author: PER CURIAM.

text:
    STATE OF CONNECTICUT ET AL. v. DOUGLAS R. MCCARROLL
    (AC 28189)
    Bishop, Gruendel and Borden, Js.
    Argued January 21
    officially released March 24, 2009

      Douglas R. McCarroU, pro se, the appellant (defendant).

      J. Bernard Davis, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Jane R. Rosenberg, assistant attorney general, for the appellee (state).
   Opinion

PER CURIAM.

The pro se defendant, Douglas R. McCarroll, appeals from the judgments of the Superior Court affirming the decision of the family support magistrate denying his motions to open and to set aside certain paternity judgments. The court concluded that the claims contained therein were barred by the doctrine of res judicata. We agree and, accordingly, affirm the judgments of the Superior Court.

The relevant facts are not in dispute. On December 20, 1991, a paternity judgment was rendered by family support magistrate Harris T. Lifshitz, in which the defendant was found to be the father of J, bom in 1988 to the plaintiff Tracy Philpot. The magistrate ordered the defendant to pay $100 per week in child support, as well as $10 per week toward an arrearage found to be $15,600. On March 20, 1992, a paternity judgment was rendered by family support magistrate Ronald Sullivan, in which the defendant was found to be the father of D, bom in 1991 to the plaintiff Debra Allegrini. The magistrate ordered the defendant to pay $75 per week in child support, $5 per week toward an arrearage of $1950 owed to the child’s mother and $5 per week toward an arrearage of $246 owed to the state.

On January 14, 1993, the defendant filed a motion to modify the child support order pertaining to Philpot, arguing, inter alia, that the order was unreasonable due to his indigence. The family support magistrate denied that motion with prejudice. From that decision, the defendant appealed to the Superior Court, which dismissed the appeal.

In May, 1995, the defendant was incarcerated in a federal prison for a term in excess of fifteen years. On July 12,1996, the defendant filed motions to modify the child support orders pertaining to both children. Those motions alleged that the respective child support orders were unreasonable in that they substantially deviated from the child support guidelines established pursuant to General Statutes § 46b-215a. A combined hearing was held on the motions, at which the defendant appeared and argued. Family support magistrate Sandra Sosnoff Baird thereafter issued an order relieving the defendant of his obligation to make support and arrearage payments during the time he was incarcerated. At the same time, the magistrate did not relieve the defendant of his responsibilities to pay accumulated arrearages. Specifically, the magistrate’s order in the Philpot matter found an arrearage owed to Philpot’s mother of $11,700, and an arrearage owed to the state of $29,300. The magistrate’s order in the Allegrini matter found an arrearage owed to the state of $19,200. Implicit in those orders is the rejection of the defendant’s claim that the support orders substantially deviated from the child support guidelines. The defendant did not appeal from those decisions.

In May, 2002, the department of social services (department) notified the defendant that it would be withholding his insurance assets to satisfy his arrear-ages in the Philpot and Allegrini matters. In response, the defendant requested an administrative hearing, at which he maintained that the support orders were fraudulent because they failed to take into account his indigence and substantially deviated from the child support guidelines. Following a hearing, the department ruled against the defendant and denied his request for reconsideration. The defendant thereafter filed appeals in the Superior Court from the department’s rulings in the Philpot and Allegrini matters. In each appeal, the defendant again argued that the support orders were fraudulent because they failed to take into account his indigence and substantially deviated from the child support guidelines. The court dismissed the appeals on May 22, 2006.

The defendant on May 20, 2005, filed the motions to open and to set aside the paternity judgments that are the subject of this appeal. In those motions, the defendant once again asserted that the support orders were fraudulent because they failed to take into account his indigence and substantially deviated from the child support guidelines. On June 1, 2006, family support magistrate Linda T. Wihbey held a combined hearing on the motions, in which the defendant participated by telephone. At the conclusion thereof, the magistrate denied the motions on res judicata grounds. From that decision, the defendant appealed to the Superior Court pursuant to General Statutes § 46b-231 (n). Following a hearing, the court affirmed the decision of the family support magistrate denying the motions to open and to set aside. This appeal followed.

“The doctrines of res judicata and collateral estoppel protect the finality of judicial determinations, conserve the time of the court, and prevent wasteful relitigation. . . . [T]he doctrine of res judicata . . . [provides that] a former judgment on a claim, if rendered on the merits, is an absolute bar to a subsequent action [between the same parties or those in privity with them] on the same claim.” (Citation omitted; internal quotation marks omitted.) Twenty-Four Merrill Street Condominium Assn., Inc. v. Murray, 96 Conn. App. 616, 619, 902 A.2d 24 (2006). The applicability of res judicata presents a question of law, over which our review is plenary. Id.

In the present case, the magistrate found that the defendant had raised the claim that the support orders were fraudulent because they failed to take into account his indigence and substantially deviated from the child support guidelines in multiple prior proceedings. The magistrate further found that those claims had been actually litigated and decided in those prior proceedings. Accordingly, the magistrate concluded that the claims asserted in the motions to open and to set aside were barred by res judicata. See LaMacchia v. Chilinsky, 85 Conn. App. 1, 6-7, 856 A.2d 459 (res judicata bars court from considering same basis for relief regarding child support arrearages as asserted in prior proceeding), cert. denied, 271 Conn. 942, 861 A.2d 514 (2004); Fish v. Igoe, 83 Conn. App. 398, 404, 849 A.2d 910 (res judicata precluded relitigation of child support issue “pertaining to a past proceeding”), cert. denied, 271 Conn. 921, 859 A.2d 577 (2004). The Superior Court expressly adopted that reasoning in affirming the magistrate’s decision. On our review of the record, we conclude that the determination that the doctrine of res judicata precluded consideration of the defendant’s claims is legally and logically correct. The court properly affirmed the denial of the motions to open and to set aside.

The judgments are affirmed.

       Apart from denying the motions on res judicata grounds, the magistrate alternatively concluded that the defendant failed to produce any evidence of fraud or mistake in the rendering of the judgments that would warrant a departure from the four month limitation contained in General Statutes §§ 52-212 and 52-212a and Practice Book § 17-4.

       General Statutes § 46b-231 (n) provides in relevant part: “(1) A person who is aggrieved by a final decision of a family support magistrate is entitled to judicial review by way of appeal under this section.
      “(2) Proceedings for such appeal shall be instituted by filing a petition in superior court for the judicial district in which the decision of the family support magistrate was rendered not later than fourteen days after filing of the final decision ....
      “(6) The appeal shall be conducted by the Superior Court without a jury and shall be confined to the record and such additional evidence as the Superior Court has permitted to be introduced. . . .”


source: Caselaw Access Project

author: GRUENDEL, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. ANGEL NATAL
    (AC 28849)
    DiPentima, Gruendel and Robinson, Js.

      Argued January 6
    officially released March 24, 2009

      Michael Stone, special public defender, for the appellant (defendant).

      Richard K. Greenalch, Jr., special deputy assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, and Charles M.

      Stango, senior assistant state’s attorney, for the appel-lee (state).
   Opinion

GRUENDEL, J.

The defendant, Angel Natal, appeals from the judgment of the trial court revoking his probation and committing him to the custody of the commissioner of correction for two years. The defendant claims that the court improperly (1) admitted testimony regarding the results of his urine tests and (2) considered testimony regarding his participation in inpatient substance abuse programs during the dispositional stage of the probation proceeding. We affirm the judgment of the trial court.

In 2004, the defendant was convicted of two counts of reckless endangerment in the first degree in violation of General Statutes § 53a-63. The court sentenced the defendant to two consecutive one year terms of incarceration, execution suspended, with three years of probation. Among the conditions of probation was the requirement that the defendant submit to “[d]rug screening, evaluation and treatment including random [urine testing] . ...” In addition, the terms of the defendant’s probation contained the standard prohibition against violating any criminal law of the state.

During his probationary period, the defendant’s urine samples repeatedly tested positive for phencyclidine (PCP) and marijuana. Positive tests on June 6, July 13 and September 12, 2005, led to the defendant’s referral to the technical violations unit, where he was assigned to probation officer Hilda Castillo. On October 13,2005, Castillo and the defendant reviewed the conditions of probation, and the defendant again signed the conditions, indicating his understanding thereof and agreement to be bound thereby. Nevertheless, the defendant’s urine samples dated October 13,17, 21 and 31, and November 8, 2005, and January 25, February 2 and 27, and March 10,14 and 23,2006, all tested positive. In response to the positive tests, the defendant was referred to multiple drug treatment programs. He failed three such inpatient programs, namely, Connecticut Valley Hospital, Waterbury Alternative to Incarceration and Project Green. The defendant successfully completed the Horizon inpatient substance abuse treatment program from December 7, 2005, through January 4, 2006. He then was enrolled in the outpatient program at the Regional Network of Programs, from which he was negatively discharged on July 6, 2006, for failure to attend. Apart from his struggles with substance abuse, the defendant on May 22, 2006, was arrested and charged with assault of public safety or emergency medical personnel in violation of General Statutes § 53a-167c, breach of the peace in the second degree in violation of General Statutes § 53a-181 and interfering with an officer in violation of General Statutes § 53a-167a.

On September 5,2006, Castillo filed an arrest warrant application for the defendant for violation of probation predicated on his fourteen positive urine tests, his failure to complete the outpatient treatment program and his May 22, 2006 arrest. The defendant subsequently was arrested and charged with violating the terms of his probation in violation of General Statutes § 53a-32.

By agreement of the parties, the court bifurcated the violation of probation hearing. During the adjudicative phase, the state offered the testimony of Castillo. The court thereafter found, on the basis of his positive urine tests, that the defendant had violated the conditions of his probation. In the dispositional phase of the violation of probation proceeding, Castillo opined that the defendant was not a candidate for further probationary supervision. The defendant testified that he presently was employed at a graphics company and that he provided support to his minor child. The defendant further stated that he was addicted to PCP and admitted to using PCP and marijuana during his probationary period. The defendant testified that he had been unwilling to participate in certain inpatient drug treatment programs, acknowledging his failure at Connecticut Valley Hospital and Waterbury Alternative to Incarceration, but not his unsuccessful participation in Project Green. The defendant testified that despite his past failures, he now was prepared to follow through with such treatment. The defendant also testified that he had been arrested twice during his probationary period. Finally, the mother of the defendant’s minor child testified that the defendant provided financial support for the child, that the defendant regularly visited the child and that she was unaware that the defendant had been using PCP and marijuana prior to hearing the defendant’s testimony that day. At the end of the dispositional phase of the hearing, the court stated that “from my experience as a judge [and] as a defense lawyer, I’ve never seen a warrant that gave a person [so] many chances.” The court thus determined that the beneficial purposes of probation were no longer being served, revoked the defendant’s probation and committed him to the custody of the commissioner of correction for two years. This appeal followed.

Before considering the defendant’s precise claims on appeal, we first note that “the rules of evidence do not apply to probation proceedings.” State v. Quinones, 92 Conn. App. 389, 392, 885 A.2d 227 (2005), cert. denied, 277 Conn. 904, 891 A.2d 4 (2006); see also Conn. Code Evid. § 1-1 (d) (4). “It is well settled that probation proceedings are informal and that strict rules of evidence do not apply to them. . . . Hearsay evidence may be admitted in a probation revocation hearing if it is relevant, reliable and probative.” (Citation omitted.) State v. Verdolini, 76 Conn. App. 466, 471, 819 A.2d 901 (2003). At the same time, “[t]he process ... is not so flexible as to be completely unrestrained; there must be some indication that the information presented to the court is responsible and has some minimal indicia of reliability.” State v. Young, 63 Conn. App. 794, 800, 778 A.2d 1015, cert. denied, 258 Conn. 903, 782 A.2d 140 (2001).

I

The defendant claims that the court improperly admitted Castillo’s testimony regarding the results of his urine tests. He argues that the state failed to provide a sufficient foundation for that testimony. We disagree.

During the adjudicative phase of the probation hearing, Castillo testified that the defendant was informed that pursuant to his conditions of probation, he was required to report on a weekly basis to the probation office to submit random urine samples, with which the defendant complied. Castillo testified that the urine analysis tests for the presence of, inter alia, “cocaine, heroin, [marijuana], PCP [and] alcohol.” Castillo testified that the tests were administered at the probation office and that she personally had assisted in the collection of samples on multiple occasions. Regarding the protocol for urine testing, Castillo testified that she normally fills out the paperwork for the laboratory and has the probationer sign and initial that paperwork to indicate that the probationer is both providing and sealing the particular sample. Castillo explained that she then takes the probationer to the bathroom and provides a cup. Castillo testified that once the sample was provided, she would retrieve it, “check the temperature, record it for the lab and then . . . send it to the lab [for testing].” Castillo testified that this procedure is followed at all times in her office. Castillo testified that she administered eleven urine tests for the defendant between October 13, 2005, and March 23, 2006, all of which tested positive for either PCP or marijuana. At the conclusion of the adjudicative phase, the court found that “the system that probation employed in terms of drug testing was rehable. Either [Castillo] supervised it or someone else supervised the taking of the urines, but it was done on the premises. The state laid a sufficient foundation to indicate how it was done. The court finds the system for testing drugs for probationers to be rehable.”

On appeal, the defendant contends that because the state failed to proffer any identification of the specific manner in which the testing was conducted, the laboratories that tested the samples or their chain of custody, there was an insufficient foundation for Castillo’s testimony. That distinct argument was not articulated to the court during the probation hearing, either by way of objection, cross-examination of Castillo or argument at the conclusion of the adjudicative phase of the proceeding. During that phase, the court heard detailed testimony concerning the protocol for collection of mine samples, with which Castillo testified that she complied in the present case. The court further heard testimony that in accordance with probation office protocol, the defendant’s samples were submitted to the laboratory for analysis, which yielded positive results. The court, as the sole arbiter of credibility; see Somers v. Chan, 110 Conn. App. 511, 530, 955 A.2d 667 (2008); was free to accept Castillo’s uncontroverted testimony, which it expressly did. In addition, the court was presented with no evidence whatsoever impugning the validity of the testing. On that evidence, we conclude that the court properly determined that the information presented to the court regarding the collection and testing of the defendant’s mine samples possessed some minimal indicia of reliability.

In addition, the defendant argues that the court should not have admitted Castillo’s testimony concerning his urine tests without evaluating the testimony pursuant to the test for the admissibility of scientific evidence set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), as adopted in this state by our Supreme Court in State v. Porter, 241 Conn. 57, 698 A.2d 739 (1997) (en banc), cert. denied, 523 U.S. 1058, 118 S. Ct. 1384, 140 L. Ed. 2d 645 (1998). The defendant failed to preserve that claim before the trial court and now requests Golding review. Because his claim is of evidentiary dimension, he cannot prevail. “Our Supreme Court has stated that once identified, unpreserved evidentiary claims masquerading as constitutional claims will be summarily dismissed. . . . We previously have held that Golding does not apply to evidentiary claims, which, standing alone, do not rise to the level of constitutional magnitude that is required by Golding’s second prong.” (Citation omitted; internal quotation marks omitted.) State v. Jackson, 86 Conn. App. 803, 811-12, 862 A.2d 880, cert. denied, 273 Conn. 909, 870 A.2d 1081 (2005). Other than a general invocation of his right to liberty, the defendant does not explain how his objection to the admission of Castillo’s testimony is constitutional in nature. We are not persuaded by the defendant’s attempt to transform an evidentiary issue into one of constitutional magnitude.

The defendant also seeks review as plain error under Practice Book § 60-5. “The plain error doctrine is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. . . . A party cannot prevail under plain error unless it has demonstrated that the failure to grant relief will result in manifest injustice.” (Internal quotation marks omitted.) State v. Smith, 275 Conn. 205, 240, 881 A.2d 160 (2005). The claim here does not present the type of extraordinary situation implicating that doctrine.

n

The defendant next claims that the court abused its discretion in revoking his probation. Specifically, he insists that during the dispositional phase of the probation proceeding, the court improperly considered testimony regarding his failure in three inpatient substance abuse programs because they were not included in Castillo’s arrest warrant application. The state maintains that the testimony was reliable and relevant to the court’s consideration of whether the beneficial purposes of probation were no longer being served. We agree with the state.

It is well established that “[a] revocation proceeding is held to determine whether the goals of rehabilitation thought to be served by probation have faltered, requiring an end to the conditional freedom obtained by a defendant at a sentencing that allowed him or her to serve less than a full sentence. . . . [T]he ultimate question [in the probation process is] whether the probationer is still a good risk .... This determination involves the consideration of the goals of probation, including whether the probationer’s behavior is inimical to his own rehabilitation, as well as to the safety of the public.” (Citation omitted; internal quotation marks omitted.) State v. Hill, 256 Conn. 412, 427, 773 A.2d 931 (2001). In evaluating the court’s decision at the dispositional phase of the revocation of probation hearing, “[t]he standard of review ... is whether the trial court exercised its discretion properly by reinstating the original sentence and ordering incarceration. . . . In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court’s ruling. . . . Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done.” (Internal quotation marks omitted.) Id., 426.

During the adjudicative phase of the probation hearing, Castillo testified that the defendant failed three inpatient drug treatment programs. The defendant did not object to that testimony. During the dispositional phase of the hearing, Castillo was asked whether the defendant was, in her opinion, a candidate for further probationary supervision in light of his positive mine tests and “three unsuccessful inpatient treatment programs,” to which defense counsel objected. Counsel stated: “I’d object in that only one inpatient treatment program is a — we’re placed on notice for in the violation of probation warrant. The others are excluded and they’re inappropriate.” The court overruled the objection and allowed the question, to which Castillo responded that the defendant was not a candidate for further probationary supervision. The only other reference to the defendant’s failure in the three inpatient treatment programs came during closing argument, when the prosecutor commented that the defendant had been given the “opportunity to go inpatient, and he’s three out of four with regard to his treatment programs with regard to unsatisfactory progress in those programs.”

On appeal, the defendant claims that the evidence of his failure in three inpatient drug treatment programs was admitted improperly, rendering the court’s revocation of his probation an abuse of discretion. We do not agree. The dispositional phase of the probation hearing is a sentencing proceeding. As such, “the court may also consider the types of information properly considered at an original sentencing hearing . . . .” (Internal quotation marks omitted.) State v. Young, 81 Conn. App. 710, 716, 841 A.2d 737, cert. denied, 269 Conn. 901, 852 A.2d 733 (2004). As our Supreme Court recently explained, “[a] sentencing judge may consider information that would be inadmissible for the purpose of determining guilt . . . [and] evidence of crimes for which the defendant was indicted but neither tried nor convicted .... Generally, due process does not require that information considered by the trial judge prior to sentencing meet the same high procedural standard as evidence introduced at trial. Rather, judges may consider a wide variety of information. . . . Consistent with due process the trial court may consider responsible unsworn or out-of-court information relative to the circumstances of the crime and to the convicted person’s life and circumstance. ... It is a fundamental sentencing principle that a sentencing judge may appropriately conduct an inquiry broad in scope, and largely unlimited either as to the kind of information he may consider or the source from which it may come.” (Citations omitted; internal quotation marks omitted.) State v. Bletsch, 281 Conn. 5, 20, 912 A.2d 992 (2007).

In resolving the ultimate question of whether the probationer is still a good risk, the court must determine whether the beneficial aspects of probation are no longer being served. The defendant’s participation, or lack thereof, in three inpatient drug treatment programs was relevant to that inquiry. As his probation officer, Castillo’s testimony that the defendant failed the Connecticut Valley Hospital, Waterbury Alternative to Incarceration and Project Green programs contained some minimal indicia of reliability. Furthermore, the defendant testified during the dispositional phase, without objection by his counsel, that he failed multiple inpatient drug treatment programs in which he acknowledged an unwillingness to participate. The defendant also testified that he was addicted to PCP and admitted to using PCP and marijuana throughout his probationary period.

We conclude that the court properly admitted Castillo’s testimony during the dispositional phase of the probation hearing regarding the defendant’s failure in three inpatient drug treatment programs in ascertaining whether the beneficial purposes of probation were no longer being served. On the record before us, we cannot say that the court abused its discretion in revoking the defendant’s probation.

The judgment is affirmed.

In this opinion the other judges concurred.

       Although the defendant’s two year sentence appears to have expired in December, 2008, the present appeal is not moot due to the collateral consequences doctrine. In State v. McElveen, 261 Conn. 198, 802 A.2d 74 (2002), our Supreme Court determined that subject matter jurisdiction existed over an appeal from the revocation of probation even though the probationer subsequently completed his term of incarceration. The court reasoned that there were collateral consequences that reasonably could ensue as a result of a probation revocation, such as a negative impact on a defendant’s standing in the community and the ability to secure employment. Id., 213-16. Because there is a reasonable possibility that those collateral consequences will attach in the present case, the appeal is not moot.

       See State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). Under Golding, “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the foUowing conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail.” (Emphasis in original.) Id., 239-40. Golding's first two prongs relate to whether a defendant’s claim is reviewable, and the last two relate to the substance of the actual review. State v. Jarrett, 82 Conn. App. 489, 492 n.l, 845 A.2d 476, cert. denied, 269 Conn. 911, 852 A.2d 741 (2004).

       The record contains no indication that the court considered the defendant’s participation in the inpatient substance abuse programs in finding him in violation of his probation. In his appellate brief, the defendant concedes that the “sole basis” for the court’s finding during the adjudicatory phase that he had violated his probation was the positive urine tests.

       The defendant argues that he is entitled to notice, by way of the arrest warrant application prior to the hearing, of any evidence that the state intends to present in the dispositional phase of the probation proceeding. He confuses the two distinct components of a probation proceeding. General Statutes § 53a-32 (c) provides in relevant part that “[a]t such [probation violation] hearing the defendant shall be informed of the manner in which such defendant is alleged to have violated the conditions of such defendant’s probation or conditional discharge . . . .” Likewise, our decisional law holds that a probationer “cannot be found in violation of probation on grounds other than those with which he is charged.” State v. Pierce, 64 Conn. App. 208, 215, 779 A.2d 233 (2001); see also State v. Maye, 70 Conn. App. 828, 839, 799 A.2d 1136 (2002) (requiring adequate notice of grounds on which probationer “was ultimately found to have violated his probation”).
      The defendant has provided this court with no authority indicating that the court’s consideration in the dispositional phase of the proceeding is confined to the allegations of the arrest warrant application. That assertion is contrary to the holding of our Supreme Court that the trial court “may appropriately conduct an inquiry broad in scope, and largely unlimited either as to the kind of information [it] may consider or the source from which it may come.” (hitemal quotation marks omitted.) State v. Bletsch, supra, 281 Conn. 20.


author: ROBINSON, J.

text:
    ROBERTA LANGEWISCH ET AL. v. NEW ENGLAND RESIDENTIAL SERVICES, INC., ET AL.
    (AC 29264)
    Beach, Robinson and Pellegrino, Js.

      Argued November 18, 2008
    officially released March 24, 2009

      Rosemarie V. P. Solomon, with whom, on the brief, was Patrick J. Filan, for the appellants (plaintiffs).

      Kevin J. Gumpper, with whom was Michael A. Dow-ling, for the appellee (named defendant).
   Opinion

ROBINSON, J.

The plaintiffs, Roberta Langewisch and Irwin Langewisch, appeal from the judgment of the trial court denying their motion to open the judgment dismissing their wrongful death claim against the defendant New England Residential Services, Inc. On appeal, the plaintiffs argue that the court improperly (1) failed to set aside the judgment of dismissal, (2) found that the plaintiffs did not satisfy their burden of proof to open the judgment, (3) failed to hold an evidentiary hearing to establish the factual basis of the defendant’s claim regarding the plaintiffs’ noncompliance with the court’s discovery orders and (4) failed to conclude that the defendant waived the right to object to the opening of the judgment of dismissal. We affirm the judgment of the trial court.

The following facts and procedural history provide the necessary context in which to evaluate the plaintiffs’ appeal. On August 26, 2004, the plaintiffs filed a complaint alleging a claim of wrongful death. The claim arose from the alleged negligent care received by the plaintiffs’ son, Jonathan T. Langewisch, while he was a resident of a facility operated by the defendant. On October 16, 2006, the pleadings had not yet been closed and, therefore, pursuant to the docket management program, notice was sent to all parties that the case would be dismissed on May 4, 2007, if a certificate of closed pleadings was not filed by that date. On May 2, 2007, the court conducted a status conference hearing and issued a scheduling order that required the certificate of closed pleadings to be filed by May 10, 2007. The plaintiffs failed to file a timely certificate or, in the alternative, to request an exemption from the docket management dismissal. Thereafter, on June 1, 2007, the court rendered judgment of dismissal for failure to prosecute with due diligence.

On June 7, 2007, the plaintiffs, represented by new counsel, attempted to file a certificate of closed pleadings; however, the filing was rejected by the clerk’s office as a result of the recent dismissal. Thereafter, on July 13, 2007, the plaintiffs filed a motion to open or to set aside the judgment of dismissal, which the court denied. The plaintiffs then filed a motion to rear-gue on August 13, 2007. The court granted the motion, and argument was heard on September 17, 2007. The plaintiffs’ motion to open or to set aside the judgment of dismissal was denied on September 26, 2007, and this appeal followed. Additional facts will be set forth as necessary.

I

As a preliminary matter we note that the thrust of the plaintiffs’ arguments on appeal is the purported impropriety of the court’s actions in dismissing their action; however, “[i]t is well established in our jurisprudence that [w]here an appeal has been taken from the denial of a motion to open, but the appeal period has run with respect to the underlying judgment, we have refused to entertain issues relating to the merits of the underlying case and have limited our consideration to whether the denial of the motion to open was proper. . . . When a motion to open is filed more than twenty days after the judgment, the appeal from the denial of that motion can test only whether the trial court abused its discretion in failing to open the judgment and not the propriety of the merits of the underlying judgment. . . . This is so because otherwise the same issues that could have been resolved if timely raised would nevertheless be resolved, which would, in effect, extend the time to appeal.” (Citations omitted; internal quotation marks omitted.) Misata v. Con-Way Transportation Services, Inc., 106 Conn. App. 736, 742, 943 A.2d 537 (2008). As the plaintiffs filed their motion to open the judgment more than twenty days after receiving notice that the case had been dismissed under the docket management program, our review is limited to determining whether the court abused its discretion in denying that motion.

We begin by setting forth the legal principles that guide our limited review of the plaintiffs’ remaining claims. “The court’s denial of the plaintiffs motion to open cannot be held to be an abuse of discretion if it appears that the plaintiff has not been prevented from prosecuting the claim by mistake, accident or other reasonable cause. . . . There also must be a showing that a good cause of action existed at the time the judgment of dismissal was rendered.” (Internal quotation marks omitted.) Rzayeva v. 75 Oxford Street, LLC, 111 Conn. App. 77, 78, 957 A.2d 539 (2008); see also General Statutes § 52-212 (a); Practice Book § 17-43. “In reviewing claims that the trial court abused its discretion, great weight is given to the trial court’s decision and every reasonable presumption is given in favor of its correctness. . . . We will reverse the trial court’s ruling only if it could not reasonably conclude as it did.” (Internal quotation marks omitted.) McCarthy v. Ward Leonard Electric Co., 104 Conn. App. 535, 541, 935 A.2d 189 (2007).

In the present case, the plaintiffs argue that there are two separate grounds on which the court should have found that their failure to file a timely certificate of closed pleadings was the result of a mistake, accident or other reasonable cause. They first argue that their previous counsel had prepared a request for exemption from the docket management program but that if this document does not appear in the court file, it is the result of a mistake. Our review of the record reveals that this request for exemption was not filed with the court. A copy of a request for exemption signed by the plaintiffs’ prior counsel is attached to the plaintiffs’ motion to reargue but neither party offers any explanation as to how or why this request was not actually filed. Accordingly, we conclude that the court did not abuse its discretion in its determination that the plaintiffs failed to establish the existence of a mistake. See Moore v. Brancard, 89 Conn. App. 129, 133, 872 A.2d 909 (2005) (concluding that court did not abuse discretion by denying motion to open judgment based on party’s “mere inattention” to date of pretrial conference).

The plaintiffs also argue that they were in the process of hiring new counsel at the time that the judgment of dismissal was entered and that this serves as a legitimate basis to open the judgment as a result of a mistake, accident or other reasonable cause. In its memorandum of decision denying the motion to open following rear-gument, the court specifically addressed this ground and concluded that the decision to change counsel at this pivotal time did not constitute reasonable cause. Specifically, the court stated: “If the plaintiffs contemplated seeking new counsel, such decision should have been made with a full understanding of the well documented time standards in place.” We agree and, therefore, conclude that the court did not abuse its discretion.

II

The plaintiffs next argue that the court improperly denied their motion to open without first conducting an evidentiary hearing to establish a factual basis for its decision. The plaintiffs sought this hearing in their motion to reargue the court’s denial of their motion to open, arguing that “[t]o the extent that the court’s denial of the motion to open was based upon or gave credence to any of the defendant’s arguments concerning prior counsel's noncompliance . . . there was no eviden-tiary or factual basis for that decision and an evidentiary hearing was required.” On appeal, the plaintiffs maintain that the court’s failure to conduct the hearing resulted in a decision devoid of a factual basis and denied them the opportunity to address disputed issues of fact relating to various claims of discovery delays asserted in the defendant’s objection to their motion. We disagree, and our reasons are twofold.

First, to the extent that the plaintiffs contend that the court’s decision is devoid of a factual basis, we note that it is the plaintiffs’ burden to request an articulation under these circumstances. “It is well established that [i]t is the appellant’s burden to provide an adequate record for review. ... It is, therefore, the responsibility of the appellant to move for an articulation or rectification of the record where the trial court has failed to state the basis of a decision ... to clarify the legal basis of a ruling ... or to ask the trial judge to rule on an overlooked matter.” (Internal quotation marks omitted.) Bingham v. Dept. of Public Works, 286 Conn. 698, 704 n.5, 945 A.2d 927 (2008). The plaintiffs failed to request an articulation of the factual basis for the court’s decision and cannot now attack this perceived inadequacy on appeal.

Second, pursuant to General Statutes § 52-212 (a), the party prejudiced by the judgment of nonsuit has the burden of establishing a valid ground to open the judgment. The plaintiffs did not dispute that the certificate of closed pleadings was untimely; rather, they sought to open the judgment on the basis of a purported mistake by prior counsel and their decision to hire new counsel at the time of dismissal. Neither of these grounds implicates the discovery delay issues that the plaintiffs claimed should have been addressed via an evidentiary hearing. Accordingly, we conclude that the court’s failure to conduct an evidentiary hearing on these extraneous issues does not amount to an abuse of discretion.

Ill

The final claim asserted by the plaintiffs is premised on their contention that the defendant waived the right to object to the opening of the judgment of dismissal by participating in depositions after the judgment was entered. This argument is without merit because as we have stated previously, the decision to open a judgment lies within the sound discretion of the court. McCarthy v. Ward Leonard Electric Co., supra, 104 Conn. App. 541. Furthermore, the rule of practice on which the plaintiffs rely, Practice Book § 17-4, contemplates the possibility of a waiver to the prescribed time period in which a party could file a motion to open a judgment. As neither party disputes that the plaintiffs’ motion to open was filed within the allotted four months, the plaintiffs’ argument is misplaced.

The judgment is affirmed.

In this opinion the other judges concurred.

       Key Service Systems, Inc., also a defendant at trial, is not a party to this appeal. We therefore refer in this opinion to New England Residential Services, Inc., as the defendant.

       In their appellate brief, the plaintiffs argue that this court’s analysis in McHenry v. Nusbaum, 79 Conn. App. 343, 830 A.2d 333, cert. denied, 266 Conn. 922, 923, 835 A.2d 472, 473 (2003), is controlling in the present matter. McHenry applied the standard of review set forth in MiUbrook Owners Assn., Inc. v. Hamilton Standard, 257 Conn. 1, 17-18, 776 A.2d 1115 (2001), to determine whether the trial court abused its discretion by entering a nonsuit as a penalty for the plaintiffs failure to close the pleadings. McHenry v. Nusbaum, supra, 352. It should be noted, however, that McHenry addressed the review of the underlying judgment of dismissal, not the denial of a motion to open filed outside of the twenty day appeal period. Accordingly, a discussion of McHenry does not have aplace in our current analysis.

       General Statutes § 52-212 (a) provides in relevant part: “Any judgment rendered or decree passed upon a default or nonsuit in the Superior Court may be set aside, within four months following the date on which it was rendered or passed, and the case reinstated on the docket . . . upon the complaint or written motion of any party or person prejudiced thereby, showing reasonable cause, or that a good cause of action or defense in whole or in part existed at the time of the rendition of the judgment or the passage of the decree, and that the plaintiff or defendant was prevented by mistake, accident or other reasonable cause from prosecuting the action or making the defense.”

       As there is no evidence that the request for an exemption from the docket management program actually was filed by the plaintiffs’ prior counsel, the plaintiffs’ reliance on McHenry v. Nusbaum, 79 Conn. App. 343, 353-54, 830 A.2d 333, cert. denied, 266 Conn. 922, 923, 835 A.2d 472, 473 (2003), is misplaced. The holding of McHenry is applicable in cases in which a request for exemption has been filed and was pending at the time of dismissal. This was not the case here.


author: LAVTNE, J.

text:
    MARICICA GYERKO v. ZSIGMOND GYERKO
    (AC 28693)
    DiPentima, Lavine and Beach, Js.

      Argued November 14, 2008
    officially released March 24, 2009

      George W. Kramer, for the appellant (defendant).

      Donald F. Reid filed a brief for the appellee (plaintiff).
   Opinion

LAVTNE, J.

In this marital dissolution action, the defendant, Zsigmond Gyerko, appeals from the judgment of the trial court with respect to the court’s financial orders. The defendant claims that the court improperly (1) found that the parties owned an apartment in Romania worth $35,000 to $40,000, (2) failed to find that the plaintiff, Maricica Gyerko, owned property in Romania, (3) found that each party contributed $50,000 to the purchase of the marital home, (4) found that the plaintiff contributed $48,000 to paying down the mortgage on the marital home, (5) considered factors listed in General Statutes §§ 46b-81 and 46b-82 and (6) precluded testimony from his witness. We affirm the judgment of the trial court.

The following facts, as found by the court, are relevant for our consideration of the appeal. The parties married on February 25,1974, in Brasov, Romania. They had two daughters who were adults at the time of the dissolution proceedings. In 1988, the parties left Romania for Greece and in 1990 arrived in the United States. After living in New York City from 1990 until 2000, the parties relocated to Connecticut. They purchased the marital home in Bethany in 2001.

The plaintiff filed for divorce on May 17, 2005. The court rendered judgment dissolving the marriage. The court concluded that the marriage had broken down irretrievably and that the defendant solely was responsible for its breakdown. After stating that it had considered carefully the factors enumerated in General Statutes §§ 46b-62, 46b-81, 46b-82 and other relevant statutes, the court ordered each party to be responsible for his or her own health insurance and debts and to retain his or her pension and checking accounts. The court ordered no alimony for either party. It awarded the marital home, with an estimated value of $300,000, to the plaintiff and ordered her to give the defendant $50,000, or the equivalent of his share of the down payment on the home. The court also awarded the defendant $4100 for his minimal contributions to the upkeep of the home minus the expenses caused by his wilful destruction of the home. The defendant was awarded the parties’ apartment in Romania. Additional facts will be set forth as necessary.

“Our standard of review for financial orders in a dissolution action is clear. The trial court has broad discretion in fashioning its financial orders . . . .” Casey v. Casey, 82 Conn. App. 378, 383, 844 A.2d 250 (2004). “[T]his court will not disturb the trial court’s orders unless it has abused its legal discretion or its findings have no reasonable basis in fact. ... It is within the province of the trial court to find facts and draw proper inferences from the evidence presented. . . . [Where the factual basis of the court’s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, these facts are clearly erroneous.” (Internal quotation marks omitted.) Guarascio v. Guarascio, 105 Conn. App. 418, 421, 937 A.2d 1267 (2008).

“In pursuit of its fact-finding function, [i]t is within the province of the trial court ... to weigh the evidence presented and determine the credibility and effect to be given the evidence. . . . Credibility must be assessed . . . not by reading the cold printed record, but by observing firsthand the witness’ conduct, demeanor and attitude. . . . An appellate court must defer to the trier of fact’s assessment of credibility because [i]t is the [fact finder] . . . [who has] an opportunity to observe the demeanor of the witnesses and the parties; thus [the fact finder] is best able to judge the credibility of the witnesses and to draw necessary inferences therefrom.” (Internal quotation marks omitted.) Blum v. Blum, 109 Conn. App. 316, 329, 951 A.2d 587, cert. denied, 289 Conn. 929, 958 A.2d 157 (2008).

I

The defendant’s first claim on appeal is that the court improperly found that the parties owned an apartment in Romania. The defendant argues that the court’s finding that the parties own an apartment worth $35,000 to $40,000 is not supported by any evidence because both parties testified at trial that the Romanian government confiscated the apartment after they left Romania in 1988. We disagree.

The following additional facts are relevant to our resolution of this issue. In her amended prayer for relief, the plaintiff asked the court to award to the defendant the apartment jointly owned by the parties in Romania. At trial, the plaintiff testified that the parties purchased an apartment in Brasov, Romania, after they were married and moved into it in 1978. She submitted into evidence a notarized deed in the defendant’s name for an apartment in Brasov, Romania, issued on October 7, 1980, and specifying the address of the apartment. She further testified that the Romanian government confiscated the apartment after the parties left Romania in 1988. She, however, testified that pursuant to the laws of the European Union, of which Romania is a member, rightful owners of confiscated property can regain their legal title to it. She also testified that the defendant informed her that he had started the process of regaining the apartment during one of his numerous visits to Romania. She estimated the value of the apartment to be between $35,000 and $40,000. On cross-examination, the plaintiff stated that her estimate of the value was based on the amount the parties’ friends obtained for a similar apartment.

The defendant testified that the apartment had been confiscated by the Romanian government, that he unsuccessfully tried to get it back on multiple occasions and that he would be very happy to give it to his wife, if he ever regained it.

In its memorandum of decision, the court found that “[t]he parties own an apartment in Romania .... The more credible evidence is that it’s worth $35,000 to $40,000. [The defendant] has traveled to Romania frequently.” (Citation omitted.) The court also found that the defendant had hidden earnings throughout the marriage and altered documents in the court file.

General Statutes § 46b-81, which governs distribution of the parties’ assets in a marital dissolution action, lists the factors that the court must take into account when “fixing the nature and value of the property, if any, to be assigned” to the parties.

“With respect to the court’s credibility determinations, this court is compelled to state, what has become a tired refrain, [which is that] we do not retry the facts or evaluate the credibility of witnesses. . . . It is the sole province of the trial court to weigh and interpret the evidence before it and to pass upon the credibility of witnesses.” (Citation omitted; emphasis in original; internal quotation marks omitted.) Doody v. Doody, 99 Conn. App. 512, 519-20, 914 A.2d 1058 (2007).

“It is [also] within the province of the trial court to find facts and draw proper inferences from the evidence presented. . . . [W]here the factual basis of the court’s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in fight of the evidence and the pleadings in the whole record, these facts are clearly erroneous.” (Internal quotation marks omitted.) Guarascio v. Guarascio, supra, 105 Conn. App. 421. “A finding of fact is clearly erroneous when there is no evidence in the record to support it . . . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Schade v. Schade, 110 Conn. App. 57, 66, 954 A.2d 846, cert. denied, 289 Conn. 945, 959 A.2d 1009 (2008).

The issue before us, therefore, is whether the court’s finding that the parties owned an apartment in Romania was clearly erroneous in light of the evidence in the record. We conclude that it was not. The plaintiff submitted into evidence a notarized deed to the apartment bearing the defendant’s name. The deed’s authenticity had not been challenged by the defendant. The court heard conflicting testimony from the parties regarding their legal right to regain the apartment, which was confiscated during the communist regime in Romania. The defendant offered no evidence refuting the plaintiffs testimony that because Romania is a member of the European Union and bound by its laws, the parties are rightful owners of the apartment that was unlawfully seized by the country’s past regime. “The trial court is the arbiter of credibility, and it may accept all, some or none of a witness’ testimony.” Crews v. Crews, 107 Conn. App. 279, 313, 945 A.2d 502, cert. granted on other grounds, 288 Conn. 901, 952 A.2d 809 (2008).

On the basis of our review of the record, we also conclude that the court’s finding that the apartment was worth $35,000 to $40,000 was not clearly erroneous. The court heard the plaintiffs uncontroverted testimony that an apartment owned by the parties’ friends and similar to theirs was sold for that amount. “Nothing in our law is more elementary than that the trier is the final judge of the credibility of witnesses and of the weight to be accorded their testimony. . . . Ultimately, the determination of the value of the land depended on the considered judgment of the [trial court], taking into account the divergent opinions expressed by the witnesses and the claims advanced by the parties.” (Internal quotation marks omitted.) Melillo v. New Haven, 249 Conn. 138, 153, 732 A.2d 133 (1999).

We conclude that the court’s finding that the parties owned an apartment in Romania whose estimated value was $35,000 to $40,000 was supported by the evidence in the record and therefore was not clearly erroneous.

n

The defendant’s second claim is that the court improperly failed to find that the plaintiff owned property in Romania. The defendant essentially argues that the court’s finding was clearly erroneous because the court did not credit his testimony, unsupported by other evidence, and because the plaintiff failed to dispute that testimony or cross-examine him on this issue. We do not agree.

We set forth the following relevant facts. At trial, the defendant testified that the plaintiff owned property, a house and perhaps some land, in her hometown in Romania. He testified that he knew that the plaintiff owned the property because he was a co-owner and “had a paper on it” but that the plaintiff hid it from him. The defendant also testified that the value of that property was $40,000. The defendant’s counsel did not question the plaintiff regarding this issue.

We conclude that the court’s failure to find that the plaintiff owned property in her hometown in Romania was not clearly erroneous. The fact that the plaintiff did not offer testimony on this issue and failed to cross-examine the defendant is not determinative. As we stated previously, the court is the sole arbiter of witness credibility, and it has the right to reject even uncontested evidence. See Blum v. Blum, supra, 109 Conn. App. 329. The only evidence before the court was the defendant’s testimony, unsupported by a deed or any other document, and devoid of basic information, such as the address of the property or the name of the plaintiffs hometown. This is not a case in which the undisputed probative evidence was so overwhelming that the court was not free to disregard it. See Gianetti v. Norwalk Hospital, 266 Conn. 544, 560-61, 833 A.2d 891 (2003).

We conclude that the court’s failure to accept the defendant’s testimony and to find that the plaintiff owned property in Romania was not clearly erroneous.

Ill

The defendant’s third claim is that the court’s finding that each party contributed $50,000 to the purchase of the marital home was clearly erroneous. The defendant argues that a review of the evidence concerning the parties’ financial history reveals that the plaintiff could not have contributed $50,000 toward the down payment on the parties’ home in 2001. We disagree.

The following facts are relevant. The court found that while the parties resided in Greece between 1988 and 1990, the plaintiff worked as a nurse while the defendant worked in an auto body shop. After they arrived in New York in 1990, the plaintiff worked as a medical assistant in a physician’s office. In 1994, the plaintiff enrolled in the nursing program at the Bronx Community College and later transferred to the College of Mount Saint Vincent. The plaintiff testified that she covered her college expenses with student loans in the amount of $16,000 and her savings. The court found that the defendant did not support the family during the plaintiffs schooling and that, during the last two years of her schooling, she received welfare benefits and food stamps.

The plaintiff graduated in 1998 or 1999, and immediately started working as a nurse. Between 1990 and 2000, the parties lived in a rented apartment in New York. In 2000, the plaintiff accepted a position as a registered nurse at Yale-New Haven Hospital. The plaintiff testified that the parties had a joint savings account in 2001 in the amount of $150,000.

The court found that in 2001, the parties purchased the marital home, each contributing $50,000 for the down payment. The plaintiffs annual salary is currently $60,000 to $65,000. The court also found that, in addition to making most mortgage payments and covering bills and expenses on the marital home, the plaintiff contributed an additional $48,000 toward the principal balance on the mortgage in 2004. She also has invested $10,000 in improvements to the marital home since purchasing it in 2001.

We conclude that the court’s finding that the plaintiff contributed $50,000 toward the purchase of the marital home was not clearly erroneous. The gist of the defendant’s argument is that the plaintiff could not have earned enough money between 1998 and 2001 to save $50,000 and pay off her student loans. The court, however, found that the plaintiffs current annual income is between $60,000 and $65,000 and that she worked as a nurse in New York and Connecticut for three years before she contributed $50,000 toward the down payment on the parties’ home. The defendant offered no evidence contradicting the plaintiffs testimony. The defendant also offered no evidence regarding the plaintiffs income or the parties’ living expenses while they resided in New York. The court heard testimony that the parties had a joint bank account in 2001 in the amount of $150,000. Three years later, in 2004, the plaintiff contributed another $48,000 toward the principal balance on the mortgage, and she managed to contribute $10,000 toward the improvements to the home. The defendant’s argument that the plaintiff could not have saved $50,000 between 1998 and 2001 is therefore unsupported by any evidence in the record.

In light of the court’s findings regarding the plaintiffs thrift, as evidenced by her subsequent investments into the marital home, we conclude that the court’s conclusion that the plaintiff contributed $50,000 toward the purchase of the parties’ home in 2001 was not clearly erroneous.

IV

The defendant’s fourth claim is that the court improperly found that the plaintiff contributed $48,000 to the principal balance of the mortgage loan on the parties’ home in 2004. The gist of the defendant’s argument is that some or all of that money originated from a repayment of the loan the parties made jointly to their daughter in 2002 or 2003 and for which the defendant had not received any credit. We are unable to reach the merits of the defendant’s claim due to an inadequate record.

The following facts are relevant. The court found in its memorandum of decision that the plaintiff contributed $48,000 toward the principal balance of the parties’ mortgage loan. The plaintiff testified that in June, 2004, she contributed $40,000 from her savings account toward the balance. The plaintiff submitted into evidence a check documenting that transaction. She further testified that she contributed another $8000 in July, 2004, and submitted into evidence a check documenting that transaction.

The parties’ daughter, Magdalena Gyerko, testified during cross-examination by the defendant’s counsel that her parents lent her $40,000 in 2002 or 2003. She stated that she returned $35,000 to the plaintiff and $5000 to the defendant. She also stated that she did not know whether the plaintiff shared any of the $35,000 with the defendant.

The defendant does not dispute that the plaintiff contributed $48,000 toward the principal balance of the mortgage loan in 2004. He is asking us, however, to conclude that the court should have found that some of the $48,000 contributed by the plaintiff originated from the $35,000 that the parties’ daughter repaid to the plaintiff and that, therefore, the defendant “did not receive any credit for his share of the borrowed money . . . .” The court made no factual findings regarding the issue of the daughter’s testimony or the link between the plaintiff’s contribution to the principal balance of the mortgage loan and the money she received from her daughter. The defendant failed to ask the court to articulate its finding that the plaintiff contributed $48,000 of her funds in light of the daughter’s testimony that the parties jointly lent her $40,000 one or two years earlier. The defendant has not provided this court with an adequate record for review, and we, therefore, cannot review the merits of his claim. See Guarascio v. Guarascio, supra, 105 Conn. App. 426-27.

V

The defendant’s fifth claim is that the court improperly considered the factors enumerated in §§ 46b-81 and 46b-82 in distributing the parties’ marital assets. The defendant argues that the court should have considered that the defendant was sixty-two and living in a homeless shelter at the time of the trial, his employment, his income and the length of the parties’ marriage.

The following facts are relevant. In its memorandum of decision, the court found that the defendant paid his share of family expenses while the parties lived in New York between 1990 and 1996. After the plaintiff enrolled in college, the defendant stopped supporting the family, and the plaintiff applied for welfare assistance and food stamps. The court found that between 2001 and 2004, the defendant rarely paid household expenses or made mortgage payments. It also found that the plaintiff invested $10,000 in improving the marital home.

The court found that the defendant felled trees in the yard and painted interior rooms and the deck but that he also destroyed interior portions of the home while enraged. In addition to working full-time as a nurse, the plaintiff did all the cooking, cleaning and shopping for the family. The court found that the plaintiff left her employment at Yale-New Haven Hospital due to stress at home because of the defendant’s refusal to work, although the defendant had no documented mental issues and no physical issues except for a slight hearing loss he has had since childhood. The court found that the plaintiff suffered from chronic back pain, which would require surgery if her employer did not continue to make accommodations for her disability.

The court found that the defendant, throughout the marriage, continuously verbally and physically abused the plaintiff and their daughters. It also found that the defendant has a violent temper and drinks alcohol excessively. In 2006, the defendant caused a fire at the parties’ home after he fell asleep surrounded by liquor bottles. The defendant stalks the parties’ younger daughter, and, when she worked as a bus girl and waitress from age twelve onward, he attempted to steal her earnings. The court also found that the defendant had hidden his earnings from the plaintiff throughout the marriage and that at one point he had asked the parties’ younger daughter to hold $40,000 for him. The court concluded that the marriage between the parties had broken down irretrievably and that the defendant was solely responsible for its breakdown.

On the basis of its findings, and after stating that it had carefully considered the evidence and the factors enumerated in §§ 46b-62, 46b-81 and 46b-82, the court awarded the plaintiff exclusive possession and sole ownership of the parties’ marital home and ordered her to give the defendant $50,000 that he originally contributed to the down payment on the marital home, along with $4100, which is the equivalent of his contributions to the upkeep of the home minus the cost of his wilful destruction of it.

General Statutes § 46b-81 provides in relevant part: “(a) At the time of entering a decree . . . dissolving a marriage . . . the [trial court] may assign to either the husband or wife all or any part of the estate of the other. The court may pass title to real property to either party or to a third person or may order the sale of such real property, without any act by either the husband or the wife, when in the judgment of the court it is the proper mode to carry the decree into effect. . . . (c) In fixing the nature and value of the property, if any, to be assigned, the court . . . shall consider the length of the marriage, the causes for the . . . dissolution of the marriage . . . the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income. The court shall also consider the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates.” (Emphasis added.)

“In fashioning its financial orders, the court has broad discretion, and [jJudicial review of a trial court’s exercise of [this] broad discretion ... is limited to the questions of whether the . . . court correctly applied the law and could reasonably have concluded as it did. ... In making those determinations, we allow every reasonable presumption ... in favor of the correctness of [the trial court’s] action. . . . That standard of review reflects the sound policy that the trial court has the unique opportunity to view the parties and their testimony, and is therefore in the best position to assess all of the circumstances surrounding a dissolution action, including such factors as the demeanor and the attitude of the parties. . . . Further, [i]n distributing the assets of the marital estate, the court is required by [General Statutes] § 46b-81 to consider the estate of each of the parties. . . . General Statutes § 46b-81 (a) provides in relevant part: At the time of entering a decree . . . dissolving a marriage . . . the [trial court] may assign to either the husband or wife all or any part of the estate of the other. . . . Courts are not required to ritualistically recite the criteria they considered, nor are they bound to any specific formula respecting the weight to be accorded each factor in determining the distribution of marital assets.” (Citation omitted; internal quotation marks omitted.) Sapper v. Sapper, 109 Conn. App. 99, 107-108, 951 A.2d 5 (2008).

“The trial court must consider all relevant statutory criteria in a marital dissolution action but it does not have to make express findings as to the applicability of each criteria. . . . [It] may place varying degrees of importance on each criterion according to the factual circumstances of each case.” (Citation omitted.) Burns v. Burns, 41 Conn. App. 716, 725-26, 677 A.2d 971, cert. denied, 239 Conn. 906, 682 A.2d 997 (1996).

We conclude that the court did not abuse its discretion in making the aforementioned financial orders. In addition to awarding the parties’ apartment in Romania to the defendant, the court ordered the plaintiff to give him the equivalent of the money he initially invested in the marital home and the minimal contributions to the maintenance of the home he made throughout the years. After the parties jointly purchased the home, the plaintiff made almost all of the mortgage payments, covered most of the bills and household expenses and paid for all the improvements on the home. Furthermore, she did all the cooking, cleaning and purchasing of groceries for the household. “[A]n equitable distribution of property should take into consideration [each spouse’s] contributions to the marriage, including homemaking activities and primary caretaking responsibilities.” O’Neill v. O’Neill, 13 Conn. App. 300, 311, 536 A.2d 978, cert. denied, 207 Conn. 806, 540 A.2d 374 (1988).

Next, the court properly considered the cause for the dissolution of the marriage, most notably the defendant’s abusive behavior. The court considered his refusal to work, alcohol abuse, refusal to contribute to the household expenses and the fact that he had hidden his earnings from the plaintiff throughout their marriage. The court noted that the defendant failed to support the plaintiff while she was pursuing a college education, causing her to resort to welfare aid and food stamps. The court also found that the defendant destroyed the parties’ property during his fits of rage and caused the fire in the parties’ home. Section 46b-81 specifically empowers the court to consider “the causes for the annulment, dissolution of the marriage or legal separation . . . .” General Statutes § 46b-81 (c).

The defendant essentially argues that the court should have given greater consideration to the length of the parties’ marriage, his age and his occupation. We repeat that the court is endowed with broad discretion in its consideration of factors enumerated in § 46b-81, as well as in deciding how much weight to accord to each factor. See Burns v. Burns, supra, 41 Conn. App. 721. The defendant’s argument that his age, occupation and financial status make the aforementioned division unfair are significantly weakened by the court’s finding that the defendant had no documented mental or physical health issues that prevented him from working and that he had hidden his earnings throughout the marriage. “[T]he trial court has the opportunity to view the parties first hand and is therefore in the best position to assess all of the circumstances surrounding a dissolution action, in which such personal factors such as the demeanor and the attitude of the parties are so significant.” (Internal quotation marks omitted.) Sapper v. Sapper, supra, 109 Conn. App. 111. On the basis of the record before us, we conclude that the court acted within its discretion in entering the financial orders in the present case. We conclude that the court did not abuse its discretion in distributing the parties’ marital assets.

VI

The defendant’s final claim is that the court improperly excluded a witness’ testimony on the ground that the witness was not disclosed by the defendant as an expert in accordance with Practice Book (2008) § 13-4 (4). The defendant argues that the court improperly precluded the witness from offering factual testimony on the basis of her observations of him. We conclude that the record is inadequate for our review.

The following facts are relevant for our consideration of the defendant’s claim. During the defendant’s testimony on direct examination, he testified that he was depressed, and his counsel asked, “[h]ow are you depressed? What . . . symptoms do you have of depression?” The defendant replied that the “case manager is here who would explain all these things.” Near the end of the trial, the defendant’s counsel sought to introduce testimony from Gina Green, the defendant’s case manager at the homeless shelter where he was residing at the time of the trial. Counsel stated that Green was “a case manager at the Columbus House.” The plaintiffs counsel then indicated that she would object to Green’s testimony “if she [was] going to provide expert testimony.” The plaintiffs counsel also stated that on January 24, 2007, she filed a motion to preclude the defendant from calling expert witnesses to testify at trial and that, at that time, no expert witnesses had been disclosed by the defendant.

The following are the relevant portions of the transcript pertinent to Green:

“The Court: Well, she’s not . . . listed as an expert anyway.
“[The Defendant’s Counsel]: No. Your Honor, I intend on having Ms. Green testify in her general . . . since she’s been working for the [homeless shelter] for some time and . . . [the defendant has] been living there for ten months, she could testify as to her daily interactions with [the defendant] and that could impact some of the arguments that plaintiffs counsel [has] made in regard as to whether or not [the defendant] can work. ... I think the plaintiff testified that [the defendant] can make between $60,000 and $65,000 a year, and, I think, her factual testimony is relevant. . . .
“The Court: Okay. She can come up and . . . testify. She can’t testify as to any medical issues, no mental health issues, no physical health issues. She can testify as a roommate or [an] apartment mate ....
“[The Defendant’s Counsel]: Yes. Do you understand those guidelines, ma’am?
“[The Witness]: Oh, yeah. I’m a certified alcohol and abuse counselor . . . and I’m a case manager and a counselor. . . .
“The Court: Okay. You really can’t . . . testify as to any of that now, because ... in the United States, at least, it’s called fair play. . . . It’s called fair play, and it’s not so . . . you just can’t voice your professional job, is what it’s sounding like.
“[The Witness]: Well, originally I was subpoenaed to come. I don’t ....
“[The Defendant’s Counsel]: Probably prior counsel
“The Court: ... I appreciate that you’ve sat through this, but I don’t think anything that she would have to say other than, you know, observing him in the hallway and all ... .
“[The Witness]: I have a professional role, and I’m his case manager . . . like to ask him when he pays his rent . . . we meet at least twice a week. We check out how he’s feeling, what he’s thinking. ... It would really be on that kind of level .... And what I’ve observed ... in the hallway. ... I can talk to you on that level. . . .
“The Court: Yes. It’s . . . see, the problem is . . . it’s called trial by ambush, and we don’t allow it, which means the other side has no idea what you’re going to talk about. . . .
“[The Defendant’s Counsel]: You’re not going to allow her to testify briefly, Your Honor ....
“The Court: No.”

It is undisputed that the court did not abuse the broad discretion it has to preclude any expert testimony not disclosed in accordance with Practice Book (2008) § 13-4 (4) because the defendant never disclosed Green as an expert witness. See Viera v. Cohen, 283 Conn. 412, 444, 927 A.2d 843 (2007). The defendant, however, argues that the court should have allowed Green to testify about her personal observations of him, his demeanor, his efforts to obtain work and her investigation into his assets. The defendant’s counsel at trial, however, failed to explain adequately what Green’s factual testimony would be. The only information before the court regarding Green’s factual testimony was Green’s statement that she was subpoenaed and that she could testify about her observations of the defendant in the hallway and the information she obtained during their meetings, such as his thoughts, feelings or “when he pays his rent . . . .” The defendant did not request an articulation of the court’s decision to preclude Green’s factual testimony.

“An articulation may be necessary where the trial court fails completely to state any basis for its decision ... or where the basis, although stated, is unclear. ... It is the responsibility of the appellant to provide an adequate record for review as provided in [Practice Book §] 61-10. . . . Conclusions of the trial court cannot be reviewed where the appellant fails to establish through an adequate record that the trial court incorrectly applied the law or could not reasonably have concluded as it did .... When the trial court does not provide the necessary factual and legal conclusions, either on its own or in response to a proper motion for articulation, any decision made by us respecting this claim would be entirely speculative.” (Citations omitted; internal quotation marks omitted.) Golden v. Mandel, 110 Conn. App. 376, 380-81, 955 A.2d 115 (2008).

Our review of the transcript indicates that Green’s proffered testimony possibly raises the issues of both relevance and hearsay, but we cannot speculate about the basis for the court’s ruling as it is not clear. We conclude that under the present circumstances, the defendant has failed to provide us with an adequate record to review his claim. See id.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant also claimed in his brief that the court improperly granted the plaintiffs motion to hold him in contempt for refusing to sign a quitclaim deed while his appeal was pending. At oral argument, however, the defendant’s counsel stated that this claim was moot. We, therefore, do not address it. See, e.g., PNC Bank, N.A. v. Kelepecz, 289 Conn. 692, 709 n.9, 960 A.2d 563 (2008).

       The defendant ambiguously claims in his brief that “[t]he [c]ourt erred in failing to consider the statutory factors in General Statutes §§ 46b-81 and 46b-82, that [he] was solely responsible for the breakdown of the marriage . ...” In his conclusion regarding this claim, however, the defendant states that he “received less than even his contribution to the marital home.” On the basis of the briefs and oral arguments, we therefore construe the defendant’s claim to be that the court improperly considered the factors enumerated in §§ 46b-81 and 46b-82, and not that the court improperly concluded that the defendant was solely responsible for the breakdown of the parties’ marriage.

       General Statutes §§ 46b-62 and 46b-82 address orders for payment of attorney’s fees in certain actions and alimony, respectively.

       Practice Book (2008) § 13-4 (4) provides in relevant part: “[A]ny plaintiff expecting to call an expert witness at trial shall disclose the name of that expert, the subject matter on which the expert is expected to testify, the substance of the facts and opinions to which the expert is expected to testify, and a summary of the grounds for each opinion, to all other parties within a reasonable time prior to trial. Each defendant shall disclose the names of his or her experts in like manner within a reasonable time from the date the plaintiff discloses experts, or, if the plaintiff fails to disclose experts, within a reasonable time prior to trial. If disclosure of the name of any expert expected to testify at trial is not made in accordance with this subdivision, or if an expert witness who is expected to testify is retained or specially employed after a reasonable time prior to trial, such expert shall not testify if, upon motion to preclude such testimony, the judicial authority determines that the late disclosure (A) will cause undue prejudice to the moving party; or (B) will cause undue interference with the orderly progress of trial in the case; or (C) involved bad faith delay of disclosure by the disclosing party. ...”