text:
    Martin A. Clayman, Executor (Estate of Joseph Prochaska) v. Claire G. Prochaska et al.
    (2473)
    Dannehy, C.P.J., Hull and Borden, Js.
    Argued May 1
    decision released August 21, 1984

      Dean F. Radke, for the appellant (plaintiff).

      Andrew J. O’Keefe, with whom was DeniseM. Phelan, for the appellee (named defendant).
   Dannehy, C.P.J.

This is an action for a declaratory judgment determining the ownership of four bank accounts. The parties stipulated that the accounts were joint accounts with the right of survivorship, issued in the names of Joseph Prochaska and Claire G. Prochaska.

Claire Guerard and Joseph Prochaska were married on July 17, 1965. Their marriage was dissolved on July 19, 1977. The dissolution decree incorporated a prior separation agreement which provided that Claire Prochaska would hand over and transfer to Joseph Prochaska their joint savings accounts.

When the marriage was dissolved on July 19, 1977, the seven passbooks evidencing the joint savings accounts were handed over and transferred to Joseph Prochaska’s attorney and shortly thereafter to Joseph Prochaska himself.

Between the time that the passbooks were transferred to Joseph Prochaska and the time of his death on April 21,1979, he closed three of the accounts. The other four accounts remained in the names of Joseph Prochaska and Claire G. Prochaska and in form were to be paid to any one or the survivor of them.

After Joseph Prochaska died, his executor, the plaintiff here, demanded that Claire G. Prochaska, the defendant, execute the documents necessary to transfer the four joint accounts to the decedent’s estate. The defendant refused. The plaintiff brought this action for a declaratory judgment to determine the ownership of the four accounts. The trial court concluded that the decedent’s maintenance of the accounts in question in joint names following the dissolution of his marriage was an intentional act on his part to bring about a postmortem gift of these accounts to the defendant, his former wife. Whereupon it rendered judgment declaring that the defendant is the absolute owner of the four bank accounts in question and entitled to all of the money in the accounts. The plaintiff appealed from that judgment.

The main contention of the plaintiff on appeal is that the trial court erred in finding that his decedent’s failure to remove his former wife from the accounts prior to his death constituted an intentional act by him to bring about a postmortem gift of the savings accounts to his former wife. Although this finding could perhaps have been more aptly put, we read it as no more than a finding that Joseph Prochaska intended to maintain the accounts so that they would pass on his death to the defendant under General Statutes § 36-3.

Connecticut General Statutes § 36-3, which authorizes joint deposits and accounts, provides, in relevant part, that the making of a deposit in this state in any state bank and trust company or national banking association or the issuance of an account in this state by any federal savings and loan association, in the names of two persons and in form to be paid to any one or the survivor of them, shall, in the absence of fraud or undue influence, or other clear and convincing evidence to the contrary, be prima facie evidence, in any action or proceeding respecting the ownership of such deposit or account, of the intention of all the named owners therein to vest title to such deposit or account in the survivor. The plaintiff argues that this section does not apply in a case like this one where a dissolution of the marriage between the joint tenants occurred after the issuance of the accounts. The statute, it will be observed, does not establish conclusive evidence of intent. It simply provides prima facie evidence of the intention of the named owners to vest title to the deposit or account in the survivor, and further provides that the prima facie evidence can always be overcome by proof of fraud or undue influence or other clear and convincing evidence to the contrary; we may not add to the statutory requirements another requirement, namely, that the statute has no application in a case such as this where a dissolution of the marriage between the joint owners occurred after the making of the deposit or the issuance of the account.

The evidence presented at trial disclosed that Joseph Prochaska was sixty-nine years of age at the time of his retirement. He was a chemical engineer who had held several responsible positions at Heublein, Inc., in operations, research and development, and had served as a director of the corporation prior to his death.

After the dissolution of the marriage, the decedent showed ongoing concern for the financial well-being of his former wife. Without any obligation to do so, he gave the defendant $300 each month until he died. In 1977, he sent her as a gift at Christmas a check in the amount of $1000. He also volunteered to pay a portion of her 1977 income taxes, having returned to her a $2000 check which she had sent to him. Prochaska’s concern was further demonstrated by the execution of a will, on the very day of the dissolution decree, in which he left his entire estate to the defendant.

Interest on the four savings accounts was paid quarterly. The interest checks, payable to both Joseph and Claire Prochaska, were sent to Claire Prochaska who, in turn, forwarded them to her former husband. As the trial court pertinently noted, the interest checks served as a quarterly reminder to Joseph Prochaska that the accounts were held jointly. When asked by Claire Prochaska if he intended to change over the accounts, Joseph Prochaska said, “[n]o, no, no.”

The issue of intent is a question of fact, and the trier’s determination as to intent is not reviewable unless the conclusion drawn is one which cannot reasonably be made. Bergen v. Bergen, 177 Conn. 53, 57, 411 A.2d 22 (1979). As stated previously, after the dissolution of his marriage, Joseph Prochaska received the passbooks and had unlimited and unrestricted access to the funds in the joint accounts. He closed three of them, but did nothing to change the ownership of the four in question.

The trial court found facts from which the conclusions are inevitable that neither fraud nor undue influence was present, and there was nothing whatsoever in the evidence which tended even remotely to constitute the clear and convincing proof needed to overcome the prima facie evidence of intent supplied by General Statutes § 36-3. We are unable to change the facts as found. The facts unmistakably disclose that Joseph Prochaska made deposits in this state in a state bank and trust company and in a national banking association and an account was issued by a federal savings and loan association in the names of Joseph Prochaska and Claire G. Prochaska and in form to be paid to either or the survivor, that Joseph Prochaska died and that the defendant, Claire G. Prochaska, was the survivor. Thus, General Statutes § 36-3 controls, and title to the accounts vested in the defendant upon Joseph Prochaska’s death.

The plaintiff also argues that the defendant never complied with the separation agreement because she never extinguished her rights in the joint savings accounts. The separation agreement required the defendant to “hand over and transfer the joint savings accounts” to the husband. “The expressed intention of the parties to a contract is to be determined from the language used, interpreted in the light of the situation of the parties and the circumstances connected with the transaction.” Buckley v. Buckley, 144 Conn. 403, 409, 133 A.2d 604 (1957). “The question is not what intention existed in the minds of the parties but what intention is expressed in the language used.” Ives v. Willimantic, 121 Conn. 408, 411, 185 A. 427 (1936). “The words they employed must be accorded their common meaning and usage where they can be sensibly applied to the subject matter of the contract.” Beach v. Beach, 141 Conn. 583, 588-89, 107 A.2d 629 (1954); Cocco v. Cocco, 166 Conn. 37, 347 A.2d 72 (1974). The fact that the defendant handed over and transferred the passbooks representing the joint savings accounts is unchallenged.

When the dissolution decree was entered, the passbooks were physically delivered to the decedent’s attorney. They were subsequently delivered to the decedent who retained possession of them until his death. While in his possession, the passbooks furnished him with absolute authority to close the joint savings accounts and to transfer the funds to new accounts either bearing his name only, or in whatever form he might choose, thereby extinguishing any interest the defendant had in the joint savings accounts. He did none of these things. Under these circumstances, it could hardly be said that the defendant did not comply fully with the transfer provision requiring only that she “hand over and transfer the joint savings accounts” to the decedent.

Finally, the plaintiff contends that Claire Prochaska is equitably estopped from asserting ownership of the accounts. He appears to base this claim on the premise that Claire Prochaska induced Joseph Prochaska to enter into the separation agreement by implicitly representing that she would extinguish all of her rights to the joint savings accounts. According to the plaintiff, this implicit representation is memorialized in paragraphs five and six of the separation agreement. Any reliance on paragraph five, which deals with alimony and support, is obviously misplaced. Paragraph six relates to the mutual release of claims between the parties. That paragraph specifically limits the discharge to claims that either of the parties had against the other as of the date of the execution of the agreement. The defendant’s claim of ownership is not against her former husband or his estate and consequently is outside the purview of the separation agreement’s release of claims provision.

“Estate” is defined as “the sum total of the property formerly owned by the decedent which, after his death, remains subject to administration and distribution.” Locke and Kohn, Connecticut Probate Practice § 375. As the trial court correctly stated: “Since title to the joint bank accounts passes to the surviving joint tenant at the instant of death, it is not property which remains to be distributed after the first joint tenant’s death and is therefore not part of his estate.” This finding fully disposes of the plaintiff’s estoppel argument.

There is no error.

In this opinion the other judges concurred.

       The four accounts were: Hartford National Bank and Trust Company, No. 004-1-08435-1, converted to No. 007-1-06168-3, having a balance of $19,724.80 as of July 10,1979; Charter Oak Bank and Trust Company, No. 03900122-9, having a balance of $20,835.49 as of January 22,1980; Hartford Federal Savings and Loan Association, No. 16-101382-6, having a balanee of $20,306.49 as of July 3, 1979; and Colonial Bank (formerly Constitution Bank), No. 940-068-2, having a balance of $20,598.63 as of July 3, 1979.

       Claire G. Prochaska, Hartford National Bank and Trust Company, Charter Oak Bank and Trust Company and Hartford Federal Savings and Loan Association were originally named as defendants. The action was withdrawn as to the three banks.

       This appeal, originally filed in the Supreme Court, was transferred to this court. Public Acts, Spec. Sess., June, 1983, No. 83-29, § 2 (c).

       General Statutes § 36-3 provides: “Sec. 36-3. JOINT DEPOSITS AND accounts. (1) When a deposit has been made in this state in any state bank and trust company, national banking association, savings bank or industrial bank or an account has been issued in this state by any savings and loan association or federal savings and loan association or credit union, in the names of two or more persons and in form to be paid to any one or the survivor, or survivors, of them, such deposit or account and any additions thereto made by any of such persons after the making or issuance thereof, together with all dividends or interest or increases credited thereon, shall be held for the exclusive use of such persons and may be paid to any of them during the lifetime of all of them or to the survivor or survivors after the death of one or more of them, and such payment and the receipt or acquittance of the person or persons to whom such payment is made shall be a valid and sufficient release and discharge for all payments so made. The making of a deposit or issuance of an account in such form shall, in the absence of fraud or undue influence, or other clear and convincing evidence to the contrary, be prima facie evidence, in any action or proceeding respecting the ownership of, or the enforcement of the obligation created or represented by, such deposit or account, of the intention of all of the named owners thereof to vest title to such deposit or account, including all additions and increments thereto, in such survivor or survivors.”

       The will was subsequently changed and, in its final form, divided his estate between his nurse and his daughter by a former marriage.

       Three weeks prior to his death, he withdrew in excess of $4100 from the account with Hartford Federal Savings and Loan Association.

       That paragraph, entitled “Mutual Release of Claims,” provides that “Except for the obligations, promises and agreements herein set forth and to be performed by the parties hereto, which are hereby expressly reserved, each of the parties hereto hereby for himself, and herself, and for his or her legal representatives, forever releases and discharges the other of them and his or her heirs and legal representatives from any and all actions, suits, debts, claims, demands, and obligations whatsoever, both in law and in equity, except any cause of action for dissolution, which either of them ever had, now has or may hereafter have against the other, upon or by reason of any matter, cause or thing to the date of the execution of this Agreement.”


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Dorothy Courchaine v. Shelby Mutual Insurance Company
    (2460)
    Dupont, Borden and Spallone, Js.
    Argued June 13
    decision released August 21, 1984

      Bruce L. Levin, for the appellant (defendant).

      Richard K. Mulroney, with whom, on the brief, was Gregory M. Conte, for the appellee (plaintiff).
   Per Curiam.

This is an appeal by the defendant from a judgment vacating an arbitration award of uninsured motorist benefits. The trial court permitted the plaintiff to call the arbitrator as a witness and to elicit from him how he arrived at his award of damages. The court vacated the award on the ground that the arbitrator had misapplied the law.

Both parties agree that the submission to arbitration was unrestricted. Where the submission is unrestricted, the award is final and binding and cannot be reviewed for errors of law or fact. Carroll v. Aetna Casualty & Surety Co., 189 Conn. 16, 23, 453 A.2d 1158 (1983); Milford Employees Assn. v. Milford, 179 Conn. 678, 683, 427 A.2d 859 (1980); American Motorists Ins. Co. v. Brookman, 1 Conn. App. 219, 223, 470 A.2d 253 (1984). Because the award conforms to the submission and because the actions of the arbitrator are not subject to review under the circumstances in this case, we need not consider the other issues raised by the defendant.

There is error, the judgment is set aside and the case is remanded with direction to render judgment denying the plaintiffs application to vacate the award of the arbitrator.

       This appeal, originally filed in the Supreme Court, was transferred to this court. Public Acts, Spec. Sess., June, 1983, No. 83-29, § 2 (c).


author: Borden, J.

text:
    Winifred M. Sacharko v. Center Equities Limited Partnership
    (2420)
    Dannehy, C.P.J., Hull and Borden, Js.
    Argued April 12
    decision released August 21, 1984

      John J. Bogdanski, with whom, on the brief, was Edward S. Ludorf for the appellant (third party defendant Insurance Company of North America).

      Robert E. Courtney, Jr., for the appellee (defendant-third party plaintiff).
   Borden, J.

This is an appeal from the judgment of the trial court on a third party complaint by Center Equities Limited Partnership (Center Equities) against the third party defendant, Insurance Company of North America (ICNA). The court found that ICNA breached its insurance contract with Center Equities by failing to defend Center Equities in the main action.

The facts are as follows. Center Equities leased premises which it owned at 980 Farmington Avenue, West Hartford, to Edelweiss Restaurant, Inc. (Edelweiss). As a condition of the lease, Edelweiss agreed to carry liability insurance at its own expense and to name Center Equities as an additional insured under the policy. Edelweiss obtained such a policy from ICNA and the policy was in effect at the time of the accident.

The main action was brought by Winifred Sacharko, an employee of Edelweiss, against Center Equities, for personal injuries she sustained in a fall on icy pavement at the rear of the premises. Notice of the main action was given to ICNA, which refused to defend Center Equities. Center Equities joined Edelweiss and ICNA as third party defendants and alleged that ICNA breached its duty to defend Center Equities in the main action.

The main action was defended by the Home Indemnity Company (Home Indemnity), Center Equities’ other liability insurer, and culminated in a stipulated judgment for Sacharko in the amount of $60,000.

On the third party complaint, the court rendered judgment for Center Equities against ICNA in the amount of $64,019.85, representing the $60,000 stipulated judgment in favor of Sacharko against Center Equities; $48.60 in out-of-pocket costs; and $3971.25 in attorney’s fees incurred in defending the main action.

ICNA argues that the court erred in concluding that it was obligated to provide Center Equities with a defense to the claim asserted by Sacharko. We disagree.

“The question of whether [ICNA] had a duty to defend the action brought by [Sacharko] depends on whether the complaint in that action stated facts which appeared to bring [Sacharko’s] claimed injury within the policy coverage.” Missionaries of Co. of Mary, Inc. v. Aetna Casualty & Surety Co., 155 Conn. 104, 110, 230 A.2d 21 (1967); Firestine v. Poverman, 388 F. Sup. 948, 950 (D. Conn. 1975); 7C Appleman, Insurance Law and Practice § 4683. An insurer’s duty to defend is broader than its duty to indemnify and is not eliminated by facts disclosed by the insurer’s independent investigation. Missionaries of Co. of Mary, Inc. v. Aetna Casualty & Surety Co., supra.

Sacharko alleged in her complaint that she was an employee of Edelweiss; that she sustained injuries from a fall on an icy pavement adjacent to and in front of the rear exit of the restaurant; that Center Equities had exclusive control of the exterior of the premises; and that Center Equities failed properly to maintain the gutters, leaders, and downspouts at the rear of the building, which failure precipitated the icy condition of the pavement.

Under the terms of the policy, ICNA agreed to “pay on behalf of the Insured ... all sums which the Insured shall become legally obligated to pay as damages because of A—Personal Injury or B—Property Damage caused by an occurrence during the policy period and within the policy territory.” The policy further provided that “[t]he Company shall have the right and duty to defend any suit against the Insured seeking damages on account of such personal injury . . . even if any of the allegations of the suit are groundless, false, or fraudulent . . . .’’The additional insured endorsement of the policy stated that “[t]he ‘Persons Insured’ provision is amended to include as an Insured the person or organization designated below, but only with respect to liability arising out of ownership, maintenance or use of that part of the premises designated below leased to the Named Insured . . . .”

ICNA admitted in its answer to the third party complaint that Center Equities was an insured under the policy. The hazards against which ICNA insured Center Equities were the “ownership, maintenance or use” of the premises. Sacharko’s complaint alleged in substance that she was injured when she fell as a result of an icy condition which Center Equities negligently caused or allowed to exist on the premises. These allegations state facts, as the trial court found, which squarely bring the injuries sustained within the coverage of the policy. See Missionaries of Co. of Mary, Inc. v. Aetna Casualty & Surety Co., supra; 7C Appleman, supra, § 4683.01.

ICNA maintains that under the employee exclusion clause of the policy it was not obligated to defend the suit brought by Sacharko. It argues that, since it would have had no duty to defend the named insured Edelweiss had Sacharko sued Edelweiss directly, it had no duty to defend Center Equities. We disagree. We conclude, as did the trial court, that because the policy contained a severability of interests provision, ICNA cannot use the employee exclusion clause as a basis for abandoning its duty to defend Center Equities.

In general, a suit by the named insured’s employee against an additional insured under the policy is protected from the employee exclusion clause; and where, as here, there is a severability of interests provision, a limit is placed on the exclusion to allow more complete recovery under the policy. 6C Appleman, supra, § 4413. Severability of interests provisions were adopted by the insurance industry to define the extent of coverage afforded by a policy issued to more than one insured. Ratner v. Canadian Universal Ins. Co., 359 Mass. 375, 380, 269 N.E.2d 227 (1971). Where a policy contains a severability of interests clause, it is a recognition by the insurer that it has a separate and distinct obligation to each insured under the policy, and that the exclusion under the policy as to employees of the insured is confined to the employee of the insured who seeks protection under the policy. Employers’ Liability Assurance Corporation v. Travelers Ins. Co., 411 F.2d 862, 865-66 (2d Cir. 1969); General Aviation Supply Co. v. Ins. Co. of North America, 181 F. Sup. 380, 384 (E. D. Mo.), aff’d, 283 F.2d 590 (8th Cir. 1960). “[T]he term ‘the insured’ as used in [the] policy must be examined by first applying the ‘severability of interests’ test. ‘The insured’ does not refer to all insureds; rather, the term is used to refer to each insured as a separate and distinct individual apart from any and every other person who may be entitled to coverage thereunder. When a claim is made against one who is an ‘insured’ under the policy, the latter is ‘the insured,’ for the purpose of determining the [insurer’s] obligations with respect to such claim.” Commercial Standard Ins. Co. v. American Gen. Ins. Co., 455 S.W.2d 714, 721 (Tex. 1970). Thus, the test of whether the employee’s exclusion clause precludes coverage must be applied to each insured separately^ and not to all collectively. Id.

The primary objective of an employee’s exclusion clause is to avoid duplication of coverage with an employer’s workers’ compensation coverage. General Aviation Supply Co. v. Ins. Co. of North America, supra, 384. “If the insurer wishes to further exclude its liability, it could clearly so state in its contract and its failure to do so should be strictly construed. Especially is this true when the policy contains a severability clause, for there it can be implied that the insurer is actually recognizing a separate obligation to others, distinct and apart from the obligation it owes to the named insured.” Id.

ICNA next argues in effect that Sacharko’s injuries occurred beyond the leased premises and therefore beyond the policy territory. The additional insured endorsement clearly stated that Center Equities was an additional insured with respect to the ownership, maintenance or use of the part of the premises leased to Edelweiss. The lease stated that Center Equities “does grant, demise and let unto the Lessee the restaurant building located at No. 980 Farmington Avenue . . . including the me of the land directly in the rear thereof ” subject to the rights of others to use the rear portion of the premises in common with Edelweiss. (Emphasis added.) In addition, the lease required Edelweiss to remove snow and ice from the public and private walks of the premises.

A lease is a contract and its construction presents a question of law for the court. Robinson v. Weitz, 171 Conn. 545, 551, 370 A.2d 1066 (1976). In construing a lease, the expressed intent of the parties is the controlling factor and the lease must be construed as a whole so as to give effect to every provision, if reasonably possible. Id. Our examination of the lease in question leads us to the conclusion that the location where Sacharko was alleged to have sustained her injury was included within the premises leased to Edelweiss and that, therefore, Center Equities, as an additional insured, was entitled to be defended by ICNA under ICNA’s contract with Edelweiss.

ICNA next argues that the trial court erred in concluding that Center Equities was entitled to indemnification for liability predicated upon its own negligence. A liability policy is to be construed in light of the purpose for which it was intended, and the provisions of the policy are to be strictly construed to effect the purpose for which the coverage was sought. 13 Appleman, supra, § 7486. Under the lease, Edelweiss was required to purchase liability insurance and to name Center Equities as an additional insured. The risks covered by the policy were the “ownership, maintenance or use” of the leased property. Sacharko’s complaint, which, in substance, alleged negligent maintenance of the property, brings her injury within the coverage provided by the policy.

ICNA also maintains that Center Equities never directly notified it of Sacharko’s claim or requested it to furnish a defense. This claim is without merit because ICNA admitted in its answer to the third party complaint that it received notice of the lawsuit and the request to defend.

ICNA finally argues that the court erred in its award of damages for its refusal to defend Center Equities. We agree that, under the particular circumstances of this case, the court erred in awarding damages to Center Equities amounting to the full amount of the stipulated judgment, expenses and legal fees.

Since ICNA breached its contract with Center Equities by refusing to defend, ordinarily it would be held to have waived any opportunity to defend under a reservation of right to contest the obligation to indemnify Center Equities, and would thus be liable to reimburse Center Equities for the full amount of the obligations reasonably incurred by Center Equities. Missionaries of Co. of Mary, Inc. v. Aetna Casualty & Surety Co., supra, 113-14. “Where an insurer is guilty of a breach of its contract to defend, it is liable to pay to the insured not only his reasonable expenses in conducting his own defense but, in the absence of fraud or collusion, the amount of a judgment obtained against the insured up to the limit of liability fixed by its policy.” Keithan v. Massachusetts Bonding & Ins. Co., 159 Conn. 128, 139, 267 A.2d 660 (1970); Schurgast v. Schumann, 156 Conn. 471, 491, 242 A.2d 695 (1968); 7C Appleman, supra, § 4689.

Here, however, counsel for Center Equities candidly disclosed to us at oral argument that its interest is nominal only and that it is in fact representing the financial interest of its primary insurer, Home Indemnity, which provided the defense. We do not believe that the rule of damages stated in Keithan v. Massachusetts Bonding & Ins. Co., supra, should under these circumstances extend to the insured’s other insurer. To do so would convert a rule of compensation for loss into an opportunity for windfall.

The general rule is that all insurers providing primary coverage to an insured are duty bound to defend the insured and will be required to contribute their pro rata share of the cost of defense. Emons Industries, Inc. v. Liberty Mutual Fire Ins. Co., 481 F. Sup. 1022 (S.D.N.Y. 1979); Ins. Co. of North America v. Liberty Mutual Ins. Co., 128 Cal. App. 3d 297, 304, 180 Cal. Rptr. 244 (1982); Cordial Greens Country Club v. Aetna Casualty & Surety Co., 41 N.Y.2d 996, 363 N.E.2d 1178, 395 N.Y.S.2d 443 (1977); 14 Couch, Insurance (2d Ed.) § 51-36; 7C Appleman, supra, § 4682. Where two policies contemplate the particular risk equally, liability will be prorated based on the total policy limits. Nordby v. Atlantic Mutual Ins. Co., 329 N.W.2d 820, 823 (Minn. 1983).

Here the record does not contain the Home Indemnity policy under which Center Equities was also insured. Under these circumstances we are unable to determine the extent of coverage under that policy or the proper calculation of damages allocable to each of the two carriers. We must therefore remand the case to the trial court for a determination and allocation of the damages between Home Indemnity and ICNA. Wint v. Fidelity & Casualty Co. of New York, 9 Cal. 3d 257, 263, 507 P.2d 1383, 107 Cal. Rptr. 175 (1973).

There is error in part, the judgment is set aside and the case is remanded for a new trial limited to the issue of damages.

In this opinion the other judges concurred.

       This appeal, originally filed in the Supreme Court, was transferred to this court. Public Acts, Spec. Sess., June, 1983, No. 83-29, § 2 (e).

       The court rendered judgment in favor of Edelweiss on the third party complaint. That judgment is not involved in this appeal.

       Although the trial court never referred to Home Indemnity, Center Equities informed us in its brief and at oral argument that Home Indemnity defended it in the main action and that the award of damages will inure to the benefit, not of Center Equities, but of Home Indemnity, which is the real party plaintiff in interest on the third party complaint.

       The employee exclusion clause provides in relevant part that the insurer is relieved of the duty to defend if the suit involves “[p]ersonal injury to any employee of the Insured arising out of and in the course of his employment by the Insured or to any obligation of the Insured to indemnify another because of damages arising out of such injury. ...”

       The ICNA policy provided in pertinent part: “[t]he insurance afforded applies separately to each Insured against whom claim is made or suit is brought, except with respect to the limits of the Company’s liability.”


text:
    Connecticut National Bank v. Andre L. Nagy et al.
    (2418)
    Dannehy, C.P.J., Borden and Spallone, Js.
    Argued June 12
    decision released August 21, 1984

      Judith M. Trutt, for the appellants (defendants).

      Richard S. Scalo, with whom, on the brief, were Ronald D. Japha and Abraham I. Gordon, for the appellee (plaintiff).
   Per Curiam.

The defendants have appealed from the judgment rendered for the plaintiff in an action on a promissory note.

The defendants’ claims of error attack the findings of fact of the trial court. The Supreme Court has repeatedly criticized and attempted, apparently in vain, to discourage this misuse of the appellate process. Baker v. Baker, 166 Conn. 476, 478, 352 A.2d 277 (1974); South ern New England Contracting Co. v. State, 165 Conn. 644, 646, 345 A.2d 550 (1974); Pawlinski v. Allstate Ins. Co., 165 Conn. 1, 3, 327 A.2d 583 (1973). Questions of fact are to be determined solely by the trial court. Appliances, Inc. v. Yost, 186 Conn. 673, 676-77, 443 A.2d 486 (1982). The weight given the evidence and the credibility of the witnesses are likewise within the province of that court. Dubicki v. Dubicki, 186 Conn. 709, 713, 443 A.2d 1268 (1982); Hallmark of Farmington v. Roy, 1 Conn. App. 278, 281, 471 A.2d 651 (1984). Our review of the record in this case indicates that there was ample evidence to support the court’s findings and conclusions. Frumento v. Mezzanotte, 192 Conn. 606, 617-18, 473 A.2d 1193 (1984); Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980).

The plaintiff claims that the trial court erred in limiting the amount of attorney’s fees awarded. Since the plaintiff has not filed a cross appeal; see Practice Book § 3003; contesting this issue, the conclusion of the trial court is not now subject to review in this court. Lynch v. Davis, 181 Conn. 434, 437, 435 A.2d 977 (1980); Johnson v. Murzyn, 1 Conn. App. 176, 182 n.6, 469 A.2d 1227 (1984).

There is no error.

       This appeal, originally filed in the Supreme Court, was transferred to this court. Public Acts, Spec. Sess., June, 1983, No. 83-29, § 2 (c).


author: Hull, J.

text:
    Town of East Haven v. Francis Paranto, Sr.
    (2914)
    Hull, Dupont and Spallone, Js.

      Argued June 7
    decision released August 21, 1984

      Steven M. Reilly, with whom, on the brief, was Bruce L. Levin, for the appellant (plaintiff).

      Sue L. Wise, for the appellee (defendant).
   Hull, J.

The plaintiff appeals from the court’s dismissal of its complaint after the plaintiff, the town of East Haven, was unable, at the commencement of the trial, to produce its key witness. Because we conclude that, under the circumstances of this case, principles of fundamental fairness to the plaintiff outweigh a consideration of caseflow management, we find error in the dismissal of the plaintiff’s case.

The facts are not in dispute. On June 22,1977, Officer Joseph Civitello of the East Haven police department was driving a suspect to the police station when, according to the complaint in this action, he was run off the road and assaulted by the defendant, Francis Paranto, Sr. The police officer was injured, and East Haven furnished him with medical and surgical care and with workers’ compensation benefits.

The plaintiff town of East Haven brought the present suit against the defendant for reimbursement of benefits paid. Paranto denied the allegation in the complaint, and counterclaimed for damages for assault and false restraint.

The case was scheduled to be tried at three different times prior to the time in question. Each time it was scheduled, the case was postponed at the request of the defendant’s counsel. Finally, the case was scheduled on a trial list for August 10, 1982, and it was reached on August 11.

On August 11, the town’s attorney moved for a one day postponement because of the unavailability of Civitello, a material witness. In support of its motion for postponement, the town presented the testimony of the sheriff who said that he had been unable, despite repeated attempts, to serve a subpoena upon Civitello, although he thought he could serve him if he were “given a couple of days to do so.”

The court denied the motion for postponement and dismissed the complaint, sua sponte. From this dismissal, the town appealed.

The town claims that “[n]othing in our jurisprudence permits the dismissal of an action for failure to have present in court a material witness at the commencement of a civil trial.” It maintains that this dismissal was not a proper dismissal pursuant to Practice Book § 251 for failure to prosecute with due diligence, nor was it proper to dismiss under Practice Book § 302 for failure to make out a prima facie case. The town further maintains that it should have been allowed to try to meet its burden of proof with the evidence which was available. To foreclose that possibility was, it claims, an abuse of discretion.

The defendant takes the position that it was a proper dismissal under Practice Book § 251 and points out that the town had a full day from the start of the list to the call of the case within which to subpoena the police officer. The defendant also cites the court’s caseflow management powers as authority for the dismissal.

After denying the plaintiff’s motion to postpone, the following colloquy occurred:

“The Court: Counselor, the Motion to Postpone is denied.

“Mr. Reilly: May I have an exception, your Honor?

“The Court: You may have an exception. And, the Complaint is dismissed. And also the Counterclaim is also dismissed.

“Mr. Reilly: May I have an exception to the Complaint being dismissed because of the absence of the material witness? I did have certain medical reports which counsel at one time told me she would stipulate to, medical bills, police reports which I would attempt to introduce. I object to the matter being dismissed.

“The Court: Okay. Counselor, it is noted.

“Mrs. Wise: Is it with prejudice?

“The Court: Yes. Both dismissals are with prejudice, on the Complaint and on the Counterclaim.”

Failure to have a material witness in court at the commencement of the trial is not grounds, in and of itself, for a dismissal of the action. The court’s judgment was not a proper dismissal for failure to prosecute an action with reasonable diligence; Practice Book § 251; or for failure to make out a prima facie case. Practice Book § 302. The plaintiff was never allowed to get out of the starting gate.

The court’s action was precipitate and summary in the extreme. The colloquy between the court and the plaintiff’s counsel shows only a minimal offer of proof that counsel was prepared to offer evidence. He did, however, properly object to the matter being dismissed.

The plaintiff claims in its brief that it was “ready and prepared to proceed with other evidence [citing the colloquy quoted above], besides the testimony of Mr. Civitello, and had another witness present in the courtroom and ready to testify and others under subpoena.” There is no claim, however, that these matters were brought to the attention of the trial court.

This factor is irrelevant, however, since the plaintiff was entitled, under fundamental due process, to be heard. “ ‘[D]ue process of law requires that the rights of no man shall be judicially determined without affording him a day in court and an opportunity to be heard.' State ex rel. Kelman v. Schaffer, 161 Conn. 522, 526-27, 290 A.2d 327 [1971]; United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 383, 260 A.2d 596 [1969]; Benz v. Walker, 154 Conn. 74, 77, 221 A.2d 841 [1966]; see also Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S. Ct. 652, 94 L. Ed. 865 [1950].” Lechner v. Holmberg, 165 Conn. 152, 156, 328 A.2d 701 (1973). “It is the policy of the law to bring about a trial on the merits of a dispute whenever possible and to secure for the litigant his day in court.” Snow v. Calise, 174 Conn. 567, 574, 392 A.2d 440 (1978). “ ‘[A] party has the same right to submit a weak case as he has to submit a strong one.’ ” Fritz v. Gaudet, 101 Conn. 52, 53, 124 A. 841 (1924).

Recent cases have appeared to reflect a “hard line” posture in the Supreme Court’s consideration of case-flow management cases. Gionfrido v. Wharf Realty, Inc., 193 Conn. 28, 474 A.2d 787 (1984); Thode v. Thode, 190 Conn. 694, 462 A.2d 4 (1983); In re Mongillo, 190 Conn. 686, 461 A.2d 1387 (1983); see also Pereira v. Blau, 2 Conn. App. 377, 478 A.2d 1044 (1984); but see State v. Beckenbach, 1 Conn. App. 669, 676-77, 476 A.2d 591 (1984).

An examination of the background of each of these cases, however, reveals clear patterns of delay and foot-dragging which can play havoc with urgently needed caseflow management. The straw that broke the camel’s back in Gionfrido involved a plaintiff’s attorney who “lost track of time” during a luncheon recess and didn’t show up until 2:26 p.m. for a 2 p.m. starting time. Gionfrido v. Wharf Realty, Inc., supra, 31. In upholding the court’s dismissal under Practice Book § 251, Chief Justice Speziaie noted that “the trial court, Higgins, J., was confronted by a history of delay in this case.” Id., 32. In Thode v. Thode, supra, Chief Justice Speziaie spoke for the court in upholding the trial court, Higgins, J., who, as presiding judge, had denied the defendant’s motion for a continuance made on the day of trial so that the defendant went to trial represented by an attorney who was not his attorney of choice. The court carefully pointed out that the defendant’s attorney had inadequate communication with his client who did not find out until 5 p.m. on the day before the trial that this regular attorney would be out of town. Thode v. Thode, supra, 44-45. In the case of In re Mongillo, supra, 690-92, the Supreme Court strongly reiterated, by way of dicta, its firm approach to case flow management questions. That case involved an attorney who had been fined $25 by the trial court for his tardiness at the call of the calender. The Supreme Court found error, but only because the attorney did not have either actual or constructive notice of the presiding judge’s policy in this regard.

In Pereira v. Blau, supra, the Appellate Court upheld a dismissal under Practice Book § 251 after a repeated pattern of delay culminated in the plaintiff’s attorney not appearing at a final assignment list of which the attorney had proper notice.

None of these cases involved a plaintiff’s attorney present in court objecting to the dismissal and indicating that he was ready to proceed with evidence.

“The ultimate determination regarding a motion to dismiss for lack of diligence is within the sound discretion of the court. This discretion is properly exercised if the case has been on the docket for an unduly protracted period or if the court is satisfied from the record or otherwise that there is no real intent to prosecute, particularly if the party fails to appear at the time the case was assigned for trial on a dormant list. See Snow v. Calise, 174 Conn. 567, 574, 392 A.2d 440 (1978); Miller v. Bridgeport Herald Corporation, 134 Conn. 198, 202, 56 A.2d 171 (1947); Cocchia v. Paul, 33 Conn. Sup. 730, 732, 369 A.2d 257 (1976).” Nickerson v. Gachim, 183 Conn. 413, 415, 439 A.2d 379 (1981).

The trial court in this case acted arbitrarily and abused its discretion in dismissing the plaintiff’s case.

There is error, the judgment is set aside and the case is remanded with direction to restore the case to the trial docket.

In this opinion the other judges concurred.

       This appeal, originally filed in the Supreme Court, was transferred to this court. Public Acts, Spec. Sess., June, 1983, No. 83-29, § 2 (c).

       Practice Book § 251 provides: “dismissal for lack of diligence “If a party shall fail to prosecute an action with reasonable diligence, the court may, after hearing on motion by any party to the action pursuant to Sec. 196, or on its own motion, render a judgment dismissing the action with costs. At least two weeks’ notice shall be required except in cases appearing on an assignment list for final adjudication. Judgment files shall not be drawn except where an appeal is taken or where any party so requests.”

       Practice Book § 302 provides: “dismissal in court cases for failure TO MAKE OUT A PRIMA FACIE CASE
      “If, on the trial of any issue of fact in a civil action tried to the court, the plaintiff has produced his evidence and rested his cause, the defendant may move for judgment of dismissal, and the court may grant such motion, if in its opinion the plaintiff has failed to make out a prima facie case. The defendant may offer evidence in the event the motion is not granted, without having reserved the right to do so and to the same extent as if the motion had not been made.”

       It should be noted that contrary to this statement by the court, the judgment itself does not reflect dismissal of the counterclaim.


author: Spallone, J.

text:
    Maurice Filipetti v. Nellie Filipetti et al.
    (2435)
    Dannehy, C.P.J., Hull and Spallone, Js.
    Argued June 5
    decision released August 21, 1984

      William J. Sweeney, Jr., with whom, on the brief, was Thomas P. Griffen, for the appellants (defendants).

      Thomas B. Griglun, for the appellee (plaintiff).
   Spallone, J.

This is an appeal from the trial court’s decision partitioning real properly and from that court’s valuation of one of the resulting parcels. At the commencement of this action, the four defendants and the plaintiff each owned an undivided one-fifth interest in three parcels of real property located in Bristol. For the purposes of trial and appraisal, the parties and the court described the land as four parcels.

The first parcel (parcel A-l) consists of approximately thirty-eight acres of undeveloped land situated between a large development of single family homes to the north and an industrial plant to the south. Parcel A-l was zoned for single family homes, but condominiums and apartments were allowed by special permit. The second parcel (parcel A-2) consists of approximately one-half acre and includes a very old residential structure. The third parcel (parcel B) consists of 5.1 acres zoned for apartments, bounded on the north and south by existing apartment houses and on the east by open land and a lake, owned by the city of Bristol. The fourth parcel (parcel C) consists of approximately one-quarter acre and included a residential structure.

After a full hearing, the court appraised the four parcels as follows: The court determined that the highest and best use for parcel A-l was condominiums and valued the parcel at $959,000; parcel A-2 was valued at $54,000; that the best use for parcel B was for apartments and valued it at $296,400; and parcel C was valued at $65,000. The court concluded that the interests of the parties would be best served if the four defendants were treated as one entity and the plaintiff as another. The court found the total value of all the parcels to be $1,374,400 and attributed a one-fifth interest or $274,880 to each of the five tenants in common. The court also concluded that a partition in kind would better promote the interests of the parties than a sale, and ordered that the ownership of parcels A-l, A-2, and C be vested in the four defendants as tenants in common, and that parcel B be vested in the plaintiff. In order to balance the proportionate interests, the court ordered the plaintiff to pay to the collective defendants the sum of $21,520.

The defendants have appealed from the judgment, claiming that the trial court erred in ordering a partition in kind rather than by sale, in valuating parcel A-l at $959,000 and in ordering the plaintiff to pay $21,500 to the collective defendants.

The court properly concluded that the best interests of the parties would be served by a partition in kind. Where land is owned by two or more persons, the court is empowered by statute to order a physical partition of the land. General Statutes § 52-495. If a partition by sale will better promote the interests of the owners, the court may order such a sale under General Statutes § 52-500. In the present case a physical partition was preferable. A sale will be ordered only when (1) the physical attributes of the land are such that a partition in kind is impracticable or inequitable, and (2) the interests of the owners will be better promoted by sale and a division of the proceeds of the sale according to their respective interests. Delfino v. Vealencis, 181 Conn. 533, 537-38, 436 A.2d 27 (1980). If the physical partition results in unequal values, a money award can be made to equalize the shares. 4A Powell, Real Property § 612, pp. 653-54; 2 American Law of Property, Partition § 6.26, p. 113.

The court’s valuation of parcel A-l at $959,000 was also proper. In valuating property, the trial court is charged with the duty of making an independent valuation of the property involved. E & F Realty Co. v. Commissioner of Transportation, 173 Conn. 247, 253, 377 A.2d 302 (1977). The trier is not limited to arbitrating the differing opinions of the witnesses but is to make determinations in the light of all the circumstances, the evidence, his general knowledge and his viewing of the premises. Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 220, 435 A.2d 24 (1980); Birnbaum v. Ives, 163 Conn. 12, 21, 301 A.2d 262 (1972). The trier may accept or reject the testimony of an expert, offered by one party or the other, in whole or in part. Smith v. Smith, 183 Conn. 121, 123, 438 A.2d 842 (1981); Richard v. A. Waldman & Sons, Inc., 155 Conn. 343, 348, 232 A.2d 307 (1967); see also Pandolphe’s Auto Parts, Inc. v. Manchester, supra, 221. Ultimately, the determination of the value of real estate is a matter of opinion, which eventually depends upon the considered judgment of the trial judge who takes into account the different opinions expressed by the various witnesses. Moss v. New Haven Redevelopment Agency, 146 Conn. 421, 425, 151 A.2d 693 (1959).

The defendants claim that the trier erroneously based his valuation, in part, on the speculation that the city would issue the special permit required for the construction of condominiums. The record contradicts this claim. There is sufficient evidence to support the proposition that the valuation took into consideration the difficulties, expenses, and time delays that would result from the filing of an application for the required special permit.

Moreover the court properly ordered the plaintiff to pay to the defendants the sum of $21,520 in order to balance the proportionate interests of the collective defendants. The ordering of a payment, where required, to equalize the proportionate shares of the parties, is a sensible and reasonable exercise of the court’s discretion. See Delfino v. Vealencis, supra, 536 n.7. It would be almost impossible to divide land into fractional parts each reflecting an exact dollar amount of valuation. The court has the power and authority to order such payments to facilitate an equitable and fair division. 4A Powell, supra; 2 American Law of Property, supra.

There is no error.

In this opinion the other judges concurred.

       This appeal, originally filed in the Supreme Court, was transferred to this court. Public Acts, Spec. Sess., June, 1983, No. 83-29, § 2 (c).

       The defendants are brothers and sisters. The plaintiff acquired his interest by virtue of a conveyance from his wife, a sister of the defendants.


text:
    Abacus Mortgage Insurance Company v. Whitewood Hills Development Corporation et al.
    (2640)
    Hull, Borden and Spallone, Js.
    Argued June 6
    decision released August 28, 1984

      Robert C. DuBeau, with whom, on the brief, was Susan M. Boyan, for the appellant (defendant Robert M. Levintan).

      Robert L. Keepnews, for the appellee (plaintiff).
   Spallone, J.

This is an appeal from a judgment of strict foreclosure, brought by the defendant Robert M. Levintan, whose interest in certain rental property located in Waterbury is based on two attachments, each in the amount of $306,000. The named defendant is the mortgagor, Whitewood Hills Development Corporation (Whitewood).

On February 29,1980, Whitewood executed a mortgage deed and note in the principal amount of $1,750,000 in favor of the plaintiff, Abacus Mortgage Investment Company (Abacus). The mortgage deed provided that Abacus was to retain $200,000 of the proceeds of the note in escrow. Whitewood was to have no interest obligation on the escrow fund which was to be applied by Abacus to the payment of interest, principal or other amounts due under the note and mortgage. The note fixed the interest rate at 3 percent above the prime rate in effect at the time any payment was due. The prime rate was defined as that varying rate of interest per annum equal to the highest rate announced by the Continental Illinois National Bank and Trust Company of Chicago, Illinois (the bank), as being charged to its largest and most creditworthy corporate borrowers in that city for ninety day unsecured loans.

The plaintiff used the $200,000 escrow fund to pay the interest due until the fund was depleted. The plaintiff, during this period, received notice of the prime rate by mail from the bank and mailed out monthly statements to Whitewood showing the applicable interest rate. After a dispute arose between the plaintiff and Whitewood, the plaintiff ceased mailing out the monthly-statements. The debt, in addition to being secured by the mortgage, was also secured by an assignment of rents and leases. Whitewood defaulted on the loan in November, 1980, and a foreclosure action was commenced in May, 1981. Subsequent encumbrances, including Levintan’s attachments, totalled $894,907.91. Municipal liens for real estate taxes and water charges stood in excess of one half million dollars. Since about November 1,1981, the Dundee Labor Force (Dundee) had been managing the property and collecting rents pursuant to an agreement among Whitewood, Dundee and the plaintiff.

On September 26, 1983, the trial court granted the plaintiff’s motion for judgment of strict foreclosure. The court also found, inter alia, that the amount of the debt Whitewood owed to the plaintiff was $2,548,962.51; that there was not sufficient evidence in the record to support the claim that the plaintiff was in possession of the property and thereby obligated to apply the rental income to the debt; and that a sale of the property would not benefit any of the parties, as there was no equity in the property.

On appeal, the defendant claims error in the court’s finding of interest and thereby in its finding of the amount of the debt; in its finding that the plaintiff was not obligated to apply the rental income to reduce the debt; and, finally, in its decision that a judgment of strict foreclosure was an appropriate remedy in this case.

The court correctly ascertained the rate of interest and the interest due. The trial judge had before him the mortgage deed and note. These documents, along with the testimony and the exhibits introduced at the trial, support his conclusions as to the debt. The court’s finding of the applicable interest rate was made on the basis of its observation of and conclusions drawn from the evidence at the hearing. That finding cannot and will not be disturbed. The interest and the debt were determined by the court after a full hearing held over two days. The defendant is asking us to retry the case. We cannot. On appeal, the function of this court is limited solely to the determination of whether the decision of the trial court is clearly erroneous. Practice Book § 3060D; Damora v. Christ-Janer, 184 Conn. 109, 113, 441 A.2d 61 (1981); Ram Roofing & Sheet Metal Co. v. A.B.C. Plumbing & Heating, Inc., 2 Conn. App. 54, 56, 475 A.2d 341 (1984). It is the province of the trial court to pass upon the credibility of witnesses and the weight to be accorded the evidence. Edgewood Construction Co. v. West Haven Redevelopment Agency, 170 Conn. 271, 272, 365 A.2d 819 (1976); Essex Savings Bank v. Leeker, 2 Conn. App. 98, 102, 476 A.2d 1071 (1984). This court cannot find facts or draw conclusions from primary facts found, but can only review such findings to determine whether they could legally, logically and reasonably be found, thereby establishing that the trial court could reasonably conclude as it did. Appliances, Inc. v. Yost, 186 Conn. 673, 676-77, 443 A.2d 486 (1982); Hallmark of Farmington v. Roy, 1 Conn. App. 278, 280-81, 471 A.2d 651 (1984). There is no merit to the assertion that the court erred in its finding of the applicable interest rate in establishing the judgment debt.

The defendant’s second claim, that the plaintiff should have applied some of the rental income to reduce the mortgage debt, is also without merit. The trial court found that there was not sufficient evidence to support the claim that the plaintiff was a mortgagee in possession of the property and therefore required to use the rent to reduce the debt. See Milici v. Ferrara, 133 Conn. 141, 145, 48 A.2d 562 (1946); Desiderio v. Iadonisi, 115 Conn. 652, 654, 163 A. 254 (1932). The court also found that the agreement between the plaintiff and Whitewood permitted the plaintiff to allocate, as it saw fit, the rental income among various expenses of the property. We cannot find, on the basis of the record before us, that the trial court’s conclusion was clearly erroneous. Fairfield County National Bank v. DeMichely, 185 Conn. 463, 465, 441 A.2d 569 (1981); Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980); Contoura Business Products, Inc. v. TLD, Inc., 1 Conn. App. 690, 692, 474 A.2d 1265 (1984).

The final issue raised by the defendant is whether the judgment of strict foreclosure best protects the interests of the parties. The only evidence of value presented to the court was the plaintiff’s appraisal. The defendant did not produce any witnesses to refute the plaintiff’s evidence. The debt found by the court greatly exceeds the value of the property. The standard of review of a judgment of foreclosure by sale or by strict foreclosure is whether the trial court abused its discretion. Constitution Bank & Trust Co. v. Robinson, 179 Conn. 232, 238, 425 A.2d 1268 (1979); City Savings Bank v. Lawler, 163 Conn. 149, 155, 302 A.2d 252 (1972). We cannot, in this case, find any abuse of discretion by the trial court in its finding that a judgment of strict foreclosure best protects the interests of all the parties. The trial court wisely refused, in the exercise of its discretion, to impose upon the plaintiff the additional costs and expense of a foreclosure by sale. Bradford Realty Corporation v. Beetz, 108 Conn. 26, 31, 142 A. 395 (1928). We find that the court, in rendering a judgment of strict foreclosure, acted within its sound discretion.

There is no error.

In this opinion the other judges concurred.

       This appeal, originally filed in the Supreme Court, was transferred to this court. Public Acts, Spec. Sess., June, 1983, No. 83-29, § 2 (c).

       As used in this opinion, “defendant” hereinafter refers to Robert M. Levintan, the sole appellant.


text:
    Alexander Aiello et al. v. Herman Austrian et al.
    (2458)
    Hull, Borden and Spallone, Js.
    Argued June 6
    decision released August 28, 1984

      Bruce L. Levin, with whom, on the brief, was Serge G. Mihaly, for the appellants (plaintiffs).

      Daniel Green, for the appellees (defendants).
   Borden, J.

This suit was brought for damages claimed to have arisen from the defendants’ alleged breach of a lease provision prohibiting assignment of the lease or subletting without the lessors’ permission. The trial court found there was no assignment but rendered judgment for the amount still owing for rent. The plaintiffs appeal claiming there was an assignment as a matter oflaw. We agree with the trial court’s determination that no assignment occurred.

The facts are undisputed. The plaintiffs executed a lease in 1964 with the defendants, who are physicians, to rent premises for the defendants’ medical practice which they operated as a partnership at that time. The lease term, with renewal options, ended on April 30, 1981. The lease included a covenant restricting the lessees’ right to assign or sublet the premises without the written consent of the lessors and providing that upon such an assignment or subletting, the lease would terminate.

In November, 1978, the defendants formed a professional corporation, of which they were the sole shareholders, and ceased to operate as a partnership. No change in the nature and scope of their medical practice occurred, other than altering the name on signs, letterheads and bank accounts. The defendants sought the permission of the plaintiffs to assign the lease to their professional corporation but the plaintiffs refused.

Thereafter, rent was paid using corporate checks, which the plaintiffs accepted without objection. The defendants did not pay the rent in March or April, 1981, totaling $1090, but the plaintiffs later collected $1050 of this unpaid rent, leaving a balance of forty dollars.

In June, 1980, the plaintiffs sued for the fair market rental value of the premises from November, 1978, to the end of the lease term, April 30,1981, alleging that the defendants had breached the covenant against assignment by changing the form of their medical practice and thus were tenants at sufferance. The trial court found that no assignment had occurred and rendered judgment for the plaintiffs for the balance of the rent.

The sole issue on appeal is whether, as a matter of law, an assignment occurs in violation of a covenant against assignment merely because the form of the lessee’s business changes from a partnership to a corporation. We conclude that it does not.

Although there is no Connecticut authority precisely on point, the proper path is well illuminated. “The burden of proving that there was a subletting or assignment is upon the party asserting it, which in this case is the . . . landlord; and where the facts are in dispute and conflicting inferences may be drawn therefrom, the question whether there was a tenancy is one of fact . . . Galluzzo v. Mannino, 110 Conn. 507, 513, 148 A. 347 (1930) (where individual lessees permitted corporation, owned in part by them, to occupy leased premises and conduct related business, corporation was a licensee and no violation of covenant against subletting or assignment took place). A covenant against assignment, and thus against alienation, is disfavored and must be construed strictly against the landlord. 3A Thompson, Real Property § 1211; see Galluzzo v. Mannino, supra, 513.

Galluzzo is consistent with cases from other jurisdictions. We hold that whether a change in the form of a lessee’s business from a partnership to a corporation violates a covenant against assignment is a factual question, to be resolved by reference to such factors as whether there was an essential change in personnel, whether the change was substantial or merely one of form, and whether the interests of the landlord are affected by the change. Sexton v. Nelson, 228 Cal. App. 2d 248, 39 Cal. Rptr. 407 (1964); Giaise v. Cuccia, 420 So. 2d 700 (La. App. 1982); Buckeye Development Co. v. Feingold, 626 S.W.2d 456 (Mo. Ct. App. 1981); B.J. Galligan & Co. v. P.S.M., Inc., 116 Misc. 754, 191 N.Y.S. 523 (1921); Bennett, Law of Landlord and Tenant § 290; 3A Thompson, Real Property § 1212; see also Citizens Bank & Trust Co. v. Barlow Corporation, 295 Md. 472, 456 A.2d 1283 (1983).

In this case, the trial court concluded as a matter of fact that the mere change in form from partnership to corporation did not amount to an assignment. Not only was that finding not clearly erroneous, it was the only rational conclusion which could have been reached on the facts of this case.

There is no error.

In this opinion the other judges concurred.

       This appeal, originally filed in the Supreme Court, was transferred to this court. Public Acts, Spec. Sess., June, 1983, No. 83-29, § 2 (c).

       The trial court found in the alternative that the plaintiffs had waived any breach resulting from the nonassignability clause. The plaintiffs also take issue with this finding. In view of our conclusion sustaining the trial court’s finding that there was no assignment, we need not consider the waiver issue.

       We are not persuaded by the plaintiffs reliance on Emery v. Hill, 67 N.H. 330, 39 A. 266 (1892), which is factually distinguishable. To the extent, moreover, that it may be read as holding that an assignment results as a matter of law from the lessee’s change from partnership to corporate form, we disagree with it.


text:
    John A. Eagar et al. v. Harriett D. Barron (Executrix, Estate of Alston L. Eagar)
    (2920)
    Hull, Dupont and Spallone, Js.
    Argued June 7
    decision released August 28, 1984

      Marilyn K. Dirks, for the appellant-appellee (defendant).

      BertlenF. Turner, for the appellee-appellant (plaintiff Anne E. Eagar).
   Spallone, J.

This is an appeal by the defendant, in an action to collect child support payments. The jury returned a verdict in favor of the plaintiff Anne E. Eagar. The defendant’s motion to set aside the verdict was denied by the court. A cross appeal was filed by the plaintiff challenging the jury’s computation of interest.

On October 1,1947, the Probate Court for Berkshire County in the Commonwealth of Massachusetts granted a decree of divorce to the plaintiff dissolving her marriage to Alston L. Eagar, the defendant’s decedent. Under the provisions of the decree, Alston L. Eagar was ordered to pay child support in the amount of $15 per week for the two minor children, John A. Eagar, born December 9,1938, and Ellen B. Eagar, bom January 18,1947. This obligation was to continue from October 1,1947, until January 18,1968, when the younger child reached the age of majority.

On March 31, 1979, the plaintiff’s former husband, Alston L. Eagar, died testate in Granby, Connecticut. His last will and testament was submitted for probate, duly approved and admitted on July 3,1979. The defendant, Harriett D. Barron, was duly approved and qualified as executrix under the terms of the will. The plaintiff presented a claim against the decedent’s estate in the amount of $11,920, alleging that the decedent had paid only $3905 towards a total child support obligation of $15,825. The claim was disallowed by the defendant in her capacity as executrix.

The plaintiff then filed an action against the defendant executrix in the Superior Court in Hartford to collect the past support payments which she claimed were due. The defendant answered and filed special defenses of an equitable statute of limitations and laches. On August 12 and 13,1982, the matter was tried to a jury. The jury returned a verdict for the plaintiff and awarded damages in the amount of $6420 plus 6 percent interest. The court instructed the jury to return to its deliberations and to fix a dollar amount of interest. Thereafter, the jury returned and the court accepted a verdict in the amount of $6805.20. The defendant filed a motion to set aside the verdict on the grounds that it was contrary to the law, against the evidence and excessive. The motion was denied.

The defendant claims that the trial court erred (1) in finding that the plaintiff had met her burden of proof by a fair preponderance of the evidence; (2) in failing to find for the defendant on the basis of an equitable statute of limitations; and (3) in failing to find for the defendant on the basis of laches.

The defendant’s first claim of error, that the plaintiff did not meet her burden of proof by a fair preponderance of the evidence, is without merit. There was evidence presented to support the verdict in favor of the plaintiff. Whether such evidence is sufficient is a question for the jury to decide. State v. Scielzo, 190 Conn. 191, 197, 460 A.2d 951 (1983). The judge decides whether there is any evidence to support the verdict. Berndston v. Annino, 177 Conn. 41, 44, 411 A.2d 36 (1979). It is also within the province of the jury to determine credibility and the effect to be given the testimony. Gallo v. Gallo, 184 Conn. 36, 38, 440 A.2d 782 (1981); State v. Grant, 177 Conn. 140, 142, 411 A.2d 917 (1979); Robben v. Hartford Electric Light Co., 1 Conn. App. 109, 114, 468 A.2d 1266 (1983). Moreover, it is the jury’s right to consider evidence, draw logical deductions and make reasonable inferences from facts proven. State v. Schoenbneelt, 171 Conn. 119, 126, 368 A.2d 117 (1976); Dacey v. Connecticut Bar Assn., 170 Conn. 520, 540, 368 A.2d 125 (1976). The jury decides questions of fact. Gaulton v. Reno Paint & Wallpaper Co., 177 Conn. 121, 127, 412 A.2d 311 (1979). It may accept or reject the testimony of any witness; Zarembski v. Three Lakes Park, Inc., 177 Conn. 603, 608, 419 A.2d 339 (1979); and determine the weight to be given the evidence. Angelica v. Fernandes, 174 Conn. 534, 535, 391 A.2d 167 (1978). The amount of damages to be awarded is a matter particularly within the province of the jury. Fox v. Mason, 189 Conn. 484, 489, 456 A.2d 1196 (1983); Kiniry v. Danbury Hospital, 183 Conn. 448, 461, 439 A.2d 408 (1981). We find no merit to the defendant’s assertion that the plaintiff failed to meet her burden by a fair preponderance of the evidence.

The defendant’s averment of error in failing to find for the defendant on her special defenses of an equitable statute of limitations and laches is also without merit. The trial court properly charged the jury on the elements of these special defenses. The defendant did not object to the charge and is precluded from attacking the charge at this time. Practice Book § 315; Thomas v. Katz, 171 Conn. 412, 413-14, 370 A.2d 978 (1976); Giglio v. Hamilton Heights, Inc., 1 Conn. App. 165, 169, 469 A.2d 416 (1984). After being properly charged as to these special defenses, the jury returned a general verdict in favor of the plaintiff. A general verdict for the plaintiff imports that the jury resolved all of the disputed issues in favor of the plaintiff. Tetro v. Stratford, 189 Conn. 601, 610, 458 A.2d 5 (1983); Carlson v. Connecticut Co., 95 Conn. 724, 729, 112 A. 646 (1921).

In her cross appeal, the plaintiff challenges the jury’s computation of the interest due in accordance with its award. After being sent back to compute the interest, the jury returned a verdict which was accepted by the court in the amount of $6805.20. The plaintiff did not thereafter file a motion to set aside the verdict, nor did she file any other post-trial motions. Such failure of the plaintiff timely to object limits us to the standard of plain error. Practice Book § 3063; Pietrorazio v. Santopietro, 185 Conn. 510, 513-16, 441 A.2d 163 (1981); Rozbicki v. Pelletier, 2 Conn. App. 87, 88, 476 A.2d 1069 (1984). We are unable to reach the conclusion that the trial court committed plain error. Where the verdict is a general one, the actual basis for the jury’s decision must remain unknown. Duley v. Plourde, 170 Conn. 482, 487, 365 A.2d 1148 (1976). We are precluded from delving into the minds of the jurors in order to ascertain the basis and the rationale underlying their decision.

There is no error on either appeal.

In this opinion the other judges concurred.

       This appeal, originally filed in the Supreme Court, was transferred to this court. Public Acts, Spec. Sess., June, 1983, No. 83-29, § 2 (c).

       In the original action, the children and their mother sought recovery of the support payments in separate counts of the complaint. The defendant moved to strike the children from the action on the ground that the mother was the sole party able to enforce child support rights. The motion was granted by the court and an amended complaint was filed. The mother, Anne E. Eagar, is the plaintiff in this action.


author: Dupont, J.

text:
    Linda J. Pascal v. Charles J. Pascal
    (2404)
    (2471)
    Dannehy, C.P.J., Dupont and Borden, Js.

      Argued May 3
    decision released August 28, 1984

      Louis I. Gladstone, with whom, on the brief, were Matthew B. Woods and David S. Rutkin, for the appellant-appellee (plaintiff).

      Ernest C. LaFollette, for the appellee-appellant (defendant).
   Dupont, J.

These two appeals concern various orders made subsequent to the dissolution of the marriage of the parties. When the marriage was dissolved, custody of the two minor children of the plaintiff and the defendant was awarded to the plaintiff wife. The issues on appeal stem from the battle of the parties over the rights of visitation granted to the defendant, and from the amount of child support to be paid by him. One appeal concerns the plaintiff’s claim that the trial court erred in ordering psychiatric treatment for one of the minor children. In the other appeal, the defendant claims error of the trial court (1) in awarding an increase in child support payments, (2) in finding him in contempt, (3). in awarding counsel fees to the plaintiff to defend the appeal, and (4) in refusing to erase material in his civil court file relating to previously dismissed criminal charges.

I

The orders relating to custody were modified several times between the date of the dissolution and January 25,1982, at which time the defendant was granted reasonable rights of visitation as long as the visits with his children were held at the plaintiff’s residence in the presence of other family members. In May of 1982, the defendant filed a motion for modification of visitation rights in which he sought to visit the children outside of the plaintiff’s home. The matter was referred to a domestic relations officer who recommended that visitation be confined to the plaintiff’s residence and that one of the minor sons and the defendant undergo therapy. The court reserved judgment on the motion for modification but, in accordance with the recommendation, ordered the minor son and the defendant to obtain “therapy in a number of sessions as is felt to be useful by the doctor in question.”

The purpose of the order was to improve the father-son relationship and to provide the court with useful information for the resolution of visitation rights. In a memorandum of articulation, the court stated: “Without the benefit of a complete investigation, including a psychiatric evaluation and therapy if required, the Court will not be in a position to determine if there has been a material change in circumstances since the prior court order issued on January 25, 1982. No meaningful hearing can be held on this issue without the benefit of expert medical evidence.” The plaintiff’s motion to vacate the order requiring therapy for her son was denied and the plaintiff appealed.

The merits of the plaintiff’s appeal cannot be determined without first deciding whether jurisdiction of the appeal exists. The defendant contends that such an order is not a final judgment from which an appeal properly lies.

The right of appeal is purely statutory and is accorded only if the conditions fixed by statute and the rules of court are met. State v. Audet, 170 Conn. 337, 341-42, 365 A.2d 1082 (1976); Howarth v. Northcott, 152 Conn. 460, 462, 208 A.2d 540 (1965). An appeal may only be taken from a final judgment. General Statutes § 52-263; Practice Book § 3000. The Supreme Court has not used only one standard to determine that quantum of finality which is basic to a right of appeal. An order or action of a trial court is a final judgment for the purposes of an appeal if it either terminates a separate and distinct proceeding or concludes the rights of the parties so that further proceedings cannot affect them. State v. Longo, 192 Conn. 85, 89, 469 A.2d 1220 (1984). It is the effect rather than the nature of the order or judgment which is critical in determining whether a matter is appealable. Howarth v. Northcott, supra. Rulings on postjudgment motions to modify an original judgment where the court has continuing jurisdiction are final judgments. Ostroski v. Ostroski, 135 Conn. 509, 511, 66 A.2d 599 (1949).

The defendant contends that the order for psychiatric therapy is in the nature of a discovery order and is, therefore, nonappealable. See State v. Grotton, 180 Conn. 290, 429 A.2d 871 (1980); Chrysler Credit Cor poration v. Fairfield Chrysler-Plymouth, Inc., 180 Conn. 223, 429 A.2d 478 (1980). In ordering psychiatric therapy, the trial court imposed a condition on the plaintiff’s care and custody of her child, and effectively modified the original custody award. The court did not treat its order as one for discovery but as a therapeutic tool. Given this use of the order for therapy, and given its undetermined duration, the court has modified the original judgment which gave the plaintiff exclusive custody of the child. A modification of even a temporary award of custody is reviewable as a final judgment. See In re Juvenile Appeal (83-CD), 189 Conn. 276, 455 A.2d 1313 (1983). The noncustodial parent, here the defendant, had not, as of the date of his motion for modification, provided any evidence of a change in circumstances. The court, however, ordered an involuntary submission of the child by the custodial parent to psychiatric examination and treatment. This modification of custody without a requisite showing of a change in circumstances leaves the plaintiff without recourse, short of contempt, unless she has the right of appeal.

Since the order is found to be appealable, the substance of the appeal must be considered. General Statutes § 46b-56 governs the issuance of orders regarding custody in a dissolution action. It provides in pertinent part as follows: “(a) In any controversy before the superior court as to the custody or care of minor children . . . the court may at any time make or modify any proper order regarding the education and support of the children and of care, custody and visitation if it has jurisdiction under the provisions of chapter 815o. . . . (b) In making or modifying any order with respect to custody or visitation, the court shall be guided by the best interests of the child . . . .” The court’s broad discretion to modify custody orders is limited by the requirement that such modification be based upon “either a material change of circumstances which alters the court’s finding of the best interests of the child; Trunik v. Trunik, 179 Conn. 287, 289-90, 426 A.2d 274 (1979); Cleveland v. Cleveland, 165 Conn. 95, 100, 328 A.2d 691 (1973); Tippin v. Tippin, 148 Conn. 1, 3, 166 A.2d 448 (1960); Sullivan v. Sullivan, [141 Conn. 235, 239, 104 A.2d 898 (1954)]; or a finding that the custody order sought to be modified was not based upon the best interests of the child. Stewart v. Stewart, [177 Conn. 401, 407, 418 A.2d 62 (1979)]; Simons v. Simons, 172 Conn. 341, 348, 374 A.2d 1040 (1977).” Hall v. Hall, 186 Conn. 118, 122, 439 A.2d 447 (1982).

The plaintiff argues that the order was improper because neither evidentiary finding set forth in Hall v. Hall, supra, was made. The transcript and record support this argument. Since such is the case, it is concluded that the trial court abused its discretion in ordering therapy for the child. See Strohmeyer v. Strohmeyer, 183 Conn. 353, 356, 439 A.2d 367 (1981).

There is no merit in the defendant’s contention that, because the order for therapy was issued pursuant to General Statutes §§ 46b-3 and 46b-6, Hall v. Hall, supra, is inapplicable. Section 46b-3 provides in pertinent part: “For the purposes of any investigation or pretrial conference the judge presiding at any family relations session may employ the services of any . . . physician, psychologist, psychiatrist or family counselor.” Section 46b-6 provides: “In any pending family relations matter the court or any judge may cause an investigation to be made with respect to any circumstance of the matter which may be helpful or material or relevant to a proper disposition of the case. Such investigation may include an . . . evaluation of [a child’s] mental or physical condition.” General Statutes,. § 46b-6 thus permits the court to order an evaluation of a child’s mental condition and, to that end, General Statutes § 46b-3 allows the court to employ the services of a psychologist, psychiatrist or family counselor. The statutes provide a means by which the court, in its discretion, may obtain a distinterested assessment of the facts of the case. Ridgeway v. Ridgeway, 180 Conn. 533, 542 n.6, 429 A.2d 801 (1980). They do not authorize any more than that.

Where the language of the statute is clear and unambiguous, we cannot subject its meaning to modification by construction. Luttrell v. Luttrell, 184 Conn. 307, 310-11, 439 A.2d 981 (1981); Colli v. Real Estate Commission, 169 Conn. 445, 450, 364 A.2d 167 (1975). Here, the language is clear. An evaluation of a physical or mental condition is not equivalent to treatment of such a condition.

“Evaluation” means “the act or result of evaluating”; “evaluate” in turn, is defined as “to examine and judge concerning the worth, quality, significance, amount, degree or condition of.” Webster’s Third New International Dictionary. “Therapy,” on the other hand, means the “treatment of disease . . . by therapeutic means.” Id. Neither § 46b-3 nor § 46b-6 of the General Statutes confers jurisdiction upon the court to order psychiatric or other therapy in the course of an investigation.

II

At the time of the dissolution of the marriage, the plaintiff was awarded child support totaling $50 per week, and the defendant was required to convey his one half interest in the jointly owned marital home to her and to secure the release of a judgment lien on the home. In November, 1982, the defendant received approximately $35,000 from the plaintiff for his interest in the house, but failed to release the lien. On February 24, 1983, the defendant was held in contempt for his failure to release the lien and was ordered to pay increased child support totalling $80 per week. The defendant appealed from the judgment of contempt and from the increase in child support.

The plaintiff subsequently filed a motion for counsel fees to defend the defendant’s appeal and a motion for contempt for the defendant’s failure to comply with the original child support order. The trial court granted the plaintiff counsel fees of $1500 and found the defendant in contempt for failure to pay a child support arrearage of $650 based on the original order. The defendant amended his appeal to include both the award of counsel fees and the second judgment of contempt.

While the dissolution action was pending, the plaintiff filed child abuse charges against the defendant. The charges were based on affidavits of the plaintiff and her mother and statements of the minor child for whom the therapy was ordered. These charges were dismissed on the basis of representations by the plaintiff’s former attorney and others that no child abuse had occurred and that the supporting affidavits or the statements of the minor child had been fabricated. After the defendant’s motion to erase the affidavits from the record was denied on May 11, 1983, he further amended his appeal to include that denial.

The defendant claims that the trial court erred in increasing his child support payments from $50 to $80 per week in the absence of a substantial change of circumstances as required by General Statutes § 46b-86. That section, as delineated by our case law, requires that a party seeking modification must show a substantial change in the circumstances of either party which occurred subsequent to the entry of the original decree and which was not contemplated at the time of the original order. McCann v. McCann, 191 Conn. 447, 450-51, 464 A.2d 825 (1983); Howat v. Howat, 1 Conn. App. 400, 402-403, 472 A.2d 799 (1984). Thus, an increase in the income and assets of the supporting party since the original decree may constitute a substantial unforeseen change of circumstances. Hardisty v. Hardisty, 183 Conn. 253, 439 A.2d 307 (1981).

In this case, the defendant was unemployed and receiving approximately $154 per week in unemployment compensation at the time of the dissolution of the marriage. At the hearing more than two years later, he testified that for a period of about four months during that interim he was employed at the rate of $415 per week. He also testified that at various other times after the initial decree he was self-employed as an insurance agent, in which capacity he earned between $225 and $250 per week.

It is evident that the original support order was based on the defendant’s unemployability and that this condition changed over the course of time. The defendant’s renewed capacity for employment was a change of circumstances sufficient to trigger a reconsideration of the initial order. The trial court, therefore, was justified in reviewing any unmet and continuing needs of the children which existed at the time of the original decree or in reevaluating the existing award in terms of their present needs, using the same criteria as required for an initial award. Howat v. Howat, supra, 406. The fact that the defendant was once again unemployed at the time of the hearing on the plaintiff’s motion for modification does not change the result. Evidence of earning capacity rather than the actual earned income of the parties may be utilized in determining the appropriate financial awards. Miller v. Miller, 181 Conn. 610, 611-12, 436 A.2d 279 (1980); McKay v. McKay, 174 Conn. 1, 2, 381 A.2d 527 (1977). The trial court did not abuse its discretion in increasing the defendant’s child support obligation.

The defendant also claims that the trial court erred in finding him in contempt for failing to pay a child support arrearage of $650 based on the original order and in awarding the plaintiff $1500 in counsel fees. Both claims of error are based upon the assertion that he lacked assets with which to pay either the arrearage or the counsel fees.

A review of contempt orders in a domestic relations case is limited to questions of jurisdiction and whether the acts for which the punishment was imposed could constitute contempt. Friedlander v. Friedlander, 191 Conn. 81, 84, 463 A.2d 587 (1983). This review is further limited to determining whether the trial court could reasonably conclude as it did. The action of the trial court will not be disturbed unless it abused its discretion, “and in determining this the unquestioned rule is that great weight is due to the action of the trial court and every reasonable presumption should be given in favor of its correctness. . . . [I]t is the sole province of the trier to pass upon the credibility of witnesses and the weight to be accorded,the evidence.” Jacobsen v. Jacobsen, 177 Conn. 259, 263, 413 A.2d 854 (1979).

The trial court was not bound to accept the defendant’s testimony. It could and did conclude that other evidence was more probative. Id., 264-65; Stanton v. Grigley, 177 Conn. 558, 563, 418 A.2d 923 (1979). The trial court found that the defendant had created his own impoverishment by divesting himself of assets. The defendant received approximately $35,000 from the plaintiff for his interest in the marital home. After turning over most of that amount to his father in repayment of undocumented loans, the defendant lived on funds borrowed back from his father. While the inability of a party to obey an order of the court, without fault on his part, is a good defense to a charge of contempt; Mays v. Mays, 193 Conn. 261, 264, 476 A.2d 562 (1984); the evidence in this case supports the court’s conclusion that the defendant voluntarily depleted his assets in disregard of the support order by transferring the money to his father. The trial court did not abuse its discretion in finding the defendant in contempt for failing to pay child support arrearages.

The court did not abuse its discretion in awarding the plaintiff counsel fees. In determining whether to award counsel fees, the trial court must consider the total financial resources of the parties in light of the criteria set forth in General Statutes §§ 46b-62 and 46b-82. Turgeon v. Turgeon, 190 Conn. 269, 280, 460 A.2d 1260 (1983). Among the criteria to be considered are the length of the marriage, “the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties . . . and, in the case of a parent to whom the custody of minor children has been awarded, the desirability of such parent’s securing employment.” General Statutes § 46b-82. An examination of the transcript reveals that ample testimony as to the statutory criteria was presented to and considered by the court. There was, therefore, no abuse of discretion based, as the defendant claims, on the court’s failure to consider those factors. The defendant also argues that the trial court relied exclusively on “a disposal of the assets theory,” yet did not find and set aside a fraudulent conveyance. In view of the foregoing, it was unnecessary for the court to do so.

The defendant also claims that the trial court erred in refusing to erase from the dissolution file copies of affidavits filed in connection with criminal charges. The affidavits consisted of statements by the plaintiff and her mother given to the police in support of a warrant for the defendant’s arrest.

In moving for the erasure, the defendant relied on General Statutes § 54-142a which provides in pertinent part: “Whenever in any criminal case . . . the charge is dismissed, all police and court records and records of any state’s attorney pertaining to such charge shall be erased.” (Emphasis added.) The phrase “court records” as used in that section was construed by the Supreme Court in Doe v. Manson, 183 Conn. 183, 187, 438 A.2d 859 (1981), as “those [records] created or maintained by or for a court with respect to all court proceedings from commencement to termination.” Accordingly, a mittimus, presentence investigation report and transcript of sentencing hearings were held to be court records as contemplated by § 54-142a. Under Doe v. Manson, supra, it is thus clear that statements given in support of an application for an arrest warrant are also a part of the court record.

The beneficiaries of the provisions of General Statutes § 54-142a are “the accused in criminal cases. . . . The erasure of criminal records demanded by [that statute] is a personal right of the accused only.” McCarthy v. Freedom of Information Commission, 35 Conn. Sup. 186, 193, 402 A.2d 1197 (1979).

The trial court, in denying the defendant’s motion for erasure, relied on the confidentiality afforded by General Statutes § 46b-ll. That statute does not sufficiently protect this right. The defendant was entitled to have the record erased.

There is error on the plaintiff’s appeal (No. 2404) and there is error in part on the defendant’s appeal (No. 2471), the judgments ordering therapy for the minor child and denying the defendant’s motion for erasure are set aside, and the case is remanded for further proceedings consistent with this opinion.

In this opinion the other judges concurred.

       These appeals, originally filed in the Supreme Court, were transferred to this court. Public Acts, Spec. Sess., June, 1983, No. 83-29, § 2 (c).

       During oral argument before this court, the plaintiff’s counsel stated that the defendant had left the state since the date of the trial court’s orders and that the defendant had consciously avoided his court ordered obligations. The record and transcript here, however, are insufficient to warrant a sua sponte conditional dismissal of the defendant’s appeal. Greenwood v. Greenwood, 191 Conn. 309, 464 A.2d 771 (1983).

       The report of the domestic relations officer stated that “it does not seem likely that a re-established relationship [between the defendant and his son] will come to pass without therapeutic intervention for both father and son.”

       The order that the defendant undergo therapy is not an issue in either appeal.

       When the appeal in this case was pending before the Supreme Court, it twice denied a motion to dismiss made by the defendant on the ground that the order was not a final judgment. The motions were made both prior and subsequent to the trial court’s memorandum of articulation.

       The transcript discloses that the visits to the psychiatrist as ordered were intended to be at least as therapeutic as evaluative.

       The judgment of dissolution provided in pertinent part that “the defendant Husband shall convey his one half interest in and to the jointly owned marital home located at 67 Lobsterback Road, in Shelton, Connecticut, to the plaintiff Wife in the consideration of $32,500, to be paid on or before November 1,1981. The plaintiff Wife shall execute a noninterest bearing promissory note and a second mortgage to be placed on the land records reflecting her obligation to the defendant Husband. The second mortgage is to be subject only to the first mortgage presently on the premises. If the payment is not made on or before November 1,1981, the note will bear interest at the rate of 10 percent per annum.”

       The claim that the court erred in its finding of contempt for failure to pay off the lien was not briefed on appeal and is therefore considered abandoned. State v. Gradzik, 193 Conn. 35, 44 n.11, 475 A.2d 269 (1984); New England Whalers Hockey Club v. Nair, 1 Conn. App. 680, 682 n.2, 474 A.2d 810 (1984).

       Upon the filing of this appeal, the increased support award was automatically stayed. Practice Book § 3065. The stay did not extend to the original order.

       This issue was not briefed by the plaintiff-appellee.

       It appears that copies of the statements were filed in the dissolution action in connection with an application for an ex parte order to restrain the defendant from exercising pendente lite visitation rights.

       General Statutes § 46b-ll provides in pertinent part: “The records and other papers in any family relations matter may be ordered by the court to be kept confidential and not be open to inspection except upon order of the court or judge thereof for cause shown.”
      In its memorandum of decision denying the defendant’s motion for erasure, the trial court stated that erasure was not necessary to carry out the purposes of General Statutes § 54-142a “[bjecause the legislature specifically provided the Family Court with the authority to seal all records and papers in a Family Court file . . .