author: GRUENDEL, J.

text:
    MEREDITH FINAN v. JOHN FINAN
    (AC 28319)
    Bishop, Graendel and Peters, Js.
    Argues February 15
    officially released April 29, 2008

      Charles D. Ray, for the appellant (plaintiff).

      Sperry A. DeCew, for the appellee (defendant).
   Opinion

GRUENDEL, J.

The plaintiff, Meredith Finan, appeals from the judgment of the trial court denying her post-judgment motion for contempt against the defendant, John Finan. She claims that the court improperly interpreted § 25-56 of our rules of practice to require a party to serve a request for production of documents no later than five business days before the scheduled hearing date. We agree with the plaintiff and, accordingly, reverse the judgment of the trial court.

The relevant facts largely are undisputed. The parties married on September 11, 1982. On March 11, 2005, the court dissolved their marriage, finding that it had broken down irretrievably without attributing fault to either party as to the cause. The corut entered various orders concerning property distribution, alimony, child support and other miscellaneous matters. In particular, the court ordered the defendant to pay to the plaintiff “unallocated alimony and child support in equal semimonthly installments on the first and fifteenth of each month, the annual sum of $95,000 based on his base salary of $225,000.” In addition, the court awarded the plaintiff 35 percent “of any cash bonus or deferred income awarded to the defendant as of the date of payment to him commencing with deferred income awarded to him for the year 2004. [The plaintiff] shall have the right to and be paid for the next six years, including 2004 and ending in the year 2009.”

On August 4, 2006, the plaintiff filed a motion for contempt against the defendant, alleging that “[w]hile the [defendant] has paid [35 percent] based on deferred compensation of $324,354.99, [he] has in addition received the sum of $280,190.00 of which $55,190.00 is in excess of the $225,000.00 base amount. Accordingly, the [defendant] is required to pay the [plaintiff] the sum of $19,316.15, which he has failed to pay to the [plaintiff].” In his objection to the motion for contempt, the defendant alleged that on January 1, 2006, his employment was terminated, and that, pursuant thereto, he received a severance payment of $172,595.64.

On October 25, 2006, five days prior to the scheduled hearing on the motion for contempt, the plaintiff served on the defendant a “request to produce at hearing.” That request stated: “Pursuant to Practice Book § 25-56 the [p]laintiff . . . requests that the [defendant] produce the following items at a [h] earing to be held on Monday, October 30, 2006, Superior Court, Stamford, Connecticut as follows: 1. Tax returns for 2005; 2. Evidence of all income received for 2005 and 2006 from employment and/or severance, stock options, deferred compensation, bonuses of any kind and any other income which evidence shall include but not be limited to 1099’s, W-2’s, statements regarding deferred compensation paid, statements regarding bonuses paid, statements regarding stock options exercised and any correspondence setting forth any income paid.” That same day, the plaintiff filed with the court an amended motion for contempt, which alleged that the defendant had both “failed to pay to the [plaintiff] the sum of $35,160.00” and failed to pay her “[35 percent] of income received from [his] new employment for the balance of 2006.”

The court held a hearing on the plaintiffs motion on October 30, 2006. During that hearing, the plaintiff maintained that she had served the request for production on counsel for the defendant five calendar days prior to the hearing, as required by Practice Book § 25-56. The court responded: “[Counsel for the defendant is] allowed to answer Thursday or Friday, and then he has to stay in his office Saturday and Sunday? I don’t think so. I don’t think that’s reasonable. Five days, I think, that’s to be business days or workdays.” It therefore concluded that the plaintiffs request was untimely.

The defendant testified at the hearing. He confirmed that he received a severance package from ABM-AMRO, his former employer, and estimated its amount to be $172,000. A pay statement from ABM-AMRO, introduced as exhibit six at the hearing, detailed the following items paid to the defendant in 2006:

Description: Earnings:
WCS Keep 1st Tranche Payment $173,241.67
WCS Keep 2nd Tranche Payment $151,413.32
US Regular Pay $ 9,375.00
WCS COBRA $ 12,276.00
US Severance Length of Serv $147,115.00
Mise (Int’D_ $123.700.00
Total $617,120.99

Under questioning from opposing counsel, the defendant was unable to reconcile his alleged $172,000 severance package with the specifics of that pay statement. When asked about the items described therein, the defendant testified: “I really don’t know what these . . . numbers are in front of me because I can’t remember. It’s too far long ago to remember what they were. I did receive a severance package, and I received some level of deferred comp[ensation].”

The plaintiff testified that she received payments from the defendant representing 35 percent of the “WCS Keep 1st Tranche Payment” and the “WCS Keep 2nd Tranche Payment.” At the same time, she testified that she had not received any payments from the defendant concerning the “US Regular Pay,” the “US Severance Length of Serv” or the “Mise (Int’l)” items. The plaintiff opined that, in her view, the judgment of dissolution required the defendant to pay her 35 percent of those payments. Conversely, the defendant maintained that the judgment of dissolution required the defendant only to pay the plaintiff 35 percent of any cash bonus or deferred income and argued that his severance package was neither. The court agreed with the defendant, stating that the judgment of dissolution lacked any ambiguity: “It’s very clear that it’s a cash bonus or deferred compensation. There’s nothing in here about a severance payment. There’s nothing in here about a miscellaneous international payment, and no articulation was sought. . . . [T]he court’s ruling ... is what it says. Severance is not a cash bonus. It’s not a deferred comp[ensation]. Miscellaneous with this international— whatever that is—we had no testimony from anybody from [ABM-AMRO] or from any other expert or accounting, and I have no idea what it is. It’s not bonus as far as I could tell; therefore, the court finds no contempt.” With that, the court denied the plaintiffs motion, and this appeal followed.

I

On appeal, the plaintiff contends that the court improperly interpreted Practice Book § 25-56 to require a party to serve a request for production of documents no later than five business days before the scheduled hearing date. That claim presents a question of statutory interpretation over which our review is plenary. See Connor v. Statewide Grievance Committee, 260 Conn. 435, 439, 797 A.2d 1081 (2002). As our Supreme Court has noted, the rules of statutory construction apply with equal force to our rules of practice. Thalheim v. Greenwich, 256 Conn. 628, 639, 775 A.2d 947 (2001). “When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. ... In seeking to determine that meaning, General Statutes § l-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.” (Internal quotation marks omitted.) Alvord Investment, LLC v. Zoning Board of Appeals, 282 Conn. 393, 401-402, 920 A.2d 1000 (2007). Moreover, “[i]n construing a statute, common sense must be used and courts must assume that a reasonable and rational result was intended.” (Internal quotation marks omitted.) Connor v. Statewide Grievance Committee, supra, 439.

Section 25-56 is titled “Production of Documents at Hearing or Trial.” It provides in relevant part that “[a]t the trial management conference prior to the commencement of an evidentiary hearing or trial, but in no event later than five days before the scheduled hearing date, either party may serve on the other a request for production of documents and tangible things, in a manner consistent with Sections 13-9 through 13-11. Service may be made in the same manner as a subpoena or consistent with Sections 10-12 through 10-14. . . .” (Emphasis added.) In concluding that the plaintiffs request for production was untimely, the court interpreted that rule to require a party to serve a request for production of documents no later than five business days before the scheduled hearing date.

Our interpretation of § 25-56 begins by ascertaining whether it has a plain meaning. The salient provision at issue is the requirement that a party serve on the other a request for production of documents and tangible things “in no event later than five days before the scheduled hearing date . . . .” Practice Book § 25-56 (a). Significantly, § 25-56 makes no reference to business days. By contrast, when our rules of practice measure an applicable time period in business days, they explicitly so provide. See, e.g., Practice Book § 17-53 (“[t]he execution shall issue on the third business day after the filing of the affidavit”); Practice Book § 22-1 (a) (“[t]he chair of the [employment security board of review] shall, within the third business day after such filing, cause the original petition or petitions to be mailed to the clerk of the superior court”); Practice Book § 30-5 (b) (“[a] hearing to determine probable cause and the need for further [child] detention shall be held no later than the next business day following the arrest”); Practice Book § 77-1 (a) (“[t]he appellate court shall hold an expedited hearing on any petition for review on the fifth business day next following the day upon which the certificate of completion provided for by Section 63-8 [c] has been filed with the appellate clerk”). Section 25-56 plainly does not concern business days. Instead, it permits a party to serve a request for production no later than five days before the date of the scheduled hearing. Neither the court in its signed transcript of its oral decision nor the defendant in this appeal has offered any authority to the contrary in support of the court’s interpretation of § 25-56.

To accept the court’s interpretation would wreak havoc on our rules of practice. For example, Practice Book § 10-8 requires in relevant part: “Commencing on the return day of the writ, summons and complaint in civil actions, pleadings . . . shall first advance within thirty days from the return day, and any subsequent pleadings . . . shall advance at least one step within each successive period of fifteen days from the preceding pleading . . . .” Practice Book § 3-2 (a) generally requires that “an appearance for a party in a civil or family case should be filed on or before the second day following the return day. . . .” Practice Book § 10-30 requires that “[a]ny defendant, wishing to contest the court’s jurisdiction, may do so even after having entered a general appearance, but must do so by filing a motion to dismiss within thirty days of the filing of an appearance. . . .” Like Practice Book § 25-56, those rules do not mention business days. Yet those time periods are measured by calendar days, rather than business days. That practice is irreconcilable with the logic of the trial court in the present case.

In addition, the court’s interpretation is inconsistent with the mandate of Practice Book § 7-17 that “[i]f the last day for filing any matter in the clerk’s office falls on a day on which such office is not open as thus provided or is closed pursuant to authorization by the administrative judge in consultation with the chief court administrator or the chief court administrator due to the existence of special circumstances, then the last day for filing shall be the next business day upon which such office is open. . . .” “It is a basic tenet of statutory construction that the legislature did not intend to enact meaningless provisions. . . . [I]n construing statutes, we presume that there is a purpose behind every sentence, clause, or phrase used in an act and that no part of a statute is superfluous.” (Internal quotation marks omitted.) Sears, Roebuck & Co. v. Board of Tax Review, 241 Conn. 749, 765, 699 A.2d 81 (1997). Put simply, if only business days are operable for rules containing specific time periods, such as Practice Book § 25-56, then that provision of Practice Book § 7-17 is unnecessary and without meaning.

The plaintiff calls our attention to Small v. South Norwalk Savings Bank, 205 Conn. 751, 535 A.2d 1292 (1988), in which our Supreme Court considered a construction similar to that advanced by the trial court in the present case. Following a jury verdict in favor of the plaintiff, the defendant in Small filed motions to set aside the verdict and for a new trial. Under Practice Book, 1988, §§ 320 and 321, now Practice Book §§ 16-35 and 16-37, respectively, such motions were required to “be filed with the clerk within five days after the day the verdict is accepted or judgment rendered, exclusive of such days as the clerk’s office is not open . . . .” In its memorandum of decision, the trial court in Small noted that “the motions had been filed six days after the verdict but that a Saturday and Sunday had intervened. Since the clerk’s office had not been open either of those days, [the court determined that] they had to be excluded and the motions had been timely filed.” Small v. South Norwalk Savings Bank, supra, 756-57. On appeal, our Supreme Court concluded otherwise. It explained: “If the trial court were correct, the five day period in [Practice Book] § 320 would always be seven days. This is not the law in Connecticut.” Small v. South Norwalk Savings Bank, supra, 757. Although it acknowledged “the common law rule that if the last day for performance of certain acts falls on a Sunday or a legal holiday, the doing of that act on the following day would be timely,” the court emphasized that “ [intervening nonterminal days in which the clerk’s office is not open are immaterial.” (Citation omitted; internal quotation marks omitted.) Id., 757-58. That precedent informs our interpretation of Practice Book § 25-56 and further persuades us that, contrary to the conclusion of the trial court, § 25-56 does not require service of a request for production no later than five business days before the scheduled hearing date.

We also note that, in this appeal, the defendant has taken no position as to the propriety of the court’s interpretation of Practice Book § 25-56. His silence on this issue is telling. Instead, the defendant merely argues that the plaintiffs request for production lacked the requisite certification under Practice Book § 10-13. The defendant concedes that the plaintiff mailed that request to him on October 25, 2006. Because that request also was served via facsimile on that date, he argues for the first time on appeal that “there was no verification of proper electronic service [so] there can be no extended, esoteric discussion over business days or intervening days, including weekends.” We decline to address the merits of that unpreserved claim. It is well established that “[w]e will not decide an appeal on an issue that was not raised before the trial court. ... To review claims articulated for the first time on appeal and not raised before the trial court would be nothing more than a trial by ambuscade of the trial judge.” (Internal quotation marks omitted.) Histen v. Histen, 98 Conn. App. 729, 737, 911 A.2d 348 (2006). For that reason, Connecticut appellate courts are not bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. Practice Book § 60-5. The defendant’s failure to present this claim to the trial court is fatal on appeal.

We conclude that, by its plain language, § 25-56 of our rules of practice requires a party to serve on the other party a request for production of documents no later than five days before the date of the scheduled hearing. Because the plaintiff complied with that requirement, her request for production was timely, and the court improperly concluded otherwise.

II

That determination does not end our inquiry. The question remains as to whether the plaintiff was harmed by the court’s determination that her request for production was untimely. “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. . . . In the absence of a showing that the [excluded] evidence would have affected the final result, its exclusion is harmless.” (Internal quotation marks omitted.) Kalams v. Giachetto, 268 Conn. 244, 249-50, 842 A.2d 1100 (2004). We conclude that the plaintiff has established such harm.

Two statements in particular persuade us that the court’s determination that the request for production was untimely affected the final result. First, when questioned as to the specific compensation described in his pay statement from his former employer, the defendant testified that “I really don’t know what these . . . numbers are in front of me because I can’t remember. It’s too far long ago to remember what they were.” Second, in ruling on the plaintiffs motion for contempt, the court addressed the $123,700 “Mise (Int’l)” payment to the defendant as follows: “Miscellaneous with this international—whatever that is—we had no testimony from anybody from [ABM-AMRO] or from any other expert or accounting, and I have no idea what it is.”

The plaintiffs request for production sought, inter alia, “[e]vidence of all income received for 2005 and 2006 from employment and/or severance, stock options, deferred compensation, bonuses of any kind and any other income which evidence shall include but not be limited to 1099’s, W-2’s, statements regarding deferred compensation paid, statements regarding bonuses paid, statements regarding stock options exercised and any correspondence setting forth any income paid.” Had the defendant complied with that request, the plaintiff may well have demonstrated whether certain items in the defendant’s pay statement, such as the $147,115 “US Severance Length of Serv” payment or the $123,700 “Mise (Int’l)” payment, were either bonuses or deferred compensation, as she maintained. That the court admitted that it had “no idea” what the $123,700 “Mise (Inf 1)” payment was and complained that it had no evidence or accounting on the matter confirms that, like the plaintiff, it required additional information to comprehend fully the defendant’s pay statement and to consider completely the plaintiffs motion. By excusing production of the requested documentation, the court impaired the plaintiffs ability to effectively challenge the defendant’s testimony concerning the various payments he received from his former employer. Under those circumstances, we cannot say that the court’s improper interpretation of Practice Book § 25-56 was harmless. It likely affected the result of the plaintiffs motion for contempt. As such, the plaintiff is entitled to production of the requested documentation and a new hearing on her motion for contempt.

The judgment is reversed and the case is remanded for further proceedings in accordance with law.

In this opinion the other judges concurred.

      At the time of dissolution, the parties had two minor children.

       The plaintiff appealed from that judgment of dissolution to this court, which vacated the judgment with respect to the parties’ filing of a joint income tax return for 2004 and affirmed the judgment in all other respects. Finan v. Finan, 100 Conn. App. 297, 313, 918 A.2d 910, cert. granted, 282 Conn. 926, 926 A.2d 666 (2007). Our Supreme Court subsequently granted the plaintiffs petition for certification for appeal, which presently is pending. Finan v. Finan, 282 Conn. 926, 926 A.2d 666 (2007).

       The pay statement indicates a “pay end date” of April 15, 2006. The defendant’s October 30, 2006 testimony came less than seven months later.

       Whether the court properly concluded that the dissolution order awarding the plaintiff “35 percent of any cash bonus or deferred income awarded to the defendant as of the date of payment to him commencing with deferred income awarded to him for the year 2004” through 2009 concerned only cash bonuses or deferred income and did not encompass severance payments is not at issue in this appeal. We therefore express no opinion as to the propriety of that determination.

       Practice Book § 10-13 provides: “Service upon the attorney or upon a pro se party, except service pursuant to Section 10-12 (c), may be by delivering a copy or by mailing it to the last known address of the attorney or party. Delivery of a copy within this section means handing it to the attorney or to the party; or leaving it at the attorney’s office with a person in charge thereof; or, if there is no one in charge, leaving it in a conspicuous place therein; or, if the office is closed or the person to be served has no office, leaving it at the usual place of abode. Delivery of a copy within this rule, if the filing was made electronically in accordance with Section 4-4, may also mean electronic delivery to the last known electronic address of the attorney or party, provided that electronic delivery was consented to in writing by the person served. Service by mail is complete upon mailing. Service by electronic delivery is complete upon sending the electronic notice unless the party making service learns that the attempted service did not reach the electronic address of the person to be served. Service pursuant to Section 10-12 (c) shall be made in the same manner as an original writ and complaint is served or as ordered by the judicial authority.”

       Although he did not phrase his argument in his appellate brief in terms of harm, the defendant argues that “[fjhis case is hardly one which can turn on whether the defendant produced documentation.”


source: Caselaw Access Project

author: ROBINSON, J.

license: Public Domain

text:
    KOTTAYAM NATARAJAN v. BARBARA NATARAJAN
    (AC 28243)
    Flynn, C. J., and Beach and Robinson, Js.

      Argued February 5
    officially released April 29, 2008

      Jodi Zils Gagne, for the appellant (defendant).

      Steven R. Dembo, with whom, on the brief, was P. Jo Anne Burgh, for the appellee (plaintiff).
   Opinion

ROBINSON, J.

The defendant, Barbara Natarajan, appeals from the judgment of the trial court dissolving her marriage to the plaintiff, Kottayam Natarajan. On appeal, the defendant claims that the court improperly (1) admitted into evidence witness testimony and exhibits that were not disclosed to her prior to trial, and (2) distributed the parties’ assets. We disagree and affirm the judgment of the trial court.

The court found the following facts. The plaintiff and the defendant were married on May 3, 1980, in Glastonbury. They have one adult child from this marriage, and the plaintiff has three children from a previous marriage, all of whom have reached the age of majority. The plaintiff is seventy-three years old and retired after a lengthy career as a college professor. The defendant is fifty-four years old and ceased all employment at the age of forty-nine, when the plaintiff retired from his professorship. She has a master’s degree in business administration from the University of Hartford and had passed the chartered property casualty underwriting examination. The plaintiff and the defendant both were responsible for the breakdown of their marriage, which was caused by significant age and cultural differences. Accordingly, the court entered a decree dissolving the marriage.

The court stated that it had considered all of the criteria set forth in General Statutes §§ 46b-62, 46b-81 and 46b-82 and other pertinent statutes, retirement income and earning capacity, causes for the breakdown of the marriage and the consequences of the financial orders set forth. The court ordered that (1) the defendant retain sole ownership of the marital home and of her vehicle, (2) the plaintiff retain sole ownership of his interest in the home located in Pearland, Texas, and of his vehicle, (3) the plaintiff and the defendant transfer assets held for their daughter to her within thirty days of the dissolution, (4) the remaining assets be divided equally with each party receiving equal or near equal ownership interest, (5) the plaintiff and the defendant be responsible for his or her own outstanding debts, loans and mortgages, (6) the plaintiff pay the defendant $200 per month toward the cost of her health insurance for six months following the date of dissolution and determine whether COBRA is available to her through his former employer, (7) the defendant be solely responsible for the purchase of her health insurance after the six month period and (8) the defendant “not contact [the plaintiff], his counsel (including all members of [counsel’s] law firm) and expert witnesses for any reason other than to effectuate the orders that [the] court enters as a final judgment.” Specifically, the court ordered the defendant to communicate by e-mail only and in a courteous manner. This appeal followed. Additional facts and procedural history will be set forth as necessary.

First, we set forth the legal principles that guide our review of the defendant’s claims. “The standard of review in family matters is that this court will not disturb the trial court’s orders unless it has abused its legal discretion or its findings have no reasonable basis in fact. ... It is within the province of the trial court to find facts and draw proper inferences from the evidence presented. . . . [W]here the factual basis of the court’s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, these facts are clearly erroneous.” (Internal quotation marks omitted.) Guarascio v. Guarascio, 105 Conn. App. 418, 421, 937 A.2d 1267 (2008).

I

The defendant first claims that the court improperly admitted into evidence exhibits that were not disclosed to her prior to trial. Specifically, she argues that the plaintiff failed to disclose (1) that Carol Ann Gaetano, an administrative assistant to the defendant’s former counsel, would testify at trial and (2) the summary of the parties’ assets prepared by Pamela J. Williams, a certified public accountant and fraud examiner. She further argues that the court’s admission of that evidence caused unfair surprise and disadvantaged her as a pro se litigant. After a scrupulous review of the trial transcripts, we conclude that the court did not abuse its discretion in admitting Gaetano’s testimony or Williams’ summary of the parties’ financial records.

The following additional facts and procedural history are relevant to our resolution of the defendant’s claim. The plaintiff commenced this divorce action on April 5, 2005. The matter was pretried through the family relations division of the Superior Court and through private mediation, and was scheduled for adjudication as an uncontested divorce on January 9 and 10, 2006. At the defendant’s request, the matter was continued and rescheduled for March 22 and 24, 2006, then for June 20 and 21, 2006, July 19 and 20, 2006, and finally, July 31, 2006. At the hearing on July 31, 2006, the defendant did not accept one of the terms of the agreement that was put forth before the court. As a result, the court determined that “this [was] the last time this matter [was] going to come before the [c]ourt under either the anticipated agreement or for purposes of negotiation” and ordered that the matter be scheduled for trial. During the hearing, the defendant’s counsel, Robert Walsh, notified the court of his intent to move for withdrawal from the case. On August 11,2006, after a hearing, the court granted Walsh’s motion to withdraw. The court then set October 10, 2006, for trial and reminded both parties that there would be no further continuances. The defendant proceeded pro se at trial and did not retain counsel until this appeal.

At the start of the trial on October 10, 2006, the plaintiff and his attorney, Steven R. Dembo, appeared in court, but the defendant did not appear. In response to the court’s concern that the defendant had not received notice of the trial date, the plaintiff offered the testimony of Gaetano, the administrative assistant to Walsh, to show that the defendant had been notified of the court date. Gaetano testified that the plaintiff had subpoenaed Walsh to testify at the hearing, but because Walsh was on vacation, she would “substitute for him.” Gaetano also testified that the defendant had been notified by mail, by e-mail and by telephone of the trial date. At this point, the defendant entered the courtroom and informed the court that she had been “waiting for family relations” and that she wanted to present a settlement agreement.

After the plaintiff informed the court that he had no interest in settlement, Gaetano resumed her testimony. Gaetano’s testimony was offered to show that subsequent to his withdrawal, Walsh had transferred to the defendant her entire file, documents and exhibits. The defendant objected to the testimony, stating that she had not been given notice that Gaetano would testify and argued that Gaetano should not be permitted to testify because of the attorney-client privilege. The court assured the defendant that it was “not going to let [Gaetano] testify as to any advice and opinions . . . .” Gaetano’s testimony during both direct and cross-examination was that Walsh’s office had given the defendant all of the documents in his possession, including all discovery and trial documents provided by the plaintiffs counsel, with the exception of the transcripts from the July 31, 2006 hearing because the defendant had not paid for them.

The plaintiff next presented the testimony of Williams, a certified public accountant and fraud examiner. Williams testified that she had reviewed the parties’ financial records, approximately thirty to thirty-five inches thick, from ten or twelve financial institutions. From these financial records, Williams prepared a comprehensive summary of the parties’ assets. The plaintiff offered the summary into evidence under § 10-5 of the Connecticut Code of Evidence. The defendant objected on the ground that she had not seen the document. In response, the plaintiff noted that the defendant had possession of the underlying financial records. The court admitted the document into evidence but ordered the plaintiff to make the summary available to the defendant for two hours in the afternoon to give her an opportunity to compare the summary to the original documents. The plaintiff proceeded with his examination of Williams. When the court adjourned that day at 1 p.m., the following colloquy occurred:

“[The Plaintiffs Counsel]: We’re going to stay here from two to four with the documents open—
“The Court: Right.
“[The Plaintiffs Counsel]:—and I’m actually going to have . . . Williams stay here as well to accommodate any questions ....
“The Court: Do you understand? So, you’ll get extra time this afternoon ... to look over any background documents, even the ones you’ve given them. So, it’s assumed you know what’s in them; and then you can, after that time, go over your potential questions for this witness, and we’ll start with your questions to her tomorrow morning.”

The trial continued on the morning of October 12, 2006. The defendant began by renewing her objection to Gaetano’s testimony. She stated that because she was not aware of Gaetano’s appearing as a witness, she was unable to offer any evidence that Walsh’s office had not given her certain documents. The court noted that the defendant had sufficient time to cross-examine Gaetano the previous day. The court also informed the defendant that Gaetano’s testimony was “only for the purpose of letting [the court] know that [the defendant] received the materials back with respect to her firm’s prior representation of [her].” When the defendant continued to insist that she was not provided with all the documents, the court concluded: “[I]t’s my determination that you had [received all the documents]; that [Gaetano] was credible that you have the documents that you need. I listened to you; I listened to her. I determined she was more believable.”

The defendant then informed the court that she was unable to review completely the summary and the underlying financial records in the two hours provided to her the previous day. The defendant stated that she reviewed one and one-half pages in the time allotted. Again, she argued that she had not been provided these documents prior to trial. In response, the plaintiffs counsel again insisted that he had given the defendant all documents and exhibits in preparation for mediation and before each previously scheduled hearing date, that the defendant herself had access to most of the financial records because most of the accounts were held jointly, and that, as Gaetano had testified, before Walsh withdrew as the defendant’s attorney, Walsh had given the defendant those documents. After much argument from both parties, the court informed the defendant that it provided her two hours the previous day to review and to compare the summary of the underlying documents to determine which of the information from the summary she had not seen prior to trial. The court further informed the defendant that the time given was not for her to prepare for the trial by examining all of the underlying documents, which the court had determined that she already had in her possession. The court then stated that there would be no more time given for the defendant to review the exhibits. The defendant then began a lengthy cross-examination of Williams.

As a preliminary matter, we set forth the applicable standard of review. “Unless an evidentiary ruling involves a clear misconception of the law, [t]he trial court has broad discretion in ruling on the admissibility ... of evidence. . . . The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . We will make every reasonable presumption in favor of upholding the trial court’s ruling . . . .” (Internal quotation marks omitted.) State v. Kelly, 106 Conn. App. 414, 421, 942 A.2d 440 (2008).

A

With respect to Gaetano’s testimony, the defendant seems to argue that the court should not have admitted the testimony because (1) Gaetano was not disclosed as a witness prior to trial and (2) assuming that Gaetano was testifying on behalf of Walsh, who was disclosed as a witness on October 5, 2006, that disclosure did not comply with the standing trial management orders that required the parties to disclose witnesses one week prior to the trial on October 10, 2006. We emphasize that we will overturn the trial court’s rulings on evidentiary matters only on a showing of clear abuse of discretion. Here, because the defendant was tardy on the first day of trial and because she continually claimed that she had not received the documents and exhibits from Walsh, Gaetano’s testimony in her capacity as Walsh’s administrative assistant was necessary for the purpose of determining whether and how the defendant received notice of the trial date and whether she had received from her prior counsel the documents necessary for trial. Therefore, the court properly admitted the testimony for that limited purpose. Accordingly, we are not persuaded by the defendant’s contention that Gaetano’s testimony resulted in unfair surprise or prejudice. See Arnone v. Enfield, 79 Conn. App. 501, 529, 831 A.2d 260 (“because [the witness], a very knowledgeable witness on the issue of standardized reporting procedures, testified in the capacity of a fact witness, the court’s admission of his testimony, despite the plaintiffs failure to disclose him . . . was not improper”), cert. denied, 266 Conn. 932, 837 A.2d 804 (2003).

B

With respect to the summary prepared by Williams, the defendant argues that (1) she had not received from Walsh and from the plaintiff all of the financial records that were admitted into evidence, (2) even if she had the documents, she could not have prepared for trial because she did not know which of those financial records would be relied on by the plaintiff, and (3) she had never seen the summary prepared by Williams and therefore could not rebut Williams’ testimony or create a valid defense. We are not persuaded by the defendant’s arguments.

After reviewing the record, we conclude that the court did not abuse its discretion in crediting Gaetano’s testimony that the defendant had received all the underlying documents. It is within the trial court’s exclusive province to weigh the evidence presented and to determine the credibility of witnesses. See Barber v. Skip Barber Racing School, LLC, 106 Conn. App. 59, 69, 940 A.2d 878 (2008). Furthermore, the plaintiff had provided the list of exhibits that he intended to introduce at trial. On June 16, 2006, the plaintiff provided a list of twenty exhibits, and on October 5, 2006, he provided a list of twenty-one exhibits to be offered at trial. Both lists included Williams’ summary, which was attached to the plaintiffs March 1, 2006 disclosure of expert witnesses and then updated in the May 8,2006 amended disclosure of expert witnesses. More importantly, we further conclude that the admission of Williams’ summary into evidence comports with § 10-5 of the rules of evidence, which permits the contents of admissible, voluminous documents to be admitted in the form of a summary, provided that the originals or copies are available to the other party for examination or copying at a reasonable time and place. The court gave the defendant two hours to review Williams’ summary and to compare that summary to the underlying financial records. Accordingly, we conclude that the admission of Williams’ summary did not constitute an abuse of discretion.

II

The defendant next claims that the court improperly distributed the parties’ assets. She argues that the court should not have relied solely on the appraisals provided by the plaintiff to determine the value of the marital home in East Haven and the plaintiffs home in Texas. Because these properties were not valued properly, the defendant argues that the remaining assets were not equitably distributed under § 46b-81 (c). We disagree.

The following facts and procedural history are relevant to our resolution of the defendant’s claim. On May 4 and 5, 2006, the plaintiff appended to his disclosure of expert witnesses the appraisals of the marital home in East Haven and the plaintiffs home in Texas, respectively. At trial on October 10, 2006, when the plaintiff offered the appraisals as evidence, the defendant did not object. Furthermore, she did not provide the court with alternative appraisals for the properties in question.

“The distribution of assets in a dissolution action is governed by ... § 46b-81, which provides in pertinent part that a trial court may assign to either the husband or the wife all or any part of the estate of the other. ... In fixing the nature and value of the property, if any, to be assigned, the court, after hearing the witnesses, if any, of each party . . . shall consider the length of the marriage, the causes for the . . . dissolution of the marriage . . . the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income. The court shall also consider the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates. . . . This approach to property division is commonly referred to as an all-property equitable distribution scheme.” (Internal quotation marks omitted.) Ranfone v. Ranfone, 103 Conn. App. 243, 246, 928 A.2d 575, cert. denied, 284 Conn. 940, 937 A.2d 698 (2007).

As has been repeatedly stated by our Supreme Court, “judicial review of a trial court’s exercise of its broad discretion in domestic relations cases is limited to the questions of whether the [trial] court correctly applied the law and could reasonably have concluded as it did. . . . With respect to the financial awards in a dissolution action, great weight is given to the judgment of the trial court because of its opportunity to observe the parties and the evidence. . . . Moreover, the power to act equitably is the keystone to the court’s ability to fashion relief in the infinite variety of circumstances which arise out of the dissolution of a marriage.” (Citations omitted; internal quotation marks omitted.) Holley v. Holley, 194 Conn. 25, 29, 478 A.2d 1000 (1984).

The memorandum of decision indicates that the court properly considered the criteria required by § 46b-81. In its memorandum of decision, the court determined that “[t]he assets listed on [the defendant’s] financial affidavits are incomplete and misleading. . . . The marital assets listed by [the plaintiff] appear complete and credible.” Before setting forth the division of assets, the court stated that it “has considered all the criteria of General Statutes §§ 46b-62, 46b-81 and 46b-82 and other pertinent statutes, retirement income and earning capacity, causes for the breakdown of the marriage and consequences of the financial orders set forth . . . . These considerations are all in light of the evidence presented at trial.” The defendant has cited nothing in the record that demonstrates that the court abused its discretion in distributing the parties’ assets. After reviewing the court’s memorandum of decision in which it took into consideration all of the statutory criteria, we conclude that the court’s distribution was not an abuse of discretion.

The judgment is affirmed.

In this opinion the other judges concurred.

       See the Consolidated Omnibus Budget Reconciliation Act of 1985, 29 U.S.C. §§ 1161-68.

       The court noted for the record: “My staff has spent the last fifteen or twenty minutes canvassing the hallways for the defendant ... to no avail. We have been unable to find her.”

       Connecticut Code of Evidence § 10-5 provides: “The contents of voluminous writings, recordings or photographs, otherwise admissible, that cannot be conveniently examined in court, may be admitted in the form of a chart, summary or calculation, provided that the originals or copies are available for examination or copying, or both, by other parties at a reasonable time and place.”

       The New Haven judicial district family standing orders provide in relevant part: “One week prior to the assigned trial date, counsel and pro se parties ... are ordered to submit to the trial judge ... [a] list setting forth the names and addresses of each witness to be called at trial . . . .”

       The defendant also claims that she was disadvantaged with respect to the ability to cross-examine the witnesses and to rebut the evidence because she elected to conduct the trial as a pro se litigant. We note that “[wjhere a party appears pro se, as he has every right to do, his rights and claim should receive the same consideration as if he had been represented by an attorney. . . . Although we are lenient to parties who represent themselves, such leniency should not be invoked as to affect adversely the other parties’ rights [and] we will not wholly disregard our rules of practice, adherence to which is necessary in order that the parties may know their rights and in order that the real issues in controversy may be presented and determined.” (Citations omitted; internal quotation marks omitted.) Lo Sacco v. Young, 20 Conn. App. 6, 12, 564 A.2d 610, cert. denied, 213 Conn. 808, 568 A.2d 793 (1989). Indeed, “[w]hile a judge trying a case in which one party is acting pro se must be careful, as always, to preserve the fairness of the trial, the adversary system is not suspended, and the judge cannot become the adviser or tactician for the pro se party.” (Internal quotation marks omitted.) McGuire v. McGuire, 102 Conn. App. 79, 85, 924 A.2d 886 (2007). In the present case, although the trial transcripts reveal the defendant’s frustrations with the rules of practice and courtroom decorum, they also indicate that the court conducted the trial in a fair manner in order to protect the rights of both parties.

       General Statutes § 46b-81 (c) provides: “In fixing the nature and value of the property, if any, to be assigned, the court, after hearing the witnesses, if any, of each party, except as provided in subsection (a) of section 46b-51, shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income. The court shall also consider the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates.”

       We also note that the defendant has failed to show that she had been prejudiced by the court’s evidentiary rulings or harmed by the use of the appraisals. See Embalmers’Supply Co. v. Giannitti, 103 Conn. App. 20, 58, 929 A.2d 729 (evidentiary rulings overturned on appeal only when there was abuse of discretion and showing by defendant of substantial prejudice or iqjustice), cert. denied, 284 Conn. 931, 934 A.2d 246 (2007); see also Holley v. Holley, supra, 194 Conn. 29 (“[w]ith respect to the financial awards in a dissolution action, great weight is given to the judgment of the trial court because of its opportunity to observe the parties and the evidence” [internal quotation marks omitted]).

       Although it is not clear from her brief, the defendant appears to argue, in part, that the court improperly admitted the appraisals into evidence. We simply note that the defendant failed to raise an objection to the introduction into evidence of the appraisals. It is well established that “[i]n order to preserve an evidentiary ruling for review, trial counsel must object properly. ” (Internal quotation marks omitted.) Lambert v. Donahue, 78 Conn. App. 493, 501, 827 A.2d 729 (2003). “Generally, claims neither addressed nor decided by the trial court are not properly before an appellate tribunal.” MBNA America Bank, N.A. v. Bailey, 104 Conn. App. 457, 468, 934 A.2d 316 (2007). Thus, to the extent that the defendant argues that the appraisals improperly were admitted into evidence, we decline to review this argument.


author: MIHALAKOS, J.

text:
    IN RE COBY C.

    (AC 28530)
    McLachlan, Lavine and Mihalakos, Js.
    Argued December 3, 2007
    officially released April 29, 2008

      Michael F. Miller, for the appellant (respondent mother).

      Joaquin L. Madry, assistant attorney general, with whom were Susan T. Pearlman, assistant attorney general, and, on the brief, Richard Blumenthal, attorney general, for the appellee (petitioner).

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

   Opinion

MIHALAKOS, J.

The respondent mother appeals from the judgment of the trial court terminating her parental rights with respect to her minor child, Coby. On appeal, the respondent claims that (1) the court improperly concluded that the petitioner, the commissioner of children and families (commissioner), proved by clear and convincing evidence that she failed to achieve sufficient personal rehabilitation to allow her to assume a responsible position in her child’s life and (2) the court’s written findings on whether termination of her parental rights was in the child’s best interest were legally insufficient to satisfy the requirements of General Statutes § 17a-112 (k). We affirm the judgment of the trial court.

The relevant facts are as follows. The respondent was bom on August 14, 1982, to parents who fought often. The respondent’s parents married when she was two years old and divorced when she was four years old. After her parents divorced, she lived with her mother and did not see her father again for about eleven years. The respondent’s mother was very strict with her, which caused the respondent to become defiant. At age fifteen, she was admitted to Pond House, a partial hospitalization program for children at Lawrence and Memorial Hospital in New London. She was discharged shortly thereafter due to her mother’s refusal to visit with her and cooperate in a family therapy program. Before her discharge, the respondent was diagnosed with bipolar disorder and was prescribed medication. After her discharge, the respondent was sent by her mother to live with her father in Florida. While in Florida, she became pregnant with Coby. The respondent reported to employees of the department of children and families (department) that she was unaware she was pregnant until twenty-one weeks into the pregnancy. Coby was bom prematurely at twenty-eight weeks and stayed in a hospital for sixty-two days. The hospital made a referral concerning the respondent and Coby to Florida child protection services because of the respondent’s young age and her limited parenting skills.

The respondent and Coby moved to Connecticut in August, 2000, and lived with the respondent’s maternal grandparents for about thirteen months, after which the respondent obtained her own apartment. Shortly thereafter, the respondent met Michael H., and they married on November 11, 2001. In June, 2002, Michael H. ended their relationship and moved out. During a September, 2006 evaluation with Community Health Center, the respondent disclosed that Michael H. had been physically abusive toward her during their relationship.

In October, 2002, the department received a referral concerning the respondent and Coby from the New London housing authority. The referral indicated, among other things, that an inspection of the respondent’s residence revealed that the premises were filthy and that numerous exotic and domestic pets were being sheltered in the home. The housing authority also reported that the family was being evicted for nonpayment of rent and serious unsanitary conditions in the home. The housing authority informed the department that there were dead animals and animal feces in the apartment, including animal feces near the crib.

The department investigated and substantiated the claims of physical neglect against the respondent. The respondent told the department that the conditions of the home were not a priority to her. Continued visits to the home by the department showed no improvement in the conditions. Specifically, on November 8 and 25, 2002, the department visited the home and found a foul order emanating from the apartment and garbage covering the apartment floor. It found Coby to be filthy and wearing a diaper that had not been changed for a substantial period of time. The respondent thereafter refused to cooperate with the department’s home visits or to remain in contact with the department.

On December 16, 2002, a visit to the respondent’s residence by the department and the Groton police department revealed deplorable conditions, which rendered the premises unsanitary and unsafe for Coby. In particular, there were dog feces on the floor near the crib as well as in other locations throughout the home, cigarette butts within Coby’s reach, insufficient food in the home to make a meal and an open jar of peanut butter into which Coby had been sticking his hand and eating while the department was visiting the home. As a result of this visit, the commissioner executed a ninety-six hour hold on Coby. See General Statutes § 17a-101g.

On December 19, 2002, the commissioner filed a neglect petition and a motion for an order of temporary custody due to inadequate shelter, deplorable home conditions and lack of appropriate supervision for Coby. On January 3, 2003, the motion was granted by the court on a finding that Coby was in immediate danger in his surroundings and that removal was necessary to ensure his safety. On April 23, 2003, the court adjudicated Coby neglected and committed him to the care and custody of the commissioner until further order from the court. At that time, the court found that the department had made reasonable efforts to prevent or eliminate the need to remove Coby from his home and further issued specific steps for the respondent to complete in order to facilitate the return of Coby to her. The court also ordered psychological and interactional evaluations of the respondent.

On January 21,2005, the commissioner filed a petition for termination of parental rights. The petition alleged among other things that (1) the department had made reasonable efforts to reunify the child with the respondent and (2) the respondent was unable or unwilling to benefit from reunification efforts. A contested hearing was held, and, on January 17,2007, the court granted the commissioner’s petition and terminated the respondent’s parental rights on the grounds alleged in the petition. It is from this judgment that the respondent appeals.

I

The respondent’s first claim is that the court improperly found that the commissioner proved by clear and convincing evidence that she had failed to achieve the degree of rehabilitation required to avoid a termination of her parental rights. Specifically, the respondent claims that substantial compliance with four specific steps ordered by the court and her full compliance with twelve other specific steps demonstrates that she achieved sufficient personal rehabilitation to allow her to assume a responsible position in her son’s life.1 ** We disagree.

“A hearing on a petition to terminate parental rights consists of two phases, adjudication and disposition. ... In the adjudicatoiy phase, the trial court determines whether one of the statutoiy grounds for termination of parental rights [under § 17a-112 (j)] exists by clear and convincing evidence. If the trial court determines that a statutory ground for termination exists, it proceeds to the dispositional phase. In the dispositional phase, the trial court determines whether termination is in the best interests of the child.” (Citation omitted; internal quotation marks omitted.) In re Sheena I., 63 Conn. App. 713, 720-21, 778 A.2d 997 (2001).

“On appeal, our function is to determine whether the trial court’s conclusion was legally correct and factually supported. . . . We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached . . . nor do we retry the case or pass upon the credibility of the witnesses. . . . Rather, on review by this court every reasonable presumption is made in favor of the trial court’s ruling.” (Citations omitted; internal quotation marks omitted.) In re Gary B., 66 Conn. App. 286, 289, 784 A.2d 412 (2001). “A determination by the trial court . . . that the evidence is clear and convincing that the parent has not rehabilitated herself will be disturbed only if that finding is not supported by the evidence and [is], in light of the evidence in the whole record, clearly erroneous.” (Internal quotation marks omitted.) In re Felicia D., 35 Conn. App. 490, 500, 646 A.2d 862, cert. denied, 231 Conn. 931, 649 A.2d 253 (1994).

“Clear and convincing proof is a demanding standard denotfing] a degree of belief that lies between the belief that is required to find the truth or existence of the [fact in issue] in an ordinary civil action and the belief that is required to find guilt in a criminal prosecution. . . . [The burden] is sustained if evidence induces in the mind of the trier a reasonable belief that the facts asserted are highly probably true, that the probability that they are true or exist is substantially greater than the probability that they are false or do not exist.” (Internal quotation marks omitted.) Chernick v. Johnston, 100 Conn. App. 276, 280, 917 A.2d 1042, cert. denied, 282 Conn. 919, 925 A.2d 1101 (2007).

“A finding is clearly erroneous 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. In applying the clearly erroneous standard to the findings of a trial court, we keep constantly in mind that our function is not to decide factual issues de novo. Our authority, when reviewing the findings of a judge, is circumscribed by the deference we must give to decisions of the trier of fact, who is usually in a superior position to appraise and weigh the evidence. . . . The question for this court ... is not whether it would have made the findings the trial court did, but whether in view of the evidence and pleadings in the whole record it is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) In re Ebony H., 68 Conn. App. 342, 348-49 n.4, 789 A.2d 1158 (2002).

In the matter before us, the issue is one of personal rehabilitation by the respondent. General Statutes § 17a-112 (j) provides in relevant part that “[t]he Superior Court . . . may grant a petition filed pursuant to this section if it finds by clear and convincing evidence that . . . (B) the child . . . has been found by the Superior Court ... to have been neglected or uncared for in a prior proceeding . . . and [the parent] has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child . . . .”

“Personal rehabilitation . . . refers to the restoration of a parent to his or her former constructive and useful role as a parent [and] requires the trial court to analyze the [parent’s] rehabilitative status as it relates to the needs of the particular child, and further, that such rehabilitation must be foreseeable within a reasonable time. . . . The statute does not require [a parent] to prove precisely when she will be able to assume a responsible position in her child’s life. Nor does it require her to prove that she will be able to assume full responsibility for her child, unaided by available support systems. It requires the court to find, by clear and convincing evidence, that the level of rehabilitation she has achieved, if any, falls short of that which would reasonably encourage a belief that at some future date she can assume a responsible position in her child’s life.” (Citations omitted; internal quotation marks omitted.) In re Eden F., 250 Conn. 674, 706, 741 A.2d 873, reargument denied, 251 Conn. 924, 742 A.2d 364 (1999).

Coby was adjudicated a neglected child and was committed to the custody of the commissioner. The court, pursuant to General Statutes § 46b-129 (j), ordered specific steps that the respondent must take in order to facilitate the return of Coby to her. See footnote 3. At the termination hearing, the court reviewed the respondent’s compliance with the fifteen specific steps it had ordered. The court found by clear and convincing evidence that the respondent had complied with ten steps, failed to comply fully with four steps and found one step to be inapplicable. In regard to the four steps the respondent failed to complete, the court found that the respondent, prior to and after the child’s commitment, failed to comply with the requirements set by or with the department, failed to participate fully in parenting and individual counseling, was discharged unsuccessfully from Integrated Behavioral Health due to noncompliance with treatment, failed to maintain stable housing or stable employment and has lived a transient existence, has been unable to keep up with her rental payment and has completed virtually none of her various referrals for counseling in a timely manner. In summary, the court found that the respondent has not been available to take part effectively in her son’s life due to mental health issues, gross parenting defects, poor judgment, residential instability and failure to benefit from counseling. On the basis of clear and convincing evidence, the court found that the respondent has failed to achieve rehabilitation pursuant to § 17a-112 and that it is not foreseeable that the respondent is capable of achieving rehabilitation within a reasonable time.

The respondent argues that she fully complied with twelve of the fifteen steps ordered by the court. She further argues that she substantially complied with the other steps and that her substantial compliance with these steps fulfills the compliance mandate. Accordingly, the respondent believes that the court’s conclusion that rehabilitation has not been achieved and would not be achieved in a reasonable time is clearly erroneous.

As we stated in the standard of review, we will not overturn a court’s determination that the evidence is clear and convincing unless the finding is not supported by the evidence and is clearly erroneous in light of the evidence in the whole record. In re Felicia D., supra, 35 Conn. App. 500. In a termination of parental rights case, the court is the trier of fact. “We defer to the trier of fact’s assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude. The trier is the judge of the credibility of all the witnesses and the weight to be given their testimony, and may accept part, all or none of the testimony. . . . Where, as here, the record reveals that the trial court’s ultimate conclusions are supported by clear and convincing evidence, we will not reach an opposite conclusion on the basis of any one segment of the many factors considered in a termination proceeding.” (Internal quotation marks omitted.) In re Victoria B., 79 Conn. App. 245, 262-63, 829 A.2d 855 (2003).

The court’s memorandum of decision reflects a careful and extensive review of the evidence on which it relied in the adjudicatory phase of the termination proceeding. The court found, on the basis of clear and convincing evidence, that the respondent had failed to comply fully with four specific steps. The court’s memorandum of decision credits the respondent for her attempts to comply fully with the specific steps but, nevertheless, concludes that she has failed to achieve personal rehabilitation and that she is incapable of providing a safe and nurturing environment for Coby. Although there is no clear directive as to what constitutes “compliance” with court-ordered steps, it is clear that the failure to comply with specific steps typically weighs heavily in termination proceedings. In re Devon B., 264 Conn. 572, 584, 825 A.2d 127 (2003). The respondent’s claim that her “substantial compliance” with those four steps fulfills the compliance mandate is unavailing. Her claim merely places a positive label on the court’s negative findings without altering the substance of those findings.

Whether the respondent’s shortcomings are deemed substantial compliance or noncompliance, the evidence in the record as a whole supports the court’s conclusion that the respondent has failed to achieve rehabilitation pursuant to § 17a-112 and that it is not foreseeable that she is capable of rehabilitation within a reasonable time. We conclude, therefore, that the court’s determination that the respondent’s parental rights should be terminated was not clearly erroneous.

II

The respondent’s next claim is that the court’s written findings were legally insufficient to satisfy the requirements of § 17a-112 (k). Specifically, she claims that the written findings contain no express finding regarding Coby’s disruption from his preadoptive placement and, therefore, render clearly erroneous the court’s ultimate conclusion that termination of the respondent’s parental rights was in Coby’s best interest. We decline to review this claim.

Having found that a statutory ground for termination exists in the adjudicatory phase of the hearing to terminate parental rights, the court then proceeds to the dispositional phase and decides whether termination is in the best interest of the child. See In re Tabitha P., 39 Conn. App. 353, 360, 664 A.2d 1168 (1995). “In the dispositional phase of a termination of parental rights hearing, the trial court must determine whether it is established by clear and convincing evidence that the continuation of the parents’ parental rights is not in the best interests of the child. In arriving at that decision, the court is mandated to consider and make written findings regarding seven factors delineated in General Statutes [§ 17a-112 (k)].” In re Denzel A., 53 Conn. App. 827, 833, 733 A.2d 298 (1999).

The respondent does not allege that the court’s written findings are deficient with regard to all seven statutory factors. The respondent’s claim is limited to the fourth statutory factor and, more specifically, to that portion of the fourth factor mandating the court to make written findings regarding “any person who has exercised physical care, custody or control of the child for at least one year and with whom the child has developed significant emotional ties . . . .” General Statutes § 17a-112 (k) (4). The respondent asserts that the court was required to make a finding concerning Coby’s emotional ties to his preadoptive foster family and that absent such a written finding, the court’s decision was clearly erroneous.

At the outset, we note our agreement with the respondent that a court may, in certain instances, be required to make written findings concerning a child’s emotional ties to his preadoptive family. In particular, such a finding is required when a child has developed significant emotional ties to his preadoptive family and that family has exercised physical care, custody or control of the child for at least one year. See General Statutes § 17a-112 (k) (4). We further agree with the respondent that no such written finding was made in this case. Contraiy to the claims in the respondent’s brief, however, the absence of a written finding regarding Coby’s preadoptive foster family does not require a conclusion that the court made an unwarranted departure from the requirements of § 17a-112 (k) (4).

The court is not required to make written findings in regard to the child’s emotional ties to all persons. Section 17a-112 (k) (4) explicitly requires a written finding regarding the child’s emotional ties only as to those individuals who have “exercised physical care, custody or control of the child for at least one year and with whom the child has developed significant emotional ties . . . .” General Statutes § 17a-112 (k) (4). The record before us, however, is inadequate to determine whether the court was required to make a written finding regarding Coby’s emotional ties to his preadoptive family. Likewise, the record does not reveal the court’s basis for its omission of such a written finding.

It is not our function to speculate as to why the court failed to make a written finding regarding Coby’s emotional ties to his preadoptive foster family. Whatever the reason for the court’s omission, the respondent failed to raise this issue with the trial court. Accordingly, the trial court, in its memorandum of decision, did not address Coby’s emotional ties to his preadoptive family. The respondent also failed to file a motion for articulation with this court to rectify this omission. See Practice Book § 66-5.

Under Practice Book § 60-5, this court “shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. . . .” Although we recognize that a mother has a fundamental constitutional right to retain her relationship with her child that can be severed only in strict compliance with applicable statutory standards, “we have regularly observed that the rule of [Practice Book] § 4185 [now § 60-5] applies to constitutional claims.” (Internal quotation marks omitted.) In re Romance M., 229 Conn. 345, 352, 641 A.2d 378 (1994). “[0]nly in [the] most exceptional circumstances can and will this court consider a claim, constitutional or otherwise, that has not been raised and decided in the trial court. . . . Such exceptional circumstances may occur where a new and unforeseen constitutional right has arisen between the time of trial and appeal or where the record supports a claim that a litigant has been deprived of a fundamental constitutional right and a fair trial. ... An exception may also be made where consideration of the question is in the interest of public welfare or of justice between the parties.” (Internal quotation marks omitted.) Id., 352-53. In the present case, the respondent has referred us to no such exceptional circumstances. Accordingly, we decline to review the merits of this claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       The parental rights of the child’s father were also terminated at the same hearing. That portion of the court’s judgment is not part of this appeal. We therefore refer to the mother in this opinion as the respondent.

       General Statutes § 17a-l 12 (k) provides: “Except in the case where termination is based on consent, in determining whether to terminate parental rights under this section, the court shall consider and shall make written findings regarding: (1) The timeliness, nature and extent of services offered, provided and made available to the parent and the child by an agency to facilitate the reunion of the child with the parent; (2) whether the Department of Children and Families has made reasonable efforts to reunite the family pursuant to the federal Adoption Assistance and Child Welfare Act of 1980, as amended; (3) the terms of any applicable court order entered into and agreed upon by any individual or agency and the parent, and the extent to which all parties have fulfilled their obligations under such order; (4) the feelings and emotional ties of the child with respect to the child’s parents, any guardian of such child’s person and any person who has exercised physical care, custody or control of the child for at least one year and with whom the child has developed significant emotional ties; (5) the age of the child; (6) the efforts the parent has made to adjust such parent’s circumstances, conduct, or conditions to make it in the best interest of the child to return such child home in the foreseeable future, including, but not limited to, (A) the extent to which the parent has maintained contact with the child as part of an effort to reunite the child with the parent, provided the court may give weight to incidental visitations, communications or contributions, and (B) the maintenance of regular contact or communication with the guardian or other custodian of the child; and (7) the extent to which a parent has been prevented from maintaining a meaningful relationship with the child by the unreasonable act or conduct of the other parent of the child, or the unreasonable act of any other person or by the economic circumstances of the parent.”

       The specific steps were: (1) keep all appointments set by or with the department and cooperate with department home visits, announced or unannounced, and visits by the child’s court-appointed attorney or guardian ad litem; (2) keep the child’s whereabouts and your own whereabouts known to the department, your attorney and the attorney for the child; (3) participate in counseling and make progress toward parenting and individual treatment goals; (4) accept and cooperate with in-home support services referred by the department if appropriate; (5) submit to substance abuse assessment and follow recommendations regarding treatment, including inpatient treatment if necessary, aftercare and relapse prevention; (6) submit to random drug testing, with the time and method of the testing in the discretion of the department; (7) submit to recommended service providers for parenting, individual and family counseling, in-home support services and substance abuse assessment and treatment; (8) cooperate with court-ordered evaluations or testing; (9) sign releases authorizing the department to communicate with service providers to monitor attendance, cooperation and progress toward identified goals and for use in future proceedings before the court; (10) secure and maintain adequate housing and legal income; (11) no substance abuse; (12) no involvement or further involvement with the criminal justice system, and cooperate with the office of adult probation or parole office and comply with conditions of probation or parole; (13) consistently and timely meet and address the child’s psychological, educational, medical or emotional needs, including, but not limited to, keeping the child’s appointments with his medical, psychological, psychiatric or educational providers; (14) immediately advise the department of any changes in the composition of the household to ensure that the change does not compromise the health and safety of the child; (15) visit the child as often as the department permits.

       The respondent claims that she substantially complied with four specific steps, fully complied with twelve specific steps and that the court found one specific step to be inapplicable. Our review of the record reveals that the court ordered only fifteen specific steps. See footnote 3.

       The court found inapplicable the specific step requiring the respondent to “consistently and timely meet and address the child’s psychological, educational, medical or emotional needs, including, but not limited to, keeping the child’s appointments with his medical, psychological, psychiatric or educational providers” because Coby has remained in the department’s care and custody since December 16, 2002.

       The department referred the respondent to Integrated Behavioral Health for individual counseling, weekly therapy sessions and medication management.

       Specifically, the court found that the respondent failed to: (1) keep all appointments set by or with the department and cooperate with department home visits, announced or unannounced, and visits by the child’s court-appointed attorney or guardian ad litem; (3) participate in counseling and make progress toward parenting and individual treatment goals; (7) submit to recommended service providers for parenting, individual and family counseling, in-home support services and substance abuse assessment and treatment; and (10) secure and maintain adequate housing and legal income.

       The court did make a finding that on January 3,2007, Coby was removed from his foster home, due to his behavior, and was placed in the Waterford Country School safe home.

       “It is ... the responsibility of the appellant to move for an articulation or rectification of the record where the trial court has failed to state the basis of a decision ... to clarify the legal basis of a ruling ... or to ask the trial judge to rule on an overlooked matter.” (Internal quotation marks omitted.) Grimm v. Grimm, 276 Conn. 377, 388, 886 A.2d 391 (2005), cert. denied, 547 U.S. 1148, 126 S. Ct. 2296, 164 L. Ed. 2d 815 (2006). “[A]n articulation is appropriate where the trial court’s decision contains some ambiguity or deficiency reasonably susceptible of clarification. ... An articulation may be necessary where the trial court fails completely to state any basis for its decision ... or where the basis, although stated, is unclear. . . . The purpose of an articulation is to dispel any . . . ambiguity by clarifying the factual and legal basis upon which the trial court rendered its decision, thereby sharpening the issues on appeal.” (Citations omitted; internal quotation marks omitted.) Fantasia v. Milford Fastening Systems, 86 Conn. App. 270, 283, 860 A.2d 779 (2004), cert. denied, 272 Conn. 919, 866 A.2d 1286 (2005).


author: PER CURIAM.

text:
    GERI B. SARACINO v. HARTFORD FINANCIAL SERVICES GROUP, INC., ET AL.
    (AC 28588)
    McLachlan, Lavine and Foti, Js.
    Argued March 11
    officially released April 29, 2008

      Thomas J. Weihing, with whom, on the brief, were John T. Bochanis and Janice L. Rosenfeld, for the appellant (plaintiff).

      Diana Garfield, for the appellees (defendants).
   Opinion

PER CURIAM.

The plaintiff, Geri B. Saracino, appeals from the judgment of the trial court granting the motion to dismiss her action filed by the defendants, Hartford Financial Services Group, Inc. (the Hartford), and John D. Hale. On appeal, the plaintiff claims that the court improperly dismissed her action on the ground that it was barred by the prior pending action doctrine. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the plaintiffs appeal. The plaintiff starting working for the Hartford in approximately April, 1990, as a technical supervisor, and through promotions, eventually became the manager of New England commercial claims. At some point in early 2003, the plaintiff learned through her supervisor, Hale, that the Hartford was seeking a territorial manager for the Northeast region. The plaintiff applied for the promotion and subsequently was informed that she was one of two finalists for the position. As a result, the defendants, believing that the plaintiff was going to be promoted, began to reassign her job responsibilities as manager of New England commercial claims to other individuals. In March, 2003, the plaintiff was informed that she was not selected for the promotion, and in June, 2003, the defendants eliminated the plaintiffs position.

On July 7, 2005, the plaintiff filed the lawsuit underlying this appeal against the Hartford, seeking monetary damages and alleging misrepresentation, breach of contract and breach of the implied covenant of good faith and fair dealing. (Saracino 7.) After filing Saracino I, the plaintiff failed to make a timely claim for a jury trial. As a result, on April 4, 2006, the court, Tanzer, J., granted the defendants’ motion to strike Saracino I from the jury docket, and on May 8, 2006, the court denied the plaintiffs motion to reargue that decision.

Accordingly, on June 29, 2006, the plaintiff filed her second action seeking monetary damages and alleging promissory estoppel, intentional infliction of emotional distress and negligent infliction of emotional distress. (Saracino 77.) In Saracino 77, however, the plaintiff named as defendants Hartford Financial Services Group, Inc., the Hartford and Hale. On July 24, 2006, the defendants filed a motion to dismiss on the ground that Saracino II is barred by the prior pending action doctrine. The court, Wiese, J., granted the defendants’ motion to dismiss. This appeal followed.

The sole issue in this appeal is whether the court properly dismissed Saracino II on the ground that it was barred by the prior pending action doctrine. The prior pending action doctrine provides: “The pendency of a prior suit of the same character, between the same parties, brought to obtain the same end or object, is, at common law, good cause for abatement. It is so, because there cannot be any reason or necessity for bringing the second, and, therefore, it must be oppressive and vexatious. ” (Internal quotation marks omitted.) Hunting v. Chambers, 99 Conn. App. 664, 667, 916 A.2d 56, cert. denied, 283 Conn. 901, 926 A.2d 669 (2007). The plaintiff argues on appeal that the action was not barred by the prior pending action doctrine because Saracino II alleged entirely new causes of action and because the parties were different in Saracino II, as Hale was added as a defendant.

We have reviewed carefully the entire record, briefs and the oral arguments and are satisfied that the court correctly granted the defendants’ motion to dismiss the plaintiffs second action. Also, we have reviewed carefully the trial court’s memorandum of decision. Saracino v. Hartford Financial Services Group, Inc., 50 Conn. Sup. 503, 946 A.2d 954 (2007). The memorandum of decision accurately reflects the Connecticut law governing this action. It would serve no useful purpose to repeat the discussion contained therein.

Accordingly, we adopt the well reasoned memorandum of decision of the trial court as a statement of the facts and the law applicable to the proper resolution of this case. See, e.g., Universal Underwriters Ins. Co. v. Paradis, 285 Conn. 342, 347, 940 A.2d 730 (2008); Hotshoe Enterprises, LLC v. Hartford, 284 Conn. 833, 837, 937 A.2d 689 (2008); Massad v. New London, 36 Conn. App. 584, 587, 652 A.2d 529 (1995).

The judgment is affirmed.

       The plaintiff also named as a defendant the Hartford, the trade name under which Hartford Financial Services Group, Inc., operates.