author: PER CURIAM.

text:
    SHARON RACSKO v. RICHARD RACSKO
    (AC 27400)
    DiPentima, Graendel and Berdon, Js.
    Submitted on briefs March 26
    officially released June 26, 2007

      William R. Donaldson filed a brief for the appellant (defendant).
   Opinion

PER CURIAM.

The defendant, Richard Racsko, appeals from the judgment of the trial court modifying the amount of alimony payable by him to the plaintiff, Sharon Racsko. On appeal, he claims that the court improperly declined to modify the alimony award as to term in accordance with the judgment of dissolution. We disagree and affirm the judgment of the trial court.

The following facts are necessary for our resolution of the defendant’s claims. The parties were married on April 22, 1989, in Jacksonville, Florida, and have two minor children. Their marriage was dissolved by the court, Abery-Wetstone, J., on August 1, 2003. With respect to alimony, the court ordered: “The [defendant] shall pay to the [plaintiff] alimony of $300.00 per week for a period of seven (7) years from the date of the dissolution, nonmodifiable as to term, unless the [defendant] or [plaintiff] dies, remarries, or cohabitates as defined by statute.” On July 14, 2005, the defendant filed a motion for modification of alimony postjudgment on the basis of, inter alia, his cohabitation with another woman as of April, 2004. The motion was argued on January 11, 2006. On January 20, 2006, in a memorandum of decision, the court, Hon. Lloyd Cutsumpas, judge trial referee, reduced the alimony payments to $250 per week. In addressing the defendant’s argument that alimony should be terminated because the order of alimony contained in the judgment refers to the cohabitation of either party, Judge Cutsumpas reasoned: “It is doubtful that the trial judge intended such a result. But even if she did, this court does not find [that] a modification based upon the defendant’s cohabitation or remarriage is warranted, but does find a modification based upon a substantial change in financial circumstances of the parties.” This appeal followed.

The defendant argues that the court improperly interpreted the judgment rather than follow its clear and unambiguous language, which, according to the defendant, entitled him to a modification of the term of alimony on the basis of his cohabitation. We disagree.

The defendant’s claim challenges the court’s construction of the judgment ordering the defendant to make alimony payments. “The construction of a judgment is a question of law for the court. ... As a general rule, judgments are to be construed in the same fashion as other written instruments. . . . The determinative factor is the intention of the court as gathered from all parts of the judgment. . . . The judgment should admit of a consistent construction as a whole. ... To determine the meaning of a judgment, we must ascertain the intent of the court from the language used and, if necessary, the surrounding circumstances. . . . We review such questions of law de novo.” (Citations omitted; internal quotation marks omitted.) Burke v. Burke, 94 Conn. App. 416, 421, 892 A.2d 964 (2006).

The dissolution judgment specifically provided that cohabitation was to be defined by statute. Although the judgment does not specify which statute, General Statutes § 46b-86 (b) is commonly known as the cohabitation statute. Cushman v. Cushman, 93 Conn. App. 186, 198, 888 A.2d 156 (2006). Section 46-86 (b) provides: “In an action for divorce, dissolution of marriage, legal separation or annulment brought by a husband or wife, in which a final judgment has been entered providing for the payment of periodic alimony by one party to the other, the Superior Court may, in its discretion and upon notice and hearing, modify such judgment and suspend, reduce or terminate the payment of periodic alimony upon a showing that the party receiving the periodic alimony is living with another person under circumstances which the court finds should result in the modification, suspension, reduction or termination of alimony because the living arrangements cause such a change of circumstances as to alter the financial needs of that party.” (Emphasis added.) Thus, the relevant statute clearly limits cohabitation warranting modification of an alimony award to situations in which the person receiving the alimony is living with another person. The statute further conditions modification of alimony in this situation on a showing that the recipient’s financial needs have been altered as a result of the cohabitation. See DiStefano v. DiStefano, 67 Conn. App. 628, 633, 787 A.2d 675 (2002). Our Supreme Court has held both of those requirements apply even when the judgment does not define cohabitation or reference the statute. See DeMaria v. DeMaria, 247 Conn. 715, 722, 724 A.2d 1088 (1999).

Contrary to the defendant’s assertion, the language of the judgment is ambiguous as to the cohabitation provision. The defendant’s reading of the judgment, however, is belied both by § 46b-86 (b) and our case law. We therefore conclude that the court properly rejected the defendant’s claim that his cohabitation with another woman seived as a proper ground for the modification of alimony as to term.

The judgment is affirmed.

       The pro se plaintiff did not file a brief in this court. We therefore considered this case on the record and the defendant’s brief.

       The defendant does not challenge the court’s modification of the alimony award as to amount.

       The defendant and the woman with whom he was living were married on October 21, 2005.

       Consequently, the court modified the alimony award as to amount but not as to term.


source: Caselaw Access Project

license: Public Domain

text:
    KENNETH CAPOZZIELLO v. ROBYN ROBINSON
    (AC 27026)
    Schaller, Bishop and Lavine, Js.
    Argued April 17
    officially released June 26, 2007

      H. Jeffrey Beck, for the appellant (plaintiff).

      Timothy S. Jajliardo, for the appellee (defendant).
   Opinion

PER CURIAM.

The plaintiff, Kenneth Capozziello, appeals from the judgment of the trial court rendered in favor of the defendant, Robyn Robinson, following a jury trial. On appeal, the plaintiff claims that the court committed plain error in revealing to the jury the existence of collateral sources available to pay his medical expenses. We affirm the judgment of the trial court.

The plaintiffs action arose out of personal injuries and damages sustained as a result of an accident involving his motorcycle and the defendant’s vehicle. On appeal, the plaintiff contends that the court improperly (1) permitted the defendant’s counsel to question the plaintiff on cross-examination as to whether he had medical insurance and (2) referenced medical insurance in its charge to the jury. The plaintiff concedes that he neither objected to the question by the defendant’s counsel nor took exception to the charge. The plaintiff therefore seeks review of his unpreserved claims under the plain error doctrine pursuant to Practice Book § 60-5. Review under the plain error doctrine “is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” (Internal quotation marks omitted.) Menon v. Dux, 81 Conn. App. 167, 172, 838 A.2d 1038, cert. denied, 269 Conn. 913, 852 A.2d 743, cert. denied, 543 U.S. 1003, 125 S. Ct. 623, 160 L. Ed. 2d 463 (2004).

After reviewing the entire record before us, we conclude that the court did not commit plain error. It is well established that the existence of collateral sources should not be revealed to the jury. General Statutes § 52-225a (b) provides in relevant part that “[u]pon a finding of liability and an awarding of damages by the trier of fact . . . the court shall receive evidence . . . concerning the total amount of collateral sources which have been paid for the benefit of the claimant . . . .” (Emphasis added.) In the present case, the court did not improperly allow evidence of collateral sources to be admitted to the jury. The question by the defendant’s counsel as to whether the plaintiff had medical insurance was neither objected to nor answered. Further, in its charge to the jury, the court simply explained in accordance with § 52-225a (b) that although there were references to medical insurance during trial and in medical bills introduced into evidence by the plaintiff, the jury was not to consider whether the plaintiff had medical insurance in reaching its verdict because the court would adjust the verdict on the basis of any amounts paid by collateral sources. See footnote 2.

The judgment is affirmed.

       On cross-examination of the plaintiff, the following colloquy occurred:
      “[The Defendant’s Counsel]: “Now, you . . . indicated, correct, that you can’t afford [the surgery], right?”
      “[The Plaintiff]: That’s one of the reasons, yes.
      “[The Defendant’s Counsel]: Okay. But you have medical insurance, don’t you?
      “[The Plaintiff]: Excuse me?
      “[The Defendant’s Counsel): You have medical insurance, don’t you?”
      Prior to an answer being given, the plaintiffs counsel asked to approach the bench and the court held a sidebar conference.

       In its charge to the jury, the court stated: “Now, you’ve heard reference to insurance, and there may be references on the medical bills to insurance, which may or may not cover some of the medical expenses incurred by the plaintiff. You’re not to concern yourself with whether or not there was insurance coverage for some or any of these expenses, nor should you speculate or guess as to what amount, if any . . . may have been [paid] by insurance. Any payments made are not your concern because after the case is over, the court makes any and all necessary adjustments to your verdict . . . and we take into account any payments . . . that were made from . . . collateral sources.”


author: STOUGHTON, J.

text:
    LINDA MAE BEHRNS v. RONALD WAYNE BEHRNS
    (AC 26978)
    Flynn, C. J., and Rogers and Stoughton, Js.
    Argued February 6
    officially released June 26, 2007

      George J. Markley, with whom, on the brief, was Veronica E. Reich, for the appellant (defendant).

      James H. Lee, with whom, on the brief, was Kirk A. Bennett, for the appellee (plaintiff).
   Opinion

STOUGHTON, J.

The defendant, Ronald Wayne Behms, appeals from the judgment ordering that he pay alimony, support and counsel fees to the plaintiff, Linda Mae Behms. He claims that the trial court improperly (1) found that his attorney was the scrivener of the parties’ separation agreement and constmed it against him, (2) awarded counsel fees pursuant to General Statutes § 46b-62 and (3) failed to conclude that the claims of the plaintiff were barred by the doctrines of laches and equitable estoppel. We agree with the defendant’s first claim and reverse the judgment of the trial court.

The following facts and procedural history are relevant to the defendant’s appeal. In 1984, the parties contemplated divorce, and the plaintiff retained an attorney who drafted a separation agreement. Among other provisions, the agreement provided that “all the payments [described in the section providing for alimony and child support] shall increase by an amount equal to the cost of living as measured by the [c]onsumer [p]rice index or the percentage yearly increase in the [defendant’s] salary or business income, whichever is less.” The parties reconciled for a time, but in 1986 they again decided to end their marriage. Both parties were then represented by counsel. The defendant suggested a change in the agreement that would permit a decrease as well as an increase in his payments. The plaintiff agreed to the change. The relevant provision, which is § 5.3 in the 1986 version of the agreement, was changed to read: “[a]ll the payments pursuant [to the relevant section], shall increase or decrease, by an amount equal to the cost of living as measured by the Consumer Price index [price index], or the percentage yearly increase or decrease in the [defendant’s] salary and wages, whichever is less . . . .” The defendant lost his job and his salary and wages in 1990. Subsequently, he stopped paying alimony and support. After informally demanding payment from the defendant for some years, the plaintiff filed a postjudgment motion for contempt on April 10, 2001. The initial trial court, Dewey, J., determined that the cited provision was clear, unambiguous and self-executing and that when the defendant’s income decreased, his obligation decreased accordingly. On appeal, this court reversed the judgment of the trial court, determining that the provision was ambiguous and not self-executing, and remanded the case for a new hearing on the plaintiffs motion. Behrns v. Behrns, 80 Conn. App. 286, 835 A.2d 68 (2003), cert. denied, 267 Conn. 914, 840 A.2d 1173 (2004). On remand, the court, Owens, J., declined to find the defendant in contempt but determined that, pursuant to the disputed provision, the defendant was liable for an amount decreased by the lesser of the change in the price index or the percentage decrease in his salary and wages.

The defendant claims that the court improperly construed the agreement between the parties governing his support and alimony obligations. Specifically, he argues that the court’s finding that he drafted the agreement was clearly erroneous, and therefore the court improperly construed ambiguities in the agreement against him.

To the extent that the defendant asks us to review factual determinations, our review is limited to deciding whether these determinations were clearly erroneous. (Internal quotation marks omitted.) Demartino v. Demartino, 79 Conn. App. 488, 492, 830 A.2d 394 (2003). “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.) Id.

“The interpretation of a contract term that is not so clear as to render its interpretation a matter of law is a question of fact, subject to the clearly erroneous standard of review.” (Internal quotation marks omitted.) Bijur v. Bijur, 79 Conn. App. 752, 759, 831 A.2d 824 (2003).

In construing the agreement, the defendant claims that the court erroneously found that it was undisputed that he had drafted the disputed provision. The court considered the differing interpretations of § 5.3 suggested by the parties. It found that it was undisputed that the defendant’s attorney was the scrivener of the agreement. In its award, the court accepted the interpretation of § 5.3 offered by the plaintiff. In doing so, it specifically acknowledged the general rule that when two or more meanings may fairly be given to language in a contract, the language is to be construed against the one who drew it. Sturman v. Socha, 191 Conn. 1, 9, 463 A.2d 527 (1983). It is thus clear that the court construed the ambiguous language of § 5.3 against the defendant.

Our review of the record reveals that it was not undisputed that the agreement was drafted by the defendant’s attorney. The agreement originally was drafted in 1984 by the plaintiffs attorney at a time when the defendant was not represented by counsel. Specifically, § 5.3 itself, in its original form, was drafted by the plaintiffs attorney as part of the 1984 agreement. The subsequent change providing for a decrease as well as for an increase was suggested by the defendant, but it was agreed to by the plaintiff at a time when both parties were represented by counsel. Our review of the record reveals that the defendant never conceded the issue of who drafted the agreement. Under these circumstances, it was clearly erroneous for the court to conclude that the identity of the drafter was undisputed and to construe the agreement against the defendant on the basis of this determination. We further conclude that the court’s finding that the defendant’s attorney was the scrivener of the agreement affected its entire decision. See Montoya v. Montoya, 280 Conn. 605, 615, 909 A.2d 947 (2006). Therefore, we reverse the determination of the court.

The court also awarded counsel fees requested by the plaintiff and concluded that she was vigilant in her pursuit of the defendant and that he had failed to demonstrate that any delay was prejudicial to him. Both of these determinations may have depended to some extent on the acceptance of the plaintiffs version as the intent of the parties to the agreement. Therefore, we reverse these determinations as well and remand the case for further proceedings. See Sablosky v. Sablosky, 61 Conn. App. 66, 72-73, 762 A.2d 922 (2000), rev’d on other grounds, 258 Conn. 713, 784 A.2d 890 (2001).

The judgment is reversed as to the orders of alimony, child support and attorney’s fees and the case is remanded for a new hearing on those issues. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       Although the plaintiff labeled her motion a motion for contempt, because she also requested an order for payment of an arrearage, we treat the motion as if it were a motion for contempt and for order. See Bijur v. Bijur, 79 Conn. App. 752, 754 n.1, 831 A.2d 824 (2003). The court found that the defendant was not in contempt, and the defendant on appeal challenges the grant of relief ordered.

       The defendant also argues that the court failed to consider the language of the provision adequately and the intent of the parties in including the provision and that the court’s construction of the provision is illogical. Specifically, the defendant argues that the language of the 1984 agreement provided that if the price index and his salary both increased, his payments would be the lesser of the resulting sums. He asserts that the change in 1986 permitting a decrease also should be interpreted in a manner such that his liability would be the lesser of the resulting sums. He also argues that the change was meant to benefit him relative to his position under the earlier form of the agreement. In addition, he asserts that the court’s interpretation defies logic because he remains liable for payment even after his salary and wages decrease to zero. Because we conclude that the court improperly determined that the defendant drafted the language, we need not reach his other arguments.


text:
    STATE OF CONNECTICUT v. DAVID A. SHEPARD
    (AC 26535)
    Schaller, Bishop and Harper, Js.
    Submitted on briefs January 18
    officially released June 26, 2007

      Joseph Visone, special public defender, filed a brief for the appellant (defendant).

      John A. Connelly, state’s attorney, Ronald G. Weller, senior assistant state’s attorney, and David A. Gulick, assistant state’s attorney, filed a brief for the appel-lee (state).
   Opinion

PER CURIAM.

The defendant, David A. Shepard, appeals from the judgment of conviction, rendered after a jury trial, of operating a motor vehicle while under the influence of intoxicating liquor or drugs in violation of General Statutes § 14-227a (a) (1), drinking while operating a motor vehicle in violation of General Statutes § 53a-213 (a) and operating a motor vehicle with a suspended license in violation of General Statutes § 14-215 (a). The defendant claims that (1) the trial court’s operating under the influence instruction to the jury was deficient and (2) the court improperly permitted a witness to express an opinion with regard to an ultimate issue in the case. We affirm the judgment of the trial court.

I

The defendant first claims that the court’s operating under the influence instruction was deficient. The defendant argues that the court conveyed to the jury that he was guilty if he was “driving while impaired,” thereby diluting the state’s burden of proof.

The defendant’s claim is unpreserved because the defendant neither submitted a written request to charge nor took any exceptions to the court’s charge. It is well settled that a claim of instructional error is preserved properly only when “the matter is covered by a written request to charge or exception has been taken by the party appealing immediately after the charge is delivered. . . .” Practice Book § 16-20; see also State v. Ramirez, 94 Conn. App. 812, 823, 894 A.2d 1032, cert. denied, 278 Conn. 915, 899 A.2d 621 (2006); State v. L’Minggio, 71 Conn. App. 656, 670-71, 803 A.2d 408, cert. denied, 262 Conn. 902, 810 A.2d 270 (2002); State v. Adorno, 45 Conn. App. 187, 196-97, 695 A.2d 6, cert. denied, 242 Conn. 904, 697 A.2d 688 (1997).

Generally, “[w]hen a party raises a claim for the first time on appeal, our review of the claim is limited to review under either the plain error doctrine as provided by Practice Book § 60-5, or the doctrine set forth in State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).” State v. Rodriguez, 68 Conn. App. 303, 308, 791 A.2d 621, cert. denied, 260 Conn. 920, 797 A.2d 518 (2002); see also State v. Marsala, 93 Conn. App. 582, 590, 889 A.2d 943, cert. denied, 278 Conn. 902, 896 A.2d 105 (2006). The defendant has not sought review of his claim under either of those doctrines. Under the circumstances of this case, we will follow the general rule that “it is not appropriate to engage in a level of review that is not requested. . . . When the parties have neither briefed nor argued plain error [or Golding review], we will not afford such review.” (Citation omitted; internal quotation marks omitted.) Dockter v. Slowik, 91 Conn. App. 448, 463-64, 881 A.2d 479, cert. denied, 276 Conn. 919, 888 A.2d 87 (2005); see also Ghant v. Commissioner of Correction, 255 Conn. 1, 17, 761 A.2d 740 (2000); State v. Marsala, supra, 590; State v. Fagan, 92 Conn. App. 44, 51 n.4, 883 A.2d 8, cert. denied, 276 Conn. 924, 888 A.2d 91 (2005). Accordingly, we will not review the defendant’s unpreserved claim of instructional error.

II

The defendant next claims that the court improperly permitted a witness to express an opinion with regard to an ultimate issue in the case. We disagree.

The state presented testimony from Clayton Brown, a state police trooper who administered three different field sobriety tests to the defendant prior to his arrest. Brown testified that the defendant failed these tests and testified concerning his observations of the defendant at the time of the arrest. The state later presented testimony from Jack Richman, an optometrist with expertise in field sobriety testing, including the horizontal gaze nystagmus test. The prosecutor asked Richman the following question: “If a person exhibits six clues in the horizontal gaze nystagmus [test], exhibits two clues in the one legged stand [test] . . . and exhibits seven clues in the walk and turn test, has an odor of alcoholic beverage, slurred speech and glassy eyes, would you have an opinion on whether or not they are under the influence?” Arguing that the question was beyond Richman’s “area of expertise,” the defendant’s attorney objected to the question. The court, finding that Richman had “additional qualifications beyond the optometry field,” overruled the objection. Richman then opined that the individual described in the hypothetical question exhibited “signs of impairment.”

On appeal, the defendant argues that the court should have sustained his objection because the prosecutor’s inquiry improperly invited Richman to render an expert opinion as to one of the ultimate issues in the case, whether the defendant was under the influence of alcohol at the time of his arrest. The defendant argues: “[T]he field sobriety test scores and overall appearance of the operator, as stated in the prosecutor’s hypothetical, are precisely the test scores and overall appearance of the defendant as testified to by the police officer who administered the field sobriety tests.” The defendant also argues: “Richman’s response . . . [was] tantamount to an opinion on [his] guilt.”

The defendant did not preserve this evidentiary claim for our review. At trial, the defendant’s attorney objected on the distinct ground set forth previously, which is that the prosecutor’s hypothetical question called for a response that went beyond Richman’s area of expertise. “Appellate review of evidentiary rulings is ordinarily limited to the specific legal [ground] raised by the objection of trial counsel. . . . To permit a party to raise a different ground on appeal than [that] raised during trial would amount to trial by ambuscade, unfair both to the trial court and the opposing party.” (Internal quotation marks omitted.) State v. Stenner, 281 Conn. 742, 755, 917 A.2d 28 (2007); see also State v. Calabrese, 279 Conn. 393, 408 n.18, 902 A.2d 1044 (2006). The defendant does not assert that he is entitled to any extraordinary means of review of this unpreserved evi-dentiary claim, and we will not afford it review.

The judgment is affirmed.

       The jury found the defendant not guilty of failure to appear in the second degree in violation of General Statutes § 53a-173 (a) (1). The defendant also pleaded guilty to being a subsequent offender, as alleged in a part B information. In addition to imposing fines, the court sentenced the defendant to a total effective term of incarceration of two years and one day and one year of special parole.