author: DRANGINIS, J.

text:
    RONALD J. HICKEY v. COMMISSIONER OF CORRECTION
    (AC 23561)
    Schaller, Drangmis and DiPentima, Js.

      Argued December 9, 2003 —
    officially released March 16, 2004

      Sandra J. Crowell, deputy assistant public defender, for the appellant (petitioner).

      Steven R. Strom, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (respondent).
   Opinion

DRANGINIS, J.

The issue in this habeas corpus appeal is whether the petitioner, who is incarcerated in another state, is in the custody of the respondent commissioner of correction (commissioner) with respect to the unserved portion of a 1991 Connecticut sentence. Because the petitioner is an alleged parole escapee and the state has not lodged a detainer for his return to this state when he completes his out-of-state sentence, we conclude that he is not in the custody of the commissioner and that the habeas court lacked subject matter jurisdiction over the petition for a writ of habeas coipus.

The petitioner, Ronald J. Hickey, appeals from the judgment of the habeas court that denied his motion to reconsider its order dismissing without prejudice his petition for a writ of habeas corpus. The petitioner appealed, claiming that it was improper for the court (1) to dismiss his petition for a writ of habeas corpus pursuant to Practice Book § 23-29 (1) and (4), and (2) to conduct a hearing on the state’s motion to dismiss his habeas petition in his absence in contravention of Practice Book § 23-40. We affirm the judgment of the habeas court.

The following procedural history is relevant to our review. The petitioner, acting pro se, filed a petition for a writ of habeas corpus in the judicial district of Hartford on March 20,2000. The petition was submitted on what appears to be a modified standard form, issued by the state of Arizona, for postconviction relief. The petition represented that he is confined by the Arizona department of correction in Florence, Arizona.

According to his affidavit accompanying the petition, the petitioner was sentenced in Connecticut on October 17, 1991, to two years in the custody of the commissioner pursuant to a plea of no contest to three informa-tions. On October 30, 1992, the petitioner entered a community release program and reported weekly to an officer. The petitioner claims that he had received permission from his release officer to move to Florida to accept employment there. The release officer allegedly told him that if he stayed out of trouble, the officer would sign the release papers when the petitioner completed his sentence. The petitioner eventually moved to Arizona and became involved in unrelated criminal activity.

When the petitioner was arrested, the Arizona authorities informed him that interstate law enforcement records identified him as an escapee from the commissioner’s custody. According to the petitioner, his status as an escapee negatively influenced the Arizona sentence he received and the conditions under which he now is incarcerated. He claims that he is entitled to habeas relief because, among other reasons, the release officer filed a false report of escape. The petitioner seeks relief in the alternative: To be released from custody and discharged, to have his sentenced corrected or to be charged with escape and tried.

The commissioner filed a motion to dismiss the petition, arguing that because the petitioner had escaped from a community release program prior to completing his sentence, he is not entitled to habeas relief. See Valle v. Commissioner of Correction, 244 Conn. 634, 635, 711 A.2d 722 (1998) (petitioner absent from legal custody without leave disentitled to petition court to determine habeas corpus claims). In the alternative, the commissioner argued, pursuant to Practice Book § 23-29 (4), that the petition should be dismissed because it is moot, as there is no practical relief that can be afforded the petitioner.

The court heard oral argument from counsel on the commissioner’s motion -to dismiss. No evidence, however, was presented to the court. The court considered the motion on the basis of counsel’s factual representations and their memoranda of law and oral arguments. The petitioner did not attend the hearing as he is serving the Arizona sentence, which will not be completed until 2016. With respect to his 1991 sentence, the petitioner allegedly has 147 days to serve, but there is no outstanding detainer for his return to this state. The court concluded that it had no jurisdiction to compel the petitioner to be brought before it, as the petitioner is not in the commissioner’s custody, and the Arizona warden cannot be ordered to bring the petitioner to Connecticut. The court dismissed the petition without prejudice, concluding, pursuant to Practice Book § 23-29 (1) and (4), that it lacked subject matter jurisdiction and that the petition was premature. The petitioner filed this appeal after the court granted his petition for certification to appeal.

I

The petitioner claims that it was improper for the court to dismiss his petition for a writ of habeas corpus on the grounds that it lacked jurisdiction and the petition was premature pursuant to Practice Book § 23-29 (1) and (4), respectively. We disagree.

The petitioner claims that it was improper for the court to conclude that it lacked jurisdiction to consider his petition for a writ of habeas corpus, relying on Garlotte v. Fordice, 515 U.S. 39, 115 S. Ct. 1948, 132 L. Ed. 2d 36 (1995), and Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 93 S. Ct. 1123, 35 L. Ed. 2d 443 (1973), to support his claim. The federal cases on which the petitioner relies define custody as it relates to consecutive sentences to be served; they do not apply, however, to an escapee from parole against whom no detainer has been lodged. Frazier v. Wilkinson, 842 F.2d 42, 45 (2d Cir.), cert. denied, 488 U.S. 842, 109 S. Ct. 114, 102 L. Ed. 2d 88 (1988), which articulated the reasonable basis standard, is controlling. See also Simmonds v. Immigration & Naturalization Service, 326 F.3d 351, 354 (2d Cir. 2003) (discussing custody as jurisdictional prerequisite in habeas corpus proceedings).

First, we address the applicable standard of review. “A court has subject matter jurisdiction if it has the authority to hear a particular type of legal controversy. This jurisdiction relates to the court’s competence to exercise power.” Vincenzo v. Warden, 26 Conn. App. 132, 134-35, 599 A.2d 31 (1991). “The conclusions reached by the trial corut in its decision to dismiss the habeas petition are matters of law, subject to plenary review. . . . Thus, [w]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct . . . and whether they find support in the facts that appear in the record.” (Internal quotation marks omitted.) Smith v. Commissioner of Correction, 65 Conn. App. 172, 175, 782 A.2d 201 (2001).

“Subject matter jurisdiction for adjudicating habeas petitions is conferred on the Superior Court by General Statutes § 52-466, which gives it the authority to hear those petitions that allege illegal confinement or deprivation of liberty. ” Abed v. Commissioner of Correction, 43 Conn. App. 176, 179, 682 A.2d 558, cert. denied, 239 Conn. 937, 684 A.2d 707 (1996). Section 52-466 provides in relevant part that “(a) [a]n application for a writ of habeas corpus shall be made to the superior court . . . for the judicial district in which the person whose custody is in question is claimed to be illegally confined or deprived of his liberty . ... (c) The writ shall be directed to some proper officer to serve and return, who shall serve the same by putting a true and attested copy of it into the hands of the person who has the custody of the body of the person who is directed to be presented upon the writ. . . .” (Emphasis added.)

The jurisprudential history of our habeas coipus statute is consistent with the English common-law principles of the Great Writ and the federal habeas coipus statute. Vincenzo v. Warden, supra, 26 Conn. App. 136-37. In discussing the federal statute, “the United States Supreme Court has said that [t]he purpose of the proceeding defined by the statute was to inquire into the legality of the detention .... There is no warrant in either the statute or the writ for its use to invoke judicial determination of questions which could not affect the lawfulness of the custody and detention, and no suggestion of such a use has been found in the commentaries on the English common law.” (Emphasis added; internal quotation marks omitted.) Id., 136.

In this case, the court concluded that it lacked jurisdiction to issue a writ of habeas corpus because the petitioner was not in Connecticut and that it did not have authority to compel the Arizona warden to bring the petitioner before it. The issue is, however, whether the petitioner is in the commissioner’s custody, despite his incarceration in Arizona. We conclude that in the absence of a detainer to return the petitioner to Connecticut, he is not in the custody of the commissioner, and the court, therefore, lacked jurisdiction to consider his petition for a writ of habeas corpus.

“The writ of habeas corpus does not act upon the prisoner who seeks relief, but upon the person who holds him in what is alleged to be an unlawful custody. ... In the classic statement: The important fact to be observed in regard to the mode of procedure upon this writ is, that it is directed to, and served upon, not the person confined, but his jailer. It does not reach the former except through the latter. The officer or person who serves it does not unbar the prison doors, and set the prisoner free, but the court relieves him by compelling the oppressor to release his constraint. The whole force of the writ is spent upon the [custodian].” (Citation omitted; internal quotation marks omitted.) Braden v. 30th Judicial Circuit Court of Kentucky, supra, 410 U.S. 494-95.

“So long as the custodian can be reached by service of process, the court can issue a writ within its jurisdiction requiring that the prisoner be brought before the court for a hearing on his claim, or requiring that he be released outright from custody, even if the prisoner himself is confined outside the court’s territorial jurisdiction.” (Internal quotation marks omitted.) Id., 495. A writ of habeas corpus “assures among other things that a prisoner may require his jailer to justify the detention under the law.” Peyton v. Rowe, 391 U.S. 54, 58, 88 S. Ct. 1549, 20 L. Ed. 2d 426 (1968).

Section 52-466 directs the court in the judicial district in which the petitioner is confined to issue a writ to be served on the person having custody of the petitioner. Here, the commissioner has not questioned the court’s personal jurisdiction over him; he challenges whether the petitioner is in custody.

“The federal habeas statute [28 U.S.C. § 2241 et seq.] gives United States district courts jurisdiction to entertain petitions for habeas relief only from persons who are in custody in violation of the Constitution or laws or treaties of the United States.” (Emphasis in original; internal quotation marks omitted.) Maleng v. Cook, 490 U.S. 488, 490, 109 S. Ct. 1923, 104 L. Ed. 2d 540 (1989). “[A] prisoner serving consecutive sentences is in custody under any one of them for purposes of [28 U.S.C.] § 2241 (c) (3).” (Internal quotation marks omitted.) Peyton v. Rowe, supra, 391 U.S. 67. In Peyton, the prisoners sought a writ of habeas corpus to challenge a sentence to be served in the future. Garlotte v. Fordice, supra, 515 U.S. 40-41. Garlotte, which is Peyton in reverse, held that a prisoner may attack a prior consecutive sentence if a successful challenge will shorten the length of his current detention. Id., 47.

The petitioners in Peyton were prisoners serving consecutive state sentences in the commonwealth of Virginia. The federal rule that views state “consecutive sentences in the aggregate”; id.; also applies to situations in which a prisoner serving a sentence in one state files a petition for a writ of habeas corpus challenging a consecutive conviction rendered in a different jurisdiction or in which a prisoner is subject to an out-of-state detainer. See Braden v. 30th Judicial Circuit Court of Kentucky, supra, 410 U.S. 498-99.

During the hearing on the petition, the court and counsel discussed at length the court’s inability to bring the petitioner into the courtroom for a hearing on the petition. See part II. The court concluded that because the petitioner was not in Connecticut, it did not have in personam jurisdiction. Under the federal rule, which this court looks to for guidance, the mere fact that a petitioner is serving a consecutive sentence outside Connecticut, rather than within the state, does not deprive the court of jurisdiction for purposes of habeas corpus to determine whether the commissioner is holding the petitioner illegally. In this instance, because Connecticut has not served a detainer on the Arizona jailer to return the petitioner to this state to complete the 147 days of his 1991 sentence, there is a reasonable basis to conclude that the petitioner is not in custody. See Frazier v. Wilkinson, supra, 842 F.2d 45.

“In Frazier, [the United States Court of Appeals for the Second Circuit] reviewed the history of the Supreme Court’s break from its previous rigid rule that habeas petitions may only be directed to the legality of a prisoner’s current confinement. . . . Whereas the Supreme Court . . . had recognized custody in a future jailor only where the immediate custodian, through the lodging of a detainer, was acting as an agent for the future jailor by holding the prisoner pursuant to the detainer, Frazier dispensed with the requirement that a detainer be in place.” (Citations omitted.) Simmonds v. Immigration & Naturalization Service, supra, 326 F.3d 355. Frazier makes a distinction between the presence and absence of a detainer in cases concerning parole violation. See Frazier v. Wilkinson, supra, 842 F.2d 45.

“In United States ex rel. Meadows v. New York, 426 F.2d 1176 (2d Cir. 1970), cert. denied, 401 U.S. 941, 91 S. Ct. 944, 28 L. Ed. 2d 222 (1971), a prisoner serving a federal sentence sought habeas corpus to challenge a prior New York conviction. New York had paroled the petitioner and then issued a parole violation warrant after learning that he was wanted on federal charges. After [the] petitioner was placed in federal custody, New York lodged a parole detainer against him with the federal authorities. [The United States Court of Appeals for the Second Circuit] ruled that the detainer satisfied the in custody requirement of section 2241 (c) (3) because it represented] a present claim by New York of jurisdiction over [the petitioner’s] person and of the right to subject him to its orders and supervision in the future. . . .

“Dodd v. United States Marshal, 439 F.2d 774 (2d Cir. 1971), represents the inverse of Meadows. Like [the petitioner in Meadows], Dodd was serving a federal sentence and sought habeas corpus to challenge a prior state (Washington) sentence from which he had been released on parole. Unlike [the petitioner in Meadows], however, Dodd was not subject to a detainer issued by Washington authorities. [The Second Circuit] distinguished Meadows on this basis and held that Dodd was not in custody of the state officials in the absence of a detainer and that the District Court lacked habeas jurisdiction over his challenge to the Washington conviction.” (Citation omitted; emphasis added; internal quotation marks omitted.) Frazier v. Wilkinson, supra, 842 F.2d 44-45.

The Second Circuit “think[s] that habeas corpus may be used as long as there is a reasonable basis to apprehend that the jurisdiction that obtained the consecutive sentence will seek its enforcement. As the Supreme Court pointed out in Peyton, the interests of both the petitioner and the state are served by permitting habeas challenges to consecutive sentences prior to the commencement of their service. The policies of the Great Writ are surely not served by permitting a state to postpone, perhaps for many years, a challenge to its consecutive sentence by the simple expedient of deferring the filing of a detainer until close to the end of the initial sentence.

“The absence of a detainer should not have the controlling significance in the context of a consecutive sentence that [the Second Circuit] accorded it in the context of parole violation in Meadows and Dodd. When a state paroles a prisoner, it is by no means certain that it will expend resources to return him to its custody for service of an unexpired sentence because of a conviction in another jurisdiction. . . . With a consecutive sentence, however, the absence of a detainer rarely leaves a state’s intention in doubt. There is normally an expectation that a state imposing a consecutive sentence will insist that it be served.” Id., 45.

As the habeas court implied in its remarks, it is doubtful that Connecticut will seek to obtain custody of the petitioner, who will be incarcerated in Arizona until 2016, to complete the 147 days of his 1991 sentence. The court took pains to protect the interest of the petitioner by denying the petition without prejudice and ordering that if he returns to Connecticut and files a petition with respect to the 1991 sentence, it is to be heard within five days. The court therefore properly dismissed the petition for a writ of habeas corpus pursuant to Practice Book § 23-29 (l).

II

The petitioner’s second claim is that pursuant to Practice Book § 23-40, it was not proper for the court to conduct a hearing on the commissioner’s motion to dismiss the petition in his absence. The petitioner’s claim is unpersuasive.

The court dismissed the petition for a writ of habeas corpus, in part, because the petitioner is not in Connecticut and it had no means to bring him before the court. Practice Book § 23-40 provides, however, that a habeas corpus petitioner shall have a right to be present for oral argument on a question of law that may be dispositive of the case. The petitioner correctly notes that our Supreme Court has held that the word shall is mandatory. See State v. Cook, 183 Conn. 520, 522-23, 441 A.2d 41 (1981). The petitioner argues, as he did in the habeas court, that the court should have invoked General Statutes § 54-82i to secure his presence. The problem with his argument is that § 54-82i only applies to criminal and grand jury proceedings; habeas coipus proceedings are civil in nature. Collins v. York, 159 Conn. 150, 153, 267 A.2d 668 (1970).

We resolve the petitioner’s claim by means of statutory construction, which also applies to our interpretation of our rules of practice. State v. Cook, supra, 183 Conn. 521. Our review is plenary because statutory construction is a question of law. State v. Sanchez, 75 Conn. App. 223, 232, 815 A.2d 242, cert. denied, 263 Conn. 914, 821 A.2d 769 (2003).

“The process of statutory interpretation involves a reasoned search for the intention of the legislature. ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. In seeking to determine that meaning, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.” (Internal quotation marks omitted.) Spears v. Garcia, 263 Conn. 22, 27-28, 818 A.2d 37 (2003).

Section 54-82i is Connecticut’s adoption of the 1936 revision of the Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings (act). “A court can properly consider the official comments as well as the published comments of the drafters as a source for determining the meaning of an ambiguous provision [of a uniform act.]” (Internal quotation marks omitted.) Yale University v. Blumenthal, 225 Conn. 32, 38, 621 A.2d 1304 (1993). Decisions from other states also are valuable aids for interpreting the provisions of unifoim laws. See Cain v. Moore, 182 Conn. 470, 473, 438 A.2d 723 (1980), cert. denied, 454 U.S. 844, 102 S. Ct. 157, 70 L. Ed. 2d 129 (1981).

The prefatory note to the 1936 revision explains the purpose of the act. “This act should be adopted by every state. Its adoption will facilitate the administration of the criminal law. Officers engaged in the enforcement of criminal laws have long contended that there should be some statutory authority for securing the attendance of a witness from without the state in which the crimi-nalproceeding is pending.” (Emphasis added.) 11 Uniform Laws Annotated, Uniform Act to Secure Attendance of Witnesses from Without a State in Criminal Proceedings, prefatory note, p. 3 (West 2003).

The act is a matter of comity between the several states, “an end particularly to be cherished when the object is enforcement of internal criminal laws . . . .” (Emphasis added.) New York v. O’Neill, 359 U.S. 1, 11-12, 79 S. Ct. 564, 3 L. Ed. 2d 585 (1959). The act “is reciprocal. It is operative only between States which have enacted it or similar legislation for compelling of witnesses to travel to, and testily in, sister States. The terms of the statute make quite clear the procedures to be followed. The judge of the court of the requesting State files in any court of record in the State in which the witness may be found a certificate stating the necessity of the appearance of such witness in a criminal prosecution or grand jury investigation in the requesting State.” (Emphasis added.) Id., 4.

The prefatory comments and the case law interpreting the act are consistent with its clear language that its purpose is to secure the presence of witnesses for criminal and grand jury proceedings. “No such similar power exists in civil cases, and it is generally recognized that a court cannot compel the attendance of a witness who is beyond the court’s jurisdiction. See [97] C.J.S. [367] Witnesses § 17 (1957).” Thomas v. Pacheco, 293 Ark. 564, 570, 740 S.W.2d 123 (1987).

The petitioner argues that the habeas court should have utilized § 54-82i because Arizona treats a petition for habeas corpus as postconviction relief, a criminal proceeding. At common law, the judicial authority of one state could not command the presence of a witness not within its territorial jurisdiction. See State v. DeFreitas, 179 Conn. 431, 441, 426 A.2d 799 (1980). “It is a rule of statutory construction that statutes in derogation of the common law should be strictly construed so as not to extend, modify or enlarge [their] scope by the mechanics of statutory construction.” (Thtemal quotation marks omitted.) Brennan v. Burger King Corp., 46 Conn. App. 76, 82-83, 698 A.2d 364 (1997), aff'd, 244 Conn. 204, 707 A.2d 30 (1998). To invoke § 54-82Í (c), a court must certify that the person sought from outside the state is a material witness in a criminal prosecution or grand jury proceeding. Although the petitioner may be a material witness in his habeas corpus proceeding, such a proceeding in Connecticut is not a criminal one.

For the foregoing reasons, the court properly dismissed the petition for a writ of habeas corpus in the petitioner’s absence.

The judgment is affirmed.

In this opinion the other judges concurred.

       Practice Book § 23-29 provides in relevant part: “The judicial authority may, at any time . . . upon motion of the respondent, dismiss the petition ... if it determines that: (1) the court lacks jurisdiction . . . [or] (4) the claims asserted are moot or premature . . . .”

       The petitioner was represented by counsel in the habeas court and on appeal.

       “Prison classification and eligibility for various rehabilitation programs, wherein prison officials have full discretion to control those conditions of confinement, do not create a statutory or constitutional entitlement sufficient to invoke due process. Wheway v. Warden, 215 Conn. 418, 431, 576 A.2d 494 (1990), citing Moody v. Daggett, 429 U.S. 78, 88 n.9, 97 S. Ct. 274, 50 L. Ed. 2d 236 (1976).” (Internal quotation marks omitted.) Smith v. Liburdi, 26 Conn. App. 254, 259, 600 A.2d 17 (1991), cert. denied, 221 Conn. 910, 602 A.2d 9 (1992).
      “In applying federal habeas statutes, the United States Supreme Court has said that [t]he purpose of the proceeding defined by the statute was to inquire into the legality of the detention .... There is no warrant in either the statute or the writ for its use to invoke judicial determination of questions which could not affect the lawfulness of the custody and detention, and no suggestion of such a use has been found in the commentaries of the English common law.” (Internal quotation marks omitted.) Vincenzo v. Warden, 26 Conn. App. 132, 136, 599 A.2d 31 (1991).

       The court concluded that whether the petitioner was an escapee pertained to the merits of his petition.

       The court did not conclude that the petition was moot, but rather that it was premature.

       It is apparent from the transcript that the court and counsel had discussed the petition and facts prior to the date of the hearing. The court rendered an oral decision at the conclusion of the hearing and ordered a transcript of the proceedings, which it signed in accordance with Practice Book § 64-1(a).
      The court made no findings of fact on the record, and the parties sought no articulation from the court. See Practice Book § 66-5. Nonetheless, we are able to infer from the transcript of the hearing the facts on which the court’s decision appears to have been based, which are consistent with the facts stated in the parties’ briefs. See Gryskiewicz v. Morgan, 147 Conn. 260, 261, 159 A.2d 163 (1960) (where plaintiff requested no finding and none was made, only record available for review). In the absence of an articulation, we may presume that the court made the necessary findings of fact. See Zadravecz v. Zadravecz, 39 Conn. App. 28, 32, 664 A.2d 303 (1995).

       Given the relatively short amount of time the petitioner has to serve on his 1991 conviction, the court ordered that if he returns to this state and files another petition for a writ of habeas corpus related to that sentence, the petition is to be heard within five days of its being filed.

       See 28 U.S.C. § 2241 et seq.

       But see Maleng v. Cook, supra, 490 U.S. 492 (prisoner may not bring habeas petition to challenge prior sentence if it expired before petition was filed).

       The United States Supreme Court favors the early resolution of petitions for writs of habeas corpus regardless of where the prisoner is incarcerated or where the sentence he is challenging was imposed. See Peyton v. Rowe, supra, 391 U.S. 62-64. That court has sanctioned the resolution of a petition without the presence of the prisoner before the court that adjudicates his claims. Braden v. 30th Judicial Circuit Court of Kentucky, supra, 410 U.S. 498, citing Walker v. Johnston, 312 U.S. 275, 284, 61 S. Ct. 574, 85 L. Ed. 830 (1941). “Under some authority, the body of the person detained must be produced with the writ; but production in court of the person detained is not a prerequisite to jurisdiction and in a proper case may be excused or dispensed with. Subject to applicable statutory provisions the party detained, during the pendency of the proceedings, is under the custody and control of the court which issued the writ.” 39A C.J.S. 85, Habeas Corpus § 185 (1976); but see part II of this opinion.

       Because we conclude that the court properly dismissed the petition for lack of subject matter jurisdiction, we need not address the petitioner’s claim that it was improper for the court to dismiss the petition as premature. See Practice Book § 23-29 (4). We agree that the United States Supreme Court overruled the prematurity doctrine in Peyton, v. Rowe, supra, 391 U.S. 54. But see Simmonds v. Immigration & Naturalization Service, supra, 326 F.3d 357, for a discussion of the doctrine of prudential ripeness.

       Practice Book § 23-40 (a) provides in relevant part: “The petitioner . . . shall have the right to be present at any evidentiary hearing and at any hearing or oral argument on a question of law which may be dispositive of the case, unless the petitioner . . . waives such right or is excused by the judicial authority for good cause shown. . .

       A petitioner may waive his right to be present or may be excused by the court for good cause. See footnote 12.

       General Statutes § 54-82Í (c) provides in relevant part: “If a person in any state, which by its laws has made provision for commanding persons within its borders to attend and testily in criminal prosecutions or in grand, jury investigations commenced or about to commence in this state, is a material witness in a prosecution pending in a court of record in this state, or in a grand jury investigation which has commenced or is about to commence, a judge of such court may issue a certificate under seal of the court, stating such facts and specifying the number of days the witness will be required. Such certificate may include a recommendation that the witness be taken into immediate custody and delivered to an officer of this state to assure the attendance of the witness in this state. ...” (Emphasis added.)

       The act is a matter of comity between states to enable them to obtain material witnesses for criminal prosecutions. See annotations to 11 Uniform Laws Annotated, Uniform Act to Secure Attendance of Witnesses from Without a State in Criminal Proceedings § l,p. 9 (West 2003) (purpose of act).

       In his brief, the petitioner attempted to bolster his argument by claiming that the habeas court previously had signed an order under the act to secure a Connecticut resident to testify in a postconviction matter in the criminal division of the court of common pleas for the commonwealth of Pennsylvania. That argument was not raised at the habeas hearing, and the material to support it contained in the petitioner’s appendix was not entered into evidence or marked for identification in the habeas court. We therefore do not consider the argument or the material in the appendix. See State v. Harrison, 34 Conn. App. 473, 490, 642 A.2d 36, cert. denied, 231 Conn. 907, 648 A.2d 157 (1994).

       The petitioner also argued, on the basis of footnote 8 in Miller v. Commissioner of Correction, 242 Conn. 745, 759 n.8, 700 A.2d 1108 (1997), that General Statutes § 54-82i previously was used to secure testimony from an out-of-s1ate prisoner at a habeas corpus proceeding. The footnote does not indicate the procedural or legal mechanism used to secure the testimony of the material witness who was incarcerated in New York.


source: Caselaw Access Project

author: SCHALLER, J. FLYNN, J.,

license: Public Domain

text:
    BEVERLY L. GRIMM v. ROBERT L. GRIMM
    (AC 23901)
    Lavery, C. J., and Schaller and Flynn, Js.

      Argued November 20, 2003 —
    officially released March 16, 2004

      Thomas P. Puedo, pro hac vice, with whom were John Wayne Fox and, on the brief, Patricia M. Gaug, for the appellant (defendant).

      Gaetano Ferro, with whom, on the brief, was Norman A. Roberts II, for the appellee (plaintiff).
   Opinion

SCHALLER, J.

“The tortured history of this case demonstrates the detrimental effect that procedural dysfunction in a marital dissolution action can have on the judicial process.” Grimm v. Grimm, 74 Conn. App. 406, 407, 812 A.2d 152, (2002), cert. denied, 263 Conn. 911, 821 A.2d 766 (2003). In this appeal, the defendant, Robert L. Grimm, claims that (1) General Statutes § 46b-40 (c) (l) violates the free exercise of religion clauses of the federal and state constitutions, (2) the trial court improperly concluded that the parties’ marriage had irretrievably broken down and precluded expert testimony on the subject, (3) the court improperly determined the financial orders, (4) the court improperly denied his motion to open the evidence prior to judgment for the purpose of offering certain evidence and (5) the court improperly denied his motion to dismiss or to transfer the matter to another judicial district. We reverse the judgment as to the award of counsel fees only and affirm the judgment in all other respects.

The parties first separated in 1988, and the plaintiff, Beverly L. Grimm, commenced divorce proceedings in Ohio. The plaintiff subsequently withdrew the action after the defendant’s repeated attempts to prolong the litigation by failing to appear or to plead except to contest the plaintiffs claim of irreconcilable differences. The plaintiff subsequently brought an action for dissolution of the marriage on the ground that she had lived separately and apart from the defendant for more than one year. She withdrew that action after the parties briefly resumed cohabitation. In 1992, the plaintiff brought another divorce proceeding. She withdrew that action after the defendant obtained employment in Connecticut where she was residing. In 1997, the plaintiff brought a divorce proceeding in the judicial district of Stamford-Norwalk, which she subsequently withdrew when she commenced the present action in Danbury seeking dissolution of her marriage on the ground of irretrievable breakdown. The defendant filed a motion to dismiss the action, or, in the alternative, to transfer the action to the judicial district of Stamford-Norwalk, arguing that the filing of the present action constituted forum shopping because the plaintiff had originally commenced a dissolution action in Stamford and later withdrew the action. The court denied the defendant’s motion.

Documentary and testimonial evidence were presented to the court on approximately sixteen trial dates from May 22 to July 9, 2002. In January, 2003, the court dissolved the parties’ marriage and entered various financial orders. The court ordered that the defendant (1) convey his interest in the parties’ marital residence located in New Canaan to the plaintiff, (2) pay the plaintiff lump sum alimony in the amount of $100,000, and (3) pay the plaintiff $100,000 in attorney’s fees. The defendant appeals from the judgment rendered.

I

The defendant first claims that § 46b-40 (c) (1) violates the free exercise of religion clauses of the federal and state constitutions. The defendant argues that, as applied to him, § 46b-40 (c) (1) violates his religious beliefs and liberties because his faith opposes divorce. We disagree.

The first amendment to the United States constitution provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The fundamental concept of liberty embraced in the first amendment applies to the states through the fourteenth amendment. Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S. Ct. 900, 84 L. Ed. 1213 (1940). The United States Supreme Court has “consistently held that the right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).” (Internal quotation marks omitted.) Employment Division, Dept. of Human Resources of Oregon v. Smith, 494 U.S. 872, 879, 110 S. Ct. 1595, 108 L. Ed. 2d 876 (1990). General Statutes § 46b-40 (c) (1) is a valid and neutral law of general applicability. The statute does not in any manner infringe on the defendant’s right to exercise his religious beliefs merely because it permits the plaintiff to obtain a divorce from him against his wishes.

Our Supreme Court has held that § 46b-40 (c) (1) is constitutional. “The legislature could rationally conclude that public policy requires an accommodation to the unfortunate reality that a marital relationship may terminate in fact without regard to the fault of either marital partner, and that such a relationship should therefore be dissoluble in law upon a judicial determination of irretrievable breakdown. Courts in other jurisdictions with similar statutes have unanimously upheld the constitutionality of no-fault divorce.” Joy v. Joy, 178 Conn. 254, 256, 423 A.2d 895 (1979). Accordingly, we conclude that § 46b-40 (c) (1) does not violate the defendant’s right to exercise his religious beliefs.

II

The defendant next claims that the court abused its discretion in finding that the marriage had irretrievably broken down and by precluding expert testimony on the subject. We are not persuaded.

A

The defendant argues that the court abused its discretion in finding that the marriage had broken down irretrievably.

The following additional facts are necessary to review the defendant’s claim. At trial, the plaintiff testified that the marriage had irretrievably broken down. She testified that the defendant was very cold, distant, abusive, cruel, dishonest and controlling. She further testified that the defendant exposed himself in the presence of a child, committed larceny and made inappropriate and unwanted sexual advances. The defendant countered that he was willing to seek marriage counseling and that the plaintiffs pattern of behavior of commencing and withdrawing divorce proceedings demonstrated that she was mistaken in her belief that the marriage had broken down irretrievably. The plaintiff contended that her pattern of behavior was the result of the defendant’s campaign to thwart her efforts to dissolve the marriage by prolonging the litigation. She cited the numerous continuances, stays, depositions, motions and other tactics that the defendant had utilized to delay the divorce proceedings. She also testified that the defendant had warned her that if she attempted to end the marriage, he would “drag out” the litigation and cause her to spend “$100,000” in counsel fees unless she agreed to give him 80 percent of the marital assets. Notably, the defendant has spent more than $1 million in counsel fees in relation to the divorce proceedings.

“The determination of whether a breakdown of a marriage is irretrievable is a question of fact to be determined by the trial court.” Eversman v. Eversman, 4 Conn. App. 611, 614, 496 A.2d 210, cert. denied, 197 Conn. 806, 499 A.2d 57 (1985). “We decline, as have other courts that have considered the issue ... to circumscribe this delicate process of fact-finding by imposing the constraint of guidelines on an inquiry that is necessarily individualized and particularized.” (Citations omitted.) Joy v. Joy, supra, 178 Conn. 255. “The fact that the defendant maintains hope for reconciliation will not support a finding that there are prospects for a reconciliation. ... A difference, to be irreconcilable, need not necessarily be so viewed by both parties. . . . [S]ee In re Marriage of Baier, 39 Colo. App. 34, 561 P.2d 20 (1977) (evidence supported finding of irretrievable breakdown even though husband claimed strong attachment to wife and that difficulties could be resolved by counseling).” (Citations omitted.) Eversman v. Eversman, supra, 614.

“Factual findings, such as those determinations, are reviewed under the clearly erroneous standard of review. A factual finding is clearly erroneous when it is not supported by any evidence in the record or when there is evidence to support it, but the reviewing court is left with the definite and firm conviction that a mistake has been made. . . . Simply put, we give great deference to the findings of the trial court because of its function to weigh and interpret the evidence before it and to pass upon the credibility of witnesses.” (Citation omitted; internal quotation marks omitted.) Advanced Financial Services, Inc. v. Associated Appraisal Services, Inc., 79 Conn. App. 22, 31-32, 830 A.2d 240 (2003). “[T]he 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. . . . [W]e do not review the evidence to determine whether a conclusion different from the one reached could have been reached. . . . Further, we must accept the factual findings of the court unless they are clearly erroneous in light of the evidence presented in the record as a whole.” (Citation omitted; internal quotation marks omitted.) Syragakis v. Syragakis, 79 Conn. App. 170, 173, 829 A.2d 885 (2003). “Where, however, some of the facts found [by the trial court] are clearly erroneous and others are supported by the evidence, we must examine the clearly erroneous findings to see whether they were harmless, not only in isolation, but also taken as a whole. ... If, when taken as a whole, they undermine appellate confidence in the court’s fact finding process, a new hearing is required.” (Internal quotation marks omitted.) Owens v. New Britain General Hospital, 32 Conn. App. 56, 78, 627 A.2d 1373 (1993), aff'd, 229 Conn. 592, 643 A.2d 233 (1994).

The defendant failed to demonstrate that the court improperly found that the marriage had broken down irretrievably. The record clearly demonstrates the breakdown in the parties’ marriage. The fact that the defendant claims to maintain hope for reconciliation will not support a finding that there are prospects for reconciliation. The allegations raised by the plaintiff concerning the difficulties in the marriage were serious and spanned almost the entire length of the marriage. The court was within its discretion to credit the plaintiffs version of the facts that the pattern of litigation was the result of the defendant’s attempt to thwart the dissolution proceedings, not the plaintiffs lack of intent to end the marriage. Accordingly, we conclude that the court did not improperly find that the marriage had broken down irretrievably.

B

The defendant claims that he was precluded from presenting expert testimony from a third party witness that the marriage had not irretrievably broken down. The court reasoned that whether the marriage had broken down irretrievably was “an ultimate issue to be decided by the trier of fact” and that the court “does not need expert assistance in deciding that issue.”

Section 7-3 (a) of the Connecticut Code of Evidence provides in relevant part: “Testimony in the form of an opinion is inadmissible if it embraces an ultimate issue to be decided by the trier of fact, except that . . . (b), an expert witness may give an opinion that embraces an ultimate issue where the trier of fact needs expert assistance in deciding the issue.” We conclude that expert testimony was not necessary to determine whether the marriage had irretrievably broken down because such a matter could be considered within the knowledge and experience of the trier of fact.

Ill

The defendant next claims that the court improperly denied his motion to open the evidence to allow what he called newly discovered evidence of the valuation of the plaintiffs stock options. We disagree.

At trial, the court sustained the plaintiffs objection to the defendant’s offering of expert testimony on the valuation of General Electric Corporation (General Electric) stock options on the basis of data from the company’s annual report. The court ruled that no expert witness had been disclosed. After the trial concluded, but before the court rendered judgment, the defendant filed a motion to open the evidentiary hearing because General Electric had made a public statement after the evidentiary hearing, adopting a valuation method for its stock options. The court denied the defendant’s motion.

“Whether or not a trial court will permit further evidence to be offered after the close of testimony in the case is a matter resting within its decision. ... In the ordinary situation where a trial court feels that, by inadvertence or mistake, there has been a failure to introduce available evidence upon a material issue in the case of such a nature that in its absence there is serious danger of a miscarriage of justice, it may properly permit that evidence to be introduced at any time before the case has been decided.” (Internal quotation marks omitted.) Pagliaro v. Jones, 75 Conn. App. 625, 638-39, 817 A.2d 756 (2003).

The defendant did not meet that standard. The defendant merely stated in a conclusory fashion that General Electric had made a public statement adopting a new valuation method for its stock options. The defendant did not demonstrate how that new evidence could be distinguished from his earlier unsuccessful attempts to offer expert testimony from a General Electric employee on the same subject matter. That evidence was properly excluded because the defendant did not disclose an expert witness on the subject matter. Further, the evidence was not material and likely would not have produced a different result. General Electric’s purportedly new valuation method would be just one of numerous methods that could be utilized in valuing the plaintiffs stock options. See, e.g., Wendt v. Wendt, 59 Conn. App. 656, 663 n.4, 757 A.2d 1225, cert. denied, 255 Conn. 918, 763 A.2d 1044 (2000). Accordingly, we find no abuse of discretion by the court in refusing to open the evidence.

IV

The defendant next claims that the court improperly determined the amount by which he had reduced the marital assets and abused its discretion in ordering him to pay the plaintiffs counsel fees. We conclude that the court’s finding as to the amount the defendant reduced the marital assets was incorrect but that the incorrect findings constituted harmless error. We also conclude that the court improperly awarded counsel fees to the plaintiff.

A

The defendant claims that the court improperly determined the amount by which he had reduced or dissipated the marital assets. The applicable standard of review has been set forth in part II.

The court stated in its decision that its financial orders were based on numerous factors. In its memorandum of decision, the court referred to the parties’ age, health, employment, education, earnings and earning capacities, as well as the behavior of the defendant. See General Statutes §§ 46b-81 (c) and 46b-82. Further, the court pointed out the defendant’s failure to make any meaningful effort to obtain employment subsequent to 1998. The court found that his behavior was the principal cause of the breakdown of the marriage and that he inappropriately had diminished the value of the marital assets. The memorandum of decision indicated that the court properly considered and weighed the statutory factors in making its financial award.

The defendant argues that the court erroneously adopted the plaintiffs trial brief in finding that the defendant wrongfully had diminished the marital assets by approximately $2.9 million. The court found that the defendant had diminished the marital assets by his liquidation of retirement funds in the amount of $1,121,737, his expenditure of $717,865 in charitable contributions and his expenditure of more than $1,130,000 in counsel fees.

The defendant contends that his charitable contributions did not wrongfully diminish the marital assets because the court improperly held that the contributions violated the automatic orders that are entered at the inception of a marital dissolution action. The court’s memorandum of decision stated: “Likewise, the extent of the charitable gifts paid out by the defendant at a time when there are automatic orders prohibiting wholesale reductions in the marital assets is inexcusable.” The automatic orders came into effect on December 15, 2000. The charitable contributions during the years 2001 and 2002 in the amount of $286,000 violated the orders because the automatic orders were in effect. That general statement by the court simply highlighted that the contributions were especially egregious because the automatic orders were clearly in effect at that time; the court’s statement did not necessarily stand for the proposition that all donations were in violation of the automatic orders. We note, however, that the defendant’s charitable donations that were made in 1998 in the amount of $149,525 were specifically authorized by an earlier order from the Stamford case when the automatic orders in this case were not in effect. The earlier order permitted the defendant to make charitable contributions as long as they did not exceed $200,000 annually. The $149,525 contribution, which was made while the defendant was employed, did not diminish the marital assets of both parties. Accordingly, the court should not have included that amount in determining the amount by which the defendant had reduced or dissipated the marital assets.

The court adopted the plaintiffs argument that the defendant had diminished the marital assets by approximately $2.9 million. That amount was determined by taking the total of the liquidated retirement funds, the charitable contributions and defendant’s counsel fees. It was incorrect to total those categories because a portion of the liquidated retirement funds was used in part to make charitable contributions. By the court’s reasoning, in effect, any of the liquidated retirement funds that were used for charitable contributions would have been counted twice. On the basis of the record, the court’s determination of the amount of assets that were dissipated by the defendant may have been as much as $500,000 too high. As the court noted, however, the total amount of the retirement funds included in the contributions was indeterminable because the defendant refused to comply with several discovery requests to provide clear and accurate financial records.

The court improperly included a portion of the charitable contributions and the retirement funds in the amount that it determined was the defendant’s wrongful reduction of the marital assets. On the other hand, the court’s finding that the defendant had diminished the marital assets did not fully take into account the 40,635 shares of General Electric stock that he had sold or given away. That factor would offset, to a degree, any amount by which the court improperly determined that the defendant had diminished the marital assets. In determining the impact of the incorrect findings, it is significant that the court’s finding was not directly linked to any specific property distribution that was ordered by the court. We note further that the defendant should not be entitled to benefit from the ambiguity that he created by his refusal to provide clear and accurate financial records.

We conclude that the court’s findings as to the specific amount of the marital assets that the defendant wrongfully dissipated and the method by which he did so constituted harmless error that did not undermine the financial orders.

B

The defendant also claims that the court abused its discretion in ordering him to pay the plaintiffs counsel fees. He argues that the court abused its discretion in ordering him to pay $100,000 of the plaintiffs counsel fees because the plaintiff had ample liquid assets to pay her counsel fees, the court did not make a finding that such an award was necessary to preclude its other financial orders from being undermined and that nothing in the record could support such a finding. We agree.

A clear picture of the plaintiffs financial status can be gained by a review of the court’s financial orders and her financial affidavit. The plaintiff earned a salary of more than $100,000 a year, possessed significant retirement accounts and had valuable stock options from her employer, General Electric. She was awarded both of the parties’ Connecticut residences, which were valued together at more than $1 million, and received a lump sum alimony award of $100,000.

General Statutes § 46b-62 governs the award of counsel fees in dissolution proceedings. It provides in relevant part that “the court may order either spouse . . . to pay the reasonable attorney’s fees of the other in accordance with their respective financial abilities and the criteria set forth in section 46b-82. ...” “Courts ordinarily award counsel fees in divorce cases so that a party . . . may not be deprived of [his or] her rights because of lack of funds. . . . Where, because of other orders, both parties are financially able to pay their own counsel fees they should be permitted to do so. . . . Whether to allow counsel fees and in what amount calls for the exercise of judicial discretion. . . . An abuse of discretion in granting the counsel fees will be found only if this court determines that the trial court could not reasonably have concluded as it did.” (Citation omitted; internal quotation marks omitted.) Cordone v. Cordone, 51 Conn. App. 530, 537, 752 A.2d 1082 (1999).

Here, the record does not support a finding that the plaintiff lacked sufficient liquid assets with which to pay her counsel fees or that the failure to award such fees would have undermined the court’s other financial orders. The plaintiff earned more than $100,000 a year, had sizeable investments and was awarded $100,000 in alimony. She also no longer had a need for two residences in Connecticut, as she had purchased the second home when she separated from the defendant. Ample liquid funds, however, are not an absolute litmus test for an award of counsel fees. Maguire v. Maguire, 222 Conn. 32, 44, 608 A.2d 79 (1992). “[T]o award counsel fees to a spouse who had sufficient liquid assets would be justified, if the failure to do so would substantially undermine the other financial awards.” Id. In this case, the court made no such finding that the award was necessary to avoid undermining its other financial orders. Moreover, there is nothing in the record to support such a finding. The court abused its discretion because it could not reasonably have concluded that the plaintiff was not financially able to pay her counsel fees or that the failure to award such fees would undermine the court’s other financial orders. Accordingly, we reverse the court’s award of counsel fees.

Our Supreme Court and this court “have often described financial orders appurtenant to dissolution proceedings as entirely interwoven and as a carefully crafted mosaic, each element of which may be dependent on the other. . . . Consequently, when an appellate court reverses a trial court judgment based on an improper alimony, property distribution, or child support award, the appellate court’s remand typically authorizes the trial court to reconsider all of the financial orders.” (Citations omitted; internal quotation marks omitted.) Smith v. Smith, 249 Conn. 265, 277, 752 A.2d 1023 (1999); Ehrenkranz v. Ehrenkranz, 2 Conn. App. 416, 424, 479 A.2d 826 (1984). “Every improper order, however, does not necessarily merit a reconsideration of all of the trial court’s financial orders. A financial order is severable when it is not in any way interdependent with other orders and is not improperly based on a factor that is linked to other factors.” Smith v. Smith, supra, 277. In determining the appropriate remedy, “we focus on the specific language of the trial court’s order as set forth in its [decision].” Id., 278. As previously discussed, the court made no finding that an award of counsel fees was necessary to avoid undermining its other financial orders. The plaintiff, moreover, has not requested and presumably would not benefit from a remand in this case which comes to us in the context of its “ ‘tortured history.’ ” Grimm v. Grimm, 74 Conn. App. 407. Because we conclude that the award of counsel fees is severable from the other financial orders, it is not necessary to remand the case for reconsideration of the other financial orders.

The judgment is reversed only as to the award of counsel fees to the plaintiff and the case is remanded with direction to vacate that order. The judgment is affirmed in all other respects.

In this opinion LAVERY, C. J., concurred.

FLYNN, J.,

dissenting in part. I concur with parts I, II, III and IV B of the thoughtful majority opinion. I respectfully dissent from the holding regarding financial orders in part IV A.

Prior to making its financial orders, the court made findings that from 1998 to 2002, the defendant “reduced” marital assets by approximately $2.9 million. I agree that as to approximately $650,000 of the $2.9 million that the court found was reduced or dissipated by the defendant, the findings were inaccurate. I disagree with the majority’s conclusion that this can be rendered harmless on the basis of this court’s finding that the trial “court’s finding that the defendant had diminished the marital assets did not fully take into account the 40,635 shares of General Electric stock that he had sold or given away.”

“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 and whether the trial court could thereby 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).” (Internal quotation marks omitted.) Parkview Paving Co. v. New Haven, 13 Conn. App. 574, 575, 537 A.2d 1049, cert. denied, 207 Conn. 810, 541 A.2d 1240 (1988). We cannot guess as to the existence of a factual predicate. State v. Hoeplinger, 27 Conn. App. 643, 647, 609 A.2d 1015, cert. denied, 223 Conn. 912, 612 A.2d 59 (1992). As we stated in LaVelle v. Ecoair Corp., 74 Conn. App. 710, 721, 814 A.2d 421 (2003), “[t]his case must be reviewed on the facts found by the trial court.” (Internal quotation marks omitted.)

This is not an academic question. For example, the award was disproportionate with respect to real estate apportioned to these two spouses. The court awarded to the plaintiff title to two Connecticut houses that were valued at more than $1 million in the parties’ financial affidavits, but allotted to the defendant only an Ohio house worth between $372,000 and $500,000 that was burdened with a substantial mortgage, according to those same affidavits. Financial orders are part of a “carefully crafted mosaic . . . .” Ehrenkranz v. Ehrenkranz, 2 Conn. App. 416, 424, 479 A.2d 826 (1984). “Normally, when a portion of the court’s financial order is found to be flawed, we return the matter to the trial court for a new hearing on the ground that in marital dissolution jurisprudence, financial orders often are interwoven.” Rosato v. Rosato, 77 Conn. App. 9, 20, 822 A.2d 974 (2003). A remand of all financial orders is unnecessary only when the flawed financial order is severable, in that “it is not in any way interdependent with other orders and is not improperly based on a factor that is linked to other factors.” Smith v. Smith, 249 Conn. 265, 277, 752 A.2d 1023 (1999). In the present case, the erroneous calculation of the amount of marital assets that the defendant was alleged to have dissipated was not severable and was most definitely linked to other factors.

As in Ehrenkranz v. Ehrenkranz, supra, 2 Conn. App. 423, “[t]he underpinning of the decision is not sound.” Because I believe that “[e]ach party is entitled to overall financial orders which reflect the court’s discretion and are based upon the facts elicited and the statutory criteria”; id., 424; I would reverse the award as to the financial orders and remand the case for a new hearing on them.

       General Statutes § 46b-40 (c) provides in relevant part: “A decree of dissolution of a marriage or a decree of legal separation shall be granted upon a finding that one of the following causes has occurred: (1) The marriage has broken down irretrievably . . . .”

       The first amendment to the United States constitution provides in relevant part: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . .”
      The constitution of Connecticut, article first, § 3, provides: “The exercise and eryoyment of religious profession and worship, without discrimination, shall forever be free to all persons in the state; provided, that the right hereby declared and established, shall not be so construed as to excuse acts of licentiousness, or to justify practices inconsistent with the peace and safety of the state.”

       We need not address the defendant’s fifth claim that the court improperly denied the defendant’s motion to dismiss or transfer because it is barred by the doctrine of res judicata. See Rathblott v. Rathblott, 79 Conn. App. 812, 821, 832 A.2d 90 (2003). That issue became moot after the defendant’s first appeal in Grimm, v. Grimm, supra, 74 Conn. App. 406.

       The defendant took the alternative position at trial that the marriage was void and had never occurred because one or both of the plaintiffs prior marriages may not have been legally dissolved prior to his marriage to her. The court found that argument baseless.


author: PER CURIAM.

text:
    ELIZABETH HAYES v. YALE-NEW HAVEN HOSPITAL ET AL.
    (AC 22250)
    Laveiy, C. J., and Bishop and DiPentima, Js.
    Argued January 15 —
    officially released March 16, 2004

      Alexander Scheirer, with whom, on the brief, were Rebecca L. Johnson and Earl I. Williams, for the appellant (plaintiff).

      Margaret P. Mason, with whom, on the brief, was Paul L. Bader, for the appellees (defendants).
   Opinion

PER CURIAM.

The plaintiff, Elizabeth Hayes, appeals from the judgment of the trial court, rendered after a trial to the court, in favor of the defendants, Yale-New Haven Hospital (hospital), Alvin Johnson and Leo Cooney, in this action in which she alleged that she had been wrongfully discharged from her employment at the hospital. On appeal, the plaintiff raises nine issues in support of her contention that the judgment should be reversed. We disagree, and, accordingly, affirm the judgment of the trial court.

The operative complaint in this action contained eleven counts alleging (1) breach of implied contract against the hospital, (2) breach of express contract against the hospital, (3) tortious interference with contract against Cooney, (4) tortious interference with contract against Johnson, (5) fraud against the hospital, (6) promissory estoppel against the hospital, (7) intentional infliction of emotional distress against all the defendants, (8) negligent infliction of emotional distress against all the defendants, (9) violation of the Connecticut Fair Employment Practices Act, General Statutes § 46a-60 (a) (l), (10) discrimination on the basis of race in violation of Title VH of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., against the hospital, and (11) retaliation (for having successfully pursued an earlier grievance) in violation of Title VII of the Civil Rights Act of 1964,42 U.S.C. § 2000e et. seq., against the hospital. The court, in a thorough and comprehensive memorandum of decision, concluded that the plaintiff had failed to prove any of the claims against any of the defendants. The court, therefore, rendered judgment in favor of the defendants and against the plaintiff. The plaintiff then filed the present appeal.

Our examination of the record and briefs and our consideration of the arguments of the parties persuade us that the judgment should be affirmed. The issues were resolved properly in the court’s complete and well reasoned memorandum of decision. See Hayes v. Yale-New Haven Hospital, 48 Conn. Sup. 311, 844 A.2d 258 (2001). Because that memorandum of decision fully addresses the arguments raised in this appeal, we adopt it as the proper statement of the issues and the applicable law concerning those issues. It would serve no useful purpose for us to repeat the discussion contained therein. See Renaissance Management Co. v. Commissioner of Revenue Services, 267 Conn. 188, 191-92, 836 A.2d 1180 (2003); Burton v. Statewide Grievance Committee, 79 Conn. App. 364, 365-66, 829 A.2d 927, cert. denied, 267 Conn. 903, 838 A.2d 209 (2003).

The judgment is affirmed.

       Johnson was the vice president of employee relations for the hospital. Cooney was acting as the interim director of the Adler Geriatric Assessment Center at the hospital at the time of the events of which the plaintiff complained. He was the plaintiffs direct supervisor a.t the Adler Geriatric Assessment Center.

       Prior to the commencement of trial, the court, Devlin, J., granted the defendants’ motion to dismiss count nine on the ground that the plaintiffs failure to obtain a release from the commission on human rights and opportunities (commission) deprived the court of subject matter jurisdiction to consider that claim. The plaintiff challenges that ruling on appeal, arguing that she exhausted the administrative remedies available to her. We conclude that the court properly dismissed count nine due to the plaintiffs failure to obtain a release from the commission. See General Statutes §§ 46a-100, 46a-101; see also Angelsea Productions, Inc. v. Commission on Human Rights & Opportunities, 248 Conn. 392, 405, 727 A.2d 1268 (1999) (employee “can only bring a civil action against the [employer] if she requests and obtains a release from the [commission]”).

       Pursuant to Practice Book § 15-8, the court dismissed counts three, four, seven and eleven at the close of the plaintiff’s case.


author: FOTI, J.

text:
    RALPH DUMAS v. RAFAEL MENA ET AL.
    (AC 24691)
    Foti, Schaller and Dranginis, Js.
    Argued January 7 —
    officially released March 16, 2004

      William J. Melley III, for the appellants (named defendant et al.).

      Gerald M. Beaudoin, for the appellee (plaintiff).
   Opinion

FOTI, J.

The defendants Rafael Mena and the city of Hartford appeal from the judgment of the trial court, rendered after a jury trial, in favor of the plaintiff, Ralph Dumas. The jury awarded $23,453 to the plaintiff as compensation for personal injuries that he sustained in a motor vehicle accident that took place in Hartford on October 21, 1999. We affirm the judgment of the trial court.

The jury reasonably could have found that the plaintiff stopped his vehicle at a stop sign, located at the intersection of Granby Street and Burlington Street, and then proceeded onto Granby Street, turning left into the southbound lane. At the same time, Mena, an officer in the Hartford police department, was traveling northbound on Granby Street in a police cruiser, responding to a disturbance call. Mena, during the course of his employment for the city, negligently operated his vehicle so that it crossed into Dumas’ lane and the two vehicles collided. As a result of Mena’s negligence, both Dumas and Mena sustained injuries. The defendant Albert DiStefano, a Hartford police officer, investigated the accident and issued a ticket to Dumas for violating General Statutes § 14-301 (c).

Dumas subsequently commenced a three count action against Mena, the city of Hartford and DiStefano. In the first count, which was directed at Mena and the city, Dumas alleged that Mena’s negligence caused the accident. In the second count, Dumas alleged that DiStefano’s issuance of a ticket to Dumas constituted an abuse of process. In the third count, Dumas alleged that Mena falsely informed DiStefano that Dumas had failed to stop at the stop sign and that such conduct constituted an abuse of process.

Prior to trial, the defendants filed a motion to bifurcate the trial of the negligence claim from the trial of the abuse of process claims. They essentially argued that the evidence relating to the abuse of process claims would prejudice the jury as to the negligence claim. The court denied the motion to bifurcate. The jury returned a verdict in favor of the plaintiff on the negligence count and in favor of the defendants on the abuse of process counts. The defendants thereafter filed a motion to set aside the verdict and for a new trial, claiming that the court abused its discretion in denying their motion to bifurcate the negligence claim from the abuse of process claims and that such denial caused them prejudice. The court denied the motion. On appeal, Mena and the city again argue that the judgment should be set aside on that ground.

The record reflects that the defendants filed their motion to bifurcate on the day prior to the start of the trial. The defendants stated in their motion that “[although the actions arise out of the same set of facts, the legal theories behind the recovery reached are quite varied as one is of simple negligence and the other is a tort.” The defendants also argued that bifurcation was necessary “for the reason that the opening statements that posture the questions and the evidence will serve as a distraction to the jury with regard to its immediate and primary focus: whether or not the plaintiff has sustained his burden that Officer Mena was the cause of the motor vehicle accident. If the plaintiff fails in that burden of proof, the jury will never need to address the issue of the allege[d] abusive process.”

The court heard argument concerning the motion and, in denying the defendants’ motion, stated: “I see little to be gained by bifurcating and certain disadvantages. I think we would end up trying some of the same issues twice. It may be that there are some things that are appropriate on the verdict form or even in the charge, but I’m going to deny the motion to bifurcate.”

“Pursuant to General Statutes § 52-205 and Practice Book § 15-1, the trial court may order that one or more issues that are joined be tried before the others. The interests served by bifurcated trials are convenience, negation of prejudice and judicial efficiency. . . . Bifurcation may be appropriate in cases in which litigation of one issue may obviate the need to litigate another issue. . . . The bifurcation of trial proceedings lies solely within the discretion of the trial court.” (Citation omitted; internal quotation marks omitted.) Barry v. Quality Steel Products, Inc., 263 Conn. 424, 448-49, 820 A.2d 258 (2003).

Nothing in the record persuades us that the court abused its broad discretion. Mena and the city claim that by denying the request to bifurcate the trial, the court allowed the plaintiff to commence “a wholesale attack on the credibility of the witnesses ... as the trial was an attack on the integrity of all the officers involved based upon [a] theory of conspiracy.” Mena and the city allege that even though they were successful on the second and third counts, “the commingling of the issues had a negative overall effect on the case and had to serve as a distraction to the jury in the ultimate decision on the first count,” and, therefore, the judgment should be reversed and the matter remanded for a new trial on the first count only. We disagree.

In determining whether the court has abused its discretion, we must make every reasonable presumption in favor of the correctness of its action. See Turk v. Silberstein, 48 Conn. App. 223, 226, 709 A.2d 578 (1998). The discretion is a legal discretion, “exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice.” (Internal quotation marks omitted.) O’Shea v. Mignone, 50 Conn. App. 577, 583, 719 A.2d 1176, cert. denied, 247 Conn. 941, 723 A.2d 319 (1998).

We cannot conclude that the court’s denial of the defendants’ motion, based on principles of convenience and judicial economy, infected the fairness of the trial so as to amount to an abuse of discretion. The witnesses involved and the evidence to be presented with regard to all three counts of the complaint were identical; the issues were interrelated. We do not view as persuasive Mena’s and the city’s argument that the failure to bifurcate the trial unfairly prejudiced the jury in assessing credibility. We also do not accept their claim that if the court had granted their motion, a verdict in their favor on the negligence count would necessarily have obviated the need for a trial on the two counts of abuse of process. Mena and the city argue that only if the plaintiff was “completely successful in [his negligence] claim, then and only then would the issue of that abuse of process come to bear.” They do not cite any authority to demonstrate that such a legal impediment existed in the plaintiffs case.

We conclude that the court acted within its discretion in denying the defendants’ motion to bifurcate, that the ruling was not based on untenable grounds and that Mena and the city have failed to demonstrate resulting undue prejudice from that ruling either at trial or on appeal.

The judgment is affirmed.

In this opinion the other judges concurred.

       The jury found the plaintiffs total damages to be $46,906, but awarded him $23,453 on the basis of its finding that the plaintiff was 50 percent comparatively negligent.

       General Statutes § 14-301 (c) provides: “The driver of a vehicle shall stop in obedience to a stop sign at such clearly marked stop line or lines as may be established by the traffic authority having jurisdiction or, in the absence of such line or lines, shall stop in obedience to a stop sign at the entrance to a through highway and shall yield the right-of-way to vehicles not so obliged to stop which are within the intersection or approaching so closely as to constitute an immediate hazard.”

       General Statutes § 52-205 provides: “In all cases, whether entered upon the docket as jury cases or court cases, the court may order that one or more of the issues joined be tried before the others.”

       Practice Book § 15-1 provides in relevant part: “In all cases, whether entered upon the docket as jury cases or court cases, the judicial authority may order that one or more of the issues joined be tried before the others. . . .”


author: MIHALAKOS, J.

text:
    IN RE ASHLEY M.

    (AC 24130)
    Schaller, West and Mihalakos, Js.

      Argued November 17, 2003 —
    officially released March 16, 2004

      Marcia McCormack, for the appellant (respondent mother).

      Mary-Anne Ziewacz Mulholland, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Susan T. Pearlman, assistant attorney general, for the appellee (petitioner).

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

   Opinion

MIHALAKOS, J.

The respondent mother appeals from the judgment of the trial court terminating her parental rights with respect to her minor child, Ashley. On appeal, she claims that the court (1) improperly decided that she had not achieved a sufficient degree of personal rehabilitation within the meaning of General Statutes § 17a-112 (j) (3) (B) (i) as would encourage the belief that she could assume a responsible role in the life of her child within a reasonable time and (2) abused its discretion by not considering facts subsequent to the filing of the petition by the petitioner, the commissioner of children and families (commissioner). We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the respondent’s appeal. The commissioner’s involvement with the respondent and Ashley began in December, 1999, due to the respondent’s abuse of cocaine and marijuana during her pregnancy. On January 4, 2000, the commissioner filed a petition alleging that Ashley, a newborn, was uncared for and neglected. Temporary custody was granted to the commissioner that same day. On February 17, 2000, the court adjudicated Ashley neglected and uncared for and ordered protective supervision by the commissioner for twelve months. On February 27, 2001, the court opened and modified the prior disposition and committed Ashley to the custody of the commissioner. On December 14, 2001, the commissioner filed the petition at issue in this appeal to terminate the parental rights of Ashley’s biological parents. The petition as to the respondent was premised on her failure to achieve a sufficient degree of personal rehabilitation pursuant to § 17a-112 (j) (3) (B) (i).

On January 10, 2002, the court extended Ashley’s commitment to the commissioner on finding that efforts were no longer appropriate for the reunification of Ashley with the respondent. On February 30, 2003, the court granted the petition to terminate the respondent’s parental rights on the ground alleged.

“A hearing on a petition to terminate parental rights consists of two phases, adjudication and disposition. ... In the adjudicatory phase, the trial court determines whether one of the statutoiy grounds for termination of parental rights [under § 17a-112 (j)] exists by clear and convincing evidence. ... In the disposi-tional phase, the trial court determines whether termination is in the best interests of the child.” (Internal quotation marks omitted.) In re Victoria B., 79 Conn. App. 245, 250, 829 A.2d 855 (2003).

In the adjudicatory stage, the court determined that the petitioner had demonstrated by clear and convincing evidence that the respondent “has not achieved a status where she is more able to parent Ashley than she was at the time of Ashley’s neglect and uncared for adjudication on February 17, 2000.” The court also found that “[tjhere is no evidence to conclude that rehabilitation into the role of a constructive parent could be achieved within a reasonable period of time.”

After considering and making findings on each of the seven criteria articulated in General Statutes § 17a-112 (k), the court concluded in the dispositional phase that termination of the respondent’s parental rights was in the best interest of Ashley. The court stated that “Ashley’s lack of permanency and the effects of that uncertainty no longer can be tolerated.” The court therefore opined that Ashley’s best interest would be served by the termination of the respondent’s parental rights, thus allowing Ashley to be available for adoption by her foster mother, a maternal cousin of the respondent, under whose care Ashley has been since April, 2001. This appeal by the respondent ensued. Additional facts will be set forth as necessary.

I

This court is ever mindful of the gravity of the proceeding that may end in the termination of parental rights and results in the complete severance of the legal relationship, with all its rights and responsibilities, between the child and the parent. See Anonymous v. Norton, 168 Conn. 421, 430, 362 A.2d 532, cert. denied, 423 U.S. 935, 96 S. Ct. 294, 46 L. Ed. 2d 268 (1975).

With that in mind, we address the respondent’s claim that the court improperly decided that the facts supported its conclusion that she had not achieved sufficient rehabilitation as mandated by § 17a-112 (j) (3) (B) as would encourage the belief that she could assume a responsible role in Ashley’s life within a reasonable time. In support of that claim, she contends that the testimony offered by the social workers who had handled her case, as well as the court-appointed psychologist, did not constitute clear and convincing evidence of her failure to achieve sufficient rehabilitation. We disagree.

We first set forth the standard of review that guides our analysis. We apply the clearly erroneous standard in reviewing a trial court’s finding that a parent has failed to achieve sufficient rehabilitation. See In re Jennifer W., 75 Conn. App. 485, 498-99, 816 A.2d 697, cert. denied, 263 Conn. 917, 821 A.2d 770 (2003). “We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached. . . . [0]n review by this court every reasonable presumption is made in favor of the trial court’s ruling.” (Internal quotation marks omitted.) Id., 499. We also recognize that “the trial court has an ability superior to our own to evaluate the evidence because of its firsthand opportunity to observe the parties and to hear their testimony.” In re Alissa N., 56 Conn. App. 203, 210, 742 A.2d 415 (1999), cert. denied, 252 Conn. 932, 746 A.2d 791 (2000).

Failure to achieve a sufficient degree of personal rehabilitation is one of the seven statutory grounds on which parental rights may be terminated under § 17a-112 (j) (3) and is “found when a parent of a child who has been found by the court to have been neglected fails to achieve such a degree of rehabilitation as would encourage the belief that, within a reasonable time, considering the age and needs of the child, the parent could assume a responsible position in the life of the child.” In re Mariah S., 61 Conn. App. 248, 260-61, 763 A.2d 71 (2000), cert. denied, 255 Conn. 934, 767 A.2d 104 (2001). “[I]n assessing rehabilitation, the critical issue is not whether the parent has improved [her] ability to manage [her] own life, but rather whether [she] has gained the ability to care for the particular needs of the child at issue.” (Internal quotation marks omitted.) In re Amneris P., 66 Conn. App. 377, 384, 784 A.2d 457 (2001).

The court relied on the testimony of Lisa Miller, Michelle Dunbar and Rushnee Verene-Penix, social workers with the department of children and families (department) who had worked with the respondent. They testified that the respondent did not visit Ashley regularly, had failed to keep the department or her attorney aware of her whereabouts and, as of the date of the petition, had not established adequate housing or employment. Most importantly, the court concluded, partly on the basis of that testimony, that she had not completed any of the substance abuse treatment programs in which she was enrolled by the department, the most essential of the specific steps assigned to her by the court. In fact, she expressed to Verene-Penix her unwillingness to enter into any further programs, insisting that she could refrain from drug use through her own devices. The court acted within its authority in considering the respondent’s failure to abide by the specific steps to which she had agreed to facilitate the return to her of Ashley. See In re Luis C., 210 Conn. 157, 167-68, 554 A.2d 722 (1989).

The court’s reliance on expert testimony offered by Robert D. Meier, the court-appointed psychologist, also was proper. See In re Tabitha P., 39 Conn. App. 353, 364-65 n.8, 664 A.2d 1168 (1995); In re Christina V., 38 Conn. App. 214, 221, 660 A.2d 863 (1995). Meier observed the interaction between the respondent and Ashley during their visits together. He noted that the respondent would frequently mention to Ashley the prospect of returning home, and that the respondent “was more concerned about her own agenda than the conflict and confusion caused for her daughter by the statements about coming home.” Meier also observed the interaction between Ashley and her foster mother. He perceived a strong bond between the two and considered the foster mother to be a very caring foster mother with good judgment. He concluded that the respondent’s “prognosis for long-term recovery is poor, given her attitude toward treatment, her lack of insight, her poor judgment and her pattern of failure.”

The respondent testified that she had made some progress toward rehabilitation. She testified that she had moved into a new apartment, had been caring for another child, her newborn son, and had not used illegal substances since December, 2001. Nonetheless, the court was within its discretion to balance that testimony against the evidence presented by the commissioner, namely, the testimony of Meier and the three social workers. Despite the respondent’s testimony, the court had ample evidence to support its finding that any strides toward rehabilitation made by the respondent were not achieved within a reasonable time, nor were they sufficient with respect to Ashley’s needs.

Our review of the record reveals that the evidence presented to the court reasonably could lead it to conclude that the respondent had not achieved sufficient rehabilitation such that she could assume the role of a responsible parent for Ashley in a reasonable time. Although the respondent may have achieved a level of stability within her limitations, we cannot conclude that the court’s finding that she had failed to achieve sufficient rehabilitation was clearly erroneous because it was supported by clear and convincing evidence.

II

The respondent’s final claim is that the court abused its discretion by not considering facts subsequent to the filing of the petition. She contends that those facts tend to show that she could assume, within a reasonable time, a responsible position in Ashley’s life. She contends that this evidence demonstrates that the problems that led to Ashley’s removal have been and continue to be addressed and that she is capable of being a responsible parent. The respondent also argues that in light of that evidencé, the court, sua sponte, should have ordered further random drug testing when the commissioner failed to do so. We disagree.

The following additional facts are necessary for our resolution of the respondent’s claim. The commissioner filed the petition at issue in this appeal on December 14, 2001. The respondent entered into a treatment program between late December, 2001, and early January, 2002, but discharged herself without completing the program. The respondent expressed to Verene-Penix that she could remain free of substances without assistance and testified that she had refrained from drug use since December 8, 2001. In late February or early March, 2002, she moved into a two bedroom apartment in Hartford, away from her prior residence at her mother’s home, which she admitted was a “trigger” for her drug use.

On May 29, 2002, the respondent submitted to a hair test at the request of the commissioner. The result of the test was negative. Subsequent hair tests scheduled by the commissioner could not be completed due to the short length of the respondent’s hair. The respondent testified that she had submitted to additional drug testing but offered no documentation of that testing. Later urine tests, the dates for which were chosen by the respondent, were negative. In addition, there were no indications of substance abuse at the time she gave birth to her son on August 15, 2002, and no referrals were made to the commissioner by the hospital.

Our role on appeal is not to retry the case but to view the evidence in the light most favorable to sustaining the judgment. See In re Jennifer W., supra, 75 Conn. App. 499. Moreover, it is the province of the trial court to evaluate the evidence and the credibility of witnesses. See State v. Riser, 70 Conn. App. 543, 555, 800 A.2d 564 (2002). The record reveals that the respondent was permitted to present evidence tending to show that she had achieved rehabilitation after the filing of the petition for the termination of her parental rights. In fact, contrary to the respondent’s position, the court included factual findings regarding that evidence in its memorandum of decision. The court stated that “there is no evidence of conduct prior or subsequent to the date of the filing of the petition which would encourage the belief that within a reasonable period of time, considering the age and needs of her daughter, she could assume a responsible position in her life.” (Emphasis added.)

In any event, the commissioner is correct in stating that the decision whether to consider that evidence rested soundly within the court’s discretion. Trial courts have “discretion concerning whether to consider events and behavior that occurred after the filing of the petition [to terminate parental rights] to determine if the respondent had failed to achieve sufficient personal rehabilitation to allow her to assume a responsible position in her [child’s life].” In re Jennifer W., supra, 75 Conn. App. 495. We conclude, therefore, that the respondent’s claim is without merit.

The respondent further claims that the court independently should have ordered further random drug testing when the commissioner failed to do so. She contends that the court should have ordered further drug testing in light of her testimony that she had not used illegal substances since December, 2001, and the lack of any positive drug tests since May, 2002. She contends that further testing would have guided the court to make the appropriate decision. We disagree.

In response, the commissioner argues that the respondent is asking this court to reweigh the evidence and “to give more weight to her statement of sobriety together with the absence of positive toxicology screens against the overwhelming evidence of failed programs, transience, lack of contact, poor judgment and failure to identify and meet the emotional needs of Ashley.” The commissioner urges that such a task is not within the scope of appellate review and that we must view the evidence in the light most favorable to sustaining the judgment. We agree with the commissioner.

We already have determined that the court’s decision to terminate the respondent’s parental rights was supported by clear and convincing evidence and, thus, was not clearly erroneous. The court was within its discretion to weigh the respondent’s testimony and negative drug screenings against the evidence presented by the commissioner. In balancing the evidence, the court concluded that the termination of the respondent’s parental rights was in Ashley’s best interest. Accordingly, we cannot say that it was improper for the court not to independently order further drug testing when it already had been presented with ample evidence to support its judgment.

The judgment is affirmed.

In this opinion the other judges concurred.

       The petition for the termination of parental rights filed by the commissioner of children and families was brought against both parents. The respondent father was defaulted for failure to appear on October 4, 2002. The petition was granted with respect to the father on the grounds of abandonment and no ongoing parent-child relationship pursuant to General Statutes § 17a-112 Q) (3). The father has not appealed. We therefore refer in this opinion to the respondent mother as the respondent.

       General Statutes § 17a-112 Q) provides in relevant part: “The Superior Court . . . may grant a petition [for the termination of parental rights] filed pursuant to this section if it finds by clear and convincing evidence . . . (3) that . . . (B) the child (i) has been found by the Superior Court or the Probate Court to have been neglected or uncared for in a prior proceeding, or (ii) is found to be neglected or uncared for and has been in the custody of the commissioner for at least fifteen months and the parent of such child has been provided specific steps to take to facilitate the return of the child to the parent . . . and has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child . . . .”

       “Before the court may grant a petition to terminate parental rights on the ground of failure to rehabilitate, it must find by clear and convincing evidence that the department has made reasonable efforts to reunite the child with the parent.” In re Mariah S., 61 Conn. App. 248, 254, 763 A.2d 71 (2000), cert. denied, 255 Conn. 934, 767 A.2d 104 (2001); General Statutes § 17a-112 (j) (1). “Although [n]either the word reasonable nor the word efforts is . . . defined by our legislature or by the federal act from which the requirement was drawn . . . [reasonable efforts means doing everything reasonable, not everything possible.” (Internal quotation marks omitted.) In re Mariah S., supra, 255.

       Courts must consider and make findings on the seven criteria listed in General Statutes § 17a-112 (k) before making a determination on a petition for termination of parental rights. See In re Romance M., 229 Conn. 345, 354-55, 641 A.2d 378 (1994). The court concluded that the petitioner had factually established each of the criteria by clear and convincing evidence and, therefore, continued onto the dispositional phase of the inquiry.

       The respondent did not appear for several urine screens scheduled by the department in January and February, 2001. The respondent tested positive for cocaine on two occasions in both January and March, 2001. Notwithstanding that evidence, the respondent emphasizes that she tested negative for substances in a May 29, 2002 hair test scheduled by the department. The respondent testified that she had not used illegal substances since December, 2001.
      It should also be noted that Verene-Penix scheduled a total of three hair tests for the respondent in May and June, 2002. The first two tests were not performed due to the length of the respondent’s hair.


text:
    GROLIER, INC. v. CITY OF DANBURY ET AL.
    (AC 23988)
    Foti, McLachlan and Freedman, Js.
    Argued January 12 —
    officially released March 16, 2004

      Laszlo L. Pinter, assistant corporation counsel, for the appellants (defendants).

      Steven R. Humphrey, with whom was John F. X. Peloso, Jr., for the appellee (plaintiff).
   Opinion

PER CURIAM.

In this tax appeal, the defendant city of Danbury appeals from the judgment of the trial court, claiming that the court’s determination of the fair market value of certain of the plaintiffs real property is clearly erroneous. We affirm.

This tax appeal involves improved real property owned by the plaintiff, Grolier, Inc., and located at 8-24 Old Sherman Turnpike in Danbury. The property was valued at $17,662,600 on the October 1,1999 grand list. The plaintiffs challenge to that valuation was denied by the Danbury board of assessment appeals. Pursuant to General Statutes § 12-117a, the plaintiff filed an appeal with the Superior Court.

At trial, both parties presented expert testimony as to proper valuation of the property. The plaintiffs expert calculated the property’s value to be $12 million. The defendant’s expert calculated the property’s value at $15.1 million, which was $2,562,600 less than the challenged assessment. By memorandum of decision, the court found the value of the property to be $13,550,000 and rendered judgment accordingly. This appeal ensued.

We review a court’s determination in a tax appeal pursuant to the clearly erroneous standard of review. “Under this deferential standard, [w]e do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached. Rather, we focus on the conclusion of the trial court, as well as the method by which it arrived at that conclusion, to determine whether it is legally correct and factually supported. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Citation omitted; internal quotation marks omitted.) United Technologies Corp. v. East Windsor, 262 Conn. 11, 23, 807 A.2d 955 (2002).

The defendant’s appeal is an amalgamation of various claims whose common denominator is the lack of any factual or legal basis. The defendant first claims that the court improperly concluded that the plaintiff had met its initial burden in this tax appeal. It is the taxpayer who bears the burden of establishing an overassessment. Ireland v. Wethersfield, 242 Conn. 550, 557, 698 A.2d 888 (1997). That burden, however, was met by the defendant in the present case. The defendant’s own expert witness conceded overvaluation when he testified that the value of the property was $2,562,600 less than the challenged assessment. In addition, the plaintiff presented expert testimony as to value that the court deemed credible. There is no merit to the defendant’s claim that the plaintiff failed to satisfy its burden.

Likewise, the defendant’s assertion that the court based its finding on speculative grounds and conjecture is untenable. The defendant presents no factual support for that allegation. In contrast, the record reveals that the court was presented with testimony from multiple experts and three Grolier employees with knowledge of the property’s physical condition. The court also reviewed two detailed appraisal reports. It is basic to our jurisprudence that credibility determinations are within the exclusive province of the trier of fact. Smith v. Smith, 183 Conn. 121, 123, 438 A.2d 842 (1981). “Because a tax appeal is heard de novo, a trial court judge is privileged to adopt whatever testimony he reasonably believes to be credible.” (Internal quotation marks omitted.) Sears, Roebuck & Co. v. Board of Tax Review, 241 Conn. 749, 755-56, 699 A.2d 81 (1997). As we have been presented with not a scintilla of support for the claim that the court based its finding on conjecture, that claim must fail.

The defendant also claims that the court improperly restricted the scope of its expert’s testimony, improperly admitted expert testimony outside the range of the witness’ expertise and gave no weight to the issue of the plaintiffs purposeful neglect of the property. Those claims merit little discussion. The court has wide discretion in ruling on the admissibility of expert testimony. Hayes v. Decker, 263 Conn. 677, 683, 822 A.2d 228 (2003). We have reviewed the record and find ample support for the court’s determinations. In addition, no facts were presented indicating that the plaintiff purposefully had neglected the property, nor was any authority presented that, if it had, that should affect the assessed value. It appears that the defendant has misinterpreted the court’s silence as to the alleged purposeful neglect. We view that silence not as a reflection of the inattentiveness of the court, but rather the vacuousness of the claim.

We afford wide discretion to the court’s determination of the value of property in a property tax appeal. Carol Management Corp. v. Board of Tax Review, 228 Conn. 23, 41, 633 A.2d 1368 (1993). When the court acts as the fact finder, it may accept or reject evidence regarding valuation as it deems appropriate. First Bethel Associates v. Bethel, 231 Conn. 731, 741, 651 A.2d 1279 (1995). The court in this case was presented with detailed expert and lay testimony, from which it reached a logical conclusion as to the value of the property. In light of our examination of the evidence in the record, we conclude that the judgment of the court was not clearly erroneous.

The judgment is affirmed.

       Also named as defendants were Catherine Skurat and Colleen Velez, the tax collector and tax assessor, respectively, of the city of Danbury. For convenience, we refer in this opinion to the city of Danbury as the defendant.

       Although the defendant assails a “cryptic footnote” in the court’s memorandum of decision and insists that it “begs for explanation,” the defendant failed to seek an articulation, as provided for in Practice Book § 66-5.