author: LANDAU, J.

text:
    STATE OF CONNECTICUT v. LEEROY HARRIS
    (AC 17081)
    O’Connell, C. X, and Lavery and Landau, Js.

      Argued January 27
    officially released May 26, 1998

      Alexander H. Schwartz, special public defender, for the appellant (defendant).

      SusannE. Gill, senior assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and John C. Smriga, senior assistant state’s attorney, for the appellee (state).
   Opinion

LANDAU, J.

The defendant, Leeroy Harris, appeals from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes § 53a-54a. On appeal, the defendant claims that the trial court (1) improperly permitted the state to comment indirectly on the failure of the defendant to testify, and (2) abused its discretion (a) in excluding evidence of alleged third party culpability and (b) in admitting testimony about a prior consistent statement by a witness for the state. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On May 14, 1994, Carl Nicholson left his home on Arctic Street in Bridgeport to buy groceries. He lived there with Stacy Corbett and five children, Erica, Eric, Shawn, Corey and Carla. When he left, he told ten year old Erica, the eldest child, to close the door. As he stepped out onto the porch, Nicholson had a conversation with the defendant, whom he knew as a neighbor, telling him that Corbett had left the children alone for two days and that he was going to the grocery store. The defendant told Nicholson that he had some toys in the attic for the children, and Nicholson replied that the defendant should save the toys for the morning because the children were going to bed. The defendant asserted that he was going to get the toys for the children.

Shortly thereafter, the defendant appeared at the door of the Corbett residence and told Erica that her father said to come with him to get some toys. Eric, who recognized the defendant, wanted to go along, but the defendant said, “Only Erica.” Erica left with the defendant, who beat and choked her, carried her through an alleyway, threw her over a fence into her backyard, where he stabbed her in the face and neck, piercing her jugular vein and causing her death. The defendant then went to the one of the victim’s neighbors and told them there was a body in the backyard. Other facts will be discussed as pertinent to issues in the case.

I

The defendant claims that the state’s closing argument contains two impermissible indirect comments on his failure to testify. Specifically, the defendant claims that the state posed two rhetorical questions to the jury that “pointed directly and starkly at [the defendant] and asked him, and only him, for an explanation.”

The fifth amendment to the United States constitution, applicable to the states through the fourteenth amendment, “forbids either comment by the prosecution on the accused’s silence or instructions by the court that such silence is evidence of guilt.” Griffin v. California, 380 U.S. 609, 615, 85 S. Ct. 1229, 14 L. Ed. 2d 106 (1965). This does not mean that the state is prohibited from calling to the jury’s attention any portion of the evidence that stands uncontradicted; see State v. Marra, 222 Conn. 506, 534, 610 A.2d 1113 (1992); or commenting “on the overall quality of the defendant’s evidence . . . .” State v. Magnotti, 198 Conn. 209, 220, 502 A.2d 404 (1985).

In determining whether an indirect comment infringes on the defendant’s constitutional privilege against self-incrimination, we have adopted the following test: “ ‘Was the language used manifestly intended to be, or was it of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify?’ ” State v. Evans, 165 Conn. 61, 72, 327 A.2d 576 (1973), citing United States ex rel. Leak v. Follette, 418 F.2d 1266, 1269 (2d Cir. 1969), cert. denied, 397 U.S. 1050, 90 S. Ct. 1388, 25 L. Ed. 2d 665 (1970).

The following additional facts concerning portions of the state’s closing argument are necessary before we can review the defendant’s claims. The state called Henry Lee, the state’s chief criminalist and director of the state forensic laboratory, as its expert witness. A portion of Lee’s testimony concerned a bloodstain found on the defendant’s sneaker. According to Lee’s expert opinion, the bloodstain was caused by blood spatter rather than contact transfer. This was telling because although the defendant may have acquired a contact stain simply by touching blood, a spatter stain required that the blood be airborne prior to contact. Furthermore, Nicholson testified, without contradiction, that he noticed that between the time he saw the defendant on the porch and when he returned from the grocery store, the defendant had changed his shirt.

During its final argument, the state asked several rhetorical questions related to the testimony of Lee and Nicholson. We conclude that the state’s questions would not naturally and necessarily be taken as comments on the defendant’s failure to testify and that the state did not intend them to have such an effect. In the state’s closing argument, the prosecutor first argued, “Well, how did it get there, then?” which clearly refers to Lee’s explanation of how the bloodstain got on the defendant’s sneaker, i.e., spatter as opposed to surface to surface contact, rather than calling on the defendant to explain its origins. Therefore, that statement would not have been naturally and necessarily interpreted as a comment on the defendant’s failure to testify.

The defendant’s second challenge is to the question: “[W]hy would you do that?” In effect, the state was asking what would lead a person to change shirts during a brief space of time. One answer is a guilty conscience and a desire to hide evidence. The question does not point to the defendant’s decision not to testify, but asks the jurors to refer to their knowledge of human nature to ascertain an answer to the question. Immediately after asking the question, the state pointed out and conceded that the evidence alone is not dispositive of the defendant’s guilt. It is but one fact from which the jury could draw an inference of guilt. We conclude that the rhetorical questions posed by the prosecutor would not naturally and necessarily be interpreted as a comment on the defendant’s failure to testify.

II

A

The defendant claims that the trial court improperly exercised its discretion by excluding evidence that he asserts implicated another in the death of Erica.

The following additional facts apply to the defendant’s claim. On the night of the homicide, the defendant told several individuals that he had seen an old white man with gray hair driving a green Oldsmobile. He claimed that he observed the man fighting with a black female in the car, dragging her from the car, banging her head against the car and dumping her body over the fence. The defendant also gave this information to the police. As a result, the police stopped a green Oldsmobile with a white driver and a black female passenger about one block from the crime scene, between one hour and one and one-half hours after Erica’s body was found. The driver was young, blond, tall and thin. A knife and a gun were found in the car. The knife was tested and no evidence of blood was found on it. Blood was found under the driver’s fingernails, which the driver claimed was menstrual blood from his passenger, with whom he had engaged in sexual activity. The driver’s explanation was corroborated by the female passenger.

The state moved in limine to exclude defense evidence regarding the vehicle stop. The state argued that there was no connection between the stop or the occupants of the vehicle and the murder, and that admitting the evidence would create confusing collateral issues for the jury. The defendant maintains that the state opened the door to this area of inquiry in its direct examination of Nicholson and another witness and, further, that there were sufficient similarities between the defendant’s version of the incident and the vehicle stop to warrant admission of these facts in evidence. The trial court granted the state’s motion in limine, finding that there was insufficient evidence that directly connected the third party to the crime charged, that there was no connection between the car and the crime, and that the prejudicial value of the evidence would outweigh its relevance and it would be a waste of time.

“Both this state and other jurisdictions have recognized that a defendant may introduce evidence which indicates that a third party, and not the defendant, committed the crime with which the defendant is charged. . . . The defendant, however, must show some evidence which directly connects a third party to the crime with which the defendant is charged .... It is not enough to show that another had the motive to commit the crime . . . nor is it enough to raise a bare suspicion that some other person may have committed the crime of which the defendant is accused.” (Citations omitted; emphasis added.) State v. Echols, 203 Conn. 385, 392, 524 A.2d 1143 (1987).

The admissibility of evidence of third party culpability is governed by the rules relating to relevancy. Id., 393. “ ‘No precise and universal test of relevancy is furnished by the law, and the question must be determined in each case according to the teachings of reason and judicial experience.’ Pope Foundation, Inc. v. New York, N.H. & H. R. Co., 106 Conn. 423, 435-36, 138 A. 444 (1927); State v. Towles, 155 Conn. 516, 523, 235 A.2d 639 (1967). The trial court has wide discretion in its rulings on evidence and its rulings will be reversed only if the court has abused its discretion or an injustice appears to have been done. State v. Echols, supra [203 Conn. 393].” State v. Boles, 223 Conn. 535, 549, 613 A.2d 770 (1992).

The flaw in the defendant’s claim is that none of the proffered evidence directly connected the vehicle or its occupants with the commission of the crime. While the evidence proffered during the hearing on the motion in limine, held outside the presence of the jury, demonstrated that there was a car similar in description to the one identified by the defendant in the vicinity of the crime scene about one hour to one and one-half hours after the crime, it went no further. The driver of the vehicle was Caucasian, young, blond and thin; the female passenger, an alleged prostitute, corroborated the driver’s activity. It would be speculative to draw from the proffered evidence an inference that these people or the vehicle were connected to Erica’s homicide.

“Ordinarily, evidence concerning a third party’s involvement is not admissible until there is some evidence which directly connects that third party with the crime.”State v. Kinsey, 173 Conn. 344, 347-48, 377 A.2d 1095 (1977). Unless that direct connection exists, it is within “the sound discretion of the trial court to refuse to admit such evidence when it simply affords a possible ground of possible suspicion against another person.” (Internal quotation marks omitted.) State v. Payne, 219 Conn. 93, 117, 591 A.2d 1246 (1991). Evidence of apossible motive is insufficient to establishrelevancy. See State v. John, 210 Conn. 652, 670-71, 557 A.2d 93, cert. denied, 493 U.S. 824, 110 S. Ct. 84, 107 L. Ed. 2d 50 (1989). Moreover, “[t]he trial court’s ruling on the relevancy of third party inculpatory evidence will be reversed on appeal only if the court has abused its discretion or an injustice appears to have been done.” State v. Payne, supra. After reviewing the record, we conclude that the trial court did not abuse its discretion in finding that the defendant’s proffered evidence was not connected to the victim’s death and in ruling as it did.

B

Finally, the defendant claims that the trial court improperly exercised its discretion in admitting a prior consistent statement made by Eric Corbett, the victim’s seven year old brother, who was a state’s witness. The defendant maintains that Eric’s statement on the night of the crime identifying the defendant as the person who took his sister away should not have been admitted because the state induced an uncertainty in Eric’s in-court identification, which then led to the admission of Eric’s prior consistent statement. The state argues that the factual premise on which the defendant bases his claim, that Eric’s prior statement was introduced to bolster an alleged uncertainty in his in-court identification, is false. The state claims that the statement was introduced to rebut the suggestion, made by the defense, that Eric’s testimony was the product of numerous conversations he had with such persons as his mother, the police, the prosecutor and social workers, rather than of his memory. The state sought to refute this contention by introducing evidence of the statement Eric made shortly after his sister’s body was discovered and before anyone would have had an opportunity to influence his recoflection of the evening’s events. Moreover, the state asserts that the statement was admissible to rehabilitate the witness following the defendant’s attempted impeachment of Eric with a prior inconsistent statement.

The following additional facts are necessary for purposes of our analysis. At the time of the trial, Eric was eight and one-half years old; at the time of the homicide, he was seven. Eric recognized the defendant when he came to the door and told Erica that her father said that it was all right to come with him. When he was asked at trial if he saw the defendant in the courtroom, Eric initially testified, “He’s not here, right?” Then he testified that there was only one person in the room who looked like the defendant and pointed to the defendant, indicating he was the man who came for his sister. When asked if he was sure of his identification, Eric said that he was not. On cross-examination, Eric was asked a series of questions concerning the people with whom he had spoken about the death of his sister, and that, at the probable cause hearing, he had pointed to his uncle when asked to identify the defendant.

Later, outside the presence of the jury, the state made known its intention to introduce testimony of a detective who had responded to the scene shortly after Erica’s body was found. The detective would testify that he had asked Eric if he knew what had happened to his sister and that Eric had replied that the “fat man” came for her. Eric also told the detective that he knew where the fat man lived and led the detective out of the house, down the street and pointed to the defendant’s residence.

It is beyond question that the state offered the detective’s testimony, not for its truth, but to corroborate Eric’s in-court identification of the defendant. The state argued: “The theory, Your Honor, that I would offer is that during the cross-examination of Eric, the cross-examination, among other things, sought to undermine the memory of Eric.” The defendant argued that Eric’s testimony had not been challenged for bias, interest or motive and that the court should consider the reliability of the testimony.

After hearing arguments, the court ruled that the proposed testimony was admissible. It found that there had been “extensive cross-examination as to the possibility of a taint or coaching and the accuracy of the witness’ memory concerning the identification, including cross-examination concerning a misidentification during a probable cause hearing in which [Eric] identified his uncle.” In addition, the trial court determined that the statement was given before there would have been an opportunity to coach the witness and that the relevance of the proposed evidence far outweighed any prejudicial impact it might have. The trial court also informed the defendant that it would give a cautionary instruction, which it did immediately following the detective’s testimony, that the jury was to use this evidence only on the issue of Eric’s credibility.

Ordinarily, prior consistent statements of a witness are not admissible, whether offered for their truth or merely as corroboration of the witness’ testimony at trial. The rationale for excluding this evidence is relevancy. In the normal course of events, the witness’ story is not made more probable or more trustworthy by any number of repetitions of it. State v. Valentine, 240 Conn. 395, 412-13, 692 A.2d 727 (1997).

Circumstances exist, however, in which the fact that the witness made a statement consistent with his or her trial testimony is probative of credibility. Exceptions to the general rule of exclusion, therefore, exist to cover such circumstances. Major exceptions include using the prior consistent statement to rehabilitate a witness who has been impeached by a suggestion of bias or interest arising subsequent to the prior statement; see State v. Jeffrey, 220 Conn. 698, 713-14, 601 A.2d 993 (1991), cert. denied, 505 U.S. 1224, 112 S. Ct. 3041, 120 L. Ed. 2d 909 (1992); by a suggestion of recent contrivance; see State v. Dolphin, 178 Conn. 564, 568 n.5, 424 A.2d 266 (1979); by a charge of faulty recollection; see State v. Anonymous (83-FG), 190 Conn. 715, 729, 463 A.2d 533 (1983); or by a prior inconsistent statement. See State v. Torres, 210 Conn. 631, 641, 556 A.2d 1013 (1989). Whether the circumstances support the admission of this evidence is left to the discretion of the trial court. See State v. McCarthy, 179 Conn. 1, 18, 425 A.2d 924 (1979).

Contrary to the defendant’s argument on appeal, the detective’s testimony concerning Eric’s prior statements was not admitted to bolster any weakness in Eric’s testimony created by the state. The trial court found, and we agree, that the detective’s testimony was admitted to refute the suggestion that Eric’s testimony was the product of outside influences, such as police or social workers. Because Eric’s statement to the detective occurred shortly after his sister’s body was found and, thus, before anyone would have the opportunity to taint his recollection, the detective’s testimony was highly relevant to Eric’s credibility. “ ‘A consistent statement, at a time prior to the existence of a fact said to indicate bias, interest, or corruption, will effectively explain away the force of the impeaching evidence; because it is thus made to appear that the statement in the form now uttered was independent of the discrediting influence.’ 4 [J.] Wigmore, Evidence (Chadbourne Rev. [1972]) § 1128, p. 268.” (Emphasis in original.) State v. Dolphin, supra, 178 Conn. 571. The suggestions that Eric had been coached and that his memory had been muddied by numerous conversations, together with the challenges to his recollection, were appropriately refuted by the admission of the detective’s testimony. We conclude that the trial court properly exercised its discretion.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-54a (a) provides in relevant part: “A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person . . . .”

       The assistant medical examiner was unable to determine the order in which Erica sustained her injuries.

       The defendant did not object, to these comments until immediately after the trial court’s instruction to the jury when he argued that they came “dangerously close to a comment on the accused’s failure to testify.” The defendant did not request the court to take any curative action at that point. Instead he requested the court to reserve ruling until after the verdict. The court agreed. After the verdict, the request was included in a motion to set the verdict aside, which was denied. On appeal, the state did not claim the issue was not properly preserved. This court assumes, without deciding, that the issue was preserved.

       Lee was able to determine only that the stain was caused by human blood. He could not determine whether it was Erica’s blood because the sample was too small.

       The prosecutor argued in part, “On that basis you’re asked to just reject it. That’s noi Erica’s blood. Well, I would suggest to you when you review the testimony of Dr. Lee that he does not exclude that as a possibility. Well, how did it get there then? How did blood get on the shoes? Well, you know, [the defendant is] in that area. I mean he’s around there. We know there’s some blood. Maybe it’s just blood that got on his shoe, you know, while he’s walking around there. And that’s where another thing comes in that Dr. Lee said. He said that this is not surface to surface transfer. It’s spatter. Okay. That means that it somehow became airborne and landed on the shoe and then produced that characteristic pattern and a little tail where it trails off after it hits. That tells you it’s a spatter.” (Emphasis added.)

       The prosecutor argued in part: “The only evidence in this case about the defendant’s clothing is that there was a change of shirts. Now, why would you do that? Does that—now, does that prove that he committed the murder? No. Is this one more tiling? Which direction is it pointing at? Somebody else? Is it pointing at that we’re asking you to jump to conclusions? It’s one more thing that points on the defendant. It’s one more thing that you need to see how it meshes with the rest of the evidence in this case.” (Emphasis added.)

       Even if we were to view either of the challenged remarks as indirect comments on the defendant’s failure to testify, the impropriety is harmless beyond a reasonable doubt. See Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967). First, the trial court charged the jury that it could not draw an unfavorable inference from the defendant’s failure to testify and, absent a fair indication to the contrary, we must presume the jury followed this instruction. See State v. Baskins, 12 Conn. App. 313, 319-20, 530 A.2d 663, cert. denied, 205 Conn. 811, 532 A.2d 586 (1987). Second, defense counsel presumably did not view the remarks as so prejudicial that his client’s right to a fair trial was seriously jeopardized; see State v. Negron, 221 Conn. 315, 330, 603 A.2d 1138 (1992); because he did not object until after the trial court’s charge and requested that the court hold its ruling in abeyance until after the verdict. Fkuther, the defendant did not ask the trial court to give a curative instruction to avert any prejudice that may have resulted from the allegedly improper remarks of the state’s attorney. Where prejudice to the defendant could have been remedied by the court’s curative instruction, defense counsel cannot opt for a new trial instead of a curative instruction, as if the two were interchangeable. See State v. Hawthorne, 176 Conn. 367, 373-74, 407 A.2d 1001 (1978); State v. McNellis, 15 Conn. App. 416, 438, 546 A.2d 292, cert. denied, 209 Conn. 809, 548 A.2d 441 (1988).

       The defendant also puts forth a “fair trial” argument in that he posits that Nicholson testified that the defendant told him that a green car had driven up to the area of the Corbett home, that an old, white, gray haired man pulled a woman out of the car, banged her head on the car and threw the body over the fence. The defendant maintains that because the state was permitted to demonstrate this fact to the jury, the defendant should not be excluded from offering evidence of a third party suspect.

       The defendant never presented evidence concerning his third party claim. Knowledge regarding notice of the evidence came from representations of counsel in arguing the motion in limine and the police incident report marked as an exhibit for identification. Although representations of counsel are not evidence; State v. Tillman, 220 Conn. 487, 496, 600 A.2d 738 (1991), cert. denied, 505 U.S. 1207, 112 S. Ct. 3000, 120 L. Ed. 2d 876 (1992); the trial court relied on these uncontroverted representations in its ruling. In the police incident report, the driver’s date of birth is April 20, 1970, and he is described as “white male, 6’4”, 150 lb., light, fair complex, blue eyes, blonde hair, slender build.”

       During direct examination, Nicholson and the other witness testified, not in response to a direct question on the issue but in narrative, as to what the defendant told them about events on the night Erica was murdered. The testimony was not admitted for the truth of the matter asserted.

       “I’m going to grant the motion to exclude that ... I’ll find that this would only lead to extremely confusing side issues. . . . There appears to be no connection with this car to the location of this crime . . . nor of either of the occupants found in the car to the location of this crime. . . . Moreover, the description of the knife appears dissimilar, in addition to there being no blood found on the knife. . . .Ido think the prejudicial value would far outweigh the relevance ... it would lead to much confusion . . . as well as a waste of time.”

       In view of our analysis of the defendant’s claim, we necessarily conclude that the defendant was not deprived of his constitutional right to a fair trial. See State v. Kelly, 208 Conn. 365, 376, 545 A.2d 1048 (1988). Relevancy is an evidentiary question and “[e]very evidentiary ruling which denies a defendant a line of inquiry to which he thinks he is entitled is not constitutional error.” State v. Vitale, 197 Conn. 396, 403, 497 A.2d 956 (1985). The defendant has placed a constitutional label on a nonconstitutional claim. See State v. Gooch, 186 Conn. 17, 18, 438 A.2d 867 (1982). “The defendant’s rights to confront and cross-examine witnesses and to present a defense do not give him the right to have admitted any evidence he chooses.” State v. Negron, 221 Conn. 315, 328, 603 A.2d 1138 (1992). In the exercise of his rights, the defendant, as well as the state, must comply with the established rules of evidence and procedure. See State v. Kemp, 199 Conn. 473, 479, 507 A.2d 1387 (1986). We find no merit in the defendant’s claim.
      The defendant’s claim that the state opened the door to the inquiry and, therefore, the defendant was entitled to present evidence of the vehicle stop is of equal merit. “The doctrine of opening the door cannot, of course, be subverted into a rule for injection of prejudice. United States v. Lum, 466 F. Sup. 328, 335 [(D. Del.), aff'd, 605 F.2d 1198 (3d Cir. 1979)], quoting United States v. Winston, 447 F.2d 1236, 1240 (D.C. Cir. 1971).” (Internal quotation marks omitted.) State v. Glenn, 194 Conn. 483, 499, 481 A.2d 741 (1984). The state never delved into the issue of a possible third party culprit. In fact, the state objected to the subject when defense counsel attempted to ask questions on cross-examination of Nicholson and the other witness. Although Nicholson did relate the defendant’s claims on the night of the homicide, the testimony was in the nature of a narrative of the night’s events. The second witness’ testimony did not include the defendant’s description of the car or its occupants. Even if we were to assume, without deciding, that the state was deemed to have opened the door, that does not mean that the trial court abused its discretion in excluding the evidence. While a court may determine that the balance of equities requires that a party be able to explore an issue opened up by the other side, the court must be free to restrict that evidence due to its lack of probative value and potential for delay and confusion. The trial court found that producing evidence of a motor vehicle stop where there was no evidence connecting the vehicle’s occupants to the homicide was a waste of time. Rather than advancing the truth seeking process, the admission of this evidence would have derailed it.

       The following colloquy took place during the defendant’s cross-examination of Eric.
      “Q. Do you remember Carl talking to you that night?
      “A. No.
      “Q. You don’t remember that at all?
      “A. No.
      “Q. Okay. Do you remember that night if—that’s withdrawn. Have you talked to, say, that man right here about this case?
      “A. Yeah.
      “Q. Yeah. Okay. He brought you down to his office. Okay. And who else have you talked to about coming to court and testifying?
      “A. I talked to Janet a little bit.
      “Q. Uh-huh. Who is that?
      “A. Janet Ahom, at the back.
      “Q. She’s in the back there? That’s your social worker?
      “A. Yes.
      “Q. Okay. Who else have you talked to?
      “A. My foster mother a little bit.
      “Q. You’ve talked to your foster mother. That’s right. Talk to Stacy at all?
      “A. A little bit.
      “Q. A little bit. So, you talked to a lot of people a little bit. Okay. Did you talk to anybody in a police uniform about the case?

        “A. No.
      “Q. Okay. Talk to anybody that’s called a ‘detective’ about the case?
      “A. No.”

       The trial court reserved ruling until the defendant had a chance to review cases offered by the state for legal support and took up the point again thereafter. For our purposes, we have consolidated the argument.

       Defense counsel stated: “And we are talking about the reliability of a child testifying, or pointing out something. Police were around. We have social workers around. We have—we don’t know the influence of the child in what manner he was—he was coached. And it is clear to me, in reading the statement, that he was indeed coached.”

       During its charge, the trial court also reminded the jury of this limitation.


source: Caselaw Access Project

author: SCHALLER, J.

license: Public Domain

text:
    MARIE ROLLA v. MARIO ROLLA
    (AC 16368)
    Foü, Schaller and Spear, Js.
    Argued December 17, 1997
    officially released May 26, 1998

      David P. Burke, for the appellant (defendant).

      Lawrence P. Weisman, with whom, on the brief, was Debra A. Marino, for the appellee (plaintiff).
   Opinion

SCHALLER, J.

The defendant, Mario Rolla, appeals from the judgment of the trial court dissolving his marriage to the plaintiff, Marie Rolla. In his appeal, the defendant claims that the trial court improperly (1) found that the plaintiff had contributed equally to the accumulation and growth of the parties’ assets, (2) awarded the plaintiff one half of the assets owned at the time of dissolution, (3) failed to take into account the effect of federal income taxes in awarding the plaintiff one half of the assets and (4) found the value of a building owned by the plaintiff to be $2,000,000. We affirm the judgment of the trial court.

The trial court found the following facts. The parties were married on May 15, 1954, in New York City. This was a first marriage for both parties. Two children were bom of the marriage, Peter and Adrienne, both of whom have reached the age of majority. Both parties were sixty-four years of age at the time of trial.

Neither party brought any property or other financial assets to the marriage. Both parties are well educated. At the time of the marriage, the defendant had obtained a bachelor of arts degree in accounting from Pace University, and the plaintiff had earned a bachelor of arts degree in statistics from Hunter College. Shortly after their marriage, the defendant began attending law school at St. John’s University, eventually obtaining his law degree and being admitted to practice in New York. During this time, the defendant continued his full-time employment, as an accountant, and the plaintiff worked as an actuarial assistant. The plaintiff continued to work until the birth of the parties’ first child in 1957. After that, the plaintiff remained at home with the children until the early 1970s, when she returned to work on a full-time basis. She continued working until 1986 or 1987. The income from her position as an actuarial assistant was approximately $35,000 per year.

Shortly after starting his practice as an attorney, the defendant became involved in acquiring, managing and disposing of companies. By his own testimony, the defendant was a “workaholic” and, although he provided for his family financially, he spent little time involved in family activities. He traveled extensively in connection with his business enterprises, returning home at irregular intervals. As a result, the parties’ marriage gradually deteriorated.

Following the death of the defendant’s mother, the frequency with which he returned home decreased. By 1986 or 1987, he had almost completely stopped returning home. The reason given by the defendant for this situation was that the plaintiff objected to and disapproved of his business activities. During that time, the plaintiff began to suffer from health problems, including migraine headaches, and was often under the care of physicians.

In 1986 or 1987, the plaintiff asked the defendant, and he agreed, to sign a document that she had drafted, which would entitle her to one half of his assets in the event of a divorce. That document provided that the defendant agreed to give the plaintiff, at the time of their divorce, one half of the value of all the assets of the companies in which he was then involved. In addition, the document provided that one half of the defendant’s pension and moneys in bank accounts should also become the property of the plaintiff. The document also provided that if the defendant had failed to address certain issues, he agreed to submit all necessary details, papers, moneys, stock certificates and other documentation to the plaintiff.

Thereafter, the defendant conveyed to the plaintiff, in fee simple, the family condominium in Greenwich, where the parties had lived since 1982. The defendant valued his 50 percent interest in the condominium at $300,000. He also conveyed to the plaintiff a commercial building, on which there was a long-term lease that would provide the plaintiff with annual net rental income of $200,000. After that transaction was completed, the plaintiff accepted the defendant’s absence from the home and began to work on a part-time basis at a local library. In 1992, upon learning that the defendant had been involved in relationships with other women, the plaintiff brought this action for divorce, in which she alleged that the marriage had broken down irretrievably.

On August 5, 1996, the trial court rendered judgment dissolving the marriage. The trial court found the cause of the breakdown to be a combination of the defendant’s frequent absences from home for extended periods, and the plaintiffs objections to the defendant’s work and business enterprises. Thus, the court found that the defendant was primarily, but not entirely, responsible for the breakdown of the marriage. The trial court further found that both parties contributed equally to the marital estate and to the marriage, and had entered into an agreement in 1986 or 1987 to divide the assets equally in the event of a divorce.

The trial court found that the total marital assets as of the date of dissolution amounted to $18,304,411 and the plaintiffs portion was $4,168,411. The court ordered the defendant to contribute $4,983,794.50 to the plaintiff so that after the contribution, each would have $9,152,205.50, or one half of the marital assets. The court ordered the defendant to pay one half of this amount within three months of the issuance of the judgment and the balance within three months thereafter.

On September 24, 1996, the defendant filed a motion for articulation with the trial court, seeking guidance as to whether the court’s order would permit the transfer of assets other than money having a present value equal to the amount provided for in the court’s order, and as to how securities held in both parties’ names were to be allocated. On December 18, 1996, the court issued a decision on that motion, specifying that its decision did not contemplate the defendant’s transferring assets in kind and that the defendant was to choose the means by which he would comply with the court’s order. With respect to the securities held in the names of both parties, the court ordered that they be divided equally between the parties.

I

The defendant first claims that the trial court improperly found that the parties contributed equally to the accumulation and growth of the assets held by the parties as of the date of the dissolution. General Statutes § 46b-81 provides several factors that the court must consider in fixing the nature and value of the property to be assigned from one spouse to the other. One factor is the “contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates.”

“The standard of review in family matters is that this court will not disturb the trial court’s orders unless it has abused its legal discretion or its findings have no reasonable basis in fact. . . . It is within the province of the trial court to find facts and draw proper inferences from the evidence presented.” (Internal quotation marks omitted.) Werblood v. Birnbach, 41 Conn. App. 728, 730, 678 A.2d 1 (1996); Karen v. Parciak-Karen, 40 Conn. App. 697, 703, 673 A.2d 581 (1996); Rummel v. Rummel, 33 Conn. App. 214, 220, 635 A.2d 295 (1993); Graham v. Graham, 25 Conn. App. 41, 47, 592 A.2d 424, cert. denied, 220 Conn. 903, 593 A.2d 969 (1991).

“[T]he factual findings of a trial court on any issue are reversible only if they are clearly erroneous. . . . 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.” (Internal quotation marks omitted.) Schult v. Schult, 40 Conn. App. 675, 682, 672 A.2d 959 (1996), aff'd, 241 Conn. 767, 699 A.2d 134 (1997). “[W]here the factual basis of the court’s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous.” Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980).

Whether the parties made a contribution in the acquisition and preservation of property is a question of fact. Sweet v. Sweet, 190 Conn. 657, 663, 462 A.2d 1031 (1983); O’Neill v. O’Neill, 13 Conn. App. 300, 307, 536 A.2d 978, cert. denied, 207 Conn. 806, 540 A.2d 374 (1988). Accordingly, this court can reverse the trial court’s finding that the parties contributed equally to the accumulation and growth of the assets held by the parties as of the date of the dissolution only if it is found to be without any reasonable basis in the evidence. See Schult v. Schult, supra, 40 Conn. App. 682; Rosick v. Equipment Maintenance & Service, Inc., 33 Conn. App. 25, 40-41, 632 A.2d 1134 (1993).

In its memorandum of decision, the trial court found that the contributions of the parties were “virtually equal.” In support of that finding, the trial court specifically referred to the following contributions by the plaintiff: keeping the home, taking care of the children until they finished college, and going to work, using her earnings to support the family.

In determining the parties’ relative contributions within the meaning of § 46b-81, we have held that non-monetary as well as monetary contributions are to be considered. O’Neill v. O’Neill, supra, 13 Conn. App. 311. “[T]he trial court must accord value to those nonmonetary contributions of one spouse which enable the other spouse to devote substantial effort to paid employment which, in turn, enables the family to acquire tangible marital assets.” (Internal quotation marks omitted.) Werblood v. Birnbach, supra, 41 Conn. App. 735.

Among the facts found by the trial court was that the plaintiff remained at home, forgoing the opportunity to continue working full-time as an actuarial assistant from the birth of the couple’s first child in 1957 until the early 1970s. The court also found that the plaintiff had maintained the home and taken care of the children until they finished college and went to work. We have held that this type of nonmonetary contribution, in the form of care and rearing of the children of the marriage and upkeep of the family home, is one that should be taken into consideration in determining the parties’ relative contributions to the marital estate and to the marriage. O’Neill v. O’Neill, supra, 13 Conn. App. 311-12.

Among the items of evidence adduced at trial was the written agreement entered into by the parties in 1986 or 1987. In the agreement, the defendant agreed to give the plaintiff one half of the value of all the assets of the companies in which he was involved in the event of their divorce. The language used in the agreement was as follows: “I . . . agree to give Marie Rolla at the time of our divorce one half of [the] value of all the assets of the companies in which I have and am still involved in. In addition, 1/2 of my pension, monies in bank accounts—wherever they may be, shall be 1/2 hers.” (Emphasis added.) As if to resolve any ambiguity on this point, the agreement goes on to say, “If at this time, I have forgotten to mention anything I will agree to submit all the necessary details and papers.” This language in the agreement shows that the defendant agreed to the terms of a document that provided for equal distribution of all marital assets at the time of the divorce, even including those not held in the marital estate at the time the agreement was drafted.

The language in the agreement provides additional support for the trial court’s determination that both parties contributed equally to the marital estate. The agreement, by the use of the phrase “at the time of our divorce,” reveals that both parties considered that eventuality and, if it occurred, they intended to divide the marital assets evenly. The trial court, therefore, could reasonably have found that both parties believed, at the time that they signed the agreement, that it provided for a fair disposition of assets. The trial court could reasonably have concluded that implicit in the agreement giving the plaintiff 50 percent of the marital assets was the defendant’s belief that the plaintiff had contributed equally to the accumulation and appreciation in value of those assets. The trial court, therefore, reasonably found that the parties contributed equally to the marital estate.

The trial court’s memorandum of decision clearly indicates that it considered all of the factors enumerated in § 46b-81 (c) before finding that both parties had contributed equally to the marital estate. Our Supreme Court has held that the trial court is not required to make explicit reference to the statutory criteria that it considered in making a decision nor to make esqpress findings as to each statutory factor. Caffe v. Caffe, 240 Conn. 79, 82-83, 689 A.2d 468 (1997). We cannot say in this case, as we must if we are to reverse the trial court’s decision in this regard, that the trial court “could not reasonably conclude as it did”; Weiman v. Weiman, 188 Conn. 232, 234-35, 449 A.2d 151 (1982); or that we are “left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Rosick v. Equipment Maintenance & Service, Inc., supra, 33 Conn. App. 41. We conclude that there was a reasonable evidentiary basis for the trial court’s finding that the parties contributed equally to the marital estate.

II

The defendant next contends that the trial court improperly awarded the plaintiff one half of the assets owned by the parties at the time of the dissolution. Although stated as one issue, the defendant actually makes two distinct claims. He claims that the trial court improperly determined that (1) the plaintiff should be awarded one half of the marital assets, and (2) the assets to be distributed were all of the marital assets as of the date of dissolution. We address these two issues separately.

A

The defendant first claims that the trial court improperly determined that the plaintiff should be awarded one half of the marital assets. “ ‘[T]he purpose of property division is to unscramble the ownership of property, giving to each spouse what is equitably his.’ ” Werblood v. Birnbach, supra, 41 Conn. App. 735. In determining how to divide the assets of the marital estate between the parties in a dissolution action, a trial court is required to consider several factors set forth in § 46b-81 (c). “ ‘The court must consider all of the statutory criteria in determining how to divide the parties’ property in a dissolution action.’ ” (Emphasis in original.) Burns v. Burns, 41 Conn. App. 716, 720, 677 A.2d 971, cert. denied, 239 Conn. 906, 682 A.2d 997 (1996). They are not, however, to be considered as ingredients in a recipe. “ ‘A ritualistic rendition of each and every statutory element would serve no useful purpose.’ ” Caffe v. Caffe, supra, 240 Conn. 83. The court is not required to make express factual findings as to each factor. Savage v. Savage, 25 Conn. App. 693, 701, 596 A.2d 23 (1991). The court is not required to give each factor equal weight. Kane v. Parry, 24 Conn. App. 307, 313-14, 588 A.2d 227 (1991). As long as it considers all of the criteria, the court may exercise broad discretion in dividing property. Carpenter v. Carpenter, 188 Conn. 736, 740-41, 453 A.2d 1151 (1982); O’Neill v. O’Neill, supra, 13 Conn. App. 306; Debowsky v. Debowsky, 12 Conn. App. 525, 526, 532 A.2d 591 (1987). “On appeal, the defendant bears the burden of proving to this court that the trial court did not consider the proper criteria . . . (Internal quotation marks omitted.) Burns v. Burns, supra, 721.

The record in this case clearly shows that the trial court considered all of the relevant statutory factors. The trial court explicitly stated, prior to setting forth its findings and orders, that it “considered all of the elements set forth in § 46b-81 of the General Statutes.” The court then went on to make findings as to the length of the marriage, the cause of the breakdown of the marriage, the contribution of each of the parties to the marital estate and the vocational skills, employability, and opportunities for future acquisition of capital assets and income of the parties. The defendant has failed to demonstrate that the trial court did not consider all of the statutory criteria. In fact, he does not mention a single statutory factor that the trial court failed to consider.

In his reply brief, the defendant contends that one of the reasons for the trial court’s failure to comply with the requirements of the statute in its allocation of the property of the marital estate was its prior finding that the parties had contributed equally to the marital estate, which is referred to by him as a “gross misper-ception.” As we stated in part I of this opinion, we disagree with the defendant’s claim that this finding was without foundation in the record. Having held that the trial court’s finding that the parties contributed equally to the marital estate had evidentiary basis and was not clearly erroneous, we hold that the trial court properly used that finding in its application of the statutory factors to determine the appropriate allocation of the assets of the marital estate.

The defendant also contends that the 1986 agreement does not support the trial court’s finding that the assets of the marital estate should be divided equally between the parties. As stated in part I of this opinion, the agreement is evidence tending to show that the parties’ intent at that time was to make an equal division of their assets in the event of their divorce at some future time. That evidence, combined with the trial court’s prior finding that the parties contributed equally to the marital estate, and the other findings made with respect to the statutory factors, serves further to support the trial court’s ultimate decision ordering an equal division of the assets of the marital estate between the parties.

Construing every reasonable presumption, as we must, in favor of the correctness of the court’s distribution of assets; Puris v. Puris, 30 Conn. App. 443, 449-50, 620 A.2d 829 (1993); see Rummel v. Rummel, supra, 33 Conn. App. 222; we conclude that the defendant has failed to demonstrate that the trial court abused its discretion. Accordingly, we conclude that the trial court’s determination that the plaintiff should be awarded one half of the assets of the marital estate was not an abuse of discretion.

B

The defendant also claims that the trial court improperly determined that the assets to be distributed constituted all of the marital assets as of the date of dissolution. In support of this claim, the defendant points to the fact that the parties had functionally ceased to live as husband and wife in 1986 or 1987, dividing their financial holdings and going their separate ways at that time. The defendant also points to the plaintiff’s lack of any contribution to the defendant’s acquisition or growth in assets after the date of their separation. Accordingly, the defendant argues that since the plaintiff did not contribute in any way, monetarily or nonmonetarily, to the acquisition, preservation or appreciation in value of the assets of the marital estate, she is not entitled to share in any assets acquired after that date or in the appreciation after that date of any previously acquired assets.

The division of property in a dissolution proceeding is governed by § 46b-81 (a), which provides in relevant part: “At the time of entering a decree . . . dissolving a marriage . . . the Superior Court may assign to either the husband or wife all or any part of the estate of the other. . . .” (Emphasis added.) The only time mentioned in this statute as controlling the entry of financial orders is the “time of entering a decree.” It is therefore not unreasonable to conclude that this date was intended by the legislature to be used in determining the value of the marital assets assigned by the trial court to the parties. Sunbury v. Sunbury, 216 Conn. 673, 676, 583 A.2d 636 (1990).

In cases examining the issue of the time at which marital assets should be valued for purposes of distribution in a dissolution action, we have held that “ ‘[i]n a dissolution action, marital property is valued as of the date of dissolution .... Zern v. Zern, 15 Conn. App. 292, 296, 544 A.2d 244 (1988).’ ” Jackson v. Jackson, 17 Conn. App. 431, 435, 553 A.2d 631 (1989). In Zem, we were faced with a situation similar to that in this case, where the plaintiff argued that contributions to a thrift plan and expenses incurred in maintaining certain property after the parties’ separation that were made solely by the plaintiff should not be included in the assets to be divided upon dissolution. As we pointed out in Zem, however, the general rule is that “the parties’ assets are to be valued as of the date of dissolution.” Zern v. Zern, supra, 296.

The defendant, in his brief, points to Zem in support of his claim that property should be valued as of the date of separation, noting that we stated that “[t]he extent to which the efforts of one spouse may have led to an increase in value of property without any monetary or nonmonetary contribution by the other spouse after the parties’ separation should be taken into account by the trial court in determining the division of property incident to a dissolution of marriage action. ’ ’ Id. In the sentence following that quoted by the defendant, however, we stated that this proposition “does not require deviation from the general rule that the parties’ assets are to be valued as of the date of dissolution.” (Emphasis added.) Id.

“In the absence of any exceptional intervening circumstances occurring in the meantime, [the] date of the granting of the divorce would be the proper time at which to determine the value of the estate of the parties upon which to base the division of property.” (Internal quotation marks omitted.) Sunbury v. Sunbury, supra, 216 Conn. 676. The mere increase in value of property following the parties’ separation does not rise to the level of exceptional intervening circumstances. Id. Accordingly, we hold that the trial court’s decision to divide the assets of the parties on the basis of their value as of the date of the dissolution was clearly an exercise of lawful discretion, which this court will not disturb.

Ill

The defendant next claims that the trial court improperly failed to take into account the effect of federal income taxes when it awarded the plaintiff one half of the assets owned by the parties as of the date of dissolution. The defendant contends that it would be necessary for him to sell substantial assets in order to obtain the amount of money necessary to satisfy the trial court’s order, and that the capital gains taxes he would have to pay as a result of these sales would cause him to be left with only 40.8 percent of the resulting total assets rather than the equal division of assets ordered by the court.

Subsequent to the entiy of judgment by the trial court, the defendant filed with the court a motion for articulation. In that motion, the defendant sought, inter alia, guidance on the issue of whether the court’s order would “allow the transfer of assets in kind having a present value of the amount the court ordered to be transferred” (emphasis in original) and, if the court would not permit the transfer of assets in kind, how an equal division of the marital estate could result in view of the “substantial capital gains taxes that will be incurred as a result of the liquidation of assets necessary to obtain the cash required.”

In response to the defendant’s motion, the trial court stated that its decision did not contemplate transferring assets in kind. The court went on to say that the defendant was free to choose the means by which he would comply with the court’s order, noting the defendant’s demonstrated ability to dispose of assets to meet his needs.

The defendant claims that the trial court improperly failed to consider the federal income tax consequences of the asset sales he would have to make to obtain the cash needed to make such a payment. There is no merit to this claim. Under our law, a trial court is not required to consider the federal tax consequences of its orders. We have held in several cases that “[t]here is no requirement in the applicable statutes which makes it mandatory that a trial court consider the federal tax implications of its financial orders.” (Internal quotation marks omitted.) Clement v. Clement, 27 Conn. App. 364, 369, 606 A.2d 36 (1992); Seaver v. Seaver, 10 Conn. App. 134, 134, 521 A.2d 1053 (1987).

Although we have held that “[a] court may consider the tax consequences of its orders in dissolution actions”; (emphasis added) Damon v. Damon, 23 Conn. App. 111, 114, 579 A.2d 124 (1990); and our Supreme Court has held such consideration to be proper; Powers v. Powers, 186 Conn. 8, 10, 438 A.2d 846 (1982); the cases have always used permissive rather than mandatory language with reference to a trial court’s consideration of the tax consequences of its orders in dissolution actions. In Hawkins v. Hawkins, 11 Conn. App. 195, 197, 526 A.2d 872 (1987), as in the present case, the defendant claimed on appeal that the trial court “should have considered the tax consequences” of its orders. (Emphasis added.) There, we stated expressly that “neither statute nor case law requires that a trial court consider the federal tax implications of the financial awards.” Id., 198. In view of the consistent holdings that a trial court’s consideration of the tax consequences of its orders in dissolution actions is permitted but not required, the trial court’s refusal to do so in this case was not an abuse of its discretion.

IV

The defendant’s final claim is that the trial court improperly found the value of a building owned by the plaintiff to be $2,000,000. We are not persuaded.

We have already noted the appropriate standard of review for claims made on appeal in domestic relations cases. See part I of this opinion. Accordingly, in this case, we ar e called on to determine whether the trial court’s valuation of the building in question at $2,000,000 was supported by the evidence. “The trial court has the discretion to accept whatever testimony and recognized appraisal methods it finds applicable . . . .” Ellsworth v. Ellsworth, 6 Conn. App. 617, 620, 506 A.2d 1080, cert. denied, 200 Conn. 801, 509 A.2d 516 (1986).

In this case, the only testimony offered as to the value of the commercial building at issue was the defendant’s testimony that it was worth between $2,800,000 and $3,200,000 and that he would buy it for $3,000,000, and the plaintiffs valuation of the building at $1,000,000 on her financial affidavit. Neither party called any appraisers or other experts to testify as to a fair valuation of the building, although the trial court allowed the defendant to be qualified as an expert for this purpose. The court was thus provided with little evidence as a basis for valuing the building. The court selected avalué of $2,000,000, a figure halfway between the two valuations offered to it by the parties.

Given the circumstances the trial court faced in determining the value of the commercial building in question, we cannot say that its valuation of $2,000,000 was clearly erroneous. Of the two pieces of evidence offered as to its value, one indicated a higher and one a lower valuation.

Our Supreme Court has held in a wide variety of situations, including dissolution cases, that the trial court is to be accorded wide discretion in determining the value of property. “[A] trial court, in valuing the parties’ assets upon dissolution, has considerable discretion in selecting and applying an appropriate valuation method. In assessing the value of . . . property . . . the trier arrives at his own conclusions by weighing the opinions of the appraisers, the claims of the parties, and his own general knowledge of the elements going to establish value, and then employs the most appropriate method of determining valuation. . . . The trial court has the right to accept so much of the testimony of the experts and the recognized appraisal methods which they employed as he finds applicable; his determination is reviewable only if he misapplies, overlooks, or gives a wrong or improper effect to any test or consideration which it was his duty to regard.” (Emphasis added; internal quotation marks omitted.) Krafick v. Krafick, 234 Conn. 783, 799-800, 663 A.2d 365 (1995).

Similarly, in cases in which a trial court’s valuation of property for property tax purposes is challenged, our Supreme Court has held that “[a] trial court is vested with broad discretion in municipal tax appeals to determine true and actual value, and has the right to accept so much of the expert testimony and the recognized appraisal methods which are employed as it finds applicable. . . . The exercise of this right would be reviewable only if it were apparent that the [trial court] misapplied or overlooked, or gave a wrong or improper effect to, any testimony or consideration which it [has a] duty to regard. . . . The function of the court below was to determine the true and actual value of the . . . property.” (Citations omitted; internal quotation marks omitted.) First Bethel Associates v. Bethel, 231 Conn. 731, 741, 651 A.2d 1279 (1995).

In view of the foregoing precedent and the lack of expert testimony as to the valuation of the property, we cannot say that the trial court’s conclusion as to the value was clearly erroneous or that the trial court misapplied or overlooked any test or consideration that was before it concerning the value of the property. See Krafick v. Krafick, supra, 234 Conn. 799-800. Indeed, the trial court obviously gave equal consideration to both of the valuations offered to it, adopting a figure lying between those two figures as the value of the building. We cannot say that the trial court’s decision was clearly erroneous.

The judgment is affirmed.

In this opinion the other judges concurred.

       Although the trial court’s orders state the total as $18,202,411, this appears to be a typographical error. The court states that “the defendant’s total assets equal $14,136,000 and the plaintiffs total assets equal $4,168,411.” Combining these two figures produces a total of $18,304,411, not the $18,202,411 stated by the court in its orders. The trial court’s subsequent statement that “[dividing this total by two gives a total of $9,152,205.50” further suggests that it used the correct figure of $18,304,411 in its calculations, because $9,152,205.50 is one half of $18,304,411.

       The text of the trial court’s memorandum of decision on the motion for articulation, issued December 18, 1996, is as follows: “In response to the defendant’s motion for articulation, the court’s decision does not contemplate transferring assets in kind. How the defendant shall comply with the court’s order is up to him. He has demonstrated his ability to acquire assets and to dispose of assets to meet his particular needs.
      “The stocks and securities in the names of both parties hav[ing] a value of $180,000 shall be divided equally between the parties.”

       General Statutes § 46b-81 (c) provides in relevant part: “In fixing the nature and value of the property, if any, to be assigned, the court . . . shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income. The court shall also consider the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates.”

       The trial court used the following language in its memorandum of decision: “[U]nder all of the appropriate elements of § 46b-81 of the General Statutes;” and “having considered all of the elements set forth in §46b-81 of the General Statutes . . . .”


author: SPEAR, J.

text:
    OCI MORTGAGE CORPORATION v. CAROLE N. MARCHESE ET AL.
    (AC 18111)
    Foti, Spear and Hennessy, Js.
    Considered April 1
    officially released May 26, 1998

      Matthew B. Woods, in support of the motion.
   Opinion

SPEAR, J.

The defendant property owners in this foreclosure action appeal from the trial court’s order sustaining the plaintiffs objection to the acceptance of the attorney trial referee’s report. The plaintiff has moved to dismiss the appeal on the ground that the trial court’s order is not a final judgment. We agree and grant the motion.

The defendants Carole N. Márchese and Anthony Márchese (defendants) executed a promissory note in the amount of $220,000, payable to Community Federal Savings and Loan Association (CFSLA), and secured by a mortgage on property that the defendants owned in Southport. While the note was still outstanding, the defendant Carole N. Márchese lent CFSLA $900,000 pursuant to a subordinated debenture agreement. Thereafter, Carole N. Márchese and CFSLA agreed that the defendants’ mortgage note would be paid by applying CFSLA’s interest payments on the debenture to the defendants’ monthly mortgage payments.

In October, 1989, CFSLA defaulted on its interest payments. Subsequently, the defendants formally demanded full payment on the debenture and informed CFSLA of their intention to exercise their right to set off the mortgage. By December, 1989, however, CFSLA was declared insolvent and the Resolution Trust Corporation (RTC) was appointed as its receiver in bankruptcy. The RTC assigned the defendants’ mortgage and loan documents to Fairfield Affiliates, the original plaintiff here. Fairfield Affiliates then assigned the defendants’ note and mortgage to OCI Mortgage Corporation (OCI) and OCI was substituted as the plaintiff.

The trial court referred the case to an attorney trial referee. After the trial concluded, the attorney trial referee filed her report, in which she recommended that judgment enter in favor of the defendants. Specifically, the attorney trial referee found that the RTC knew about the subsequent agreements between CFSLA and the defendants, and that “[a] 11 subsequent assignees of the [defendants’] mortgage note . . . including the plaintiff, OCI, accepted assignment of the note with notice of the $900,000 debt owed to the defendants, as well as the defendant’s claim of set-off and payment.”

The plaintiff moved to correct various portions of the attorney trial referee’s report. The attorney trial referee, however, denied the majority of the plaintiffs requests. The plaintiff then filed exceptions to the attorney trial referee’s report, as well as an objection to the acceptance of the report.

The trial court sustained the plaintiffs objection to the acceptance of the attorney trial referee’s report. The court ruled that, pursuant to 12 U.S.C. § 1823 (e), the RTC is entitled to the same protection as the Federal Deposit Insurance Corporation (FDIC). According to 12 U.S.C. § 1823 (e), “[n]o agreement which tends to diminish or defeat the interest of the [FDIC] in any asset acquired by it . . .as receiver of any depository institution, shall be valid against the [FDIC] unless such agreement . . . (A) is in writing [and] (B) was executed by the depository institution and any person claiming an adverse interest thereunder, including the obligor, contemporaneously with acquisition of the asset by the depository institution.” The court concluded that because the execution of the defendants’ mortgage and the execution of the subordinated debenture agreement were not contemporaneous, the subordinated debenture agreement was not valid against the RTC, and, therefore, it was not valid against the RTC’s assignees. The trial court remanded the case to the attorney trial referee, directing the referee to “proceed in a manner not inconsistent with” the trial court’s memorandum of decision. This appeal followed.

It is well established that consent of the parties is required to refer a case to an attorney trial referee. Seal Audio, Inc. v. Bozak, Inc., 199 Conn. 496, 515, 508 A.2d 415 (1986). Once the parties consent to the use of an attorney trial referee, however, it is implicit that the parties must then submit to the entire process set forth in Practice Book (1998 Rev.) §§ 19-1 through 19-18. A party cannot later opt out of the process should the attorney trial referee’s report prove to be unfavorable. Only the trial court can abort the process by revoking the referral to the attorney trial referee. Practice Book (1998 Rev.) § 19-17 (a); see Kolenberg v. Board of Education, 206 Conn. 113, 116, 536 A.2d 577, cert. denied, 487 U.S. 1236, 108 S. Ct. 2903, 101 L. Ed. 2d 935 (1988).

Practice Book (1998 Rev.) §§ 19-12 through 19-14, however, allow a party to attack a trial referee’s unfavorable report by filing (1) a motion to correct, (2) exceptions seeking corrections by the court and (3) an objection to the acceptance of a trial referee’s report. The sole issue before us now is whether a trial court’s order sustaining an objection to the acceptance of a trial referee’s report is a final judgment from which the defendants may appeal.

In support of their claim that the rejection of an attorney trial referee’s report is a final judgment, the defendants rely on In re Application of Clinton Oyster Ground Committee, 52 Conn. 5 (1884). In that case, a committee was appointed to ascertain the boundaries of the natural oyster, clam and mussel beds in Clinton. The committee provided a report on the matter, which the court later rejected. An appeal was taken from the court’s rejection of the report and our Supreme Court heard the appeal. The plaintiffs reliance on this case is misplaced, however, because the Supreme Court noted that “[i]n ordinary cases the rejection of the report of a committee is not a final judgment from which an appeal lies. This case however is exceptional. No judgment is to be rendered on the report. When accepted, the report itself becomes practically the final judgment. If rejected, there is no judgment, such as the proceedings contemplate, and the case goes to another committee.” Id., 6. The case before us does not fall into this exceptional category.

A party cannot appeal from a trial court order sustaining an objection to an attorney trial referee’s report, but rather must appeal from the judgment that is rendered thereon. See General Statutes § 52-263; Practice Book (1998 Rev.) § 61-1; Schmaling v. Schmaling, 48 Conn. App. 1, 707 A.2d 339, cert. denied, 244 Conn. 929, 711 A.2d 727 (1998). Here, the trial court has not yet rendered judgment. It has simply remanded the case to the attorney trial referee for further proceedings. Accordingly, there is no judgment from which the defendants may appeal.

The defendants further assert that the rejection of the attorney trial referee’s report is a final judgment under State v. Curcio, 191 Conn. 27, 463 A.2d 566 (1983). Specifically, the defendants argue that the trial court’s order concluded the parties’ rights and thereby “constituted a judgment in all but name.” In Curdo, our Supreme Court held that “[a]n otherwise interlocutory order is appealable in two circumstances: (1) where the order or action terminates a separate and distinct proceeding, or (2) where the order or action so concludes the rights of the parties that further proceedings cannot affect them.” Id., 31, citing State v. Bell, 179 Conn. 98, 99, 425 A.2d 574 (1979). Here, the first prong of Curdo is not applicable because the attorney trial referee process does not constitute a separate and distinct proceeding. As for the second prong of Curdo, the court’s order did not so conclude the rights of the parties that further proceedings cannot affect them. The proceeding is ongoing, and the type of foreclosure, the amount of the debt and the attorney’s fees are to be determined. See Essex Savings Bank v. Frimberger, 26 Conn. App. 80, 597 A.2d 1289 (1991).

The appeal is dismissed for lack of a final judgment.

In this opinion the other judges concurred.

       Prior to the defendants’ appeal, the plaintiff filed a motion for judgment of strict foreclosure. To date, the trial court has not acted on the plaintiffs motion.

       Practico Book (1998 Rev.) § 19-17 (a) provides: “The court shall render such judgment as the law requires upon the facts in the report as it may be corrected. If the court finds that the committee has materially erred in its rulings or that by reason of material corrections in its findings the basis of the report is subverted or that there are other sufficient reasons why the report should not be accepted, the court shall reject the report and refer the matter to the same or another committee for a new trial or revoke the reference and leave the case to be disposed of in court.”