text:
    Morning Star Holding Company v. Konstantinos Kostopoulos et al.
    (5569)
    Spallone, Daly and O’Connell, Js.
    Submitted on briefs September 14
    decision released November 17, 1987

      Joseph Glass filed a brief for the appellant (plaintiff).

      Michael A. Blanchard filed a brief for the appellees (defendants).
   O’Connell, J.

The plaintiff, Morning Star Holding Company, a corporation involved in commercial and residential construction, instituted this action for foreclosure of a mechanic’s lien against the defendants’ newly constructed house. The complaint alleged breach of contract and monies owed under the doctrine of quantum meruit. The defendants counterclaimed, alleging breach of contract, faulty workmanship and breach of implied warranties.

The matter was heard by an attorney trial referee and judgment was rendered by the trial court in accordance with his findings of fact. Judgment was rendered for the plaintiff on the complaint in the amount of $9260.16, and for the defendants on the counterclaim in the amount of $11,525. The plaintiff appeals from the judgment for the defendant on the defendant’s counterclaim.

Prior to the rendition of judgment, the plaintiff filed an objection to the referee’s finding of facts, relating to the award of $6700 in damages for the replacement of the house’s siding and $3500 for the replacement of its roof. The objection was untimely filed and was denied by the trial court. On appeal, the plaintiff claims the trial court erred (1) in accepting the referee’s report over its objection, and (2) in awarding monetary damages for the replacement of the house’s roof and siding. We find no error.

The plaintiff first claims error in the trial court’s acceptance of the referee’s report despite the plaintiff’s objection. Practice Book § 441 provides in pertinent part that “[objections to the acceptance of a report shall be filed within two weeks after the filing of the report or finding . . . .” The referee’s finding in the present case was filed on August 20, 1986. The plaintiff’s objection was not filed until September 12,1986, nine days beyond the deadline established by § 441. While we note in passing that in light of § 441 the trial court properly denied the plaintiffs objection to the acceptance of the referee’s report, we need not address this claim of error, as the plaintiff has failed to brief this argument on appeal. “ ‘Assignments of error which are merely mentioned but not briefed beyond a statement of the claim will be deemed abandoned and will not be reviewed by this court.’ ” Bowman v. 1477 Central Avenue Apartments, Inc., 203 Conn. 246, 250 n.3, 524 A.2d 610 (1987), quoting Hayes v. Smith, 194 Conn. 52, 66 n.12, 480 A.2d 425 (1984); Fullerton v. McGowan, 6 Conn. App. 624, 625 n.1, 507 A.2d 473 (1986).

The plaintiff also challenges the trial court’s award of damages for the replacement of the house’s siding and roof. The plaintiff’s failure to file a timely objection to the acceptance of the referee’s finding also impacts upon the scope of our review of the remaining claim of error.

“In the absence of a timely objection to the report, our review is strictly limited to ‘ “determining whether the subordinate facts found by the attorney referee were sufficient to support the referee’s ultimate factual conclusions.” ’ Ross v. Renzulli, 9 Conn. App. 87, 90, 516 A.2d 149 (1986), quoting Blessings Corporation v. Carolton Chronic & Convalescent Hospital, Inc., 7 Conn. App. 364, 367, 508 A.2d 829 (1986).” J. M. Rosa Construction Co. v. New Haven Redevelopment Agency, 9 Conn. App. 481, 485, 519 A.2d 1227 (1987). We conclude that the facts are sufficient.

There is no error.

In this opinion the other judges concurred.

       While New England Savings Bank is also named as a defendant as the holder of the mortgage on said premises, we wilt refer to the homeowners as the defendants.


source: Caselaw Access Project

author: Norcott, J.

license: Public Domain

text:
    George E. Papageorge v. Argero G. Papageorge
    (5770)
    Spallone, Stoughton and Norcott, Js.
    Submitted on briefs September 28
    decision released November 17, 1987

      Michael A. Meyers filed a brief for the appellant (defendant).

      George L. Holmes, Jr., and Theodore R. Tyma filed a brief for the appellee (plaintiff).
   Norcott, J.

The defendant wife appeals from the judgment of the trial court entered on her cross complaint, dissolving the marriage between the parties. The defendant claims that the trial court erred by making an award to her which was legally insufficient as well as logically inconsistent with the court's findings of facts and conclusions of law.

The following facts are pertinent to the present appeal. The defendant, Argero G. Papageorge, and the plaintiff, George E. Papageorge, married on April 19, 1946. In 1961, the parties separated when the plaintiff moved in with another woman. No dissolution of the marriage was sought, however, until twenty-six years later when the plaintiff commenced this action on October 25,1985. The parties are the parents of four grown sons. The plaintiff has another son who is the issue of the plaintiffs current relationship.

The defendant is a sixty-three year old woman of reasonably good health. She has had limited formal education and has worked as a seamstress for approximately twenty-five years. Currently, the defendant’s income consists of the money she earns as a seamstress, approximately $80 per week, plus $106 per month in social security benefits and various monies paid to her by the plaintiff. For the past 36 years, the defendant has lived in the family residence located at 84 Sherman Court, Fairfield. Prior to the award which is the subject of this appeal, however, the defendant had no real assets in her own name. The defendant did not live extravagantly, and, according to the record, her needs, paramount of which was financial security, were modest.

At the time of trial, the plaintiff owned five pieces of real estate in Fairfield and Bridgeport with a total stipulated fair market value of $1,605,000. One of the properties was the family residence which had a fair market value of $250,000. Mortgages on the other four Fairfield-Bridgeport properties totaled approximately $355,000. In addition, the plaintiff owned a restaurant business known as the Sandbar Cafe; his stock value in that business was approximately $200,000. The plaintiff’s additional assets consisted of the value of his two automobiles ($9700), cash ($37,000), and a life insurance policy, the cash surrender value of which was $15,000. Against these assets, the plaintiff had liabilities, exclusive of mortgages previously mentioned, totalling $12,500. In all, the plaintiff had a total approximate net worth of $1,499,200.

Another noteworthy fact was that the plaintiff derived income from the restaurant business and from rentals of two parcels of his real estate. In 1985, the reported profit from the rental of the plaintiffs properties was $1586.90. It is unclear as to precisely how much income the plaintiff derived from the cash receipts of the restaurant business, and the matter is one of disagreement between the parties. Nevertheless, from his income, the plaintiff supported himself, his wife, his companion and his youngest son.

After hearing all the evidence, the trial court awarded the defendant the following: periodic alimony of $300 per week, such payments to be secured by a nonnegotiable mortgage note on two of the plaintiff’s properties; a lump sum alimony payment of $15,000; a $5000 cash payment to defray the costs of the defendant’s attorney’s fees; payment of the defendant’s medical expenses which exceed $1000 per calendar year until the defendant becomes eligible for medicare; the naming and maintenance of the defendant as the primary beneficiary of the plaintiff’s $100,000 life insurance policy; and the family home, 84 Sherman Court, deeded free and clear of all encumbrances. From the judgment on the order of these awards the defendant now appeals.

It is axiomatic that because of its clearly advantageous position to assess all of the circumstances before it, the trial court is accorded broad discretion in awarding alimony and allocating property in dissolution actions. Carpenter v. Carpenter, 188 Conn. 736, 742, 453 A.2d 1151 (1982); Carter v. Carter, 8 Conn. App. 356, 358, 512 A.2d 979 (1986). This court has held that decisions by the trial court on such matters will only be disturbed “ ‘under the clearest of circumstances.’ ” Ehrenkranz v. Ehrenkranz, 2 Conn. App. 416, 421, 479 A.2d 826 (1984). Accordingly, our review of the trial court’s financial awards to the defendant is limited to determining whether the trial court correctly applied the law to the facts of this case and whether the trial court could reasonably have concluded that such awards were appropriate. Id., 420-21.

In fixing the value of property to be assigned and the amount of money to be awarded as alimony in a dissolution matter, the trial court is held to the task of applying the statutory criteria set forth in § 46b-81 (c) and § 46b-82 of the General Statutes. Those statutes provide that when fashioning an award of either property or alimony “the court . . . shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties . . . .” General Statutes § 46b-81 (c); see General Statutes § 46b-82. In addition, when assigning marital property the court must also consider “the opportunity of each for future acquisition of capital assets and income . . . [and] the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates.” General Statutes § 46b-81 (c). The defendant claims that the trial court abused its discretion in applying the criteria of these statutes to the evidence before it and thus rendered an award which was legally insufficient.

The defendant challenges the trial court’s decision to award her only the marital residence worth $250,000 when the plaintiff owned real estate that was valued at well over $1,000,000. As noted above, § 46b-81 (c) of the General Statutes requires the court to consider the contribution of the parties to the “acquisition, preservation or appreciation in value” of the estates when determining what property should be assigned as an award in a dissolution action. The evidence in this case indicates that the bulk of the property owned by the plaintiff was acquired after his separation from the defendant and that the defendant played no role in either the acquisition or preservation of that property. Thus, the trial court’s decision to award the defendant the only property the plaintiff possessed upon separation was clearly an exercise of lawful discretion.

The defendant also challenges the sufficiency of the remainder of the court’s award. In fashioning the remainder of the award, the trial court appropriately considered the needs of the defendant. General Statutes § 46b-82. The defendant described herself as a person of modest needs and one who was primarily interested in financial security for the rest of her life. The trial court’s award of periodic alimony when coupled with the lump sum alimony awarded, the defendant’s social security, the insurance benefits she is to receive if the plaintiff predeceases her, the security she receives for medical expenses, and the rental income she could receive from the marital residence clearly meets those needs. While the trial court’s award can in no way be characterized as overly generous, it is an award which comports with the evidence and law of this state.

There is no error.

In this opinion the other judges concurred.

       The plaintiff withdrew his complaint prior to trial, and the trial court proceeded with the cross, complaint alone.


author: Dupont, C. J.

text:
    Bird Electron Beam Corporation v. David Gamage
    (4908)
    Dupont, C. J., Bobden and Daly, Js.
    Submitted on briefs March 2
    decision released November 17, 1987

      Louis R. Pepe filed a brief for the appellant (plaintiff).

      Bruce D. Tyler filed a brief for the appellee (defendant).
   Dupont, C. J.

This case is a sequel to our decision in Bird Electron Beam Corporation v. Gamage, 11 Conn. App. 67, 526 A.2d 1 (1987). In that case, the plaintiff employer brought suit against the defendant, a former employee of the plaintiff, to enforce an anticompetition and nondisclosure agreement by preventing the defendant from working for and from disclosing confidential information to a second employer. The “Non-Disclosure Agreement” provided that for a period of two years after termination of the defendant’s employment with the plaintiff, he would not render services to any “conflicting organization” within a certain geographical area and would not disclose “confidential information.” See id., 68 n.l.

The trial court concluded that the agreement was effective to preclude the defendant from working for another if he were engaged in disclosing or using confidential information of the plaintiff, and that the defendant had not breached the agreement. On appeal, this court upheld the trial court’s finding that the defendant was not disclosing or using confidential information learned from the plaintiff in his new employment. Id., 70. We remanded the case, however, for an articulation by the trial court as to whether the defendant’s present employer was a “conflicting organization” and how that fact, if found, impacted on its conclusion as to whether the defendant breached the agreement because of his new employment. Id., 73.

On remand, the trial court found that the defendant’s new employer was not a “conflicting organization.” The trial court further found that if the new employer was a conflicting organization “there could be no breach of the agreement so long as the. defendant did not disclose confidential information to the new employer.” The plaintiff claims that the trial court erred (1) in finding that the new employer was not a “conflicting organization,” and (2) in concluding that as long as the defendant did not disclose confidential information he could work for a “conflicting organization” without breaching the agreement. The plaintiffs specific argument is that the new employer was a “conflicting organization” within the meaning of the nondisclosure agreement and, therefore, the defendant’s employment was a per se violation of the agreement even if he were not disclosing confidential information.

The definition of “conflicting organization” as set forth in the parties’ nondisclosure agreement means “any person or organization engaged in or about to become engaged in research on, or development, production, marketing or selling of a conflicting product.” The agreement also defines a “conflicting product.” Whether the defendant’s subsequent employer was a “conflicting organization” under the facts of this case was a factual issue involving the intention of the parties. See id., 73 n.3. The court’s determination on such an issue will not be disturbed unless it is clearly erroneous.

The trial court specifically found that the plaintiff is a “job shop,” a service business which takes in products manufactured by others and then makes electron beam welding applications to these products. The court further found that the defendant’s new employer, was not a “job shop” but, rather performed in-house welding on its own equipment, and did not compete with the business of the plaintiff for service work of others.

From those facts, the court determined that the defendant was not working for a “conflicting organization.” This conclusion is supported by the facts found, which were, in turn, based on the evidence presented; see Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980); and it is not clearly erroneous. Accordingly, we hold that the trial court did not err in determining that the defendant’s new employer was not a conflicting organization.

The trial court further concluded that even if the new employer were a conflicting organization there could be no breach of the agreement so long as the defendant did not disclose confidential information to the new employer. The plaintiff argues that the agreement could be breached if the defendant merely works for a conflicting organization without disclosing confidential information. Since we uphold the trial court’s finding that the new employer is not a conflicting organization, we need not decide whether the trial court’s interpretation of the agreement in this regard is erroneous.

There is no error.

In this opinion the other judges concurred.


author: Spallone, J.

text:
    State of Connecticut v. Claymon Whitaker
    (5459)
    Borden, Spallone and O’Connell, Js.
    Argued October 13
    decision released November 17, 1987

      David M. Abbamonte, for the appellant (defendant).

      RichardF. Jacobson, assistant state’s attorney, with whom, on the brief, was Donald A. Browne, state’s attorney, for the appellee (state).
   Spallone, J.

The defendant appeals from the judgment of conviction, after a jury trial, of the crime of attempted escape from custody in violation of General Statutes §§ 53a-49 and 53a-171 (a).

The sole question presented on appeal is whether the trial court erred when it stated, as a preamble to its recharge to the jury concerning the defense of abandonment, that it was “probably a minor point.” We find no error.

The defendant was being held in the cellblock area of the courthouse of the Fairfield judicial district at Bridgeport. Late in the afternoon of November 12, 1985, the defendant, along with two other prisoners, attacked, assaulted and injured the deputy sheriffs assigned to guard them. The sheriffs’ keys were taken from them and the sheriffs were then locked in a cell. The defendant and his companions attempted in vain to use the keys taken from the sheriffs to open the cell doors leading from the lockup. Ultimately, when other officers arrived on the scene, the defendant and his confederates threw down the keys and ceased their efforts to escape. During this escapade, two of the deputy sheriffs suffered severe and painful injuries including a broken nose in one instance, and a broken rib in another. The defendant was subsequently tried before a jury for the crimes of attempted escape and four counts of assault on a peace officer. He was found guilty of attempted escape, and of two of the counts of assault on a peace officer, but was acquitted of the remaining two counts of assault. This appeal involves only the defendant’s conviction of attempted escape from custody.

In its initial charge, the court instructed the jury that any of the defendant’s acts tending to prove abandonment and renunciation had to occur prior to any acts which constituted an attempt to escape. The defendant excepted to this charge and, upon reflection, the court reinstructed the jury, informing the panel that an abandonment and renunciation could occur after the defendant had taken substantial steps towards the completion of the act with the necessary intent. During its preliminary remarks, while recharging the jury, the court stated: “Ladies and Gentlemen, I spent a good part of the evening at the library last night because I was concerned about a — what I think was a minor point — but nevertheless I like to be accurate.” The court then gave the corrected charge, consisting of six pages of transcript. The transcript of the entire jury instruction, including the original charge, the supplemental charge and an answer to a jury question, consists of fifty pages.

The defendant claims that, despite the fact that the court fully recharged the jury correctly on the defense of abandonment and renunciation, the court’s use of the phrase, “probably a minor point,” is reversible error. We disagree.

As stated above, the entire jury instruction amounted to some fifty pages, while the challenged language was only a few words which, if not trivial, were innocuous. We must look to the charge as a whole in determining whether it is adequate and it will be deemed so if it is “legally correct and present[s] the case to the jury in a just and fair manner.” State v. Candito, 4 Conn. App. 154, 160, 493 A.2d 250 (1985). See also State v. Piskorski, 177 Conn. 677, 746, 419 A.2d 866, cert. denied, 444 U.S. 935, 100 S. Ct. 283, 62 L. Ed. 2d 194 (1979). A party is not entitled to a charge which is “beyond criticism in every particular”; State v. Harman, 198 Conn. 124, 134, 502 A.2d 381 (1985), quoted in State v. Knighton, 7 Conn. App. 223, 231, 508 A.2d 772 (1986); and “[a] charge is not to be critically dissected in a search for inexact or inadvertent statements.” State v. Brown, 199 Conn. 14, 27, 505 A.2d 690 (1986); State v. Torrence, 196 Conn. 430, 436, 493 A.2d 865 (1985). Our review of the entire charge fails to support the defendant’s contention that the charge did not present the case to the jury in a just and fair manner.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 53a-49 provides in pertinent part: “(e) When the actor’s conduct would otherwise constitute an attempt ... it shall be a defense that he abandoned his effort to commit the crime or otherwise prevented its commission, under circumstances manifesting a complete and voluntary renunciation of his criminal purpose.”


text:
    David P. Creem et al. v. Cynthia M. Cicero
    (5790)
    Dupont, C. J., Bieluch and Norcott, Js.
    Submitted on briefs September 14
    decision released November 17, 1987

      Mary Piscatelli Brigham filed a brief for the appellant (defendant).

      Kevin Nixon filed a brief for the appellees (plaintiffs).
   Norcott, J.

The defendant appeals from the judgment of the trial court setting aside the jury verdicts for the plaintiffs as inadequate and ordering a new trial unless the defendant filed additurs with the court. The sole issue is whether the trial court’s decision to set aside the verdicts constituted an abuse of discretion. We find error in part.

On June 11,1982, the named plaintiff was the operator of a car that was stopped in a parking area waiting to enter a line of traffic when his car was struck by a car being driven by the defendant. The defendant’s car had left the traveled portion of the roadway and traveled easterly approximately sixty-one feet along a sidewalk before striking the plaintiff’s car. As a result of the accident, the named plaintiff required medical attention.

By complaint dated February 22, 1983, the named plaintiff instituted this action to recover damages for the injuries he incurred as a result of the defendant’s negligence. He was joined in this action by his wife, who sought to recover for loss of consortium. Before trial, the defendant stipulated to liability. The matter was then submitted to the jury as a hearing in damages.

At the hearing in damages the named plaintiff produced evidence that he had injured his neck in the accident and had been diagnosed as having a 10 percent permanent partial disability of both the neck and left shoulder. Both the named plaintiff and his wife also testified that the injury had restricted his activities around the house. The named plaintiff requested that the jury award him $3310.82 in special damages and further damages for pain and suffering.

The defendant produced evidence that the named plaintiff had twice previously suffered neck injuries. The evidence indicated that on one of those prior occasions the named plaintiff had filed a lawsuit claiming that his neck might be permanently disabled.

The jury returned a general verdict for the named plaintiff in the amount of $3310.86 and also returned a general verdict for his wife, but refused to award any damages for the loss of consortium. The trial court refused to accept either of the verdicts and asked the jury to reconsider their decisions keeping in mind the issue of pain and suffering. The jury deliberated again and returned with the same verdicts. This time the verdicts were accepted and ordered recorded. The plaintiffs then moved to set aside the verdicts claiming that the awards were inadequate as a matter of law. The trial court granted the plaintiffs’ motion and ordered a new trial unless the defendant filed additurs with the court in the amounts of $11,689.14 for the named plaintiff and $100 for his wife.

As we have noted before, “[tjhere are serious constitutional issues posed by setting aside a jury verdict. This is so because ‘ “[Ijitigants have a constitutional right to have issues of fact decided by the jury.” Bambus v. Bridgeport Gas Co., 148 Conn. 167, 169, 169 A.2d 265 (1961).’ ” Zarrelli v. Barnum Festival Society, Inc., 6 Conn. App. 322, 326, 505 A.2d 25, cert. denied, 200 Conn. 801, 509 A.2d 516 (1986). Accordingly, a court should be hesitant to set aside a jury’s verdict and must only do so when the jury verdict “so shock[s] the sense of justice as to compel the conclusion that the jury was influenced by partiality, prejudice, mistake or corruption.” Shea v. Paczowski, 11 Conn. App. 232, 233, 526 A.2d 558 (1987). “A court should be especially hesitant to set aside a jury’s award of damages.” Zarrelli v. Barnum Festival Society, Inc., supra. “ ‘The assessment of damages “defies any precise mathematical computation”; Floyd v. Fruit Industries, Inc., 144 Conn. 659, 675, 136 A.2d 918 (1957); and, therefore, establishing damages ... is a task peculiarly within the expertise of a jury.’ ” Zarrelli v. Barnum Festival Society, Inc., supra.

Once a trial court has acted to set aside a jury’s verdict, however, its decision is entitled to great weight. Hearl v. Waterbary YMCA, 187 Conn. 1, 3, 444 A.2d 211 (1982). “This is so because ‘[f]rom the vantage point of the trial bench, a presiding judge can sense the atmosphere of a trial and can apprehend far better than [an appellate court] can, on the printed record, what factors, if any, could have improperly influenced the jury.’ Birgel v. Heintz, 163 Conn. 23, 26, 301 A.2d 249 (1972).” Zarrelli v. Bamum Festival Society, Inc., supra, 327. Accordingly, our function on appeal is to determine whether the trial court’s decision to set aside the jury verdicts constituted a “ ‘clear abuse of discretion.’ ” Gerrety Co. v. Palmieri, 11 Conn. App. 226, 230, 526 A.2d 555 (1987).

The defendant’s first claim on appeal is that the trial court abused its discretion in setting aside the jury’s verdict of “$00” in damages to the named plaintiff’s wife and ordering a new trial unless the defendant filed an additur with the court for nominal damages in the amount of $100. It has long been held that when a person’s rights have been violated that person is entitled to at least nominal damages as compensation. Dimmock v. New London, 157 Conn. 9, 16, 245 A.2d 569 (1968); Malmberg v. Lopez, 12 Conn. App. 438, 531 A.2d 161 (1987). “Generally, nominal damages are fixed without regard to the extent of harm done and are assessed in some trifling or trivial amount — often only one cent or one dollar. ...” 1 M. Minzer, J. Nates, C. Kimball, D. Axelrod & R. Goldstein, Damages in Tort Actions (1987) § 2.00; see also Buden v. Dombrouskas, 147 Conn. 728, 730, 166 A.2d 157 (1960). Our Supreme Court has held, however, that an award of $100 can qualify as nominal damages. Hammarlund v. Troiano, 146 Conn. 470, 473, 152 A.2d 314 (1959). Thus, we find that the trial court did not abuse its discretion by setting aside the jury’s verdict on the loss of consortium and ordering a new trial unless the defendant filed an additur with the court for nominal damages in the amount of $100.

The second claim raised by the defendant is that the trial court abused its discretion in setting aside the jury award to the named plaintiff as inadequate. The trial court’s decision to set aside the verdict was based on the court’s conclusion that the jury had failed to award any damages for pain and suffering. The court reached this conclusion because the amount of damages awarded by the jury was only four cents greater than the amount of special damages claimed by the plaintiff.

As a general rule, it is manifestly unjust for the jury to fail to award damages for pain and suffering when it awards special damages. Johnson v. Franklin, 112 Conn. 228, 229, 152 A. 64 (1930); 1 M. Minzer, J. Nates, C. Kimball, D. Axelrod & R. Goldstein, supra, § 4.64. The problem with the trial court’s application of that general rule in this case is that there was no reasonable basis upon which the court could have concluded that the jury’s verdict was limited to special damages. Before deliberating, the jury was instructed to consider both special damages and damages for pain and suffering when fashioning their verdict. In addition, the jury was given a supplemental instruction in which they were asked to reconsider their verdict keeping in mind the issue of pain and suffering. The named plaintiff made no objection to either of these instructions. Therefore, we may assume that the jury was properly instructed on those principles of law and that they followed those principles in reaching their verdict. Goodman v. Metallic Ladder Mfg. Corporation, 181 Conn. 62, 65, 434 A.2d 324 (1980).

Furthermore, the verdict rendered by the jury in this case was a general one. As such, it did not indicate what factors the jury considered in making their decision or what monies were awarded as special damages and what monies were awarded as compensation for pain and suffering. Katsetos v. Nolan, 170 Conn. 637, 658, 368 A.2d 172 (1976). The record before us suggests that the jury could have included both special damages and damages for pain and suffering in its total award to the named plaintiff. The defendant produced evidence which suggested that not all of the special damages incurred by the named plaintiff were attributable to his injury in the car accident, and the court twice instructed the jury on awarding damages for pain and suffering. Without the submission of interrogatories to the jury, the trial court should not have assumed that the jury disregarded its instructions. Goodman v. Metallic Ladder Mfg. Corporation, supra; Henry A. Finman & Sons, Inc. v. Connecticut Truck and Trailer Service Co., 169 Conn. 407, 411, 363 A.2d 86 (1975).

There is error in part, the judgment is set aside as to the named plaintiff only and the case is remanded with direction to reinstate the jury verdict, and to render judgment thereon.

In this opinion the other judges concurred.


text:
    State of Connecticut v. Kenneth Burak
    (5549)
    Bokden, Spallone and Bieluch, Js.
    Argued October 13
    decision released November 17, 1987

      Brian S. Karpe, with whom, on the brief, was Kimball Haines Hunt, for the appellant (defendant).

      Leah Hawley, with whom, on the brief, was Thomas Miaño, for the appellee (state).
   Spallone, J.

The defendant appeals from the judgment of conviction, after a jury trial, of the crime of kidnapping in the second degree in violation of General Statutes § 53a-94. We find no error.

On June 26, 1981, Deputy Sheriff Joseph Ravalese was assigned to the lockup at the Superior Court, judicial district of Hartford. The defendant, on that day, was on trial for murder and kidnapping. At the end of the day, as part of his duties, Ravalese was responsible for transporting the defendant to the Hartford correctional facility on Weston Street. The defendant was handcuffed to another prisoner and placed in Ravalese’s vehicle, where he was seated in the back seat directly behind the driver.

As Sheriff Ravalese was driving along Windsor Street, the defendant put his left arm around Ravalese’s neck in a choke hold, exerting pressure on his throat. The defendant then put a homemade icepick to Ravalese’s neck and threatened him. The defendant unlocked the handcuffs and ordered Ravalese to handcuff himself to the steering wheel. Ravalese seemingly obeyed, but, in fact, he only simulated attaching his arm to the wheel. Because of the heavy traffic the vehicle was proceeding at a very low speed. The defendant, observing a police cruiser in a parking lot, warned Ravalese “not to do anything stupid or he would be a dead man.” After holding Ravalese in a choke hold with the ice pick against his neck for approximately sixteen minutes, the defendant fled from the car and ran in a northerly direction. After exiting his vehicle in pursuit of the defendant, Ravalese shouted to the police officer in the cruiser for assistance. The defendant was apprehended by the officer.

The defendant was tried to a jury and was convicted of escape from custody, kidnapping in the second degree and assault on a peace officer. The defendant moved to set aside the verdict claiming, inter alia, that the court erred in refusing to charge on kidnapping as incidental to the escape charge. After his motion to set aside was denied, the defendant took this appeal, and claims solely that the trial court committed reversible error in refusing his request to charge the jury on kidnapping as incidental to the escape.

The sole issue before us is the propriety of the trial court’s refusal to give any instructions to the jury on kidnapping as incidental to the charge of escape rather than as a separate crime. The defendant’s assertion is without merit and in fact is contrary to current Connecticut law.

The trial court based its rulings on State v. Vass, 191 Conn. 604, 469 A.2d 767 (1983), in which our Supreme Court held that, “if the state proves all the elements of kidnapping, including the specific intent to restrain, beyond a reasonable doubt, the defendant may be convicted of kidnapping in addition to another felony, even though the two offenses arose out of the same conduct.” Id., 614-15. Where the requisite intent is present, the fact that the perpetrator’s underlying motive for the detention is the commission of another crime does not preclude a conviction for kidnapping. State v. Lee, 177 Conn. 335, 344, 417 A.2d 354 (1979).

Our Supreme Court has rejected the doctrine which would merge the act of kidnapping into the other crime charged where the kidnapping was merely incidental to such crime. State v. Amarillo, 198 Conn. 285, 304, 503 A.2d 146 (1986); State v. Johnson, 185 Conn. 163, 171, 440 A.2d 858 (1981); aff’d, 460 U.S. 73, 103 S. Ct. 969, 74 L. Ed. 2d 823 (1983); State v. Briggs, 179 Conn. 328, 339, 426 A.2d 298 (1979), cert. denied, 447 U.S. 912, 100 S. Ct. 3000, 64 L. Ed. 2d 862 (1980); State v. DeWitt, 177 Conn. 637, 640-41, 419 A.2d 861 (1979); State v. Lee, supra, 343; State v. Chetcuti, 173 Conn. 165, 170, 337 A.2d 263 (1977).

The defendant’s reliance upon State v. Dubina, 164 Conn. 95, 318 A.2d 95 (1972), is misplaced. Since Dubina was decided, our Supreme Court has repeatedly held that a defendant may be convicted of two crimes that derive from the same conduct where the state is able to prove beyond a reasonable doubt the essential elements of each crime. State v. Amarillo, supra, 305; State v. Vass, supra, 614-15, 616 n.9; State v. Briggs, supra, 339.

The trial court acted properly and in accordance with the law when it refused to instruct the jury that it was to determine whether the kidnapping was incidental to the escape.

There is no error.

In this opinion the other judges concurred.


text:
    Jean V. Wanatowicz v. Theodore J. Wanatowicz
    (5055)
    Dupont, C. J., Spallone and Bieluch, Js.
    Submitted on briefs September 1
    decision released November 17, 1987

      Jess H. Smith filed a brief for the appellant (plaintiff).

      Patrick Tomasiewicz filed a brief for the appellee (defendant).
   Dupont, C. J.

This is an appeal by the plaintiff from the trial court’s granting of the defendant’s motion for modification of alimony. The sole issue is whether the trial court erred by finding a substantial change in circumstances not contemplated by the parties at the time of the dissolution of their marriage. We find error.

The marriage of the parties was dissolved on August 13, 1982. At that time, the defendant was ordered to pay $50 per week per child for the support of the parties’ two minor children, and $50 per week as alimony. On October 15,1984, the plaintiff’s motion for modification of child support was granted, increasing the defendant’s child support payments to a total of $140 per week. On March 7,1986, the defendant filed a motion for modification of alimony and child support. The trial court decreased alimony payments from $50 to $30 per week, but did not alter the child support payments. The defendant was also ordered to pay the plaintiff $10 per week on an arrearage of $2531.87.

Two motions for articulation of the court’s judgment were filed by the plaintiff and granted. The court stated three bases for its judgment. First, the court found that the plaintiff’s weekly gross income had increased from $293.34 to $404.66, with corresponding increases in her net weekly income from $170.98 to $254.27. The court also found that the plaintiff’s weekly expenses had decreased from $512.82 to $483.93. The defendant’s gross weekly income was found to have decreased from $730 to $678.65, although his net income increased from $471 to $491.27. Second, the court found that the defendant had developed an alcoholic problem in 1985 and 1986. During this period, the defendant depleted a $7000 loan, which he was repaying in weekly installments of $110. Third, the court found that the defendant was in need of a new automobile for transportation to his place of work. On the basis of these findings, the defendant’s motion for modification was granted.

To modify an order for periodic alimony the court must determine that a substantial change has occurred in the circumstances of either party which was not contemplated at the time the order was entered. O’Bymachow v. O'Bymachow, 12 Conn. App. 113, 116, 529 A.2d 747 (1987). In a modification action, the decision of the trial court is attributed great weight and every consideration must be given in support of its correctness. McGuinness v. McGuinness, 185 Conn. 7, 13, 440 A.2d 804 (1981). The action of the trial court will not be disturbed unless the court has abused its discretion or its finding has no reasonable basis in the facts. O'Bymachow v. O'Bymachow, supra, 116.

The plaintiff’s increase in net weekly income of $84 does not necessarily constitute a substantial change in circumstances. The increase in the plaintiff’s income appears to be due to normal increases in salary as well as to her increased working hours. There is no evidence of a startling dramatic increase in the plaintiff’s salary warranting modification. Harlan v. Harlan, 5 Conn. App. 355, 358, 498 A.2d 129 (1985). McCann v. McCann, 191 Conn. 447, 450, 464 A.2d 825 (1983); Hardisty v. Hardisty, 183 Conn. 253, 257-58, 439 A.2d 302 (1981); Serby v. Serby, 4 Conn. App. 398, 402, 494 A.2d 617 (1985). Nor has the defendant experienced a substantial change in his net income, which has actually increased by $20.27, although his gross income has declined. Net income available to the party who is to pay alimony and not gross income is the criterion upon which the court must fix alimony. Collette v. Collette, 177 Conn. 465, 469, 418 A.2d 891 (1979); Tobey v. Tobey, 165 Conn. 742, 747, 345 A.2d 21 (1974).

We disagree with the trial court’s finding that the defendant’s alcoholism and expenditure of $7000 comprised both a substantial and unforeseen change in circumstances. Since there is nothing in the record to indicate that the defendant abused alcohol at the time of the dissolution, there is support for the finding that the problem was uncontemplated at the time of the dissolution. We conclude, however, that the defendant’s alcoholism does not, in this case, constitute a substantial change in circumstances.

Where the payor spouse has suffered a serious impairment of health or physical condition, and this results in a decrease or cessation of income or increased medical expenses which impair the ability to pay alimony, payments may be modified. 24 Am. Jur. 2d Divorce and Separation § 713; Bronson v. Bronson, 1 Conn. App. 337, 339, 471 A.2d 977 (1984); Swayze v. Swayze, 176 Conn. 323, 328, 308 A.2d 1 (1978). In this case, the defendant’s net income did not decrease as a result of his alcoholic condition. Indeed, there is no indication that the defendant has suffered any permanent harm that will prevent him from maintaining or even increasing his current income level. Absent a correlation between the defendant’s alcoholism and net income, modification is not warranted.

The defendant’s indebtedness of $7000 lends no credence to his request for reduced alimony payments. Had this sum been expended in pursuit of counseling or medical assistance, it might constitute a substantial change in circumstance due to illness and corresponding medical expenses. However, there is no evidence that ineluctably ties the $7000 debt to the defendant’s alcohol problem. The defendant merely states that he “blew” the money while drinking. He does not claim that he spent the money for treatment of his alcoholism. There is no indication that this expenditure was not a result of his own extravagance, neglect, misconduct or other unacceptable reason; Sanchione v. Sanchione, 173 Conn. 397, 407, 378 A.2d 522 (1977); rather than an unavoidable result of his alcoholic problem. An inability to pay alimony due to indebtedness or other factors must be excusable and not brought about by the defendant’s own fault. Id.

Finally, we disagree with the trial court’s finding that the defendant’s need for a new automobile is a relevant consideration. The parties were divorced in 1982. It was certainly foreseeable at that time that either party would require a new automobile in the future. The defendant’s need for a new car cannot be deemed a change in circumstances which was not contemplated at the time of the dissolution.

There is error, the judgment granting the defendant’s motion for modification is set aside, and the case is remanded with direction to deny the defendant’s motion for modification.

In this opinion the other judges concurred.

       We note that General Statutes § 46b-86 (a) which provides for modification of alimony or support “upon a showing of a substantial change in the circumstances of either party,” has been repealed and substituted by Public Acts 1987, No. 87-104. That act states, in relevant part, that after dissolution of a marriage “modification may be made upon a showing of such substantial change of circumstances, whether or not such change of circumstances was contemplated, at the time of dissolution. By written agreement, stipulation or by decision of the court, those items or circumstances that were contemplated and are not to be changed may be specified in the written agreement, stipulation or decision of the court.” (Emphasis added.) This act, however, was not effective until October 1, 1987.

       The plaintiffs financial affidavit shows that a significant portion of this increase was due to the plaintiffs placing herself on call as a nurse for additional hours. The record indicates that the defendant owed the plaintiff an arrearage of more than $2000 as of the date of the hearing on the defendant’s motion for modification. The plaintiff claimed that the large arrearage forced her to work extra hours.


author: Borden, J.

text:
    Ronald Tyler v. George D. Bronson, Warden
    (4935)
    Borden, Daly and O’Connell, Js.
    Argued October 9
    decision released November 17, 1987

      Suzanne Zitser, assistant public defender, with whom, on the brief, was Joette Katz, public defender, for the appellant (petitioner).

      Judith Rossi, deputy assistant state’s attorney, with whom, on the brief, were James G. Clark and Steven Sellers, assistant state’s attorneys for the appellee (respondent).
   Borden, J.

The petitioner appeals from a judgment dismissing his petition for a writ of habeas corpus. The sole relief sought in the habeas proceeding was an order granting him the right to file a late appeal of his conviction. The issue in this appeal is whether the trial court erred in concluding that the petitioner had forfeited his appellate rights, where he received no actual notice of his right to appeal because he had absented himself from his jury trial, and from the sentencing which followed the verdict of guilty. We find no error.

The facts are undisputed. In November, 1984, the petitioner, who was free on bond, was tried for the crime of assault in the first degree. He failed to appear in court during the course of his jury trial. After an unsuccessful attempt to locate the petitioner, the trial court, Moraghan, J., determined that he had knowingly, intelligently and voluntarily absented himself to avoid prosecution and thereby waived his right to be present at his trial. The court ordered his bond forfeited and issued a rearrest warrant. The trial proceeded, and the petitioner was found guilty in absentia.

When the petitioner did not appear for sentencing in December, 1984, the court found that he knowingly waived his right to be present and sentenced him in absentia to a twenty year term of imprisonment. The petitioner was represented by counsel throughout these proceedings and, at the time of sentencing, the court clerk delivered to the petitioner's counsel notices of his rights to appeal and to sentence review.

The petitioner remained a fugitive for nearly two months after the imposition of sentence. No appeal was filed within the time prescribed by General Statutes § 54-95 and Practice Book § 3007 (now § 4009). In February, 1985, the petitioner surrendered himself to the authorities and began serving the sentence imposed on the assault conviction.

Thereafter, the petitioner filed this petition for a writ of habeas corpus. The habeas court, Barry, J., dismissed his petition after concluding that by “fleeing the jurisdiction, [the petitioner] has clearly forfeited and deliberately bypassed his appellate rights.” This appeal followed.

Where a petitioner seeks habeas corpus relief in the nature of permission to file a late appeal of his conviction, the relief may be denied where the petitioner has deliberately bypassed timely appellate review of the conviction. Paulsen v. Manson, 193 Conn. 333, 337-38, 476 A.2d 1057 (1984); D’Amico v. Manson, 193 Conn. 144, 147-48, 476 A.2d 543 (1984); Staton v. Warden, 175 Conn. 328, 398 A.2d 1176 (1978). The deliberate bypass rule furthers the goal of the orderly administration of justice. Paulsen v. Manson, supra; Cajigas v. Warden, 179 Conn. 78, 82-83, 425 A.2d 571 (1979).

The petitioner relies on a long line of established case law which holds that a deliberate bypass of direct review of a criminal conviction requires a finding “that the petitioner knowingly, intelligently and voluntarily waived his right to appeal.” (Citation omitted.) Russo v. Lopes, 12 Conn. App. 343, 345, 530 A.2d 667 (1987); see also D’Amico v. Manson, supra, 147; Talton v. Warden, 171 Conn. 378, 385, 370 A.2d 965 (1976). That line of cases derives from the traditional rule that, ordinarily, waiver of a fundamental right involves “an intentional relinquishment or abandonment of a known right or privilege.” Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938). The petitioner argues that, because he was not given personal notice of his right to appeal, he could not have voluntarily or knowingly waived that right, and that he therefore has not deliberately bypassed a direct appeal of his conviction. We disagree.

The rule of law set forth in the cases relied on by the petitioner does not apply to the unique facts of this case. Those cases assume a criminal defendant who was present at the time he gave up his right to appeal. Their reasoning is premised upon a habeas petitioner who was either a misinformed participant in the waiver of his appellate rights; see, e.g., Russo v. Lopes, supra; or an uninformed participant in such a waiver. See, e.g., D’Amico v. Manson, supra; Staton v. Warden, supra, 331.

A close reading of those cases which relied on Johnson v. Zerbst, supra, shows that the waiver analysis used therein requires a criminal defendant who is present at the time the right is waived. Such cases inquire whether specific and correct information was conveyed directly to the defendant so as to serve as a sufficient basis for a waiver of his appellate rights. That inquiry clearly assumes a criminal defendant who is at least a nominal participant in the judicial process by his presence before the court.

Here, of course, the petitioner was on the run at the time he was required to file an appeal. As the habeas court noted, “[i]t is to state the obvious to say that the petitioner’s present predicament regarding his appellate rights is the result of his own conduct.” The petitioner’s voluntary absence from his trial and sentencing, therefore, is the critical fact which distinguishes this case from those cases using traditional constitutional waiver analysis.

Our case law has recognized that a criminal defendant’s flight from custody brings with it special rules of forfeiture with respect to pending appellate proceedings. In State v. Leslie, 166 Conn. 393, 349 A.2d 843 (1974), our Supreme Court dismissed the appeal of a criminal defendant who had escaped and was still a fugitive when his appeal was heard. The United States Supreme Court has approved similar rulings in state and federal cases. See, e.g., Estelle v. Dorrough, 420 U.S. 534, 95 S. Ct. 1173, 43 L. Ed. 2d 377 (1975) (per curiam); Molinaro v. New Jersey, 396 U.S. 365, 90 S. Ct. 498, 24 L. Ed. 2d 586 (1970) (per curiam); Smith v. United States, 94 U.S. 97, 24 L. Ed. 32 (1876). These cases illustrate that an appellate court may refuse to hear a pending criminal appeal where the defendant has escaped from custody or refused to surrender himself, without the necessity of engaging in traditional constitutional waiver analysis. The reason for this rule is that the defendant’s abandonment of the orderly process of judicial administration under these circumstances justifies the conclusion that a forfeiture has occurred. Cf. State v. Drakeford, 202 Conn. 75, 81, 519 A.2d 1194 (1987) (a defendant who deliberately leaves the courtroom after his trial has begun forfeits his right to be present at trial and cannot be allowed to claim any advantage because of his absence).

We see no reason why the disentitlement rule, adopted in State v. Leslie, supra, should not apply to the facts of this case, where the petitioner’s conduct indicated a complete disregard for the orderly process of a criminal trial and timely appellate review. We conclude that the petitioner’s failure to appeal his conviction in a timely manner amounted to a forfeiture of his appellate rights, because his failure to appear at trial and sentencing was an act completely within his control, and that act clearly manifested his abandonment of the legal process.

There is no error.

In this opinion the other judges concurred.

       The petitioner later pleaded guilty to a charge of failure to appear, in violation of General Statutes § 53a-172, as a result of his wilful failure to appear at his trial proceedings. He was sentenced to an additional term of imprisonment, to be served consecutively to the sentence for assault. The failure to appear charge is not involved in this appeal.

       Shortly after this appeal was filed, the respondent filed a motion in this court for permission to file a late appeal directly from his conviction. See State v. Stead, 186 Conn. 222, 440 A.2d 299 (1982). That motion was denied.

       The petitioner argues that the trial court’s conclusion, which we approve here, would completely prevent appellate review under these circumstances, notwithstanding egregious constitutional error by the trial court, such as a directed verdict of guilty after the defendant’s failure to appear. We do not share the petitioner’s fear. Just as our rules of practice permit appellate review despite procedural default; see Practice Book § 4185 (plain error rule); our decision in this case is not so broad or absolute as to preclude appellate review to remedy such a gross abuse of the right to a fair trial. No such circumstances are alleged here.


text:
    Anne Voloshin v. Marvin Voloshin
    (4371)
    Dupont, C. J., Bieluch and Norcott, Js.
    Argued October 7
    decision released November 17, 1987

      J. Daniel Sagarin, with whom, on the brief, was William B. Barnes, for the appellant (defendant).

      Howard A. Jacobs, with whom was Karen Fox Tross, for the appellee (plaintiff).
   Dupont, C. J.

In this appeal from the judgment dissolving the marriage of the parties, the defendant husband claims an abuse of discretion by a state trial referee acting as the trial court (1) in finding that the defendant intentionally made misrepresentations on his financial affidavit, (2) in crediting the testimony of the plaintiff’s expert witness’ appraisal of a leasehold interest held by the defendant, (3) in finding that the defendant’s behavior was the cause of the breakdown of the marriage, and (4) in awarding attorney’s fees and costs to the plaintiff. We find no error.

The parties had been married for more than fifteen years at the time of the dissolution. The court found the defendant to have a net worth of $3,435,727.20 and the plaintiff, a net worth of $155,050. The net worth of the defendant included the value of his leasehold interest in a parcel of land which is the site of two car dealership companies owned by him as well as a small shopping center. The plaintiff’s expert real estate appraiser testified that the net value of the defendant’s leasehold interest was $2,985,000, which figure was utilized by the court in determining the defendant’s net worth. Allegations of adulterous behavior were made by both parties at the trial. The defendant admitted adultery. The plaintiff initially denied adultery. In subsequent testimony, she admitted that she had so acted, but only at the behest and in the presence of the defendant.

The trial court found that the marriage of the parties had broken down irretrievably, caused by the defendant’s adultery, gambling and mistreatment of the plaintiff. The court also found that the defendant had filed misleading financial affidavits with the court. In addition to awarding the plaintiff $1000 per week periodic alimony and $250,000 lump-sum alimony, the court ordered the defendant to pay the plaintiff’s counsel fees and costs in the amount of $21,231.41.

The defendant first claims that the trial court erred in finding that he intentionally misrepresented his net worth on a financial affidavit submitted to the court during pendente lite proceedings. The trial court found that “the evidence adduced at trial is at variance with [the defendant’s] financial affidavits.” Consequently, the court stated in its memorandum of decision that “[b]ecause of the defendant’s misleading statements as to finances, it logically follows that those false statements as to his finances can be held against him. Such an inference does not necessarily apply to any specific fact in the cause, but operates indefinitely although strongly, against the whole mass of alleged facts constituting his cause,” citing 2 J. Wigmore, Evidence (Chadbourn Rev.) § 278, p. 133.

The trial court was well within its discretion in making this determination, and in using its conclusion as a basis for assessing the credibility of the defendant. Exhibits introduced into evidence at trial showed that the defendant, on the basis of financial affidavits filed by him other than with the court, claimed to have a personal net worth of $1,769,000 in 1981, a personal net worth of $1,755,304 in 1982, and of $1,979,000 in 1983. In affidavits filed with the court in 1984 and 1985, he claimed a net worth of $50,000 and $561,500, respectively. The defendant attempts to minimize the glaring misrepresentations contained in his 1984 affidavit by arguing that the affidavit was inconsequential or immaterial because the parties had reached a temporary financial arrangement at the time, that his leasehold interest had an unknown value, that he had no opportunity to value all of his assets, and that he believed that the plaintiff would not go through with the dissolution. Such “reasons” for inaccuracy do not even rise to the level of excuses. A court is entitled to rely on sworn financial statements filed in dissolution actions, and when it finds it cannot, is entitled to draw adverse inferences which go to the core of the entire proceeding. See Grayson v. Grayson, 4 Conn. App. 275, 287-88, 494 A.2d 576 (1985), appeal dismissed, 202 Conn. 221, 520 A.2d 225 (1987).

Furthermore, in response to the defendant’s motion for articulation, the court made other findings which impacted on the defendant’s credibility. It found that the defendant could not substantiate a claimed loan of $700,000, and that he had all of his personal living expenses paid by his car dealership companies. These companies also paid for his living expenses in Florida, and paid for a boat, its maintenance and shipment to Florida, as well as his airline tickets to Florida. The company also paid for his mother’s rent, a housekeeper for his mother, and paid salaries to various members of his family who did not actually work for the companies.

The scope of our 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. Leo v. Leo, 197 Conn. 1, 4, 495 A.2d 704 (1985); Rose v. Rose, 10 Conn. App. 391, 393, 523 A.2d 914 (1987). Based upon the significant inconsistencies between the defendant’s financial affidavits filed with the court and the evidence at trial, the court’s finding that the defendant had made misleading statements as to his finances was reasonable and logical.

The defendant’s second claim is that the court erred by crediting the plaintiff’s expert witness’ appraisal of the leasehold interest held by the defendant. At trial, the defendant did not object to the testimony of the plaintiff’s expert witness, nor did he challenge his qualification as an expert. Furthermore, the defendant did not introduce any expert testimony as to the valuation of the leasehold interest. The defendant now claims that the plaintiffs expert’s opinion was flawed as a matter of law because his valuation was too speculative to have been credited by the court.

Generally, this court is not required to consider claims unless they were distinctly raised at trial or arose subsequent to the trial, but may consider whether there was plain error in the interests of justice even if the claimed error, as in this case, was not brought to the attention of the trial court. Practice Book § 4185. Trubowitz v. Trubowitz, 5 Conn. App. 681, 685, 502 A.2d 940 (1985). “The doctrine of plain error should be invoked sparingly. To hold otherwise would undermine the requirement that claims of law be raised in the trial court in the first instance.” Berchtold v. Maggi, 191 Conn. 266, 274, 464 A.2d 1 (1983). We strongly disfavor that conduct by which, for whatever reasons, a party fails to object to errors which occur during trial until it is too late for them to be corrected, and then assigns such errors as grounds of appeal if the outcome of the trial is unsatisfactory. Timm v. Timm, 195 Conn. 202, 205, 487 A.2d 191 (1985); Bratz v. Bratz, 4 Conn. App. 504, 509, 495 A.2d 292 (1985).

There are no exceptional circumstances in this case which would make it appropriate for this court to review the defendant’s claim of error under our authority to consider “plain error.”

The defendant next claims error in the trial court's finding that the breakdown of the marriage was caused solely by the defendant’s conduct. The defendant asserts that the trial court erred, when determining the financial awards, in not considering the plaintiff’s admitted adultery.

The plaintiff testified at trial that the only extramarital relations she had were at the behest and in the presence of her husband, a bisexual, who used her to procure men for himself. The trial court found the plaintiff’s testimony to be credible. It further found that the defendant’s behavior was the cause of the breakdown of the marriage. The trial court is in a clearly advantageous position to assess all of the circumstances surrounding a dissolution action in which personal factors such as the demeanor and the attitude of the parties are so significant. The trial court is in the position to weigh and interpret the evidence before it in order to pass upon the credibility of witnesses. We, as a reviewing court, do not retry the facts. Carter v. Carter, 8 Conn. App. 356, 358, 512 A.2d 979 (1986).

The trial court chose to believe the plaintiff’s evidence, and viewed the plaintiff’s extramarital relations in the context in which they occurred. In light of the evidence presented at trial, the court’s finding that the defendant’s conduct caused the breakdown of the marriage, and its disregard of the plaintiffs conduct, is not an abuse of discretion. “The trier of the facts is free to accept or reject, in whole or in part, the evidence of either party.” Holmes v. Holmes, 2 Conn. App. 380, 382, 478 A.2d 1046 (1984).

The defendant finally claims error in the trial court’s award to the plaintiff of $21,231.41 in attorney’s fees and costs. The decision to award counsel fees in a dissolution case is clearly within the trial court’s discretion. Holley v. Holley, 194 Conn. 25, 33-34, 478 A.2d 1000 (1984); Costa v. Costa, 11 Conn. App. 74, 77, 526 A.2d 4 (1987). In determining whether to award counsel fees, the trial court must consider the total financial resources of the parties in light of the statutory criteria. General Statutes §§ 46b-62 and 46b-82; Turgeon v. Turgeon, 190 Conn. 269, 280, 460 A.2d 1260 (1983). Our review of the record indicates that the trial court specifically considered the statutory criteria in determining whether to award counsel fees. In light of the circumstances in this case, we cannot find that the trial court abused its discretion or acted unreasonably in granting the plaintiffs request for attorney’s fees.

There is no error.

In this opinion the other judges concurred.

       We note that “plain error” did not occur. A review of the expert’s testimony shows that his opinion as to value was not speculative and was credible. The expert’s opinion was based on a combination of a comparable sales approach (as to the dealerships) and a capitalization of income approach (as to the shopping center). There was evidence to suppport the valuation and the court’s finding as to.valuation should not be disturbed. Carpenter v. Carpenter, 7 Conn. App. 112, 115, 507 A.2d 526 (1986); Ellsworth v. Ellsworth, 6 Conn. App. 617, 620-21, 506 A.2d 1080, cert. denied, 200 Conn. 801, 509 A.2d 516 (1986).


text:
    John M. Cronin v. Virginia L. Blaisdell
    (5740)
    Spallone, O’Connell and Stoughton, Js.
    Submitted on briefs September 28
    decision released November 24, 1987

      William F. Gallagher, Robert P. Borquez and Mark T. Altieri filed a brief for the appellant (plaintiff).

      James E. Coyne filed a brief for the appellee (defendant).
   Spallone, J.

In this appeal, the plaintiff avers as error the actions of the trial court (1) in admitting the testimony of a witness after the defendant failed to disclose the witness’ identity in response to the plaintiff’s request for interrogatories and production, (2) in admitting the medical report of a physician pursuant to General Statutes § 52-174 (b), (3) in admitting testimony that the plaintiff had made a claim for personal injuries sustained in a motor vehicle accident subsequent to the accident at issue in the present action, and (4) in refusing to set aside the jury’s verdict which the plaintiff claimed to be inadequate.

In 1983, the plaintiff commenced this action, sounding in negligence, seeking to recover for personal injuries sustained by him in a motor vehicle accident which had occurred on March 15,1982. The defendant denied liability and filed a special defense of contributory negligence. This matter was tried before a jury in November of 1986. The jury ultimately returned a verdict in which it found that the plaintiff suffered damages in the amount of $14,000. The jury also found, however, that the plaintiff was 30 percent contributorily negligent, and, accordingly, awarded the plaintiff damages in the amount of $9870. The plaintiff’s motion to set aside the verdict as inadequate was denied and the plaintiff appealed. We find no merit in any of the plaintiffs allegations of error.

The plaintiff first challenges the trial court’s ruling admitting the testimony of Robert Lesnow, a chiropractor who had treated the plaintiff for spinal complaints both before and after the March, 1982 accident. The plaintiff claims this witness should not have been permitted to testify because the defendant failed to disclose the witness’ identity in response to the interrogatories propounded by the plaintiff. The trial court overruled the plaintiff’s objection to the witness after a discussion outside the presence of the jury. During this discussion, defense counsel explained that he subpoenaed Lesnow only three days earlier and the chiropractor had yet to make any statements. In addition, defense counsel revealed that he had learned of Lesnow’s existence through earlier discovery from the plaintiff.

We cannot conclude that the trial court was “reverting back to the days of trial by ambush” as the plaintiff claims. After listening to the arguments of both counsel, the trial court concluded that the defendant would be prejudiced by the exclusion, of this witness and that the plaintiff could not legitimately claim surprise, having supplied information concerning the chiropractor to the defendant in the first place. We see no reason to meddle with this ruling. “The action of the trial court is not to be disturbed unless it abused its legal discretion, and ‘[i]n determining this the unquestioned rule is that “great weight is due to the action of the trial court and every reasonable presumption should be given in favor of its correctness.” Dudas v. Ward Baking Co., 104 Conn. 516, 518, 133 A. 591 [1926] . . . . ’ Ardoline v. Keegan, 140 Conn. 552, 555, 102 A.2d 352 [1954].” Camp v. Booth, 160 Conn. 10, 13, 273 A.2d 714 (1970), quoted by Sturdivant v. Yale-New Haven Hospital, 2 Conn. App. 103, 108, 476 A.2d 1074 (1984).

In the plaintiffs second claim of error, he contends that the court should not have admitted the x-ray report of radiologist Donald Zinn into evidence, pursuant to General Statutes § 52-174 (b). At the time the x-rays were taken, the plaintiff was being treated by Moshe Hasbani, a neurologist. Hasbani testified that he referred the plaintiff to Zinn to facilitate his diagnosis and treatment of the plaintiffs complaints. The report filed by Zinn analyzing the results of those x-rays was relied on by Hasbani and made a part of his file. The plaintiffs conclusion that this chain of events did not result in Zinn’s becoming a “treating physician” within the meaning of § 52-174 (b) is contrary to the factual reality of the matter. The court did not err in admitting this report in accordance with § 52-174 (b). See Pulaski v. Ledwith, 5 Conn. App. 629, 632, 501 A.2d 396 (1985), cert. denied, 198 Conn. 803, 503 A.2d 1186 (1986).

Third, the plaintiff argues that his testimony to the effect that he was involved in a subsequent motor vehicle accident in which he suffered injuries and for which he made claims similar to his claims in this action should not have been admitted by the court. The plaintiff testified on direct examination about his involvement in a second motor vehicle mishap in July, 1982, five months after the accident at issue here. After repeated attempts to minimize the importance of this second accident’s effect on his physical complaints, the plaintiff was asked during cross-examination whether he had made a claim for personal injuries stemming from the second aceident The trial court overruled the plaintiffs relevancy objection and permitted the plaintiff to answer.

“ ‘Our rules of practice make it clear that when an objection to evidence is made, a succinct statement of the grounds forming the basis for the objection must be made in such form as counsel desires it to be preserved and included In the record. Practice Book § 288. “This court reviews rulings solely on the ground on which the party’s objection is based.” State v. Manning, 162 Conn. 112, 118, 291 A.2d 750 (1971).’ ” State v. Manluccia, 2 Conn. App. 333, 341, 478 A.2d 1035, cert. denied, 194 Conn. 806, 482 A.2d 711 (1984). The plaintiff in this case gave no such supporting statement, instead choosing to rely only on his bald assertion that the testimony was irrelevant. Because our review of the trial court’s ruling is limited to the ground asserted; State v. Brice, 186 Conn. 449, 457, 442 A.2d 906 (1982); and because the trial court is vested with broad discretion in its rulings on questions of relevancy; State v. Runkles, 174 Conn. 405, 413, 389 A.2d 730, cert. denied, 439 U.S. 859, 99 S. Ct. 177, 58 L. Ed. 2d 168 (1978); every reasonable presumption must be given in favor of the trial court’s ruling. State v. Howard, 187 Conn. 681, 685, 447 A.2d 1167 (1982). We do not find an abuse of discretion in the admission of this testimony.

Finally, the plaintiff claims that the trial court should have granted his motion to set aside the verdict as inadequate. This court has recently had a few opportunities to discuss the law in this area. See, e.g., Shea v. Paczowski, 11 Conn. App. 232, 526 A.2d 558 (1987); Zimny v. Cooper-Jarrett, Inc., 8 Conn. App. 407, 513 A.2d 1235 (1986); Zarrelli v. Barnum Festival Society, Inc., 6 Conn. App. 322, 505 A.2d 25, cert. denied, 200 Conn. 801, 509 A.2d 516 (1986).

“Our function on appeal is . . . limited to determining whether the trial court abused its discretion in denying the plaintiffs’ motion to set aside the verdict. Such a decision ‘can be disturbed only by considerations of the most persuasive character, as where the verdict shocks the sense of justice or the mind is convinced that it is in fact entirely disproportionate to the injury. [Maltbie,] Conn. App. Proc., p. 151.’ Mulcahy v. Larson, 130 Conn. 112, 114, 32 A.2d 161 (1943).” Zarrelli v. Barnum Festival Society, Inc., supra, 327. In accordance with the principles espoused in Zarrelli and the cases cited earlier, we find that the trial court was justified in its refusal to set aside the verdict of the jury.

There is no error.

In this opinion the other judges concurred.

       Question nine of the plaintiffs interrogatories reads: “Has any oral statement been made to the defendants or any representative of the defense by any witness regarding any issue involved in this action?” The defendant responded negatively and, having done so, several subsequent questions, which sought more specific information regarding such an oral statement, were rendered inapplicable.

       It should be made clear that, although the witness was a chiropractor, he was not offered as an expert witness. The provisions of Practice Book § 220 and the.sanctions contained therein were never at issue here.

       General Statutes § 52-174 (b) provides in pertinent part: “In all actions for the recovery of damages for personal injuries . . . any party offering in evidence a signed report and bill for treatment of any treating physician . . . may have the report and bill admitted into evidence as a business entry and it shall be presumed that the signature on the report is that of the treating physician . . . and that the report and bill were made in the ordinary course of business.”

       For the first time, in his brief, the plaintiff claims that this testimony’s probative value was far outweighed by its prejudicial effect on the jury. “[Ajssuming arguendo that a claim of irrelevancy invokes by implication a claim that the probative value of evidence is outweighed by its prejudicial impact,” we do not change our conclusion that the trial court did not abuse its discretion. State v. Manluccia, 2 Conn. App. 333, 342, 478 A.2d 1035, cert. denied, 194 Conn. 806, 482 A.2d 711 (1984).


text:
    David G. Lefflbine v. Ingrid S. Lefflbine
    (4998)
    Spallone, O’Connell and Stoughton, Js.
    Argued October 13
    decision released November 24, 1987

      Francis C. Shea, for the appellant (defendant).

      Cynthia D. Houck, for the appellee (plaintiff).
   Spallone, J.

The defendant appeals from the judgment rendered in an action for dissolution of marriage, claiming that the trial court erred (1) in designating the plaintiff husband as the custodial parent of the two minor children, (2) in concluding that the breakdown of the marriage was the fault of the defendant and, therefore, making no award of periodic alimony, (3) in assigning the defendant’s interest in the family home to the plaintiff, and (4) in denying the defendant’s motion for a new trial based on the existence and discovery of new evidence.

The facts are not in dispute. The parties were married for twelve years, during which time a daughter and a son were born. Conflicts eventually arose between the plaintiff and the defendant, resulting in a severe strain on their marital relationship. The defendant suffered emotional disturbances which led to her hospitalization for treatment. On occasion, the defendant inflicted corporal punishment upon her children, and the daughter once required medical treatment for injuries brought about by a kick from her mother. There was testimony that the defendant spent much of her time lying in bed, leaving the plaintiff to take all the responsibility for the home and children.

After a contested hearing, the trial court concluded that the marriage had broken down irretrievably and that the cause of this breakdown, for a variety of reasons, was the fault of the defendant. Thereupon, the trial court dissolved the marriage and entered its orders awarding custody of the minor children to the plaintiff, and ordering the defendant to convey her interest in the marital home to the plaintiff, subject to a payment to her of $25,000 after the passage of ten years, or earlier if the plaintiff remarried, died or sold the premises. The court ordered no periodic alimony or child support. The defendant has appealed on the issues of fault, alimony, custody and property settlement. We find no error in the court’s actions.

The first three issues raised by the defendant implicate the factfinding function and the broad discretionary powers of the trial court. Our Supreme Court and this court have repeatedly and consistently held that we will not intrude into the proper exercise of those functions unless there is an abuse of discretion. “It is axiomatic that because of its clearly advantageous position to assess all of the circumstances before it, the trial court is accorded broad discretion in awarding alimony and allocating property in dissolution actions. Carpenters. Carpenter, 188 Conn. 736, 742, 453 A.2d 1151 (1982); Carter v. Carter, 8 Conn. App. 356, 358, 512 A.2d 929 (1986). This court has held that decisions by the trial court on such matters will only be disturbed ‘ “under the clearest of circumstances.” ’ Ehrenkranz v. Ehrenkranz, 2 Conn. App. 416, 421, 479 A.2d 826 (1984).” Papageorge v. Papageorge, 12 Conn. App. 596, 598-99, 533 A.2d 229 (1987).

This court cannot find facts or draw conclusions from primary facts found, but can only review such findings to determine whether they could legally, logically and reasonably be found, thereby establishing that the court could reasonably conclude as it did. Appliances, Inc. v. Yost, 186 Conn. 673, 676-77, 443 A.2d 486 (1982). Our study of the transcript discloses ample evidence to support the trial court’s findings of fact and its conclusions of law.

The defendant’s final claim, that the trial court erred in denying her motion for a new trial on the basis of existing and newly discovered evidence, also fails. Prior to the institution of this dissolution action, and during proceedings then pending in the Probate Court, the state department of children and youth services (DCYS) conducted a custody study with regard to the children and parties herein involved. When the dissolution aetion was initiated, the proceedings in the probate court were abated. Although it existed at the time of the trial of this action, the actual report prepared by DCYS was never presented to the trial court for consideration. After the judgment of dissolution was rendered, new counsel for the defendant became aware of said report and thereupon moved for a new trial based on newly discovered evidence.

A hearing on the motion for a new trial was held before the court, Kelly, J., which, after taking evidence, expressly found (1) that the DCYS report could have been discovered and produced at the time of trial by the exercise of due diligence, (2) that the testimony given during the dissolution action by Peter Myers, a family relations officer, was based to a considerable extent on the DCYS report, and (3) that even considering the content of the DCYS report, the final result in the dissolution action would not have been different. These findings are fully supported by the evidence and manifest a correct application of the standards to be applied when deciding a motion for a new trial. As enunciated in Hamlin v. State, 48 Conn. 92, 93-94 (1880), “to entitle a party to another trial on the ground of newly-discovered evidence, it must be made to appear that the evidence relied upon for such purpose was in fact newly-discovered; that it would be material to the issue on another trial; that it could not have been discovered and produced on the former trial by the exercise of due diligence; that it must not be cumulative; and that it must be sufficient to produce a different result on another trial, should the cause be determined solely upon the law and the evidence.” Although Hamlin is over one hundred years old, it is still the law which governs our trial courts when presiding over a motion for new trial based on newly discovered evidence. See, e.g., Kubeck v. Foremost Foods Co., 190 Conn. 667, 670, 461 A.2d 1380 (1983); Lombardo v. State, 172 Conn. 385, 390, 374 A.2d 1065 (1977).

Our analysis indicates that the trial court properly exercised its factfinding function in attributing fault in this matter, did not abuse its broad discretion in awarding custody and in fashioning its financial awards, and applied long standing and lawful standards in ruling on the defendant’s motion for a new trial based on newly discovered evidence.

There is no error.

In this opinion the other judges concurred.

       Although a fifth claim of error was included in the defendant’s statement of issues, a careful examination of the brief could not uncover any argument in support of this claim. Under these circumstances, we consider the claim abandoned. See Enterprise Leasing Corporation v. Dixon, 1 Conn. App. 496, 501, 472 A.2d 1300 (1984); Schlough v. Ruley, 1 Conn. App. 119, 119 n.3, 468 A.2d 1272 (1983).

       This portion of the judgment was opened by the trial court on February 24,1986, to amend the terms of the $25,000 payment to the defendant to include the death of the plaintiff.


text:
    American Fabrics Company v. United Textile Workers of America, Local 240
    (5111)
    Borden, Daly and O’Connell, Js.

      Argued October 6
    decision released November 24, 1987

      William H. Narwold, for the appellant (plaintiff).

      John M. Creane, for the appellee (defendant).
   Borden, J.

The plaintiff appeals from the judgment of the trial court denying its application, filed pursuant to General Statutes § 52-418, to vacate an arbitration award rendered under a collective bargaining agreement between the parties. The plaintiff claims that the court erred (1) by applying an improper scope of review to the award, (2) by disregarding and modifying the plain language of the parties’ agreement regarding the timeliness of the defendant’s grievance, (3) by disregarding and modifying the plain language of the agreement regarding the power of the arbitrator to order the plaintiff to increase starting wage rates, and (4) by disregarding and modifying the plain language of the agreement regarding the time period covered by the award. We find error in part.

The facts are not in dispute. The plaintiff and the defendant were parties to a collective bargaining agreement effective May 16, 1982, through May 15, 1985. Article XVII, Section 4 of the agreement provided for certain wage increases on May 16,1982, May 16,1983, and May 14, 1984. The wage increases were to be applied to the “then existing wages.” Pursuant to its interpretation of this provision, the plaintiff on each anniversary date of the agreement increased the wages of certain of the employees then employed by it, but did not increase the wage rates at which new employees were hired or the minimum wage rates for the various job classifications. Those wage rates remained constant.

On February 22, 1985, the defendant filed a grievance that the plaintiff had violated Article XVII, Section 4 of the agreement by failing to apply the specified wage rates to the starting and minimum wage rates. Article IX, Section 2 of the agreement provided, in pertinent part, that unless a grievance were presented to the plaintiff no more than ten working days “from the occurrence of the condition giving rise the grievance” it would “not thereafter be considered a grievance under this agreement . . . . ” After the defendant’s grievance was denied, the defendant submitted the grievance to arbitration pursuant to Article XI of the agreement. That article provided, in pertinent part, for arbitration “as to the meaning and interpretation of particular provisions” of the agreement. It also provided that the arbitrator had “no power ... to add to, subtract from or modify this Agreement, or to establish or change any rates of pay or wages,” and that the arbitrator had “no power . . . to make any awards for a period which transpired before a dispute was first submitted by the Union to the Company, nor shall the Arbitrator grant any relief extending beyond the termination date of the contract.”

The parties did not agree on the specific language of the submission. The arbitrator, therefore, framed it as follows: “Did the [plaintiff’s] failure to apply the general wage increases listed in Article XVII, Section 4, to the starting wage rate and/or the minimum wage rate for various job classifications [constitute] a violation of that provision? If so, what should be the remedy?” On November 21,1985, the arbitrator rendered an award finding that the grievance was timely, and that the plaintiff had violated the agreement. The arbitrator directed the plaintiff to increase the starting wage rate and each job classification minimum rate, in specified amounts, effective January 15, 1985, and to make reimbursement to any eligible employees retroactive to January 15, 1985.

The plaintiff applied to the trial court to vacate the award. The court denied the plaintiffs application. This appeal followed.

I

The plaintiff first claims that the trial court erred by applying an improper scope of review to the arbitrator’s award. Specifically, the plaintiff claims that the court applied a state law scope of review; see, e.g., Board of Education v. Local 818, 5 Conn. App. 636, 639-40, 502 A.2d 426 (1985) (comparison of award with submission); rather than a federal law scope of review which, the plaintiff contends, is required because the plaintiff is engaged in interstate commerce. See, e.g., United Steelworkers v. Enterprise Wheel & Car Corporation, 363 U.S. 593, 597, 80 S. Ct. 1358, 4 L. Ed. 2d 1424 (1960) (under federal law, the award must “[draw] its essence” from the agreement); Hudson Wire Co. v. Winsted Brass Workers Union, 150 Conn. 546, 553, 191 A.2d 557 (1963) (same). We decline to consider this claim because it was not presented distinctly to the trial court.

The trial court did state that a “challenge to an award on the ground that the arbitrator has exceeded his power is limited to a comparison of the award with the submission. Bic Pen Corporation v. Local No. 134, 183 Conn. 579, 584 [440 A.2d 774 (1981)].” In addition, however, the court specifically cited Board of Education v. Local 818, supra, to support its statement that “the scope of judicial review is very narrow, since the courts favor arbitration as a means of settling differences. The award is to be upheld unless the award clearly violates General Statutes § 52-418.”

In Board of Education v. Local 818, supra, we held that, pursuant to an unrestricted submission, generally “[i]f the award conforms to the submission, the arbitrators have not exceeded their powers.” Id., 639-40. We also held, however, that there are “limited circumstances in which a court will conduct a broader review of an arbitrator’s decision.” Id., 640. These circumstances are where a party claims “that the award, as issued, is inherently inconsistent with the underlying collective bargaining agreement . . . .’’Id. In such a case, “this court will review the award only to determine whether it ‘draws its essence from the collective bargaining agreement.’ ” Id., quoting United Steelworkers v. Enterprise Wheel & Car Corporation, supra, 597. In Board of Education v. Local 818, supra, therefore, we reconciled any apparent inconsistency between the state and federal standards of review.

As the defendant correctly points out, the plaintiff did not present distinctly to the trial court the claim that the plaintiff’s involvement in interstate commerce required the court to employ a scope of review more searching than is ordinarily required. The plaintiff’s trial brief is bereft of anything resembling such a claim. It is true that the defendant’s trial brief refers to Hudson Wire Co. v. Winsted Brass Workers Union, supra, and to Board of Education v. Local 818, supra, but neither party claimed to the court that the plaintiff’s purported involvement in interstate commerce triggered a different scope of review.

Even if we were to find error in the trial court’s scope of review, however, a remand to the trial court would not necessarily be required. The plaintiffs other claims of error specify the ways in which, the plaintiff argues, the award does not draw its essence from the agreement. We now address those claims.

II

The plaintiff next claims that the court erred by disregarding the plain and unambiguous language of the agreement regarding the timeliness of the grievance filed by the defendant. Specifically, the plaintiff claims that the grievance, filed on February 22, 1985, was untimely under Article IX, Section 2 of the agreement, because it was not filed within ten days of “the occurrence of the condition giving rise to the grievance,” namely, the plaintiffs purported failure, in May, 1982, May, 1983, and May, 1984, to increase the starting and minimum wage rates. We disagree.

“We have held that the failure to file a timely grievance is a question of procedure stemming from the agreement itself.” East Hartford v. East Hartford Municipal Employees Union, Inc., 10 Conn. App. 611, 617-18, 525 A.2d 112, cert. granted, 204 Conn. 806, 528 A.2d 1153 (1987). With respect to that issue, the court is not bound by the arbitrator’s decision and is free to examine the question anew. Id., 615-18. Applying this enhanced scope of review, we agree with the finding of the arbitrator that the grievance was timely filed.

Where a grievance concerns a discrete, isolated event, such as a discharge of an employee, “the occurrence of the condition giving rise to the grievance” is easily marked. Where, however, the grievance concerns, as in this case, the failure of the employer to apply a general wage increase to the starting wage rates of new hires, the boundaries of “the occurrence of the condition” are less clear. In such a case, no particular employee is poised to alert the union to the violation. Moreover, the plaintiff’s argument proves too much, because it would also apply to the plaintiffs failure to pay the annual wage increases to the employees who are not at the starting or minimum wage rate. That, in turn, would mean that if a grievance challenging such a failure were not filed within ten days of the contract anniversary date, the plaintiff could not be compelled by the grievance and arbitration procedures to make its employees whole. We do not believe that the parties intended such a result. See Game-A-Tron Corporation v. Gordon, 2 Conn. App. 692, 694-95, 483 A.2d 620 (1984) (between two possible interpretations of a contract, court prefers the more equitable and rational interpretation). We conclude, therefore, that the alleged violation was continuing, and that each day’s failure to pay a wage increase required by the agreement was a new violation which triggered a new time period for filing a grievance. Thus, the grievance was timely filed.

The cases on which the plaintiff relies are inapplicable. They involve either a statute of limitations governing a wrongful discharge claim or an action for breach of a collective bargaining agreement; see, e.g., International Association of Machinists & Aerospace Workers, AFL-CIO v. Aloha Airlines, Inc., 790 F.2d 727, 733-38 (9th Cir.), cert. denied, 479 U.S. 931, 107 S. Ct. 400, 93 L. Ed. 2d 354 (1986); West v. ITT Continental Baking Co., 683 F.2d 845 (4th Cir. 1982); or an application to vacate an arbitration award based on a clear-cut, discrete event, rather than a claim of a continuing violation by refusing to pay wages required by .the collective bargaining agreement. See, e.g., Detroit Coil Co. v. International Association of Machinists & Aerospace Workers, Lodge #82, 594 F.2d 575 (6th Cir.), cert. denied, 444 U.S. 840, 100 S. Ct. 79, 62 L. Ed. 2d 52 (1979).

III

The plaintiff’s third claim is that the court erred in upholding the award, because the award modified the plain and unambiguous language of the agreement prohibiting the arbitrator from “establishing] or changing] any rates of pay or wages . . . .’’The plaintiff does not claim that the award fails to conform to the submission. Rather, it claims that the arbitrator’s remedy is inherently inconsistent with the agreement, and does not draw its essence from the agreement. This claim is without merit.

The award is based on the provision of the agreement authorizing arbitration “as to the meaning and interpretation of particular provisions” of the agreement, namely, the provision regarding annual increases of “then existing wages.” It is clear from the lengthy and reasoned decision of the arbitrator, which we have examined; Board of Education v. Bridgeport Education Assn., 173 Conn. 287, 292, 377 A.2d 323 (1977); that his award draws its essence from the agreement. Board of Education v. Local 818, supra. We require no more. Indeed, the plaintiff’s position would preclude the most effective remedy for the plaintiff’s violation of its obligation to institute the wage increases required by the collective bargaining agreement. That would eviscerate the grievance and arbitration process, on which the parties agreed.

IV

We do find merit to the plaintiff’s final claim, namely, that the court erred when it upheld the arbitrator’s time limits on the award. The award ordered the plaintiff to increase the starting and minimum wage rates for each job classification effective January 15, 1985, and to reimburse employees for lost wages retroactive to that date.

There are two fundamental flaws in this award. Both involve a failure of the award to draw its essence from the agreement. Board of Education v. Local 818, supra.

First, there is simply no justification for the date of January 15, 1985. We can find none in the collective bargaining agreement, or in the arbitrator’s decision. Nor has the defendant been able to point us to any reasonable justification for that particular date. Thus, that particular part of the award cannot stand.

The agreement provides that the grievance must be filed within ten days of the occurrence of the condition giving rise to the grievance. The parties do not quarrel with the arbitrator’s reasoning that, with respect to the ongoing failure of the plaintiff to pay required wage increases, this provision operates as a limit on the plaintiff’s retroactive liability to a ten day period preceding the filing of the grievance. The grievance in this case was submitted to the plaintiff on February 22, 1985. Thus, the retroactive date in the award should have been February 12, 1985.

Second, the arbitrator did not adhere to the plain command of the agreement that he may not “grant any relief extending beyond the termination date of the contract.” Ordinarily, when an arbitrator renders an award during the life of a collective bargaining agreement containing such a provision, it would be understood that the award would only be effective until the end of the contract. Here, however, the award was rendered on November 21,1985, after the agreement had expired. The award should have made clear that it concerned wage rates only through May 15, 1985, the termination date of the collective bargaining agreement.

There is error in part, the judgment is set aside and the case is remanded with direction to render judgment in accordance with this opinion.

In this opinion the other judges concurred.