conclusions are in accordance with the law.

The judgment is affirmed.

In this opinion the other judges concurred.