author: BEACH, J.

text:
    STATE OF CONNECTICUT v. SCOTT CROSBY
    (AC 31462)
    Bishop, Beach and Flynn, Js.

      Argued October 21, 2010
    officially released January 4, 2011

      Frank P. Cannatelli, for the appellant (defendant).

      Lisa A. Riggione, senior assistant state’s attorney, with whom, on the brief, were David I. Cohen, state’s attorney, and Mitchell Rubin, senior assistant state’s attorney, for the appellee (state).
   Opinion

BEACH, J.

The defendant, Scott Crosby, appeals from the judgment of the trial court revoking his probation and sentencing him to eight months incarceration. On appeal, the defendant claims that the court (1) abused its discretion by revoking his probation and (2) erred by denying his motion for a bond pending appeal. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the defendant’s appeal. On January 4, 2008, the defendant was charged with violating conditions of two of his probations, which were imposed as parts of several sentences, in violation of General Statutes § 53a-32. It is uncontested that he violated conditions of probation, previously imposed in connection with criminal convictions, including conditions prohibiting contact with Metro-North Commuter Rail, unless authorized by a probation officer. The court held a violation of probation hearing on June 25, 2009, which is the subject of this appeal.

During the adjudicatory phase of the hearing, the state presented evidence establishing that the defendant had violated conditions of his probation. John Gordon, the defendant’s probation officer, testified that the defendant was not living where he had indicated he would live, that he had left Connecticut without permission and that he had been on Metro-North property, all of which constituted violations of conditions of his probation. Gordon also testified that he considered the defendant to be a “high risk client” who “might actually do something dangerous.” At the conclusion of the adjudicatory phase, at which time defense counsel admitted that the defendant had violated conditions of his probation, the court determined that the defendant had committed “at least one or more violations of probation.”

The court then proceeded to the dispositional phase of the hearing. During this phase, Gordon testified that he worked with probationers who had mental health issues and, in his opinion, the defendant had an “obsessive nature” regarding Metro-North that caused Gordon to be “worried about other people . . . .” He further stated that this was the defendant’s third violation of probation, that he “hasn’t followed any of the conditions of probation” and that the defendant was “very manipulative . . . .” Gordon also stated that he did not believe that a further period of probation could help the defendant. The state agreed and argued that the beneficial aspects of probation were no longer being served. The state supported this contention by highlighting the defendant’s lengthy criminal record in Connecticut and New York, which included five convictions for criminal trespass, three convictions for breach of the peace, two convictions for driving while under the influence, one conviction for harassment and three convictions for violation of probation. The defendant argued that his medical and psychiatric conditions rendered him incapable of complying with the terms of his probation.

Upon the conclusion of the hearing, the court determined that because of its “findings that there was a violation of the terms and conditions of probation, and the repeated history of violations and repeated offenses by the defendant, it does not appear that further probation would be well served.” Accordingly, the court sentenced the defendant to a total effective term of eight months incarceration.

On July 1, 2009, the defendant filed a motion for reconsideration of his sentence and credit for time served, and on August 21, 2009, filed a motion for a bond pending appeal. On August 24, 2009, the court held a hearing in which it denied the defendant’s motion for reconsideration. At the same hearing, the court also denied the defendant’s motion for a bond pending appeal on the ground that there was no appeal pending at that time. This appeal followed.

I

The defendant first claims that the corut abused its discretion by revoking his probation and sentencing him to eight months incarceration. Specifically, the defendant argues that his probation should not have been revoked because psychiatric and medical needs rendered him unable to conform to the conditions of his probation and, therefore, no beneficial purposes would be served by incarceration. We disagree.

We begin by setting forth our standard of review. “Our Supreme Court has recognized that revocation of probation hearings, pursuant to § 53a-32, [comprise] two distinct phases, each with a distinct propose. . . . In the evidentiary phase, [a] factual determination by a trial court as to whether a probationer has violated a condition of probation must first be made. ... In the dispositional phase, [i]f a violation is found, a court must next determine whether probation should be revoked because the beneficial aspects of probation are no longer being served. . . . [T]he ultimate question [in this phase is] whether the probationer is still a good risk .... This determination involves the consideration of the goals of probation, including whether the probationer’s behavior is inimical to his own rehabilitation, as well as to the safety of the public.” (Citation omitted; internal quotation marks omitted.) State v. Barnes, 116 Conn. App. 76, 80-81, 974 A.2d 815, cert. denied, 293 Conn. 925, 980 A.2d 913 (2009).

“The standard of review of the trial court’s decision at the sentencing phase of the revocation of probation hearing is whether the trial court exercised its discretion properly by reinstating the original sentence and ordering incarceration. ... In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court’s ruling. . . . Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done.” (Internal quotation marks omitted.) State v. Faraday, 268 Conn. 174, 185-86, 842 A.2d 567 (2004).

Our review of the record reveals that the court did not abuse its discretion by revoking the defendant’s probation. Gordon testified that the defendant “[hadn’t] followed any of the conditions of [his] probation” and that this was, in fact, the defendant’s third violation of probation. Gordon also testified that the defendant’s obsessive nature regarding Metro-North led him to believe that the defendant was a risk to the public and that “probation [had] been exhausted in his case.” Additionally, the defendant’s record is replete with criminal offenses, some of which suggested that he may have posed a risk to the public. As a result, the court determined that because of “the repeated history of violations and repeated offenses by the defendant, it does not appear that further probation would be well served.” We are convinced that the court’s determination that the beneficial aspects of probation were no longer being served was supported by the record.

The defendant’s argument that his medical and psychiatric needs rendered him incapable of complying with the terms of his probation is unpersuasive. It is well established that “[i]f a defendant is unable to comply strictly with the conditions of probation, even for reasons beyond his control, the legislative policies underlying conditional probation, namely, to foster the offender’s reformation and to preserve the public’s safety . . . should not require that noncompliance must be excused as a matter of law. These policies only suggest that, in such a case, the determination of whether to find a violation and, if found, whether to impose any portion of the suspended sentence, should be left to the discretion of the trial court.” (Citation omitted; internal quotation marks omitted.) State v. Hill, 256 Conn. 412,420-21,773 A.2d 931 (2001). Accordingly, on the basis of the record before us, we conclude that the court did not abuse its discretion by revoking the defendant’s probation and sentencing him to eight months incarceration.

II

The defendant finally claims that the court erred when it denied his motion for a bond pending appeal. We dismiss this aspect of the appeal.

It is axiomatic that the exclusive method to challenge an order pertaining to bail is to file a petition for review with this court pursuant to General Statutes § 54-63g. See State v. Fernando A., 294 Conn. 1, 5 n.3, 981 A.2d 427 (2009) (“a defendant’s exclusive nondiscretionary remedy from an order concerning conditions of release is a petition to the Appellate Court pursuant to . . . § 54-63g”); State v. Dellacamera, 110 Conn. App. 653, 657, 955 A.2d 613 (2008) (“[f]or persons aggrieved by orders concerning release in criminal cases, the General Assembly has provided the exclusive remedy of the petition for review”).

Here, the defendant challenged the court’s denial of his motion for a bond pending appeal by filing an appeal from that judgment with this court. Because the proper method for challenging an order relating to bail is by filing a petition for review pursuant to § 54-63g, we dismiss this aspect of the defendant’s appeal.

The portion of the appeal related to the trial court’s denial of the defendant’s motion for a bond pending appeal is dismissed. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       In his brief, the defendant also claimed that the court erred by not holding his violation of probation hearing within 120 days of his arraignment as required by General Statutes § 53a-32 (c). At oral argument, however, the defendant waived this claim, conceding that it was not adequately briefed.

       In addition to the standard provisions of probation, the defendant’s probation contained the following special conditions: (1) stay off Metro-North property unless authorized by probation officer; (2) do not call Metro-North; (3) substance abuse evaluation and treatment; (4) psychiatric evaluation and treatment; and (5) take prescribed medications.
      The special conditions relating to Metro-North were imposed because of the defendant’s obsessive behavior regarding it. The defendant had made several harassing telephone calls to Metro-North employees, had frequented Metro-North property, attended Metro-North staff meetings and had also been seen around the home of the chairman of the Connecticut Rail Commuter Council.

       On December 28,2007, Gordon, the defendant’s probation officer, issued the defendant a travel permit that authorized him to travel to New York City on December 31, 2007, and to return on the same date, via Amtrak or Metro-North, for the limited purpose of receiving medical treatment. On January 2, 2008, Jennifer Kearney, a probation officer who was familiar with Gordon and the defendant, saw the defendant on a Metro-North train traveling from Connecticut to New York. She informed Gordon of this fact the following day, and Gordon confirmed that the defendant was traveling on the Metro-North train without permission.

       Because the court determined that the defendant violated conditions of both of his probations, the court sentenced him to four months incarceration for each violation, to be served consecutively, for a total effective sentence of eight months incarceration.

       There is also nothing in the record to suggest that defense counsel had given the court notice of his intent to appeal.

       General Statutes § 54-63g provides: “Any accused person or the state, aggrieved by an order of the Superior Court concerning release, may petition the Appellate Court for review of such order. Any such petition shall have precedence over any other matter before said Appellate Court and any hearing shall be heard expeditiously with reasonable notice.”


source: Caselaw Access Project

author: GRUENDEL, J.

license: Public Domain

text:
    CELIN G. REIZFELD v. LEONARD C. REIZFELD
    (AC 31075)
    Gruendel, Beach and Borden, Js.

      Argued November 10, 2010
    officially released January 4, 2011

      Leonard C. Reizfeld, pro se, the appellant-appellee (defendant).

      Kenneth A. Votre, with whom, on the brief was Michele D. Sensale, for the appellee-appellant (plaintiff).
   Opinion

GRUENDEL, J.

The defendant, Leonard C. Reizfeld, appeals from the judgment of the trial court dissolving his marriage to the plaintiff, Celin G. Reizfeld, and entering related financial orders. On appeal, he claims that the court improperly (1) awarded the plaintiff attorney’s fees, (2) deviated from the statutory child support guidelines, and (3) ordered that the plaintiff be allowed to reside in the defendant’s home rent and expense free for approximately six months following the dissolution of the parties’ marriage. The plaintiff cross appeals, claiming that the court improperly determined that the parties were bound by a valid and enforceable antenuptial agreement. With respect to the defendant’s claims, we affirm in part and reverse in part the judgment of the trial court. With respect to the plaintiffs cross appeal, we affirm the judgment of the trial court.

The following facts, as found by the court, and procedural history are relevant to the resolution of these appeals. On July 27, 1998, the parties executed an ante-nuptial agreement (agreement) “to fix and determine their respective rights in and to all property that the other may own or enjoy at the time of [their] marriage or thereafter ... in the event of a dissolution of [their] marriage . . . .” Both parties were represented by counsel throughout the negotiation and drafting of the agreement, and both parties acknowledged that they were entering into the agreement “freely, voluntarily, and with full knowledge of [their respective rights].” At the time the agreement was executed, the parties had one three year old child, and the plaintiff was approximately eight months pregnant with their second child. Also at that time, the defendant was in possession of nearly $2.4 million in assets, while the plaintiff was in possession of approximately $4500 in assets. On August 13, 1998, the parties married in New Haven.

On October 11, 2006, the plaintiff commenced this dissolution action, claiming that the parties’ marriage had broken down irretrievably. In addition to awards of periodic alimony and child support, the plaintiff sought an equitable distribution of the parties’ assets. The defendant filed a special defense, claiming that the parties’ rights upon dissolution of the marriage were governed exclusively by the agreement. The plaintiff filed an amended reply to the defendant’s special defense, arguing that the agreement was unenforceable against her because it was unconscionable both when executed and at the time the defendant sought its enforcement. The matter was tried to the court over seven days in January and February, 2009. On May 4, 2009, the court rendered judgment dissolving the parties’ marriage. In so doing, the court specifically found that the agreement was enforceable and awarded the plaintiff alimony and child support, as well as $7500 in attorney’s fees and costs. Additionally, the court ordered that the plaintiff be allowed to reside in the defendant’s home until September 1, 2009. These appeals followed.

On August 28, 2009, in a memorandum of decision, the court granted the plaintiffs postjudgment motion seeking additional funds from the defendant for attorney’s fees to defend the appeal. In addition to ordering that the defendant pay the plaintiff $6000 to defend the appeal, the court also extended the time that the plaintiff be allowed to remain in the defendant’s home until October 15, 2009. Thereafter, the defendant amended his appeal to include a challenge to this postjudgment ruling.

The defendant now claims that the court improperly awarded the plaintiff attorney’s fees because the agreement precludes either party from seeking the payment of such fees from the other in the event of a dissolution action. The defendant also claims that the court improperly deviated from the statutory child support guidelines to the detriment of the parties’ minor children and improperly ordered that the plaintiff be allowed to remain rent and expense free in the defendant’s home for a period of six months following the dissolution of the parties’ marriage. On cross appeal, the plaintiff claims that the court improperly concluded that the agreement was enforceable against her in light of its apparent unconscionability. We address the parties’ claims in turn. Additional facts will be set forth as necessary.

I

DEFENDANT’S APPEAL A

The defendant first claims that the court improperly awarded the plaintiff attorney’s fees both in its initial May 4, 2009 financial orders and its subsequent August 28, 2009 postjudgment memorandum of decision. Specifically, the defendant maintains that the award of attorney’s fees to either party in the context of a dissolution action is precluded by the language of the agreement, which the court found to be valid and enforceable. We agree.

The following additional facts and procedural history are relevant to the resolution of this claim. Nowhere in the parties’ agreement is the issue of attorney’s fees addressed directly. Rather, the issue is addressed implicitly by two separate provisions of the agreement — namely, paragraphs 5 and 10 (B). Paragraph 5 provides: “Neither of the parties shall seek, in any action for dissolution of marriage, payment for liabilities from the other.” (Emphasis added.) Paragraph 10 (B) states: “The parties agree that in any [dissolution] action, neither [party] will ask for different or greater rights than those specified [in the agreement] and that each will abide with and be bound by the provisions of [the] [agreement . . . .”

On June 12, 2009, the court granted in part the defendant’s motion for articulation with respect to the “factual and legal basis for awarding the [p]laintiff attomeyfs] fees and costs . . . .” In clarifying its ruling, the court referenced General Statutes § 46b-62 but did not explain how § 46b-62 applied in light of the parties’ agreement. The defendant now argues that paragraphs 5 and 10 (B) operate to prohibit the award of attorney’s fees and that the court improperly awarded the plaintiff attorney’s fees notwithstanding its June 12, 2009 articulation. Specifically, the defendant maintains that, as to paragraph 5, the term “liabilities” encompasses attorney’s fees, and, thus, the plaintiff is precluded from seeking the payment thereof. As to paragraph 10 (B), the defendant asserts that, because the agreement is silent as to the award of attorney’s fees and because “neither [party may] ask for different or greater rights than those specified [in the agreement],” the plaintiff is further barred from seeking the payment of her attorney’s fees. In response, the plaintiff counters that the meaning of the term “liabilities” in the agreement is ambiguous and undefined and should not be read to include attorney’s fees, especially when the agreement is otherwise silent in this regard. Additionally, the plaintiff raises equitable challenges to the agreement’s applicability on the issue of attorney’s fees given the parties’ grossly disproportionate financial positions.

Before addressing the merits of the parties’ arguments, we begin with the applicable legal principles and standard of review governing our analysis. “The standard of review in family matters is well settled. An appellate court will not disturb a trial court’s orders in domestic relations cases unless the court has abused its discretion or it is found that it could not reasonably conclude as it did, based on the facts presented. . . . It is within the province of the trial court to find facts and draw proper inferences from the evidence presented. ... In determining whether a trial court has abused its broad discretion in domestic relations matters, we allow every reasonable presumption in favor of the correctness of its action. . . . [T]o conclude that the trial court abused its discretion, we must find that the court either incorrectly applied the law or could not reasonably conclude as it did.” (Internal quotation marks omitted.) Elia v. Elia, 99 Conn. App. 829, 831, 916 A.2d 845 (2007).

“An antenuptial agreement is a type of contract and must, therefore, comply with ordinary principles of contract law.” McHugh v. McHugh, 181 Conn. 482, 486, 436 A.2d 8 (1980). Thus, as contracts, “antenuptial agreements are to be construed according to the principles of construction applicable to contracts generally. The basic purpose of [contract] construction is to ascertain and give effect to the intention of the parties.” (Internal quotation marks omitted.) Id., 491. “If a contract is unambiguous within its four comers, intent of the parties is a question of law requiring plenary review. . . . Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms. A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity .... Similarly, any ambiguity in a contract must emanate from the language used in the contract rather than from one party’s subjective perception of the terms [contained therein]. . . . Although ordinarily the question of contract interpretation, being a question of the parties’ intent, is a question of fact . . . [w]here there is definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law.” (Citations omitted; internal quotation marks omitted.) Montoya v. Montoya, 280 Conn. 605, 612-13, 909 A.2d 947 (2006).

We conclude that the term “liabilities,” as contained in paragraph 5 of the parties’ agreement, is unambiguous and includes within its “ordinary meaning” attorney’s fees. Montoya v. Montoya, supra, 280 Conn. 612. As the plaintiff notes, “[p]renuptial agreements in Connecticut have been governed since October 1, 1995, by the Connecticut Premarital [Agreement] Act, [as codified in] General Statutes § 46b-36a et seq.” The Connecticut Premarital Agreement Act does not define the terms “liable” or “liabilities.” As our Supreme Court recently explained, “[w]hen a statute does not provide a definition, ‘words and phrases . . . are to be construed according to their common usage. ... To ascertain that usage, we look to the dictionary definition of the term.’ . . . Webster’s Third New International Dictionary defines ‘liability’ as ‘something for which one is liable ... as ... an amount that is owed whether payable in money, other property, or services,’ and defines ‘liable’ as ‘bound or obligated according to law or equity ....’” (Citations omitted.) Potvin v. Lincoln Service & Equipment Co., 298 Conn. 620, 633, 6 A.3d 60 (2010). Given this definition, we fail to see how attorney’s fees, which are simply “ ‘an amount that is owed . . . payable in money’ id.; to one’s lawyer, are not within the plain meaning of “liabilities” as contained in paragraph 5 of the parties’ agreement. Having found the parties’ agreement valid and enforceable, the court was bound, as with any other contract, to give effect to the agreement “ ‘according to its terms’ ” as a manifestation of the parties’ intent in entering the same. Montoya v. Montoya, supra, 612. This conclusion is consistent with the development of our law in dissolution actions involving enforceable antenuptial agreements. See Crews v. Crews, 295 Conn. 153, 169, 989 A.2d 1060 (2010) (“[w]hether provident or improvident, an [antenuptial] agreement moved on calculated considerations is entitled to the sanction of the law” [internal quotation marks omitted]); Montoya v. Montoya, supra, 613 (“as with all contracts, we assume a deliberately prepared and executed agreement reflects the intention of the parties [and] . . . we generally may consider [the parties’] intent only to the extent that it is evidenced by their writing” [internal quotation marks omitted]); Issler v. Issler, 250 Conn. 226, 235, 737 A.2d 383 (1999) (“[t]he intent of the parties is to be ascertained by a fair and reasonable construction of the written words [of their agreement] and . . . the language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract” [internal quotation marks omitted]); McHugh v. McHugh, supra, 181 Conn. 491 (“[w]here there is no ambiguity [in an antenuptial agreement] . . . there is no occasion for construction and the agreement will be enforced as its terms direct” [internal quotation marks omitted]). Further, the plaintiffs argument that equitable considerations of the parties’ financial statuses provide an adequate basis for awarding the plaintiff attorney’s fees is unpersuasive in this context, especially given the court’s finding of the agreement’s validity. See, e.g., Friezo v. Friezo, 281 Conn. 166, 199, 914 A.2d 533 (2007) (“ [contracting parties are normally bound by their agreements . . . irrespective of whether the agreements embodied reasonable or good bargains” [internal quotation marks omitted]).

Thus, because the court found that the parties’ agreement was enforceable, and because we conclude that the term “liabilities” as used in paragraph 5 of the agreement includes attorney’s fees, the plaintiff was precluded from seeking the payment of her attorney’s fees from the defendant. *By ordering the defendant to pay the trial attorney’s fees of the plaintiff in the amount of $7500 and appellate attorney’s fees in the amount of $6000, the court abused its discretion. We therefore reverse the judgment of the trial court with respect to the award of attorney’s fees and remand the case with direction to amend the judgment to enter orders denying the plaintiff attorney’s fees.

B

The defendant next claims that the court improperly deviated from the statutory child support guidelines. Specifically, the defendant argues that the court incorrectly calculated his child support obligation by assigning the plaintiff an actual gross weekly income of $ 150, rather than using the plaintiffs earning capacity of $500 in gross weekly income. The defendant also argues that the court incorrectly ordered that he be responsible for 70 percent of unreimbursed medical expenses and child care costs, given the court’s determination that the plaintiff was obligated to pay 73 percent of such expenses as well as the parties’ joint custody arrangement of their minor children. We disagree.

The following additional facts are relevant to the disposition of this claim. In calculating the defendant’s child support obligation, the court completed two separate child support worksheets. On one of those worksheets, the court, utilizing the parties’ financial affidavits, calculated the defendant’s child support obligation using the plaintiffs actual gross weekly income, or $150. This calculation resulted in the defendant’s presumptive child support obligation of $240 per week. The court then prepared a second worksheet using the plaintiffs anticipated earning capacity of $500 in gross weekly income. This calculation had the effect of reducing the defendant’s child support obligation by $35 to a total of $205 weekly. Also on this second worksheet, the court noted that the plaintiff would be responsible for 73 percent of the unreimbursed medical expenses and child care costs, while the defendant would be responsible for 27 percent of such expenses. In its May 4, 2009 financial orders, the court set the defendant’s child support obligation at $240 per week and explained that it was “not [deviating] from the [child support] guidelines [notwithstanding] shared physical custody or . . . [the plaintiffs] earning capacity [because] . . . the [plaintiff] need[ed] time to get back into the workforce and find affordable housing for herself and the [parties’] children, [as well as] the significant disparity in assets [between the parties], the [defendant’s] prior income levels and profession . . . and the best interests] of the [parties’] minor children . . . .” Additionally, in contrast to its worksheet notation, the court ordered that the defendant be responsible for 70 percent of the unreimbursed medical and child care costs. The court further explained that, although these assignments were a deviation from the presumptive percentages, they were warranted by the parties’ disproportionate financial circumstances. The defendant now argues that the court improperly calculated his child support obligation on the basis of the plaintiffs actual gross weekly income, rather than the plaintiffs earning capacity. The defendant also argues that the court improperly ordered that he be responsible for 70 percent of the unreimbursed medical and child care costs, given the court’s initial worksheet notation that the plaintiff was responsible for 73 percent of such expenses.

It bears repeating that “[i]n determining whether a trial court has abused its broad discretion in domestic relations matters, we allow every reasonable presumption in favor of the correctness of its action. . . . Appellate review of a trial court’s findings of fact is governed by the clearly erroneous standard of review. The trial court’s findings are binding on this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence in the record to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Buehler v. Buehler, 117 Conn. App. 304, 317-18, 978 A.2d 1141 (2009).

Here, both parties presented extensive evidence over the course of a seven day trial as to their respective financial assets. Notably, the defendant’s financial affidavit shows a net worth of approximately $706,000, while the plaintiffs financial affidavit discloses no significant asset base whatsoever. Moreover, the court found that the defendant was a successfully practicing attorney, with an annual gross income of more than $70,000 and “significant future opportunities to support himself and . . . increase his income . . . .” These findings were in stark contrast to the plaintiffs limited earning capacity and gross yearly income of only $7800. In light of this evidence, we cannot say that the court’s findings and conclusions with respect to the defendant’s child support obligation were clearly erroneous. Indeed, the defendant’s argument that the court improperly deviated from the child support guidelines by using the plaintiffs actual gross income is misguided, as the deviation would instead be in using the plaintiffs earning capacity. As such, the court’s decision to adhere to the guidelines for purposes of calculating the defendant’s child support obligation was supported by the evidence presented by both parties and did not constitute an abuse of discretion. See, e.g., Wallbeoff v. Wallbeoff 113 Conn. App. 107, 108 n.1, 965 A.2d 571 (2009) (“[t]he current support, health care coverage contribution, and child care contribution amounts calculated [under the child support guidelines] . . . are presumed to be the correct amounts to be ordered” [internal quotation marks omitted]).

Additionally, the evidence provided ample support for the court to deviate from the presumptive percentages with respect to the minor children’s unreimbursed medical and child care costs. As the court stated in its articulation, this deviation was based on “the [plaintiffs need] ... to get back into the workforce and find affordable housing for herself and the [parties’] children, the significant disparity in [the parties’] assets, the [defendant’s] prior income levels and profession . . . and the best interests] of the [parties’] minor children.” See Wallbeoff v. Wallbeoff supra, 113 Conn. App. 108 n.l (“[t]he presumption regarding [the amount of health care expenses and child care costs] may be rebutted by a specific finding on the record that such amount would be inequitable or inappropriate in a particular case” [internal quotation marks omitted]). We find that the initial notation attributing the payment of 73 percent of these expenses to the plaintiff was merely a scrivener’s error that was ultimately corrected by way of the court’s May 4, 2009 financial orders. The record is replete with evidence sufficient to justify the court’s financial orders, both with respect to the defendant’s child support obligation, as well as the defendant’s responsibility for unreimbursed medical expenses and child care costs. As such, the court did not abuse its discretion in setting the defendant’s child support obligation at $240 per week, nor did the court abuse its discretion by obligating the defendant to pay 70 percent of the unreimbursed medical and child care costs for the parties’ minor children. Accordingly, the defendant’s claim fails.

C

The defendant’s final claim is that the court improperly ordered that the plaintiff be allowed to remain in the defendant’s home rent and expense free for a period of six months following the dissolution of the parties’ marriage. Specifically, the defendant argues that the court’s order in this regard constituted an additional award of alimony to the plaintiff and that the court failed to assign appropriately a value to the plaintiffs continued use and occupancy of the defendant’s home. We disagree.

The following additional facts and procedural history are relevant to the disposition of this claim. In support of its May 4, 2009 financial orders, the court made a number of factual findings regarding the parties’ property interests, including the family home located in Woodbridge. Importantly, the court found that the plaintiff had “no credible claim to any interest in the home,” as it constituted a premarital asset of the defendant, and initially ordered that the plaintiff vacate the home by September 1, 2009. On May 7, 2009, the defendant filed a motion for articulation requesting that the court clarify the “factual and legal basis” for allowing the plaintiff to remain in the home until September 1, 2009, as well as whether this order constituted an additional award of alimony and, if so, the value thereof. On June 12, 2009, the court granted in part the defendant’s motion for articulation and, on August 28,2009, clarified its initial order in a memorandum of decision. As the court explained, the order allowing the plaintiff to remain in the family home did not constitute an additional award of alimony, and the court went further in extending the time that the plaintiff be allowed to remain in the home until October 15, 2009. The defendant now claims that the court improperly ordered that the plaintiff be allowed to remain in the family home rent and expense free until October 15, 2009, particularly in light of the fact that the court found the home to belong “free and clear” to the defendant pursuant to the parties’ agreement. Furthermore, the defendant maintains that the court improperly determined that the plaintiffs continued “use and occupancy” of the defendant’s home did not constitute an additional award of alimony and failed to assign appropriately a value thereto.

Our review of the record discloses that at no time did the defendant offer any evidence from which the court could calculate the approximate value, if any, of the plaintiffs “use and occupancy” of the family home following the dissolution of the parties’ marriage. Moreover, the parties’ agreement is utterly silent as to how such a value would be calculated. Thus, assuming arguendo that the court’s determination that the plaintiffs continued use of the family home did not constitute an additional award of alimony was improper, any such ruling would be harmless given the defendant’s failure to provide an adequate evidentiary basis for the court to utilize in calculating the value of such an award. See Misthopoulos v. Misthopoulos, 297 Conn. 358, 383, 999 A.2d 721 (2010) (“The harmless error standard in a civil case is whether the improper ruling would likely affect the result. . . . When judging the likely effect of such a trial court ruling, the reviewing court is constrained to make its determination on the basis of the printed record before it.” [Internal quotation marks omitted.]). “Because it is the . . . appellant’s responsibility to provide this court with an adequate record for review . . . we will not remand a case to correct a deficiency the . . . appellant should have remedied” by presenting evidence to support his claims in the first instance. (Internal quotation marks omitted.) Miller v. Miller, 124 Conn. App. 36, 40, 3 A.3d 1018 (2010). Because the defendant failed to provide any evidence from which the court could make a value calculation regarding the plaintiffs continued “use and occupancy” of the defendant’s home following the dissolution of the parties’ marriage, any error in the court's ruling was harmless, and we need not address further the defendant’s arguments in this regard. Accordingly, the defendant’s claim fails.

II

PLAINTIFF’S CROSS APPEAL

Next, we address the plaintiffs cross appeal, in which she claims that the court improperly concluded that the parties’ agreement was valid and enforceable against her. Specifically, the plaintiff asserts that the agreement is unenforceable because it is unconscionable now, as the defendant seeks to enforce it, and when it was originally executed. We are not persuaded.

The following additional facts and procedural history are relevant to the disposition of the plaintiffs cross appeal. The plaintiff initially raised the issue of the agreement’s unconscionability in her January 5, 2009 amended reply to the defendant’s special defense. The basis for the plaintiffs claim of unconscionability was that, at the time the agreement was executed, “the plaintiff was pregnant with the defendant’s second child, within days of delivery, and in a heightened emotional state.” Also, the plaintiff maintained that enforcement of the agreement would leave “the plaintiff without any funds whatsoever with which to support herself.” In its May 4, 2009 factual findings in support of its financial orders, the court explained that “although the agreement may not be acceptable to the [plaintiff] at this point in time, [the] court does not find it unconscionable when executed or now when enforcement is sought.” Importantly, the court noted that both parties, “particularly the [plaintiff], were afforded a reasonable opportunity to consult with independent counsel” at the time the agreement was executed, such that execution of the agreement constituted each parties’ “free act and deed . . . .” The plaintiff now claims that the court improperly concluded that the agreement was enforceable, given its apparent unconscionability.

“Whether enforcement of an agreement would work an injustice is analogous to determining whether enforcement of an agreement would be unconscionable. It is well established that [t]he question of unconscionability is a matter of law to be decided by the court based on all the facts and circumstances of the case. . . . Thus, our review on appeal is unlimited by the clearly erroneous [or abuse of discretion] standard. . . . This means that the ultimate determination of whether a transaction is unconscionable is a question of law, not a question of fact, and that the court’s determination on that issue is subject to plenary review on appeal.” (Internal quotation marks omitted.) Crews v. Crews, supra, 295 Conn. 163-64.

“When legal conclusions of the trial court are challenged on appeal, we must decide whether [those] . . . conclusions are legally and logically correct and find support in the facts that appear in the record. ... To render unenforceable an otherwise valid antenuptial agreement, a court must determine: (1) the parties’ intent and circumstances when they signed the antenuptial agreement; (2) the circumstances of the parties at the time of the dissolution of the marriage; (3) whether those circumstances are so far beyond the contemplation of the parties at the time of execution; and (4) if the circumstances are beyond the parties’ initial contemplation, whether enforcement would cause an injustice.” (Citations omitted; internal quotation marks omitted.) Id., 167-68.

“[In any case] the party seeking to challenge the enforceability of the antenuptial contract bears a heavy burden.” Id., 169. “In the absence of a clear indication that the antenuptial agreement is unenforceable because it was not validly entered into, that it violated public policy, or that it would be unjust to enforce the agreement due to a significant and uncontemplated change in the parties’ circumstances . . . we are unable to rewrite the terms of the contract to which the parties themselves agreed.” (Citation omitted.) Id., 173.

Here, the record clearly supports the court’s conclusion that the parties’ agreement was validly executed and not unconscionable. Not only were both parties represented by their own counsel in negotiation and execution of the agreement, but there was also a third independent attorney who oversaw “execution of the document [to] make sure [execution] was [each party’s] free act and deed and that [each party was] not under any duress at the time of signing.” Moreover, although there is a gross disparity in the financial assets of the parties, this disparity existed at the time the agreement was executed. Thus, we cannot say, based on our review of the record, that the “circumstances of the parties at the time of the dissolution of the marriage”; Crews v. Crews, supra, 295 Conn. 168; were beyond the contemplation of the plaintiff, either when the agreement was executed or when the defendant sought its enforcement in this dissolution action. Although we are mindful of the equitable concerns raised by the plaintiff in support of her unconscionability argument, our consideration of whether the “ ‘agreement was a good bargain for the plaintiff does not enter into the analysis’ ” on appeal. Id. In the present case, there is no indication that the parties’ agreement “was not validly entered into, that it violate [s] public policy, or that it would be unjust to enforce the agreement due to a significant and uncontemplated change in the parties’ circumstances . . . .” Id., 173. Thus, we conclude that the court properly determined that the parties’ agreement was enforceable and, accordingly, the plaintiffs cross appeal fails.

The judgment is reversed only with respect to the court’s award of attorney’s fees to the plaintiff and the case is remanded with direction to render judgment denying the plaintiff attorney’s fees. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       At the time that the court rendered judgment, the parties’ minor children were fourteen years old and ten years old.

       General Statutes § 46b-62 provides in relevant part: “In any proceeding seeking relief under the provisions of this chapter . . . the court may order either spouse ... to pay the reasonable attorney’s fees of the other in accordance with their respective financial abilities . . . .”

       The court also referenced plaintiffs trial exhibit forty, which is the plaintiffs affidavit as to her attorney’s fees, as well as the initial May 4, 2009 judgment and financial orders. Nonetheless, the court did not explain how either of these references supported its award of attorney’s fees given the parties’ agreement. Also, the record is devoid of any articulation as to the court’s postjudgment award of appellate attorney’s fees, though for purposes of this appeal, we presume that the court’s justification for attorney’s fees is identical for the award of both trial and appellate attorney’s fees.

       Given this conclusion, we need not address further the defendant’s argument that paragraph 10 (B) of the parties’ agreement also precludes the award of attorney’s fees in this dissolution action.

       We note that this relatively modest amount is based on the court’s acceptance of the defendant’s claim in his financial affidavit that his net income totals $731 per week.

       The court based this figure on its specific finding that the plaintiffs earning capacity was “at least” $26,000 per year.

       This amount was later reduced on November 12, 2009, to $120 by way of a stipulated agreement between the parties.


author: ALVORD, J.

text:
    STATE OF CONNECTICUT v. LASHAWN R. JENNINGS
    (AC 29663)
    Gruendel, Alvord and Sullivan, Js.

      Argued October 15, 2010
    officially released January 4, 2011

      Temmy Ann Pieszak, chief of habeas corpus services, for the appellant (defendant).

      Margaret Gaffney Radionovas, senior assistant state’s attorney, with whom, on the brief, were John C. Smriga, state’s attorney, Jonathan C. Benedict, former state’s attorney, and Nicholas J. Bove, Jr., senior assistant state’s attorney, for the appellee (state).
   Opinion

ALVORD, J.

The defendant, Lashawn R. Jennings, appeals from the judgment of conviction, rendered after a jury trial, of larceny in the third degree in violation of General Statutes (Rev. to 2007) § 53a-124 (a) (2) and conspiracy to commit larceny in the third degree in violation of General Statutes §§ 53a-48 and 53a-124 (a) (2). On appeal, the defendant claims that (1) the evidence was insufficient to sustain her conviction, (2) she was deprived of her constitutional right to confrontation under the sixth amendment to the United States constitution, (3) the court improperly failed to require compliance with a subpoena duces tecum issued by defense counsel and (4) the court improperly refused to instruct the jury in accordance with her proposed charge on value. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On January 30, 2007, David Gugliotti, a detective with the Stratford police department, and a few other officers were dispatched to the Wal-Mart store in Stratford in response to a report of a shoplifting in progress. Upon arrival, Gugliotti went to the store’s loss prevention office and joined its security personnel. The office contained a computer that allowed its security personnel to view videotape from cameras positioned throughout the store. Those cameras recorded activity in the store as it occurred, and Gugliotti arrived in time to witness part of the shoplifting incident. He observed the defendant and two other individuals standing near a shopping cart that contained a clear plastic tote with a green lid. All three individuals were maneuvering and concealing DVDs within that tote. One of the individuals then grabbed a suitcase from the store’s shelf, and they all proceeded to remove the items from the tote and to place them inside the suitcase.

While the defendant remained inside the store, the other two individuals pushed the shopping cart, which contained the suitcase, to a location near the exit and left it there. Those two individuals then left the store and promptly were apprehended by the officers who had remained outside of the building. The defendant subsequently walked up to the cart and pushed it slightly. At that point, before she actually left the store premises, she was detained. None of the three individuals had made any attempt to pay for the DVDs in the suitcase. After the arrests, Gugliotti determined that the suitcase contained 101 DVDs. All of the DVDs were given to a store employee to scan, at a register. The receipt from that register indicated that the DVDs totaled $1822.72.

By long form information, the defendant was charged with larceny in the third degree and conspiracy to commit larceny in the third degree. The case was tried before the jury on July 18,2007. Gugliotti was the state’s only witness; the defense called no witnesses. The jury returned a verdict finding the defendant guilty of both charges. The court accepted the verdict and sentenced the defendant to a total effective term of three years incarceration. This appeal followed.

I

The defendant first claims that there was insufficient evidence to support her conviction of the crimes of larceny in the third degree and conspiracy to commit larceny in the third degree. Specifically, she argues that the state failed to present any competent evidence of the market value of the DVDs and that it failed to present evidence sufficient to satisfy the taking element of the crime of larceny.

We apply a two part test in reviewing sufficiency of the evidence claims. “First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt .... While . . . every element [must be] proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt. ... If it is reasonable and logical for the jury to conclude that a basic fact or an inferred fact is true, the jury is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt.” (Citation omitted; internal quotation marks omitted.) State v. Rodriguez, 93 Conn. App. 739,748-49,890 A.2d 591 (2006), appeal dismissed, 281 Conn. 817, 917 A.2d 959 (2007).

To convict the defendant of larceny in the third degree, as the commission of that crime is alleged in the state’s information, the state bore the burden of proving beyond a reasonable doubt that (1) she committed larceny as defined in General Statutes § 53a-119 and (2) the value of the property exceeded $1000. General Statutes (Rev. to 2007) § 53a-124 (a) (2). “A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner. . . .” General Statutes § 53a-119.

A

The defendant claims that the state failed to prove by competent evidence that the value of the property involved exceeded $1000, which is an essential element of the crime of larceny in the third degree. See State v. Scielzo, 190 Conn. 191, 200, 460 A.2d 951 (1983). The defendant challenged the adequacy of the state’s evidence by making motions for acquittal at the close of the state’s case and after the defense rested and also by filing a postconviction motion for a judgment of acquittal. She concedes, however, that she did not assert in the trial court the same arguments in support of her insufficiency of the evidence claim that she now raises on appeal. Nevertheless, her claims are reviewable by this court. “[A]ny defendant found guilty on the basis of insufficient evidence has been deprived of a constitutional right, and would therefore necessarily meet the four prongs [set forth in State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989)]. Accordingly, we conclude that no practical reason exists to engage in a Golding analysis of a sufficiency of the evidence claim and, thus, review the challenge as we do any other properly preserved claim.” (Internal quotation marks omitted.) State v. Torres, 111 Conn. App. 575, 579, 960 A.2d 573 (2008), cert. denied, 290 Conn. 907, 964 A.2d 543 (2009).

The gravamen of the defendant’s claim is that Gugliotti was not a competent witness to testify as to the value of the 101 DVDs. The defendant argues that he had no independent knowledge of their value and was simply reciting a value from a document, i.e., the store’s receipt, even though that document was not an exhibit at trial. The following additional facts and procedural history are relevant to our resolution of this claim.

During direct examination, the prosecutor asked Gugliotti whether he had determined the value of the items in the suitcase and how that value had been determined. Gugliotti responded: “What we traditionally do in a . . . shoplifting case is, we have that store take all the items and run them through the register and print us out a receipt of what the total would have been.” When asked what that amount was, Gugliotti stated that he could not recall the exact amount. The court then allowed Gugliotti to refresh his recollection by looking at a copy of his report. After indicating that his recollection was refreshed, Gugliotti testified that the total amount was $1822.72. Defense counsel did not object to the prosecutor’s questions or object to Gugliotti’s testimony on the ground that it was hearsay or that Gugliotti was not a competent witness. Gugliotti’s testimony was the only evidence of value produced by the state; neither the store’s receipt nor the DVDs were exhibits at trial.

Gugliotti’s testimony, absent objection by the defendant, was sufficient proof that the total value of the 101 DVDs exceeded $1000. “If [inadmissible] evidence is received without objection, it becomes part of the evidence in the case, and is usable as proof to the extent of the rational persuasive power it may have. The fact that it was inadmissible does not prevent its use as proof so far as it has probative value. . . . This principle is almost universally accepted. . . . The principle applies to any ground of incompetency under the exclusionary rules. It is most often invoked in respect to hearsay, but it has been applied to evidence vulnerable as secondary evidence of writings, opinions, evidence elicited from incompetent witnesses or subject to a privilege, or subject to objection because of the want of authentication of a writing, of the lack-of-knowledge qualification of a witness, or of the expertness qualification.” (Internal quotation marks omitted.) State v. Carey, 228 Conn. 487, 496, 636 A.2d 840 (1994), quoting 1 C. McCormick, Evidence (4th Ed. 1992) § 54, pp. 219-20; see also State v. King, 289 Conn. 496, 521, 958 A.2d 731 (2008).

The defendant additionally claims that the evidence was insufficient to prove the market value of the DVDs because the store’s “price tags” would be an inadequate measure of their value as a matter of law. She argues that evidence of market value must include evidence of actual transactions between buyers and the store to establish what a buyer would be willing to pay for the DVDs at issue. In other words, according to the defendant, the marked price is not equivalent to the market price without evidence of actual sales. We disagree.

The value of the DVDs would be “their market value, that is, the price at which they would probably have been sold in the regular course of business at the time when and the place where the attempted theft occurred, and any evidence bearing on that question could properly be considered.” State v. Gyuro, 156 Conn. 391, 398, 242 A.2d 734, cert. denied, 393 U.S. 937, 89 S. Ct. 301, 21L. Ed. 2d 274 (1968). It was not necessary for the state to introduce the articles themselves into evidence. Id.

Although we are not bound by the precedent of the statutory Appellate Session of the Superior Court; State v. Kluttz, 9 Conn. App. 686, 694 n.8, 521 A.2d 178 (1987); we find persuasive the reasoning of that court in State v. White, 37 Conn. Sup. 796, 437 A.2d 145 (1981). In White, the defendant challenged the trial court’s evidentiary ruling allowing the admission of price tags to establish the market value of garments stolen from a department store. The Appellate Session concluded that the trial court did not err in its ruling: “The weight of authority supports the view that the terms market value and selling price are synonymous . . . and that any evidence which reasonably tends to show the present value of the stolen goods may be admitted. ... A number of courts have applied this principle to admit price tags on the issue of value, since price tags generally reflect the market value of goods for sale.” (Citations omitted; emphasis in original.) Id., 800-801. We agree and therefore reject the defendant’s argument that actual sales were necessary to establish the market value of the stolen DVDs.

B

The defendant next claims that the evidence was insufficient to prove the taking element of the crime of larceny. She argues that in order for the property to have been taken, it had to be carried away. According to the defendant, there was no evidence of a taking because the testimony at trial established that she was inside the store and had not transported any of the items outside of the store when she was apprehended. This claim is without merit.

“Connecticut courts have interpreted the essential elements of larceny as (1) the wrongful taking or carrying away of the personal property of another; (2) the existence of a felonious intent in the taker to deprive the owner of [the property] permanently; and (3) the lack of consent of the owner.” (Emphasis added; internal quotation marks omitted.) State v. Hyde, 104 Conn. App. 574, 578, 935 A.2d 639 (2007), cert. denied, 285 Conn. 910, 940 A.2d 809 (2008). The word taking, which is not defined in the Penal Code, was judicially interpreted in State v. Toro, 62 Conn. App. 635, 642, 772 A.2d 648, cert. denied, 256 Conn. 923, 774 A.2d 141 (2001). The court looked to the ordinary usage of that word. “A criminal taking is [t]he act of seizing an article, with or without removing it, but with an implicit transfer of possession or control.” (Emphasis added; internal quotation marks omitted.) Id. The testimony at trial established that the defendant and her accomplices placed 101 DVDs in a plastic tote, that one of the accomplices removed a suitcase from the shelf in the store and placed it in the shopping cart, that all three individuals removed the DVDs from the plastic tote and transferred them to the suitcase, that the two accomplices then pushed the cart containing the suitcase to a location near the store’s exit and that the defendant then walked over to the cart and pushed it slightly before being detained inside the store.

In reviewing a sufficiency of the evidence claim, it is well established that “the probative force of the evidence is not diminished because it consists, in whole or in part, of circumstantial evidence rather than direct evidence. ... It has been repeatedly stated that there is no legal distinction between direct and circumstantial evidence so far as probative force is concerned. . . . It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence.” (Internal quotation marks omitted.) State v. Riser, 70 Conn. App. 543, 552, 800 A.2d 564 (2002). Moreover, “[i]n considering the evidence introduced in a case, [triers of fact] are not required to leave common sense at the courtroom door . . . nor are they expected to lay aside matters of common knowledge or their own observations and experience of the affairs of life, but, on the contrary, to apply them to the facts in hand, to the end that their action may be intelligent and their conclusions correct.” (Internal quotation marks omitted.) State v. Fauntleroy, 101 Conn. App. 144, 153, 921 A.2d 622 (2007).

Clearly, the furtive actions of the defendant and her accomplices in concealing the DVDs and moving them to an area where they quickly could be removed from the store were sufficient to establish the requisite taking element of larceny in the third degree. Neither the statutes nor the case law requires that the property actually be removed from the owner’s premises, and, accordingly, the defendant’s claim fails.

n

The defendant’s next claim is that she was deprived of her constitutional right to confrontation under the sixth amendment to the United States constitution. She argues that this constitutional right was violated when (1) Gugliotti provided testimonial hearsay as to the value of the DVDs and (2) the court precluded defense counsel from cross-examining Gugliotti as to the names of the movies recorded on the DVDs.

A

The defendant claims that Gugliotti’s testimony as to the value of the 101 DVDs constituted testimonial hearsay, depriving her of her constitutional right to confrontation under the rule established in Crawford v. Washington, 541 U.S. 36, 68, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). She argues that Gugliotti simply recited the value that had been reflected on the store’s receipt, and, therefore, she was unable to cross-examine “the actual declarant, not the person repeating the hearsay.” She claims that the “statement” of the value was hearsay and was testimonial because the receipt was prepared to provide evidence against the defendant in a criminal proceeding.

“[T]he state’s use of hearsay evidence against an accused in a criminal trial is limited by the confrontation clause of the sixth amendment. . . . The sixth amendment to the constitution of the United States guarantees the right of an accused in a criminal prosecution to be confronted with the witnesses against him. This right is secured for defendants in state criminal proceedings. . . . [T]he primary interest secured by confrontation is the right of cross-examination.” (Citation omitted; internal quotation marks omitted.) State v. Skakel, 276 Conn. 633, 712,888 A.2d 985, cert. denied, 549 U.S. 1030, 127 S. Ct. 578, 166 L. Ed. 2d 428 (2006).

As previously noted in part I A of this opinion, the defendant did not object to Gugliotti’s testimony concerning the preparation of the register receipt and the amount reflected on it. She concedes that her claim was not preserved properly at trial and now seeks review under State v. Golding, supra, 213 Conn. 233. Under Golding, “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail.” (Emphasis in original.) Id., 239-40.

We conclude that the alleged violation fails under the second prong of Golding and is not reviewable. It is not of constitutional magnitude because the information on the receipt, as testified to by Gugliotti, was not a testimonial hearsay statement as defined in Crawford. “[T]he confrontation clause applies only to statements that are testimonial in nature.” (Emphasis added.) State v. Smith, 289 Conn. 598, 622, 960 A.2d 993 (2008). “In Crawford, the Supreme Court declined to spell out a comprehensive definition of testimonial .... Instead, the court defined a testimonial statement in general terms: A solemn declaration or affirmation made for the purpose of establishing or proving some fact. . . . The court did note, however, three formulations of th[e] core class of testimonial statements . . . [1] ex parte in-court testimony or its functional equivalent — that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially ... [2] extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions . . . [and 3] statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial . . . .” (Internal quotation marks omitted.) State v. Madigosky, 291 Conn. 28, 44-45, 966 A.2d 730 (2009).

In the present case, the defendant’s argument that the information contained in the store receipt is a testimonial statement under Crawford is not persuasive. The core class of testimonial statements described in Crawford are the declarations of individuals, either recited by other individuals who heard the statements or incorporated in affidavits, deposition transcripts or similar documents. A store receipt is not the statement of an individual; the receipt, unlike an individual, cannot be cross-examined. It makes no difference whatsoever whether the receipt was prepared in anticipation of trial or for some other purpose. The total amount reflected on the store receipt is a mathematical sum. The principal purpose of cross-examination, which is to test the credibility of a witness and hence the truth of his or her testimony; In re Keijam T., 221 Conn. 109, 124, 602 A.2d 967 (1992); has no applicability under these circumstances.

The value of the DVDs, as reflected in the store receipt, was recited by Gugliotti during direct examination. The defendant did not object to that testimony. The information was not a testimonial statement as defined in Crawford, despite the constitutional tag placed on the alleged violation by the defendant. See State v. Burgos-Torres, 114 Conn. App. 112, 117, 968 A.2d 476, cert. denied, 293 Conn. 908, 978 A.2d 1111 (2009). The claim itself reveals that the alleged violation does not involve testimonial hearsay, and, accordingly, the defendant’s claim is not reviewable.

B

The defendant also claims that the court’s limitation on her cross-examination of Gugliotti deprived her of her right to confront an adverse witness. When defense counsel asked Gugliotti to name the movies on the DVDs, the prosecutor objected on the ground of relevance and the court sustained the objection. The defendant argues that the prohibited questioning was relevant to assess the reliability and credibility of Gugliotti’s testimony and was relevant to the element of value.

“It is axiomatic that [a criminal] defendant is entitled fairly and fully to confront and to cross-examine the witnesses against him. . . . The primary interest secured by confrontation is the right to cross-examination . . . and an important function of cross-examination is the exposure of a witness’ motivation in testifying. . . . Cross-examination to elicit facts tending to show motive, interest, bias and prejudice is a matter of right and may not be unduly restricted. . . .

“The confrontation clause does not, however, suspend the rules of evidence to give the defendant the right to engage in unrestricted cross-examination. . . . The court determines whether the evidence sought on cross-examination is relevant by determining whether that evidence renders the existence of [other facts] either certain or more probable. . . .

“The trial court has wide discretion to determine the relevancy of evidence and the scope of cross-examination. Every reasonable presumption should be made in favor of the correctness of the court’s ruling in determining whether there has been an abuse of discretion. . . .

“The proffering party bears the burden of establishing the relevance of the offered testimony. Unless such a proper foundation is established, the evidence ... is irrelevant. . . . This may be accomplished in one of three ways.

“First, the defendant can make an offer of proof. . . . Second, the record independently can be adequate to establish the relevance of the proffered testimony. . . . Finally, the defendant can establish a proper foundation for the testimony by stating a good faith belief that there is an adequate factual basis for his inquiry.” (Emphasis in original; internal quotation marks omitted.) State v. Irizarry, 95 Conn. App. 224, 243-44, 896 A.2d 828, cert. denied, 279 Conn. 902, 901 A.2d 1224 (2006). We conclude that the defendant failed to establish, by any of these methods, the relevance of the line of questioning that she sought to pursue.

Significantly, when the court sustained the state’s objections to the questions pertaining to the titles of the movies on the DVDs, defense counsel made no argument in support of the relevance of his proposed line of questioning. Moreover, defense counsel did not seek to make an offer of proof. “It is the appellant’s burden to create an adequate appellate record to support his claim. . . . The defendant has failed to meet this burden. If he wanted to provide this court with an adequate appellate record, he should have presented an offer of proof. An offer of proof, properly presented, serves three purposes. First, it should inform the court of the legal theory under which the offered evidence is admissible. Second, it should inform the trial judge of the specific nature of the offered evidence so the court can judge its admissibility. Third, it thereby creates a record adequate for appellate review.” (Internal quotation marks omitted.) State v. Young, 63 Conn. App. 794, 806, 778 A.2d 1015, cert. denied, 258 Conn. 903, 782 A.2d 140 (2001). The defendant failed to provide an adequate record for appellate review, and we decline to review her claim.

Ill

The defendant’s next claim is that the court improperly failed to require compliance with a subpoena duces tecum issued by defense counsel. The subpoena had been served on Gugliotti and required him to bring certain reports and documents to the court. When Gugliotti appeared without them, defense counsel requested a continuance in order to secure the paperwork that he had subpoenaed. The court denied that request. The defendant claims that the failure to comply with the subpoena duces tecum and the court’s denial of her request for a continuance deprived her of a fair trial. We agree that the court should have enforced compliance by granting a limited continuance. Nevertheless, we conclude that the failure to do so was harmless and did not prejudice the defendant.

The following additional facts and procedural history are relevant to our resolution of the defendant’s claim. On July 17, 2007, which was the second and final day of voir dire, the defendant served a subpoena duces tecum on Gugliotti, directing him to appear the next day to testify at trial and ordering him to bring the following documents: “[A]ny and all reports, police notes and documents pertaining to the above case. . . . This should include seized property reports and documents of all suspects .... Also, this should include booking information and personal property inventory.” (Emphasis added.) The state did not file a motion to quash the subpoena. Further, it did not claim that the subpoena was served less than the requisite eighteen hours prior to the time designated for Gugliotti to appear. See General Statutes § 52-143 (a).

Gugliotti appeared at court on July 18, 2007, as a witness for the state. After direct examination, defense counsel cross-examined him and inquired whether he had been served with the subpoena that directed him to bring reports, notes and any documentation pertaining to the case, including any seized property reports. Gugliotti responded that he had received that subpoena but that he did not bring the requested documentation: “It was — I didn’t personally bring it. It was sent over to court — I—I don’t know when; months ago, I guess. It’s already here.”

Shortly thereafter, in the absence of the jury, defense counsel indicated that he “wanted to make a record ... [as to] the cross-examination of [Gugliotti] about subpoenaed records.” After some discussion, defense counsel requested a continuance to obtain that documentation. The court inquired as to the relevance of the seized property report and how the defendant was prejudiced by the failure to produce it. Counsel made an offer of proof. He indicated that the seized property report would show that the defendant had $250 on her person at the time she was arrested. According to counsel, that would show that she had money to pay for the DVDs and had not committed the crime as charged: “[I]t goes to corroborate the heart of the case, which is why she was up here in the first place.”

The court denied the defendant’s request for a continuance for the following reasons: (1) no foundation was laid as to whether Gugliotti was the officer who seized and inventoried the defendant’s property; (2) the court had previously indicated that the trial most likely would be concluded in one day and all witnesses should have been present on that day of trial; (3) defense counsel should have known that seized property reports were in existence and subpoenaed the booking officer; and (4) there already had been delays in proceeding with the trial. Subsequently, the state and the defense rested after that one day of evidence, and the court held a charging conference. Counsel made their closing arguments, and the court gave its instructions to the jury the following day, July 19, 2007.

“[T]he matter of a continuance is traditionally within the discretion of the trial judge which will not be disturbed absent a clear abuse. ... It is not every denial of a request for a continuance that violates due process. . . . [T]he right of a defendant to a continuance is not absolute. ... To prove an abuse of discretion, an appellant must show that the trial court’s denial of a request for a continuance was arbitrary. . . . There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied. . . . There are several factors that the trial court may consider in exercising its discretion. The factors include the timeliness of the request for continuance; the likely length of the delay; the age and complexity of the case; the granting of other continuances in the past; the impact of delay on the litigants, witnesses, opposing counsel and the court; the perceived legitimacy of the reasons proffered in support of the request; the defendant’s personal responsibility for the timing of the request; [and] the likelihood that the denial would substantially impair the defendant’s ability to defend himself .... [A]n appellate court should limit its assessment of the reasonableness of the trial court’s exercise of its discretion to a consideration of those factors, on the record, that were presented to the trial court, or of which that court was aware, at the time of its ruling on the motion for a continuance.” (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Fabricatore, 89 Conn. App. 729, 734-35, 875 A.2d 48 (2005), aff'd, 281 Conn. 469, 915 A.2d 872 (2007).

We conclude that the court abused its discretion in denying the defendant’s request for a continuance. Defense counsel had subpoenaed Gugliotti, the detective called by the state as its sole witness, and directed him to bring, inter alia, “seized property reports” and “booking information and personal property inventory.” The subpoena was served more than eighteen hours prior to the time designated for Gugliotti to appear in court. The state did not file a motion to quash the subpoena. When Gugliotti indicated at trial that he did not have the subpoenaed documents, defense counsel requested a continuance at that time and made an offer of proof as to relevance and prejudice. The requested continuance was made after Gugliotti’s testimony but before the charging conference, closing arguments and the court’s instructions to the jury. With or without the continuance, the jury would have had to return for a second day because the trial could not be completed in one day. In light of those factors, the court abused its discretion in denying the motion for a continuance to allow defense counsel the opportunity to secure the report he had subpoenaed.

Nevertheless, the denial of the motion for a continuance did not prejudice the defendant. The defendant claims that the fact that she had $250 in her possession at the time of her arrest indicates that she did not intend to steal the DVDs. This argument is flawed because it does not necessarily follow that an individual with money in his or her possession would pay for store items rather than steal them. Furthermore, in this case, the items involved happened to be 101 DVDs valued at $1822.72. Given the sheer number of the DVDs and the cost of those DVDs, being more than seven times the amount of money that the defendant had in her possession, we conclude that the failure to grant the request for a continuance in order to produce the report was harmless.

IV

The defendant’s final claim is that the court improperly refused to instruct the jury in accordance with her proposed charge on value. Specifically, the defendant argues that the court should have charged that, under General Statutes § 53a-121 (a) (3), the jury had to value the stolen property at less than $50 if it did not credit the state’s evidence as to the market value of that property.

The court held the charging conference on the record. It reviewed the defendant’s request to charge and described the instructions that it planned to give the jury on the standards to be used in determining the value of the property. During the conference, defense counsel requested that the court include an instruction that the jury must set the value of the property at $50 if it could not determine the value beyond a reasonable doubt using the standards given by the court. The court indicated that it would not give such a charge because there had been testimony as to the exact value of the DVDs at issue; if the jury did not credit that testimony, it would have to find the defendant not guilty of the charge of larceny in the third degree.

“It is a well established principle that a defendant is entitled to have the jury correctly and adequately instructed on the pertinent principles of substantive law. . . . The charge must be correct in the law, adapted to the issues and sufficient to guide the jury. . . . The primary purpose of the charge to the jury is to assist [it] in applying the law correctly to the facts which [it] find[s] to be established.” (Internal quotation marks omitted.) State v. Patterson, 276 Conn. 452, 466, 886 A.2d 777 (2005).

In the present case, the only evidence as to value was Gugliotti’s uncontradicted testimony that the value of the DVDs, as scanned by the register, was $1822.72. Because there was no other evidence as to value, the court correctly instructed the jury on the principles of law invoked by the evidence as presented. The court charged: “In this case, evidence has been presented that the items, to wit, claimed to have been stolen, had a retail price of $1822.72. If that testimony is correct, this price, not a lower or wholesale price, would be their market value. ... If you can determine the price that the property sold for at the time of the crime, then that is the controlling value.” Given the evidence presented to the jury, the court had no basis on which to give the defendant’s requested charge. The jury either believed Gugliotti’s testimony or it did not.

Furthermore, because there were no instructions as to lesser included offenses, the state’s failure to prove that the value of the property stolen was greater than $1000 would have resulted in the defendant’s acquittal of the charged offense. The court instructed the jury: “If you find the defendant is guilty of larceny, you must go on to consider the value of the property involved. For you to find the defendant guilty of this charge, the state must prove beyond a reasonable doubt that the value of the property or services taken exceeded $1000. If you find the state has proven beyond a reasonable doubt each of the elements of the crime of larceny in the third degree, then you shall find the defendant guilty. On the other hand, if you find that the state has failed to prove beyond a reasonable doubt any one of the elements, you shall find the defendant not guilty.” Accordingly, the defendant’s final claim fails.

The judgment is affirmed.

In this opinion the other judges concurred.

       We note that § 53a-124 (a) (2) was amended in 2009 to require the value of the stolen property to exceed $2000, increased from the previously required $1000. See Public Acts 2009, No. 09-138, § 3, codified at General Statutes (Sup. 2010) § 53a-124 (a) (2). For purposes of convenience, we refer to the 2007 codification of the statute, which is the one that was in effect at the time of the offense in the present case. All references to § 53a-124 (a) (2) are to the 2007 revision.

       “[T]he [d]ue [pjrocess [c]lause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” (Internal quotation marks omitted.) State v. Torres, 111 Conn. App. 575, 579, 960 A.2d 573 (2008), cert. denied, 290 Conn. 907, 964 A.2d 543 (2009).

       The value of stolen property for a larceny charge is ascertained as follows: “[V]alue means the market value of the property or services at the time and place of the crime or, if such cannot be satisfactorily ascertained, the cost of replacement of the property or services within a reasonable time after the crime. . . .” General Statutes § 53a-121 (a) (1). In this case, no evidence was presented as to the replacement value of the DVDs. The state presented evidence only as to their market value.

       In reaching that conclusion, the Appellate Session quoted from and followed the reasoning set forth in the dissenting opinion of State v. Coleman, 19 Wn. App. 549, 555, 576 P.2d 925 (1978): “In this day and age, items bought at retail are customarily purchased at the price shown on the price tags attached to the merchandise. Although the price listed on the tags was not necessarily conclusive evidence of the market value of the merchandise in this case, it was at least substantial evidence on which a jury could reasonably rely in determining that the market value of the goods stolen was in fact that which was shown on the price tag.” (Internal quotation marks omitted.) State v. White, supra, 37 Conn. Sup. 800.

       “Under Crawford v. Washington, supra, 541 U.S. 68, the hearsay statements of an unavailable witness that are testimonial in nature may be admitted under the sixth amendment’s confrontation clause only if the defendant has had a prior opportunity to cross-examine the declarant. Hearsay statements that are nontestimonial in nature are not governed by the confrontation clause, and their admissibility is governed solely by the rules of evidence.” State v. Slater, 285 Conn. 162, 169-70, 939 A.2d 1105, cert. denied, 553 U.S. 1085, 128 S. Ct. 2885, 171 L. Ed. 2d 822 (2008).

       On cross-examination, defense counsel asked the following questions: “[Defense Counsel]: The — let’s talk about those 101 DVDs. You testified that those were the value — or they are valued at $1822.72.
      “[The Witness]: According to Wal-Mart, yes.
      “[Defense Counsel]: Now, the DVDs, those 101 DVDs; what movie? “[The Witness]: Come again?
      “[Defense Counsel]: What — what—DVDs are movies, right?
      “[The Witness]: Yes, sir.
      “[Defense Counsel]: What movie?
      “[The Prosecutor]: Objection as to relevance, Your Honor.
      “The Court: It’s sustained. . . .
      “[Defense Counsel]: Do you recall what movie?
      “[The Prosecutor]: Same objection, Your Honor.
      “The Court: Sustained. It’s irrelevant.
      “[Defense Counsel]: Do you recall whether they were all the same movie or different movies? Do you recall?
      “[The Prosecutor]: Objection, Your Honor.
      “The Court: Sustained.”
      Defense counsel then moved on to a line of questioning that concerned whether the DVDs were secured in order to preserve them as evidence for the criminal proceeding.

       Although we focus on the defendant’s failure to present an offer of proof, we also note that the record does not provide an independent basis on which the court should have concluded that the proposed line of questioning was relevant as to the reliability and credibility of Gugliotti or was relevant as to the value of the DVDs. Further, defense counsel did not assert that he had a good faith belief that his inquiry would elicit testimony showing that the movies recorded on the stolen DVDs were of such a nature that their value would be less than the amount scanned by the register.

       The defendant, not defense counsel, was late for the second day of voir dire, was late returning from lunch that same day and was late the following day. The record does not reveal any other delays.

       General Statutes § 53a-121 (a) (3) provides: “When the value of property or services cannot be satisfactorily ascertained pursuant to the standards set forth in this section, its value shall be deemed to be an amount less than fifty dollars.”

       This request was included in the defendant’s written request to charge.


text:
    ROBIN L. SARGENT v. ROBERT E. SARGENT
    (AC 31987)
    Gruendel, Robinson and Pellegrino, Js.
    Argued November 15, 2010
    officially released January 4, 2011

      John M. Andreini, for the appellant (plaintiff).

      Robert E. Sargent, pro se, the appellee (defendant).
   Opinion

GRUENDEL, J.

The plaintiff, Robin L. Sargent, appeals from the judgment of the trial court dissolving her marriage to the defendant, Robert E. Sargent, and granting the defendant’s motion for modification of alimony. On appeal, the plaintiff claims that the court improperly granted the defendant’s motion, given the lack of a sufficient change in circumstances warranting a modification of the defendant’s alimony payments. We agree and, accordingly, reverse the judgment of the trial court.

The following facts, as found by the court, and procedural history are relevant to the disposition of the plaintiffs appeal. On June 27, 1993, the parties remarried in Manchester. On October 11, 2006, the plaintiff filed a complaint for legal separation, claiming, inter alia, that the parties’ marriage had broken down irretrievably. Subsequently, the parties negotiated and executed a separation agreement (agreement) that provided in relevant part: “[The defendant] shall pay to [the plaintiff] the amount of $250 per week in alimony until [the plaintiff] reaches the age of sixty-two .... [The defendant] shall maintain medical insurance for the benefit of the [plaintiff] so long as it is available through his place of employment at reasonable cost. Currently, the medical insurance [for the plaintiff is] at no expense to [the defendant]. Should [the defendant] be required to pay for a portion of his insurance, the parties shall review the alimony obligation and the then current incomes of the parties to determine each [party’s] obligation toward the insurance expense.” (Emphasis added.) On August 24, 2007, the court rendered judgment declaring the parties to be legally separated and incorporated the agreement into its judgment.

On March 16, 2009, the defendant filed a motion for modification of alimony and a petition for a decree dissolving the parties’ marriage pursuant to General Statutes § 46b-65 (b). In support of his motion for modification of alimony, the defendant claimed that his “financial circumstances [had] changed significantly” from the time that the parties were legally separated. The plaintiff filed an objection to the defendant’s petition for dissolution on June 3, 2009, claiming that conversion of the separation into a dissolution would cause her irreparable harm. On November 2, 2009, a hearing was held to resolve the issues raised by the defendant’s petition for dissolution. At this hearing, both parties testified and presented evidence in support of their claims. Specifically, the defendant testified that he had received a 20 percent pay reduction from his employer and that, because of the impending dissolution, it would cost “$777 per month to insure the plaintiff’ via COBRA coverage. Importantly, however, the defendant offered no evidence whatsoever demonstrating that the cost of the plaintiffs health coverage was an expense that he was responsible for personally. Moreover, the defendant testified that the “brunt” of the deductibles for medical care fell upon the plaintiff, as she required frequent treatment due to her diagnoses of cancer and multiple sclerosis. On December 22, 2009, in a memorandum of decision, the court granted the defendant’s petition for dissolution and motion for modification of alimony, reducing the defendant’s alimony obligation from $250 per week to $175 per week. In support of its ruling reducing the defendant’s alimony payments, the court explicitly found that “[t]he defendant’s health insurance plan has changed drastically since the separation agreement was drawn up when it was of no cost to the defendant. . . . [According to the defendant, [health insurance] now costs $777 a month to include the plaintiff on the coverage.” The plaintiff now claims that the court improperly reduced the defendant’s alimony obligation in light of the fact that the defendant’s financial circumstances, particularly his medical expenses, had remained unchanged from the time of the parties’ legal separation.

“The standard of review in family matters is well settled. An appellate court will not disturb a trial court’s orders in domestic relations cases unless the court has abused its discretion or it is found that it could not reasonably conclude as it did, based on the facts presented. ... In determining whether a trial court has abused its broad discretion in domestic relations matters, we allow every reasonable presumption in favor of the correctness of its action. . . . Appellate review of a trial court’s findings of fact is governed by the clearly erroneous standard of review. The trial court’s findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. ... 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.) Angle v. Angle, 100 Conn. App. 763, 771-72, 920 A.2d 1018 (2007).

Here, our review of the record discloses that the court’s ruling reducing the alimony obligation of the defendant was premised on the clearly erroneous finding that it “now costs [the defendant] $777 a month to include the plaintiff on the [defendant’s medical] coverage.” Not only did the defendant concede that he has never been responsible personally for either his own or the plaintiffs medical expenses, but he also testified that the “brunt” of the medical expenses fall on the plaintiff in the form of deductibles and insurance co-pays. Although the defendant testified as to the increased cost in general of the plaintiffs COBRA coverage, the defendant did not testify that he was responsible personally for these costs and conceded during oral argument in this appeal that once the plaintiffs COBRA coverage expires, she will be without medical coverage completely, though nonetheless subject to a reduced alimony award. Thus, if the judgment of the court were to be upheld, the plaintiffs medical expenses would eventually increase despite substantial decreases in the defendant’s medical coverage contribution and alimony payments; this result cannot be sustained. Given the complexities surrounding the defendant’s health care expenses as documented by his testimony during the November 2, 2009 hearing, it appears that the court’s December 22, 2009 ruling reducing the defendant’s alimony obligation was based on a misunderstanding as to the parties’ present financial situations. Nonetheless, we are unable to discern any evidentiary basis upon which the defendant’s alimony obligation should have been reduced in the case at bar. Accordingly, we conclude that the court’s ruling reducing the defendant’s alimony obligation was based primarily on the clearly erroneous finding that the plaintiffs medical coverage now costs the defendant $777 per month.

The judgment is reversed and the case is remanded for further proceedings according to law.

In this opinion the other judges concurred.

       Approximately two years prior to the dissolution of the parties’ marriage, the court rendered judgment declaring the parties to be legally separated and ordered that the defendant pay the plaintiff alimony in the amount of $250 per week until the plaintiff attained the age of sixty-two. At the time that the court rendered judgment dissolving the parties’ marriage, the court also granted the defendant’s motion for modification of this initial alimony award.

       The parties were previously married in 1986 and divorced in 1991.

       General Statutes § 46b-65 (b) provides in relevant part: “[A]t any time after the entry of a decree of legal separation, either party may petition the superior court for the judicial district in which the decree was entered for a decree dissolving the marriage . . . .”

       The plaintiff argues that the defendant’s March 16, 2009 motion for modification of alimony was not properly before the court. We note that the court’s December 22,2009 memorandum of decision in this case specifically references the defendant’s motion and our review of the record discloses that the motion was never definitively ruled upon prior to December 22, 2009. Thus, although we disagree with the plaintiff and conclude that the defendant’s motion for modification of alimony was properly before the court in this matter, our disposition of this appeal remains unaffected.

       In its December 22, 2009 memorandum of decision, the court notes that the defendant is no longer subject to this 20 percent pay reduction and presently earns approximately the same income that he did at the time the parties were legally separated on August 24, 2007.

       See the Consolidated Omnibus Budget Reconciliation Act of 1985, 29 U.S.C. §§ 1161-68. The defendant testified that he agreed originally to a legal separation to enable the plaintiff to remain on the health care plan provided by his employer. Upon dissolution of the parties’ marriage, however, the plaintiff would no longer be eligible for medical insurance through the defendant’s employer, thus necessitating COBRA coverage.

       Indeed, the defendant conceded during oral argument in this appeal that he is not, nor has he ever been, personally responsible for expenses associated with medical coverage for himself or the plaintiff. Additionally, we are compelled to note that the defendant’s financial affidavit, submitted to the court in coryunction with the November 2, 2009 hearing, lists no deduction for medical care expenses. Rather, these costs were borne solely by the defendant’s employer and the plaintiff in the form of medical deductibles and co-pays.

       In its memorandum of decision, the court ordered that both the plaintiff and the defendant be responsible for 50 percent of the medical expenses associated with COBRA coverage. It, however, bears repeating that the defendant did not present evidence that he is responsible for these expenses personally. Additionally, the defendant conceded during oral argument in this appeal that once the plaintiffs COBRA coverage expires, she will be without insurance coverage though still receiving a reduced alimony award.

       The plaintiff also claims that the court improperly failed to make a definitive finding as to her proposed order that she be made a beneficiary under the defendant’s health savings account to assist in offsetting the high cost of her medical deductibles and co-pays. Because we conclude that the judgment of the court reducing the defendant’s alimony obligation is clearly erroneous and reverse the judgment and remand the matter for further proceedings, we need not address the plaintiff’s claim further, as the court will have the opportunity to pass on this issue in the first instance upon remand.


author: Per Curiam.

text:
    FRANCIS BORRELLI v. COMMISSIONER OF CORRECTION
    (AC 31431)
    Bishop, Lavine and Foti, Js.
    Argued October 26
    officially released November 16, 2010
   Per Curiam.

The appeal is dismissed.


text:
    HOMECOMINGS FINANCIAL NETWORK, INC. v. BEVERLY STARBALA ET AL.
    (AC 30893)
    Lavine, Alvord and Peters, Js.
    Argued October 20
    officially released November 16, 2010
   Per Curiam.

The judgment is affirmed.


text:
    CHARLES COTTLE v. DANIEL GILHULY
    (AC 30648)
    Lavine, Alvord and Peters, Js.
    Argued October 20
    officially released November 16, 2010
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. CLYDE MEIKLE
    (AC 31128)
    Lavine, Alvord and Schaller, Js.
    Argued October 22
    officially released November 16, 2010
   Per Curiam.

The judgment is affirmed.


text:
    TONY A. WILSON v. CONNECTICUT BAR EXAMINING COMMITTEE
    (AC 31283) (AC 31364)
    Harper, Alvord and Peters, Js.
    Submitted on briefs October 25
    officially released November 16, 2010
   Per Curiam.

The judgment is affirmed.


text:
    BALRAM SETHI v. BRUHAN YAGILDERE ET AL.
    (AC 31463)
    Alvord, Bear and Peters, Js.
    Argued November 8
    officially released November 30, 2010
   Per Curiam.

The judgment is affirmed.


text:
    NANCY P. TYLER v. RICHARD J. TYLER
    (AC 31593)
    DiPentima, C. J., and Robinson and Borden, Js.
    Argued November 17
    officially released December 7, 2010
   Per Curiam.

The judgment is affirmed.


text:
    SUZANNE NOWACKI v. MICHAEL NOWACKI
    (AC 32075)
    Harper, Alvord and Schaller, Js.
    Argued November 30
    officially released December 21, 2010
   Per Curiam.

The judgment is affirmed.


text:
    BONNIE NICHOLS v. CITY OF BRIDGEPORT ET AL.
    (AC 30975)
    Gruendel, Harper and Foti, Js.
    Argued November 30
    officially released December 21, 2010
   Per Curiam.

The judgment is affirmed.


text:
    RAUL LARRACUENTE v. COMMISSIONER OF CORRECTION
    (AC 31541)
    Bishop, Alvord and Schaller, Js.
    Argued November 30
    officially released December 21, 2010
   Per Curiam.

The appeal is dismissed.


text:
    DONALD A. GOWING v. COMMISSIONER OF CORRECTION
    (AC 31366)
    Harper, Beach and Alvord, Js.
    Submitted on briefs December 7
    officially released December 28, 2010
   Per Curiam.

The appeal is dismissed.


text:
    TERRELL JACKSON v. COMMISSIONER OF CORRECTION
    (AC 32036)
    Harper, Beach and Alvord, Js.
    Submitted on briefs December 7
    officially released December 28, 2010
   Per Curiam.

The appeal is dismissed.