author: ROBINSON, J.

text:
    STATE OF CONNECTICUT v. DAVID KNIGHT
    (AC 30145)
    Harper, Robinson and Bear, Js.
    Argued September 8
    officially released November 23, 2010

      David V. DeRosa, special public defender, for the appellant (defendant).

      Nancy L. Walker, special deputy assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, and Adam Scott, supervisory assistant state’s attorney, for the appellee (state).
   Opinion

ROBINSON, J.

The defendant, David Knight, appeals from the judgments of conviction, rendered after a jury trial, of one count of operating a motor vehicle with a suspended license in violation of General Statutes § 14-215 (a), one count of improper use of a marker plate in violation of General Statutes § 14-147 (c), one count of breach of the peace in the second degree in violation of General Statutes § 53a-181 and one count of failure to appear in the second degree in violation of General Statutes § 53a-173. We affirm the judgments of the trial court.

The jury reasonably could have found the following facts. On the morning of September 4,2003, Brian Jolda, an officer with the East Hartford police department, observed a gray Nissan pickup truck that appeared to display an improper license plate. Jolda proceeded to stop the vehicle. After the truck came to a complete stop, Jolda approached the truck, which was operated by the defendant. After investigation, Jolda determined that the defendant had been driving the vehicle (1) with an improper passenger class marker plate, (2) with a suspended driver’s license, (3) without proof of insurance and (4) without a valid registration. He issued a misdemeanor summons and complaint charging the defendant with improper use of a marker plate, operating a motor vehicle with a suspended license, operating an unregistered motor vehicle and operating a motor vehicle without insurance.

On October 6, 2003, the defendant appeared in court to request a continuance of approximately one month so that he could address an apparent mistake by the department of motor vehicles (department) regarding his license suspension. The defendant asserted that he had done everything necessary to have the department restore his suspended license. The defendant further contended that the department had two license numbers issued in his name, one license number having been restored and the other having been suspended. The court continued the matter to November 3, 2003, wherein the defendant appeared to request a continuance so that he could retain counsel. At that hearing, the corut continued the matter to December 8, 2003. The defendant failed to appear, however, on December 8, causing the court, upon the prosecution’s request, to order him to be rearrested. The defendant subsequently turned himself in, and the court set bond at $1500.

On September 9, 2004, the defendant posted bond and was released. Later that day, the defendant had his sister drive him to a health care facility in East Hartford in order to visit Sherelle Owens, the mother of his baby. Owens was employed by the facility as a dietary aide. Owens had just arrived to begin her work shift there when the defendant appeared by the side of her vehicle. At that time, Owens was in the driver’s seat of her vehicle. While the defendant was outside of the vehicle, he demanded that Owens give to him her house keys so that he could go to her house to change his clothes. Owens refused to give the defendant her house keys. Owens attempted to get out of her vehicle but the defendant was in her way. A witness at the scene of the incident called the police, complaining that the defendant had been hitting Owens. Anthony Piacenta, an officer with the East Hartford police department, arrived at the scene in response to the complaint. The defendant subsequently was arrested and charged with one count each of breach of the peace in the second degree and unlawful restraint in the second degree. These charges were joined with the previous motor vehicle charges, and trial was set to begin on March 9, 2005. After a two day jury trial, the defendant was convicted on all counts except unlawful restraint in the second degree. The jury found him not guilty of that charge. The defendant now appeals from his convictions. Additional facts will be set forth as necessary.

I

The defendant first claims that the court deprived him of his right to a jury trial pursuant to the sixth and fourteenth amendments to the United States constitution and article first, §§ 8 and 9, of the Connecticut constitution. Specifically, he claims that defense counsel’s stipulations to certain facts at trial constituted a waiver of his right to a jury trial and that he therefore was entitled to be canvassed by the judge in open court to ensure that his waiver was knowing, intelligent and voluntary. Because the defendant did not preserve this claim at trial, he seeks review pursuant to State v. Golding, 213 Conn. 233, 239-40, 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 following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” Id. “The first two Golding requirements involve whether the claim is reviewable, and the second two involve whether there was constitutional error requiring a new trial.” (Internal quotation marks omitted.) State v. Foreman, 288 Conn. 684, 693 n.6, 954 A.2d 135 (2008).

Our review of the record indicates that the facts are sufficiently clear and unambiguous for this court to determine whether a constitutional violation has occurred. Furthermore, the second prong of Golding is satisfied because the right to a jury trial in a criminal case is a constitutionally protected right under the sixth and fourteenth amendments to the United States constitution and article first, §§ 8 and 9, of the Connecticut constitution. As to the third prong of Golding, we must inquire whether the alleged constitutional violation clearly exists and, if so, whether it clearly has deprived the defendant of a fair trial. See State v. Golding, supra, 213 Conn. 239-40.

The following additional facts are relevant to our inquiry. At various points during the trial, defense counsel stipulated to certain facts pertaining to the charges of operating a motor vehicle with a suspended license and improper use of a marker plate. With regard to the charge of operating a motor vehicle with a suspended license, defense counsel stipulated as follows:

“[Defense Counsel]: We’ll stipulate that the license was suspended.

“The Court: Okay. All right, ladies and gentlemen, you may take that as [a] proven fact that the defendant was aware that his, no, I’m sorry, that the defendant’s license was under suspension on the date of operation, which is September 4, 2003.

“[Defense Counsel]: That’s correct. We’ll stipulate to that. . . . Your Honor, we’ve already stipulated that the license is suspended. What’s the relevance—

“The Court: The state also has to prove that the defendant received notice.

“[Defense Counsel]: You answered it, okay. . . .

“[The Prosecutor]: Stipulating that the defendant had notice?

“[Defense Counsel]: Yes.

“The Court: You’re stipulating that the defendant had notice that his license was under suspension—

“[Defense Counsel]: Absolutely.

“The Court: — on September 4, 2003?

“[Defense Counsel]: That’s correct.”

With regard to the charge of improper use of a marker plate, defense counsel stipulated as follows:

“[Defense Counsel]: Your Honor, we stipulate that the license plate [the defendant] used, it was an improper use of a plate. We’ll stipulate to that.

“The Court: Okay, so you’re stipulating that the marker plate attached to the vehicle that he was operating on September [4], 2003, was not the plate registered to that vehicle?

“[Defense Counsel]: That’s correct, Your Honor.

“The Court: Okay. All right. So, ladies and gentlemen, you may take that as a given and proven fact by the state.”

The defendant claims that the above stipulations were sufficient to satisfy every element of both of the charged offenses, resulting in a waiver of his right to a jury trial on those offenses. We note that the defendant has not advanced any legal argument to support this claim. The defendant only makes conclusory statements to the effect that, because defense counsel stipulated to facts sufficient to satisfy all of the elements of those two charged offenses, the jury was left with nothing more to decide.

The sixth amendment to the United States constitution provides in relevant part that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law . . . .” The sixth amendment right to a jury trial is made applicable to the states through the due process clause of the fourteenth amendment. See Duncan v. Louisiana, 391 U.S. 145, 149, 88 S. Ct. 1444, 20 L. Ed. 2d 491 (1968). The jury has a constitutional responsibility not merely to determine the facts, but also to apply the law to those facts and to draw the ultimate conclusion of guilt or innocence. United States v. Gaudin, 515 U.S. 506, 514,115 S. Ct. 2310, 132 L. Ed. 2d 444 (1995). Consequently, it is often necessary for “the trier of fact to determine the existence of an element of the crime — that is, an ultimate or elemental fact — from the existence of one or more evidentiary or basic facts . . . .” (Internal quotation marks omitted.) Id., 515. Our courts have long recognized that the jury’s function is to apply the law to the facts; it is for this reason that we have consistently stated that “the principal function of a jury charge is to assist the jury in applying the law correctly to the facts which they might find to be established . . . .” (Citation omitted; internal quotation marks omitted.) State v. Hernandez, 218 Conn. 458, 462, 590 A.2d 112 (1991). It necessarily follows, therefore, that when a defendant waives his constitutional right to a jury trial, he waives not only his right to have a jury find the facts but also to have a jury apply the law to those facts.

In the present case, it was the function of the jury to find the facts and to determine the existence of the elements of the crimes by applying the law to those facts. The defendant has failed to demonstrate how the stipulations deprived him of his right to have the jury apply the law to the facts. Even if we were to assume, arguendo, that the stipulations divested the jury of its fact-finding function, it nevertheless was required to apply the law to those stipulated facts. In fact, at the conclusion of trial, the judge instructed the jury as to the law and directed the jury to apply the law to the facts as found. Because we conclude that defense counsel’s stipulations did not remove from the jury its constitutional function to apply the law to the facts found, we conclude that the defendant was not deprived of a jury trial and therefore has failed to satisfy the third prong of Golding.

II

Finally, the defendant claims that the court’s reasonable doubt instruction deprived him of a fair trial. Specifically, he claims that the court’s instruction impermissibly diluted the presumption of innocence and reduced the state’s burden of proof. We disagree.

In its charge, the court instructed the jury concerning the presumption of innocence and the state’s burden to prove guilt beyond a reasonable doubt. Concerning the definition of reasonable doubt, the court instructed: “Now, what is a reasonable doubt? A reasonable doubt means a doubt founded upon reason or common sense. As the words imply, it is a doubt held by a reasonable person after all the evidence in the case is carefully analyzed, compared and weighed. A reasonable doubt may arise not only from the evidence produced but also from the lack of evidence. Since the burden is upon the state to prove the defendant guilty beyond a reasonable doubt of every essential element of the crime charged, a defendant has the right to rely upon a failure of the prosecution to establish such proof.

“A reasonable doubt however, is a doubt based upon more than a guess or a surmise. If, therefore, on all the evidence, you have a reasonable doubt as to the guilt of the defendant, you must find him not guilty.

“Absolute certainty, however, in the affairs of life is almost never attainable. And the law does not require absolute certainty on the part of the jury before you return a verdict of guilty.

“The state does not have to prove guilt beyond all doubt or to a mathematical certainty or to an absolute moral certitude. Nor does the requirement of proof beyond a reasonable doubt mean that the proof must be beyond any possible doubt. A possible doubt or a possible hypothesis or a possible supposition of innocence is far different from a reasonable doubt.

“Emphasis needs to be placed on the distinction between the word ‘reasonable’ and the word ‘possible.’ Proof of guilt must exclude every reasonable supposition of innocence. However, proof of guilt need not exclude every possible supposition of innocence.

“A possible supposition or a possible hypothesis of innocence is not a reasonable doubt. A reasonable doubt is not a doubt raised by one who questions for the sake of raising a doubt. A reasonable doubt is not surmise, or speculation, conjecture or an imaginary doubt. Nor a doubt which is unwarranted by the evidence. Nor is it a doubt prompted by sympathy for the accused. What the law requires, therefore, is, after hearing all the evidence, if there is something in that evidence or lack of evidence which leaves in the minds of the jury, as reasonable men and women, a reasonable doubt about the guilt of the accused, then the accused must be given the benefit of that doubt and acquitted. On the other hand, if there is no reasonable doubt, then the accused must be found guilty.” (Emphasis added.)

The defendant asserts that the portions of the court’s reasonable doubt instruction that appear in italics in the preceding paragraphs improperly diluted the presumption of innocence and reduced the state’s burden of proof. Specifically, he argues that the instruction (1) did not convey adequately the severity of the doubt that had to be eliminated to find him guilty and the care that the jury must exercise in deliberations and (2) excessively defined reasonable doubt in the negative. The defendant did not preserve this claim at trial and now seeks review pursuant to State v. Golding, supra, 213 Conn. 239-40.

The claim is reviewable under Golding because the record is adequate for review and the claim that the court’s reasonable doubt instruction diluted the state’s burden of proof is of constitutional magnitude. See States. Alberto M., 120 Conn. App. 104,115,991 A.2d 578 (2010). “In determining whether a trial court’s charge satisfies constitutional requirements . . . individual jury instructions should not be judged in artificial isolation, but must be viewed in the context of the overall charge. . . . The pertinent test is whether the charge, read in its entirety, fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. . . . Thus, [t]he whole charge must be considered from the standpoint of its effect on the [jurors] in guiding them to the proper verdict . . . and not critically dissected in a microscopic search for possible error. . . . Accordingly, [i]n reviewing a constitutional challenge to the trial court’s instruction, we must consider the jury charge as a whole to determine whether it is reasonably possible that the instruction misled the jury.” (Internal quotation marks omitted.) State v. Griffin, 253 Conn. 195, 206, 749 A.2d 1192 (2000).

Although his claim is reviewable, we conclude that the defendant cannot satisfy the third prong of Golding. The court’s instruction regarding the presumption of innocence and reasonable doubt is the same or similar to jury instructions that have been approved by both the Supreme Court and this court consistently. See, e.g., State v. Davis, 283 Conn. 280, 334-36, 929 A.2d 278 (2007); State v. Alberto M., supra, 120 Conn. App. 113-16; State v. Bivrell, 116 Conn. App. 556, 562-66, 976 A.2d 60 (2009), cert. denied, 295 Conn. 913, 990 A.2d 345 (2010); State v. Andrews, 29 Conn. App. 533, 539-41, 616 A.2d 1148 (1992), cert. denied, 224 Conn. 924, 618 A.2d 531 (1993); State v. Boykin, 27 Conn. App. 558, 572-73, 609 A.2d 242, cert. denied, 223 Conn. 905, 610 A.2d 179 (1992). Contrary to the defendant’s contention, when read in its entirety, the charge adequately conveyed the severity of the doubt that had to be eliminated to find the defendant guilty and the care that the jury was to exercise in its deliberations. Furthermore, in State v. Boykin, supra, 558, we rejected a constitutional challenge to an instruction that defined reasonable doubt in the negative. The court in the Boykin case instructed the jury in relevant part: “A reasonable doubt is not a doubt raised by one who questions for the sake of raising a doubt. A reasonable doubt is not a surmise or speculation or conjecture or an imaginary doubt. A reasonable doubt is not a captious or frivolous doubt nor is it a doubt raised by the ingenuity of counsel or by a juror and unwarranted by the evidence; nor is it a doubt prompted by sympathy for the defendant.” (Emphasis altered.) Id., 572. The instructions given in this case, even where they deviate from the previously approved language, when viewed in the context of the entire charge, did not dilute the defendant’s presumption of innocence or reduce the state’s burden of proof. Because we find neither a clear violation of a fundamental constitutional right nor a deprivation of a fair trial arising out of the challenged instructions, the defendant cannot prevail on this unpreserved claim.

The judgments are affirmed.

In this opinion the other judges concurred.

       General Statutes § 14-215 (a) provides: “No person to whom an operator’s license has been refused, or, except as provided in section 14-215a, whose operator’s license or right to operate a motor vehicle in this state has been suspended or revoked, shall operate any motor vehicle during the period of such refusal, suspension or revocation. No person shall operate or cause to be operated any motor vehicle, the registration of which has been refused, suspended or revoked, or any motor vehicle, the right to operate which has been suspended or revoked.”

       General Statutes § 14-147 (c) provides: “No person shall use any motor vehicle registration or operator’s license other than the one issued to him by the commissioner, except as provided in section 14-18; and no person shall use a motor vehicle registration on any motor vehicle other than that for which such registration has been issued. Any person who violates any provision of this subsection shall be fined not more than one hundred dollars or imprisoned not more than thirty days or both.”

       The defendant also had a separate trial to the court on charges of operating an unregistered motor vehicle in violation of General Statutes § 14-12 (a) and operating a motor vehicle without insurance in violation of General Statutes § 14-213b, for which he was also convicted. Because neither of the defendant’s claims provide a basis for reversing the conviction on the charges that were tried to the court, we conclude that that conviction must stand even if the defendant prevails on his appellate claims. Accordingly, we do not address in this opinion the conviction on the charges tried to the court.

       See footnote 1 of this opinion.

       Before filing this direct appeal, the defendant filed a pro se petition for a writ of habeas corpus, alleging that his trial counsel was ineffective. After a hearing on the matter, the habeas court, A. Santos, J., denied all of the defendant’s claims except the claim that his trial counsel failed to perfect the defendant’s right to appeal. The court thereafter restored the defendant’s appellate rights. The defendant did not appeal the habeas court’s decision.

       To the extent that the defendant has asserted a claim under the constitution of Connecticut, he has failed to provide an independent analysis of that claim. See State v. Geisler, 222 Conn. 672, 684-86, 610 A.2d 1225 (1992) (providing tools for independent analysis under state constitution). We therefore confine our analysis to the defendant’s federal constitutional claim.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    EQUITY ONE, INC. v. THOMAS J. SHIVERS
    (AC 30600)
    Beach, Robinson and Mihalakos, Js.

      Argued September 17
    officially released November 23, 2010

      J. Hanson Guest, with whom was Jeremy Baver, for the appellant (defendant).

      David F. Borrino, for the appellee (plaintiff).
   Opinion

PER CURIAM.

The defendant, Thomas J. Shivers, appeals from the judgment of strict foreclosure in favor of the plaintiff, Equity One, Inc., as servicer for Nomura Home Equity Loan, Inc. On appeal, the defendant claims that the trial court improperly (1) failed to conduct an evidentiary hearing to determine if it had subject matter jurisdiction, (2) failed to dismiss the action for lack of subject matter jurisdiction and (3) rendered judgment in violation of a bankruptcy stay. Because we conclude that, under the facts of this case, the court should have conducted an evidentiary hearing to determine the issue of the plaintiffs standing, we need not reach the defendant’s second and third claims. Accordingly, we reverse the judgment of the trial court.

The following facts and procedural history are relevant to the defendant’s appeal. The plaintiff filed a complaint on June 27, 2007, in which it sought to foreclose a mortgage executed on November 28, 2006, with respect to property at 27 Mountain Street in Vernon that is owned by the defendant. The complaint alleged that, because the defendant failed to make payments required by the note, the plaintiff had elected to declare the entire balance due and to foreclose on the mortgage. On July 19, 2007, the plaintiff filed a motion for default for the defendant’s failure to file a responsive pleading and a motion for a judgment of strict foreclosure. On July 23, 2007, the court granted the plaintiffs motion for default. On September 24, 2007, the court rendered a judgment of foreclosure by sale, with a sale date of January 5, 2008. The sale date was extended twice: the first time it was extended to May 3, 2008, at the request of the plaintiff; the second time it was extended to May 10, 2008, at the request of the committee appointed to conduct the sale. The May 10, 2008 foreclosure sale did not go forward because the defendant filed a bankruptcy petition on May 8, 2008.

After the bankruptcy stay was lifted, the plaintiff filed a motion to reopen and to reenter the judgment on November 7,2008. On November 21,2008, the defendant filed an objection to the foreclosure, asserting that he was no longer in default and contending that the plaintiff did not have standing to foreclose the mortgage. The defendant also filed a motion to compel, which requested that the court direct the plaintiff to produce the original note to prove that the plaintiff had standing to institute the foreclosure action. On November 24, 2008, the court, Sferrazza, J., heard argument from the parties as to the motion to reopen and to reenter the judgment. At the conclusion of that hearing, the court rendered judgment of strict foreclosure with the law days commencing on January 12, 2009. The defendant appeals from this judgment.

On appeal, the defendant claims that the court improperly failed to conduct an evidentiary hearing to determine if it had subject matter jurisdiction when he raised the issue of the plaintiffs standing. We agree.

We begin with a brief statement of our well settled principles regarding subject matter jurisdiction. “Jurisdiction over the subject matter is the court’s power to hear and decide cases of the general class to which the proceedings at issue belong.” Haigh v. Haigh, 50 Conn. App. 456, 460-61, 717 A.2d 837 (1998); Koskoff v. Planning & Zoning Commission, 27 Conn. App. 443, 446, 607 A.2d 1146, cert. granted, 222 Conn. 912, 608 A.2d 695 (1992) (appeal dismissed November 10,1992). Once the question of lack of jurisdiction of a court is raised, it “must be disposed of no matter in what form it is presented.” Carten v. Carten, 153 Conn. 603, 610, 219 A.2d 711 (1966). “Whenever a court finds that it has no jurisdiction, it must dismiss the case, without regard to previous rulings.” Cross v. Hudon, 27 Conn. App. 729, 732, 609 A.2d 1021 (1992).

“In determining whether a court lacks subject matter jurisdiction, the inquiry usually does not extend to the merits of the case. . . . Nevertheless, the court must determine whether it has the power to hear the general class [of cases] to which the proceedings in question belong. . . . Because the elements of subject matter jurisdiction are dependent upon both law and fact . . . in some cases it may be necessary to examine the facts of the case to determine if it is within a general class the court has power to hear. . . . Further, [w]hen issues of fact are necessary to the determination of a court’s jurisdiction, due process requires that a trial-like hearing be held, in which an opportunity is provided to present evidence and to cross-examine adverse witnesses.” (Citations omitted; internal quotation marks omitted.) Id., 733.

Additionally, “a party must have standing to assert a claim in order for the court to have subject matter jurisdiction over the claim. . . . Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy.” (Internal quotation marks omitted.) Fleet National Bank v. Nazareth, 75 Conn. App. 791, 793, 818 A.2d 69 (2003).

In the present case, the record does not reveal that the court provided the defendant with an evidentiary hearing as to the issue of the plaintiffs standing. The defendant raised the issue of the plaintiffs standing by filing an objection to the plaintiffs motion to reopen and to reenter the judgment. The defendant also moved the court to compel the plaintiff to produce the original mortgage note in order to prove that it had standing to institute the foreclosure action. Furthermore, as indicated in the transcript of the November hearing respecting the plaintiffs motion to reopen and to reenter judgment, the defendant orally raised the issue of the plaintiffs standing to the court; specifically, he contended that the plaintiff lacked standing to pursue the foreclosure action because it was not the holder of the note at the time that it instituted theforeclosure action.

The court never held an evidentiary hearing to determine whether the plaintiff was the holder of the note at the time that it instituted the foreclosure action. The only hearing that the court held was in November, 2008, in response to the plaintiffs motion to reopen and to reenter judgment. At that hearing, the court primarily addressed issues relative to the reentering of the judgment of foreclosure, namely, the amount of debt and the setting of the law days. The court also concluded that the plaintiff had standing. This conclusion, however, was based on a brief colloquy between the court and the plaintiffs counsel in which the plaintiffs counsel presented an original copy of the note to the defendant and stated that he believed that the note was provided to the court at the time of the original judgment. The court did not find specifically that the plaintiff was the holder of the note at the time that it instituted the action. Because jurisdiction in this case hinges on a factual determination regarding the plaintiffs status as holder of the note when it instituted this action, we conclude that the court improperly failed to determine the pertinent facts necessary to ascertain whether jurisdiction existed. Accordingly, we remand the case for an evidentiary hearing to ascertain the plaintiffs status at the time it commenced the action so that the trial court can properly determine whether it has subject matter jurisdiction.

The judgment is reversed and the case is remanded for an evidentiary hearing consistent with this opinion.


text:
    JAMES F. JORDAN III v. DIANA M. JORDAN
    (AC 31450)
    DiPentima, C. J., and Lavine and Lavery, Js.
    Argued September 16
    officially released November 23, 2010

      Peter M. Berry, for the appellant (defendant).

      Carlo Forzani, for the appellee (plaintiff).
   Opinion

PER CURIAM.

In this marital dissolution action, the defendant, Diana M. Jordan, claims that she is entitled to a new trial because the trial court impermissibly rendered its judgment more than 120 days after trial by issuing two corrected memoranda of decision. See General Statutes § 51-183b. The defendant’s claim, however, is governed by General Statutes § 52-212a, which permits a trial court to open and to correct its judgment within four months. See State v. Wilson, 199 Conn. 417, 437, 513 A.2d 620 (1986). We, therefore, affirm the judgment of the trial court.

The plaintiff, James F. Jordan III, commenced this action to dissolve the parties’ twenty year marriage in 2007. Following a trial to the court over several days in April, 2009, the defendant filed revised proposed orders on April 28, 2009. The court rendered judgment in a nine page memorandum of decision, with attachments, on August 21, 2009. In its memorandum of decision, the court dissolved the parties’ marriage and issued numerous orders concerning the parties’ minor children, finances and property. From page one through the middle of page five of the court’s memorandum of decision, the court referred to the plaintiff as the “plaintiff husband,” using a masculine pronoun, and to the defendant, using a feminine pronoun. On page five, the court transposed the designation of plaintiff and defendant but continued to refer to the parties by the gender appropriate pronouns, e.g., “[t]he defendant shall continue his present medical and dental insurance . . . .”

On September 4, 2009, the defendant filed a motion for a new trial, claiming that the court had failed to issue its decision within 120 days of the completion of trial as required by § 51-183b. On that same date, the defendant also filed an appeal grounded in the transposition of the party designations in the court’s memorandum of decision. On September 8, 2009, the court sua sponte issued a corrected memorandum of decision in which it corrected some, but not all, of the transposition errors.

On September 21, 2009, the plaintiff filed a motion for articulation, in which he identified six sections of the first corrected memorandum of decision that needed to be clarified “to ensure that the court’s intended orders are followed . . . .” The court heard arguments from counsel on October 15, 2009, regarding the defendant’s motion for a new trial and the plaintiffs motion for articulation. During the proceeding, the court described the mistakes in its memorandum of decision as “what clearly [are] scrivener’s errors.” The court denied the defendant’s motion for a new trial and granted the plaintiffs motion for articulation.

On October 20, 2009, the court issued a second corrected memorandum of decision. The defendant objected, claiming that the second corrected memorandum of decision was a new judgment because it materially changed the court’s orders and was untimely because it was issued more than 120 days from the date that she filed her revised proposed orders. Moreover, she argued, her motion for a new trial filed on September 4, 2009, constituted an objection to the filing of a late judgment pursuant to § 51-183b, and, therefore, the judgment rendered by the second corrected memorandum is void ab initio. On October 30,2009, the defendant filed a second motion for a new trial and an amended appeal. The court overruled the defendant’s objection to the second corrected memorandum of decision, and the defendant filed this appeal. The defendant claims that she is entitled to a new trial because the court’s first and second corrected memoranda each represent a separate judgment improperly issued more than 120 days after trial. “The construction of a judgment is a question of law for the court.” (Internal quotation marks omitted.) Munson v. Munson, 98 Conn. App. 869, 872, 911 A.2d 1158 (2006).

It is well established that a court’s ability to modify a prior ruling ordinarily is limited by § 52-212a. See Rocque v. Light Sources, Inc., 275 Conn. 420, 432, 881 A.2d 230 (2005); see also General Statutes § 52-212a; Practice Book § 17-4; Commissioner of Transportation v. Rocky Mountain, LLC, 277 Conn. 696, 706, 894 A.2d 259 (2006). “Where judicial error exists ... § 52-212a imposes a time limit so that a judgment may not be modified in matters of substance beyond a period of four months after the judgment has become final. State v. Wilson, [supra, 199 Conn. 437].” (Internal quotation marks omitted.) Rome v. Album, 73 Conn. App. 103, 107 n.3, 807 A.2d 1017 (2002). Our Supreme Court has recognized, however, that “it is within the equitable powers of the trial court to fashion whatever orders [are] required to protect the integrity of [its original] judgment.” (Internal quotation marks omitted.) Rocque v. Light Sources, Inc., supra, 433. “A trial court possesses the power to modify substantively its own judgment within four months succeeding the date on which it was rendered or passed. ... A court may correct a clerical error at any time, even after the expiration of the four month period.” (Citation omitted.) Cioffoletti v. Planning & Zoning Commission, 34 Conn. App. 685, 689, 642 A.2d 1220, cert. denied, 230 Conn. 916, 645 A.2d 1018 (1994). “It is axiomatic that a judgment should admit of a consistent construction as a whole.” (Internal quotation marks omitted.) Munson v. Munson, supra, 98 Conn. App. 874. “A clerical error does not challenge the court’s ability to reach the conclusion that it did reach, but involves the failure to preserve or correctly represent in the record the actual decision of the court.” (Internal quotation marks omitted.) Id.

In this case, the court issued its first corrected memorandum of decision on September 8, 2009, just weeks after it rendered a judgment of dissolution. The second corrected memorandum of decision was issued on October 20, 2009, approximately six weeks after the first corrected memorandum of decision was issued. The court, therefore, permissibly opened its August 21, 2009 judgment and issued corrected memoranda of decision within the four month time frame permitted by § 52-212a.

The judgment is affirmed.

       In her appellate brief, the defendant states her claim as follows: “Whether the trial court made an error of law when it denied [her] motion for a new trial when it ruled that [it] had made a judgment within 120 days following trial by finding that its ‘Memorandum of Decision’ issued and dated August 21,2009, was a final judgment pursuant to Connecticut law and its additional memoranda of decision that substantially changed the decision were merely ‘corrections’ and not new final judgments.” See footnote 2 of this opinion.

       General Statutes § 51-183b provides in relevant part: “Any judge of the Superior Cotut and any judge trial referee who has the power to render judgment, who has commenced the trial of any civil cause . . . shall render judgment not later than one hundred and twenty days from the completion date of the trial of such civil cause. The parties may waive the provisions of this section.”

       General Statutes § 52-212a provides in relevant part: “[A] civil judgment or decree rendered in the Superior Court may not be opened or set aside unless a motion to open or set aside is filed within four months following the date on which it was rendered . . . .”

       On September 21, 2009, the plaintiff filed an objection to the motion for a new trial, arguing that the court’s decision was issued within 120 days of the defendant’s having submitted her revised proposed orders. See Cowles v. Cowles, 71 Conn. App. 24, 26, 799 A.2d 1119 (2002) (“The one hundred twenty day period begins to run from the date that the parties file posttrial briefs or other material that the court finds necessary for a well reasoned decision. See Frank v. Streeter, 192 Conn. 601, 604^605, 472 A.2d 1281 [1984].”).
      During oral argument in this court, the defendant acknowledged that the August memorandum was issued within 120 days of trial. We, therefore, need not address the claim.

       The court denied the defendant’s motion for a new trial and her subsequent motion for reargument regarding the motion for a new trial.

       The defendant does not contend that the court abused its discretion in dissolving the parties’ marriage or in issuing its related orders.

       In her reply brief, the defendant raised for the first time a claim that the court improperly ordered her to pay the mortgage on the family home, the real property taxes and the home equity line of credit until the property was sold. It is well established that this court does not review claims raised for the first time in a reply brief. See Radcliffe v. Radcliffe, 109 Conn. App. 21, 24, 951 A.2d 575 (2008).


author: HENNESSY, J.

text:
    IN RE PAUL O.

    (AC 31770)
    DiPentima, C. J., and Beach and Hennessy, Js.

      Argued September 8
    officially released November 23, 2010

      David B. Rozwaski, for the appellant (respondent mother).

      Frank H. LaMonaca, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Susan T. Pearlman, assistant attorney general, for the appellee (petitioner).

      Ingrid Swanson, for the minor child.

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

   Opinion

HENNESSY, J.

This is an appeal by the respondent mother from the judgment of the trial court sustaining an order of temporary custody regarding her minor child, Paul. On appeal, the respondent claims that the judgment of the court is against the weight of the evidence. We disagree and, accordingly, affirm the judgment of the trial court.

The record reveals the following relevant facts and procedural history. The respondent gave birth to Paul on February 4, 2009. On September 3, 2009, the respondent brought Paul, who was then approximately seven months old, to the Hill Health Center (center) in New Haven for a routine medical examination. The examination was conducted by Kathleen Stone, a pediatric nurse practitioner. As she entered the examination room, Stone observed that the respondent was sitting in a chair with her back turned toward Paul, whom the respondent had placed on an examination table. Stone immediately was concerned for Paul’s safety because she believed that Paul could have been injured if he had rolled off the table while the respondent was not paying attention to him. Stone also was concerned because the respondent was unable to formulate coherent answers to Stone’s questions about Paul’s medical history.

As a result of her conversation with the respondent, Stone was left with the false impression that the department of children and families (department) already had opened a case and was investigating the respondent’s fitness as a parent. Stone left several messages with the department in order to express her concern to the relevant caseworker. The department, however, did not respond to Stone’s messages.

On October 29, 2009, the respondent returned to the center with Paul for an appointment with Stephan Updegrove, a pediatrician. Updegrove, much like Stone, observed that the respondent was unable to provide coherent answers to his questions about Paul’s medical history and often strayed from the subject of their conversation. At one point, the respondent stated that she had been incorrectly diagnosed as a schizophrenic when she was a child. Updegrove also observed that the respondent was wearing a bracelet that was covered with one inch long chrome spikes. Updegrove advised the respondent that the bracelet posed a danger to Paul’s health alter he observed Paul twist in the respondent’s arms with his face coming close to the spikes on the bracelet. The respondent, however, chose not to remove her bracelet.

Stone ultimately established contact with the department on or about November 5, 2009, and informed it of her observations. Thereafter, the department assigned Matthew Bourquard to investigate Stone’s concerns. Bourquard made an unannounced visit to the respondent’s apartment on the afternoon of November 5, 2009. He first observed Paul sleeping on the respondent’s bed. Bourquard advised the respondent that the department recommended against sleeping with a nine month old child due to the risk that a parent could roll over while asleep and injure her child. He also advised the respondent that the department recommended against allowing a child of Paul’s age to sleep in a bed due to an increased risk of sudden infant death syndrome. The respondent, however, did not show any concern regarding Paul’s sleeping arrangements.

As he proceeded farther into the respondent’s home, Bourquard observed that dirty clothing, garbage and various other debris were scattered throughout the apartment. He advised the respondent that her apartment was unsanitary and unsafe for a child of Paul’s age. The respondent, however, claimed that she had been busy and had not had time to clean her apartment for several days.

The petitioner, the commissioner of children and families, decided, on the basis of Bourquard’s observations, to place Paul on a ninety-six hour hold. Although the respondent visibly was upset when she was informed of the petitioner’s decision, she assisted Bourquard in placing Paul into a car seat. Bourquard then noticed that Paul’s left foot was badly bruised. When Bourquard inquired as to the cause of Paul’s injury, the respondent explained that a plate had fallen onto Paul’s foot several days earlier. The respondent also informed Bourquard that while she had not sought professional medical treatment for Paul’s injury, she had attempted to treat the injury herself by bathing Paul’s foot in a bathtub. Bourquard subsequently brought Paul to the emergency room at Yale-New Haven Hospital where it was determined that Paul’s foot was bruised but not more seriously injured. The petitioner then placed Paul into foster care.

On November 9, 2009, the petitioner filed a neglect petition and an ex parte motion for an order of temporary custody. Later that day, the trial court granted the petitioner’s motion for temporary custody and committed Paul to the custody of the petitioner, finding that there was reasonable cause to believe that Paul was in imminent risk of physical harm from his surroundings and that Paul’s immediate removal from those surroundings was necessary to ensure his safety.

On November 10, 2009, Bourquard returned to the respondent’s apartment to arrange for a supervised parent-child visit. While he was inside the respondent’s apartment, Bourquard noticed that the respondent had removed some of the clothing and debris that had been present during his initial visit on November 5, 2009. Bourquard, however, was unable to examine the entire apartment as the respondent was unwilling to allow him to proceed beyond the front room. Bourquard also recommended that the respondent enroll in Yale University’s intensive safety planning program, which is designed to accelerate parent-child reunification by addressing issues that lead to the removal of children from the home. The respondent, however, was not willing to participate in the program.

In the middle of November, the department assigned Adina Ghanooni to the case as the ongoing treatment social worker. Ghanooni went to the respondent’s apartment in early December to schedule a supervised parent-child visit. While she was in the respondent’s apartment, Ghanooni observed that it was quite clean. The respondent, however, was reluctant to speak to Ghanooni without her attorney being present. The respondent subsequently contacted Ghanooni via telephone and agreed to attend a supervised parent-child visit on December 9, 2009. During the visit, Ghanooni observed the respondent attempt to give a glass ring to Paul as a gift. The ring was approximately the size of a quarter, and Ghanooni believed that the ring presented a choking hazard to Paul, who was then approximately ten months old. Paul never received the ring.

On November 13, 2009, the court held a preliminary hearing on the order of temporary custody and scheduled a trial for November 20, 2009. During the trial, which occurred on November 20 and December 11, 2009, Stone, Updegrove, Bourquard and Ghanooni testified as to the foregoing facts. The respondent also offered her own testimony and provided the court with a history of her struggle with mental illness. Specifically, the respondent testified that although she had received psychiatric treatment throughout much of her life, she had been discharged and was no longer taking psychotropic medication.

At the conclusion of the hearing on December 11, 2009, the court sustained the order of temporary custody. The court based its decision on its finding that Paul would continue to be in imminent risk of physical harm if he was returned to the respondent’s custody. This appeal followed.

We begin by setting forth the applicable law and standard of review. Pursuant to General Statutes § 46b-129 (b), the trial court may “issue an order ex parte vesting in some suitable agency or person the child’s or youth’s temporary care and custody” if it appears, “from the specific allegations of the petition and other verified affirmations of fact accompanying the petition and application, or subsequent thereto, that there is reasonable cause to believe that (1) the child or youth is suffering from serious physical illness or serious physical injury or is in immediate physical danger from the child’s or youth’s surroundings, and (2) that as a result of said conditions, the child’s or youth’s safety is endangered and immediate removal from such surroundings is necessary to ensure the child’s or youth’s safety . . . .”

The proper standard of proof in a trial on an order of temporary custody is “the normal civil standard of a fair preponderance of the evidence. . . . We note that [a]ppellate review of a trial court’s findings of fact is governed by the clearly erroneous standard of review. The trial court’s findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. . . . We cannot retry the facts or pass on the credibility of the witnesses. ... 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. . . . With those principles in mind, we will review the evidence presented at the hearing on the [motion] for [an order] of temporary custody to determine whether the court’s determination is supported by the evidence in the record.” (Citations omitted; internal quotation marks omitted.) In re Kelsey M., 120 Conn. App. 537, 543, 992 A.2d 372 (2010).

The respondent contends that the trial court had no basis in the evidence to find that Paul would continue to be in immediate physical danger if he was returned to her custody. Specifically, the respondent contends that the evidence in the record demonstrates that the court’s concern regarding the state of her apartment was unfounded, that her history of mental illness was irrelevant and that she exercised sound parental judgment. We are not persuaded.

The respondent first contends that the court’s concern regarding the state of her apartment was unfounded. We disagree. The record contains substantial evidence regarding the woeful state of the respondent’s apartment. Specifically, the record contains evidence that the apartment was littered with dirty clothing, garbage and various other debris on November 5, 2009. The respondent correctly asserts that two witnesses, Bourquard and Ghanooni, testified that she had subsequently cleaned at least a portion of her apartment. The court’s finding that Paul would continue to be in immediate danger, however, is amply supported by the record.

The respondent also contends that her history of mental illness was irrelevant and that the record demonstrates that she exercised sound parental judgment in caring for Paul. We disagree. The court heard substantial evidence from the respondent herself that she had a long history of mental illness. Despite the respondent’s argument to the contrary, her mental condition was relevant to the extent that it impacted on her ability to function as a parent. See In re Nicolina T., 9 Conn. App. 598, 607, 520 A.2d 639 (in termination of parental rights trial, mental illness relevant to extent it affects ability to function as parent), cert. denied, 203 Conn. 804, 525 A.2d 519 (1987). The record also contains substantial evidence to support the court’s concerns regarding the respondent’s judgment. Specifically, the record contains evidence that the respondent left Paul, who was then seven months old, on an examination table that was outside of her field of vision. The record also contains evidence that the respondent refused to remove a bracelet covered with spikes that posed a risk to Paul’s physical well-being, attempted to give Paul a small glass ring that presented a choking hazard and that the state of her apartment presented a hazard to Paul’s health.

We conclude, on the basis of our review of the evidence presented to the trial court, that the court’s decision to sustain the order of temporary custody was supported by the record.

The judgment is affirmed.

In this opinion the other judges concurred.

       The child’s father is not a party to this appeal. We therefore refer in this opinion to the respondent mother as the respondent.

       In fact, the department did not have an open case file, nor was it investigating the respondent’s fitness as a parent at that time.

       General Statutes § 17a-101g provides in relevant part that “(e) [i]f the Commissioner of Children and Families, or the commissioner’s designee, has probable cause to believe that [a] child ... is in imminent risk of physical harm from the child’s surroundings and that immediate removal from such surroundings is necessary to ensure the child’s safety, the commissioner, or the commissioner’s designee, shall authorize any employee of the department or any law enforcement officer to remove the child . . . from such surroundings without the consent of the child’s parent or guardian.. .. “(f) The removal . . . shall not exceed ninety-six hours. . . .”


text:
    LUIS FERNANDEZ v. COMMISSIONER OF CORRECTION
    (AC 30767)
    Bishop, Gruendel and Beach, Js.

      Argued September 23
    officially released November 23, 2010

      Luis Fernandez, pro se, the appellant (petitioner).

      James A. Kitten, senior assistant state’s attorney, with whom, on the brief, was Stephen J. Sedensky III, state’s attorney, for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, Luis Fernandez, appeals following the denial of his petition for certification to appeal from the order of the habeas court declining to issue a writ of habeas corpus in accordance with Practice Book § 23-24 (a) (2). The petitioner claims that the court improperly determined that his petition for a writ of habeas corpus was wholly frivolous on its face. We dismiss the appeal.

The petitioner was convicted, after a jury trial, of five counts of sale of narcotics by a person who is not drug-dependent in violation of General Statutes § 2 la-278 (b) and five counts of possession of narcotics in violation of General Statutes § 21a-279 (a), and, after a trial to the court on one count of violation of probation, was found to be in violation of General Statutes § 53a-32. The petitioner was sentenced to a total effective term of twenty-eight years imprisonment. The petitioner’s conviction and violation of probation were affirmed by this court on direct appeal. See State v. Fernandez, 76 Conn. App. 183, 818 A.2d 877, cert. denied, 264 Conn. 901, 823 A.2d 1220 (2003).

On November 18, 2008, the petitioner filed a petition for a writ of habeas corpus, alleging that he is being illegally confined. Upon review, the habeas court, on November 26, 2008, declined to issue the writ of habeas corpus on the ground that the petition was wholly frivolous on its face pursuant to Practice Book § 23-24 (a) (2). On December 15,2008, the petitioner filed apetition for certification to appeal and an application for waiver of fees, costs and expenses and the appointment of counsel. The court declined to rule on the petition for certification to appeal on the ground that it did not comport with General Statutes § 52-470 (b) because there was no judgment on the merits after a hearing and the matter was not tried to a court. The court granted the application for waiver of fees, costs and expenses, but denied the motion for the appointment of counsel. The petitioner subsequently filed a motion for rectification and articulation. The court denied the motion for rectification, finding that it was neither warranted nor necessary. In response to the motion for articulation, the court stated that it did not appoint appellate counsel or refer the matter to the office of the public defender because the petitioner was not entitled to appointed counsel as a matter of law in a frivolous matter. This appeal followed.

“Faced with the habeas court’s denial of certification to appeal [under General Statutes § 52-470 (b)], a petitioner’s first burden is to demonstrate that the habeas court’s ruling constituted an abuse of discretion. . . . A habeas appeal that satisfies one of the criteria set forth in Lozada v. Deeds, [498 U.S. 430, 431-32, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991)], is not, however, frivolous and warrants appellate review if the appellant can show: that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further. . . . Thus, if an appeal is not frivolous, the habeas court’s failure to grant certification to appeal is an abuse of discretion. ... In determining whether the habeas court abused its discretion in denying the petitioner’s request for certification, we necessarily must consider the merits of the petitioner’s underlying claims to determine whether the habeas court reasonably determined that the petitioner’s appeal was frivolous. In other words, we review the petitioner’s substantive claims for the purpose of ascertaining whether those claims satisfy one or more of the three criteria identified in [Lozada v. Deeds, supra, 432] and adopted by this court for determining the propriety of the habeas court’s denial of the petition for certification. Absent such a showing by the petitioner, the judgment of the habeas court must be affirmed [and the appeal dismissed].” (Citation omitted; internal quotation marks omitted.) Ankerman v. Commissioner of Correction, 122 Conn. App. 246, 250-51, 999 A.2d 789, cert. denied, 298 Conn. 922, 4 A.3d 1225 (2010).

In his petition for a writ of habeas corpus, the petitioner alleged that he is a “foreign national,” who is being treated as a “slave” and a “prisoner of war” in that he is being held at the “plantation of MacDougallWalker” in violation of his constitutional rights and “Geneva Convention Treaties, Convention Against Torture, European Convention on Human Rights and U.S. Human Rights Acts.” He asserted that his status as a “slave” and “prisoner of war” constitutes both a deprivation of due process and cruel and unusual punishment, and that he is being improperly held as an “enemy combatant” as a result of “Post September] 11” policies of the government. Because the record amply reveals that the petitioner is not a “prisoner of war” and is not “enslaved” but, rather, is incarcerated as a result of convictions for crimes of which he was found guilty, we conclude that the court did not abuse its discretion in determining that the petition was frivolous and declining to issue a writ of habeas corpus.

The appeal is dismissed.

       The record reflects that the habeas court declined to act on the petition for certification to appeal. We previously have construed such inaction as a denial. See Coleman v. Commissioner of Correction, 111 Conn. App. 138, 141, 958 A.2d 790 (2008), cert. denied, 290 Conn. 905, 962 A.2d 793 (2009). Accordingly, we treat it as such in this opinion.

       Practice Book § 23-24 (a) provides in relevant part: “The judicial authority shall promptly review any petition for a writ of habeas corpus to determine whether the writ should issue. The judicial authority shall issue the writ unless it appears that:
      “(1) the court lacks jurisdiction;
      “(2) the petition is wholly frivolous on its face; or “(3) the relief sought is not available

       The petitioner also claims that the court improperly denied his motion for the appointment of counsel, both for purposes of filing a petition for certification to appeal and to represent him in his appeal of the court’s determination of his petition as wholly frivolous. “Because Practice Book § 63-7 provides that the [petitioner’s] sole remedy for review of the court’s order concerning the appointment of counsel is by motion for review, the [petitioner] cannot properly raise this claim by way of a direct appeal or amended appeal.” State v. Casiano, 122 Conn. App. 61, 71, 998 A.2d 792 (2010). Accordingly, we decline to review this claim.

       The petitioner does appear to set forth a potentially cognizable double jeopardy claim, contending that “a conviction on one set of facts of both possession of narcotics by a person who is not drug-dependent and simple possession of narcotics, is fatally defective, invalid, and . . . void on its face.” The petitioner’s claim in this regard, however, is factually inaccurate. Specifically, as set forth in his petition, the petitioner was not convicted of those crimes but was, in fact, convicted of possession of narcotics and sale of narcotics. Thus, because the allegations set forth in the petitioner’s petition refute his double jeopardy claim, his petition is frivolous in this regard as well. See State v. Fernandez, supra, 76 Conn. App. 183.


text:
    WESTBROOK POLICE UNION, LOCAL 1257, COUNCIL 15, AFSCME, AFL-CIO v. TOWN OF WESTBROOK
    (AC 31380)
    Bishop, Lavine and Alvord, Js.
    Submitted on briefs October 15
    officially released November 23, 2010

      Eric R. Brown filed a brief for the appellant (plaintiff).

      John S. Bennet filed a brief for the appellee (defendant).
   Opinion

PER CURIAM.

The plaintiff, Westbrook Police Union, Local 1257, Council 15, AFSCME, AFL-CIO, appeals from the judgment of the trial court denying its application to vacate an arbitration award. The plaintiff claims that the court should have vacated the award on the ground that the arbitration panel (panel) exceeded its authority and violated public policy in not reinstating Douglas Senn to a position from which he was discharged without just cause. We affirm the judgment of the trial court.

The panel found the following facts. On May 14, 2002, while employed by the defendant, the town of West-brook, as a part-time constable, Senn was at a meeting with his fellow officers discussing potential work assignments. At that meeting, Senn stood up and declared, “I’m not working with niggers, Puerto Ricans or assholes . . . .” As a result of that comment, a complaint was filed against Senn, ultimately leading to the termination of his employment on September 4, 2002. The plaintiff subsequently grieved Senn’s termination. After several failed attempts to negotiate a settlement, the parties submitted the following issue to the panel: “Whether the [defendant] had just cause to terminate the employment of Douglas Senn? If not, what shall the remedy be?” After an evidentiary hearing, the panel found that the defendant had terminated Senn’s employment without just cause. As a remedy, the panel ordered that Senn receive back pay, but the panel did not order that he be reinstated. The plaintiff filed an application to vacate the panel’s award with the trial court, which was denied. This appeal followed.

On appeal, there is no dispute between the parties that the submission to the panel was unrestricted. Our standard of review of an arbitration award that is based on an unrestricted submission is well established. “Judicial review of arbitral decisions is narrowly confined. . . . When the parties agree to arbitration and establish the authority of the arbitrator through the terms of their submission, the extent of our judicial review of the award is delineated by the scope of the parties’ agreement. . . . When the scope of the submission is unrestricted, the resulting award is not subject to de novo review even for errors of law so long as the award conforms to the submission. . . . Because we favor arbitration as a means of settling private disputes, we undertake judicial review of arbitration awards in a manner designed to minimize interference with an efficient and economical system of alternative dispute resolution. . . .

“Where the submission does not otherwise state, the arbitrators are empowered to decide factual and legal questions and an award cannot be vacated on the grounds that . . . the interpretation of the agreement by the arbitrators was erroneous. Courts will not review the evidence nor, where the submission is unrestricted, will they review the arbitrators’ decision of the legal questions involved. ... In other words, [u]nder an unrestricted submission, the arbitrators’ decision is considered final and binding; thus the courts will not review the evidence considered by the arbitrators nor will they review the award for errors of law or fact. . . .

“Even in the case of an unrestricted submission, we have . . . recognized three grounds for vacating an award: (1) the award rules on the constitutionality of a statute ... (2) the award violates clear public policy . . . [and] (3) the award contravenes one or more of the statutory proscriptions of [General Statutes] § 52-418. . . . [Section] 52-418 (a) (4) provides that an arbitration award shall be vacated if the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made.

“In our construction of § 52-418 (a) (4), we have, as a general matter, looked to a comparison of the award with the submission to determine whether the arbitrators have exceeded their powers. . . . The standard for reviewing a claim that the award does not conform to the submission requires what we have termed in effect, de novo judicial review. . . . Although we have not explained precisely what in effect, de novo judicial review entails as applied to a claim that the award does not conform with the submission, that standard best can be understood when viewed in the context of what the court is permitted to consider when making this determination and the exact nature of the inquiry presented. Our review is limited to a comparison of the award to the submission. Our inquiry generally is limited to a determination as to whether the parties have vested the arbitrators with the authority to decide the issue presented or to award the relief conferred. . . .

“In determining whether an arbitrator has exceeded the authority granted under the contract, a court cannot base the decision on whether the court would have ordered the same relief, or whether or not the arbitrator correctly interpreted the contract. The court must instead focus on whether the [arbitrator] had authority to reach a certain issue, not whether that issue was correctly decided. Consequently, as long as the arbitrator is even arguably construing or applying the contract and acting within the scope of authority, the award must be enforced. The arbitrator’s decision cannot be overturned even if the court is convinced that the arbitrator committed serious error. . . . Moreover, [e]very reasonable presumption and intendment will be made in favor of the award and of the arbitrator’s acts and proceedings. Hence, the burden rests on the party challenging the award to produce evidence sufficient to show that it does not conform to the submission.” (Citations omitted; internal quotation marks omitted.) Teamsters Local Union No. 677 v. Board of Education, 122 Conn. App. 617, 621-24, 998 A.2d 1239 (2010).

Here, the submission does not limit the nature of the remedy that the panel could fashion once it determined that Senn’s employment had been terminated without just cause. Thus, the panel’s failure to reinstate Senn cannot be construed as a failure to conform with the submission. Additionally, in light of Senn’s use of a highly derogatory racial slur regarding his fellow officers, we find astonishing the plaintiffs claim that considerations of public policy require his return to his law enforcement duties. Suffice it to say, we disagree.

The judgment is affirmed.


text:
    LEO BENTO v. MARIA F. BENTO
    (AC 30504)
    Gruendel, Robinson and Borden, Js.
    Argued April 8
    officially released November 30, 2010

      George J. Markley, for the appellant (plaintiff).

      Samuel V. Schoonmaker IV, with whom, on the brief, was Wendy Dunne DiChristina, for the appellee (defendant).
   Opinion

ROBINSON, J.

The plaintiff, Leo Bento, appeals from the judgment of the trial court dissolving his marriage to the defendant, Maria F. Bento. On appeal, the plaintiff claims that the trial court abused its discretion with respect to its financial orders by (1) awarding the defendant attorney’s fees, (2) ordering the parties equally to be responsible for a corporate debt and (3) dividing the parties’ assets other than on a fifty-fifty basis. The plaintiff also claims that the court’s finding that the parties had agreed to the division of their personal property was clearly erroneous. The plaintiff generally claims that the court’s memorandum of decision is insufficient to support its financial orders due to the lack of factual findings. We affirm in part and reverse in part the judgment of the trial court.

The plaintiff commenced this action in October, 2007, seeking dissolution of his marriage to the defendant. He alleged that he had been a resident of this state since June 18, 2007, and intended to make it his permanent residence. He further alleged that the marriage had broken down irretrievably. In addition to a dissolution of marriage, the plaintiff sought alimony, an equitable distribution of the parties’ assets and such other relief as the court may deem necessary and proper. In January, 2008, the defendant admitted the allegations of the complaint and alleged a cross claim seeking a dissolution of marriage on the basis of irretrievable breakdown. She also alleged that the parties were the equitable and beneficial owners of the marital home in Hartsdale, New York. She sought a dissolution of the marriage, alimony, equitable distribution of the parties’ assets, reasonable attorney’s fees and other relief the court may deem proper. The action was tried to the court in October, 2008.

In its memorandum of decision issued on October 21, 2008, the court made the following findings of fact. The parties were married in Yonkers, New York, on July 10,1968, and have three children, all of whom have reached the age of majority. Neither of the parties has been the recipient of financial assistance from the state. At the time of trial, the plaintiff was sixty-six years old, and the defendant was sixty-three years old. The plaintiff previously had brought a dissolution action in the state of New York but had failed to prevail, and the case was disposed of in 2007.

The court found that the plaintiff has suffered two heart attacks, takes medication on a regular basis and has not been employed on a regular basis since 2000, due to his health problems. The plaintiff has only four years of education but appears to have obtained something equivalent to a graduate equivalency degree. The plaintiff acknowledged that he had had at least one extramarital sexual liaison in 2004. Although he claimed that the marriage had broken down in 2000, he continued to live with the defendant and take trips with her in an effort to reconcile.

The court found that the defendant’s version of things was different. According to the defendant, the marriage broke down in 2005 when serious difficulties with the plaintiff began. She claimed to have been the victim of vile and opprobrious language, as well as physical acts of force against her. The court found that although most of what it described as the plaintiffs “loathsome” conduct occurred in the latter stages of the forty year marriage, there was sufficient evidence to prove that the cause of the marital breakdown was the plaintiffs fault.

In dissolving the marriage and entering its orders, the court considered the parties’ claims and the criteria set forth in General Statutes §§ 46b-81 and 46b-82. The court dissolved the marriage and entered orders regarding alimony, the marital home, tax liabilities, assignment of real property in Portugal, the parties’ bank accounts and motor vehicles and their personalty. The court also assigned responsibility for the parties’ liabilities and awarded the defendant attorney’s fees. The plaintiff appealed.

The majority of the plaintiffs claims concern the court’s financial orders. “Our standard of review for financial orders in a dissolution action is clear. The trial court has broad discretion in fashioning its financial orders .... [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.” (Citation omitted; internal quotation marks omitted.) Desai v. Desai, 119 Conn. App. 224, 235, 987 A.2d 362 (2010).

“A fundamental principle in dissolution actions is that a trial court may exercise broad discretion in awarding alimony and dividing property as long as it considers all relevant statutory criteria. ... No single criterion is preferred over others, and the trial court has broad discretion in varying the weight placed on each criterion under the circumstances of each case.” (Citations omitted; internal quotation marks omitted.) Watson v. Watson, 20 Conn. App. 551, 554, 568 A.2d 1044 (1990), rev’d in part on other grounds, 221 Conn. 698, 607 A.2d 383 (1992). Our decisions neither hold nor intimate that “the trial court must make specific, detailed findings on each factor it considered pursuant to § 46b-82 or otherwise. We do, however, require that the record contain some indication as to the reasoning of the trial court in making an exercise of its discretionary powers in this type of proceeding.” Id., 556 n.2, quoting Markarian v. Markarian, 2 Conn. App. 14, 17 n.2, 475 A.2d 337 (1984).

I

The plaintiffs first claim is that the court abused its discretion when it awarded the defendant $7500 in attorney’s fees. We are unable to resolve the claim due to ambiguity in the court’s memorandum of decision as to this issue. By failing to file a motion for articulation, the plaintiff has failed to provide an adequate basis for review. See Practice Book §§ 60-5 and 61-10.

The court ordered the plaintiff to pay the defendant $7500 toward the payment of her attorney’s fees. In its memorandum of decision, the court stated, in relevant part: “The [plaintiff], who recently sought a dissolution action and failed to prevail and who has been less than cooperative in providing disclosure in this proceeding, shall pay to [the defendant] the sum of $7500 toward her attomey[’s] fees.” On appeal, the plaintiff contends that the court’s award is contrary to General Statutes § 46b-62.

The court’s order, however, is not clear as to the factual and legal basis on which it awarded the defendant attorney’s fees. The memorandum of decision offers at least two reasons for the award, and the plaintiff failed to seek an articulation from the court. See Practice Book § 66-5. Moreover, in ruling on the contempt motions filed by the parties, the court denied the plaintiffs motion for contempt and overruled the plaintiffs objection to the defendant’s motion for contempt. It is unclear whether the court, by implication, granted the defendant’s motion for contempt and whether that was the basis of its award of attorney’s fees. The appellant bears the burden of providing an adequate record for review. Mickey v. Mickey, 292 Conn. 597, 609, 974 A.2d 641 (2009). Because the record is ambiguous, we cannot review the plaintiffs claim.

II

The plaintiffs second claim is that the court abused its discretion by ordering that the parties equally be responsible for a corporate debt owed Manuel Pedro and/or Maria Pedro. The court made no findings of fact, recited no evidence and cited no law with respect to this order. Moreover, it did not actually find that a debt was owed. The court merely ordered that “both parties shall be equally responsible for 50 percent of the funds due Manuel Pedro and/or Maria Pedro.” The plaintiff did not seek an articulation.

We acknowledge that, in rendering a judgment of dissolution, the court has the authority to assign “the debts and liabilities of the parties”; (internal quotation marks omitted) Fewtrell v. Fewtrell, 87 Conn. App. 526, 531, 865 A.2d 1240 (2005); and to order “one party to assume the joint liabilities of both parties. General Statutes § 46b-81 (a) . . . .” (Citation omitted.) Osakowicz v. Osakowicz, 57 Conn. App. 807, 809-10, 750 A.2d 1135 (2000). Nonetheless, “[t]here must be some indication in the record as to the basis of the trial court’s determination of the award.” Watson v. Watson, supra, 20 Conn. App. 555. Neither party included a debt to Manuel Pedro and/or Maria Pedro on his or her financial affidavit. Without any finding that the parties owed a debt, the court abused its discretion in ordering them to be responsible equally for it. The case is remanded to the trial court with direction to vacate that portion of the court’s financial orders that the parties “be equally responsible for 50 percent of the funds due Manuel Pedro and/or Maria Pedro.”

Ill

The plaintiffs third claim is that the trial court abused its discretion in issuing its financial orders regarding alimony, payment of the carrying costs on the marital home and division of the parties’ assets. More specifically, the plaintiff claims that the court abused its discretion with respect to its alimony award in light of his income and that of the defendant. He also claims that the court abused its discretion by failing to award him 50 percent of the proceeds from the sale of B & S Realty of Yonkers, Inc. (B & S Realty). He also complains that the court awarded him only 39 percent of the parties’ net assets and the defendant 61 percent of the net assets. All of the plaintiffs claims are fact based pursuant to his interpretation of the evidence. Although the plaintiff complains that following a three day trial, the court did not make any findings regarding the financial circumstances of the parties, he failed to file a motion for articulation seeking the factual and legal basis of the court’s orders. See Practice Book § 66-5.

The court issued the following financial orders. The defendant is to pay the plaintiff alimony in the amount of $1500 per month until the death of either party, the plaintiffs cohabitation as defined by statute or remarriage, the completion or cessation of the monthly note payments from the sale of B & S Realty, or January 30, 2009, whichever occurs first. Beginning February 1, 2009, the defendant shall pay the plaintiff alimony in the amount of $1800 per month until the death of either party, the plaintiffs cohabitation as defined by statute or remarriage, the completion or cessation of the monthly note payments from the sale of B & S Realty or March 1, 2016, whichever shall first occur.

The court ordered the immediate sale of the marital home in Hartsdale, New York, the net proceeds of which were to be divided equally between the parties. With regard to other marital assets, the court ordered that the defendant is to pay the plaintiff, upon receipt, 40 percent of the net proceeds from the $1.5 million balance due from the sale of B & S Realty. The defendant must pay any federal and state taxes due with respect to the sale prior to the date of judgment. Any tax obligation related to the property incurred subsequent to judgment shall be divided between the parties with the defendant paying 60 percent of the postjudgment taxes. The court awarded the defendant property in Viera, Portugal, and Corredoura, Portugal, and the plaintiff property in Porto de Mos, Portugal. The Citibank and Commerce Bank checking and savings accounts were awarded to the defendant, along with the Chrysler minivan. The plaintiff was awarded the Chase savings and checking accounts and the Mercedes 350 automobile.

The court ordered the parties to be responsible for their respective liabilities and their own medical and dental expenses and for health insurance coverage. The court found that the defendant has benefited from the proceeds of the sale of B & S Realty that had occurred in April, 2006. She received a cash payment of $100,000 and $250,000 in a lump sum payment. In addition, she has received the monthly interest on the $1.5 million note that was given by the purchasers of the business. The court also found that the plaintiff was incapacitated and that the plaintiff and the parties’ daughter, Teresa Tomas, assumed responsibility for operating the business. A large part of the $350,000 from the sale of B & S Realty was used to pay the liabilities of the business. Nonetheless, the court concluded that the defendant received a substantial benefit from the proceeds of the sale of the business and ordered her to pay the federal or New York state tax obligation as it relates to the sale to the date of judgment.

Section 46b-82 (a) provides in relevant part: “In determining whether alimony shall be awarded, and the duration and amount of the award, the court shall hear the witnesses, if any, of each party . . . shall consider the length of the marriage, the causes for the . . . dissolution of the marriage . . . the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties and the award, if any, which the court may make pursuant to section 46b-81 . . . .”

The court found that the plaintiff had suffered two heart attacks, takes medication on a regular basis and has not worked on a regular basis since 2000 due to his health problems. The court also found that the plaintiff was responsible for the breakdown of the marriage due to “his loathsome conduct” during the latter stages of the forty year marriage. In their briefs, the parties recite the evidence from their respective points of view concerning the history of their business and financial dealings. Our review of the transcripts discloses that the parties hold widely different, views of the facts. The court made no credibility determinations.

In this case, we cannot conclude that the court failed to consider the factors enumerated in § 46b-82. In the second paragraph of the court’s memorandum of decision, the court noted the length of the parties’ marriage and their ages, the plaintiffs health problems, recent employment history and level of education. Moreover, the court noted that the plaintiff had engaged in at least one extramarital affair in 2004. The court also noted the different perspectives of the parties as to when the marriage had broken down irretrievably and who was to blame. The court did not make specific findings as to the history of the parties’ business relationship and income or their assets and liabilities. The court divided the marital home equally between the parties and ordered the defendant to pay the plaintiff alimony. With respect to moneys due from the sale of the parties’ business, the court roughly divided the proceeds 40 percent to the plaintiff and 60 percent to the defendant. The court ordered the defendant to pay any prejudgment tax liabilities.

Although the memorandum of decision is spare, the court was not required to render its financial orders with mathematical precision. The plaintiff did not file a motion for articulation seeking clarification of the court’s financial orders. The heart of the plaintiffs claim is that the court did not divide the parties’ assets fifty-fifty and equalize their monthly incomes. In doing so, he fails to consider that the court found him at fault for the breakdown of the marriage and that the court ordered the defendant hable for the business tax obligations. We conclude, therefore, that the court did not abuse its discretion in awarding alimony and dividing the parties’ assets.

IV

The plaintiff’s final claim is that the court improperly found that the parties had stipulated to the division of their personal property and therefore failed to award the plaintiff certain personalty. We agree that the record does not support the court’s finding that the parties stipulated to the division of their personalty. During the evidentiary portion of the trial, the plaintiff presented no evidence as to personal property he wanted from the marital home. Immediately prior to closing arguments of counsel, the following colloquy took place:

“The Court: . . . What did we do with the personalty? We talked about that, right?
“[The Defendant’s Counsel]: You asked [the plaintiffs counsel] to give me a list. I still haven’t received a list. It’s been a week and a half. . . .
“[The Plaintiffs Counsel]: I just got the list today, Your Honor. I could copy it over. It’s in [the plaintiffs] handwriting.
“The Court: No, no, no.”

Following oral arguments, the following colloquy occurred:

“[The Plaintiffs Counsel]: ... I do have [the plaintiffs] list. It is handwritten. I don’t know if the court will entertain — if I could provide it to you and provide a copy to [the defendant’s counsel], but I did receive this right before we came to court today. Handwritten.
“The Court: Have you shown it to [the defendant’s counsel]?
“[The Plaintiffs Counsel]: I have not shown it to [the defendant’s counsel] yet. I have the original, and then I just had my office copy it because we didn’t even receive it ahead of time.
“The Court: Did you look at that personal list, that personal property list?
“[The Defendant’s Counsel]: She’s doing it now, just quickly, Your Honor. Is there anything that you don’t think you know that he can have?
“[The Plaintiffs Counsel]: Your Honor, can I submit this to the court?
“The Court: No.
“[The Defendant’s Counsel]: Actually, I object. . . .
“[The Plaintiffs Counsel]: Ifs just his request. I’m not saying. . . .
“The Court: Why don’t you just make a note, no objection, and give it to me in chambers, okay? Whatever you have on that list.
“[The Defendant’s Counsel]: Oh, come back in chambers with whatever we have?
“The Court: Yeah.
“[The Defendant’s Counsel]: Okay. I’ll do that, yes. We’re almost done, Your Honor. Thank you, Your Honor.
“The Court: Recess, please.”

Counsel delivered the list to the court, and the court attached the list to its memorandum of decision. The attachment is a handwritten list containing the notation “O = he can have [illegible]. A.” What appear to be the signatures of the plaintiff and counsel are at the bottom of the page. The meaning of the writing and notations on the document is ambiguous, and there is no record regarding its content. In its memorandum of decision, the court stated that “[t]he parties have agreed to a division of personal property.”

Given the record with respect to the parties’ personalty, we conclude that the court’s finding that the parties agreed to the division of their personal property is clearly erroneous. A court’s finding is “clearly erroneous when there is no evidence in the record to support it . . . .” (Internal quotation marks omitted.) Ahmadi v. Ahmadi, 294 Conn. 384, 397-98, 985 A.2d 319 (2009). We, therefore, reverse this portion of the judgment and remand the case for further proceedings with respect to the parties’ personalty.

The judgment is reversed in part and the case is remanded with direction to vacate the order pertaining to Manuel Pedro and/or Maria Pedro and for further proceedings regarding the division of the parties’ personalty. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       The plaintiff also is known as Leonel Bento.

       General Statutes § 46b-81 (a) provides in relevant part: “At the time of entering a decree . . . dissolving a marriage . . . pursuant to a complaint under section 46b-45, the Superior 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. . . ."

       General Statutes § 46b-82 (a) provides in relevant part: “At the time of entering the decree, the Superior Court may order either of the parties to pay alimony to the other, in addition to or in lieu of an award pursuant to section 46b-81. . .

       General Statutes § 46b-62 provides in relevant part: “In any proceeding seeking relief under the provisions of this chapter . . . the court may order either spouse ... to pay the reasonable attorney’s fees of the other in accordance with their respective financial abilities and the criteria set forth in section 46b-82. . . .”

       In her motion for contempt filed October 2, 2008, the defendant represented, in part: “2. The [p]laintiff has willingly and intentionally violated the terms of the September 11,2008 [s]tipulation and the March 27, 2008 [cjourt [o]rder by failing to provide the [defendant with a complete response to her [r]equest for [production. 3. On September 11, 2008, the parties entered into a [s]tipulation, [p]endente [l]ite, whereby the [pjlaintiff was to provide the [defendant with all outstanding discovery (listed on the attached Schedule A) on or before September 29, 2008. 4. To date, only five days before trial, the [p]laintiff still has not provided the [defendant with any of the documents listed on Schedule A. 5. The [defendant first requested these documents from the [pjlaintiff on January 11, 2008 . . . .”

       “Our Supreme Court has held that litigation misconduct can be considered in determining an award of attorney’s fees under § 46b-62.” Gil v. Gil, 110 Conn. App. 798, 808, 956 A.2d 593 (2008). In Jewett v. Jewett, 265 Conn. 669, 694, 830 A.2d 193 (2003), our Supreme Court “implicitly acknowledged that a party’s litigation misconduct can form part of the basis of such an award of attorney’s fees.” Ramin v. Ramin, 281 Conn. 324, 353, 915 A.2d 790 (2007).

       In asserting this claim, the plaintiff relies on a promissory note signed by the defendant on behalf of Transclassic Coach Corporation. The court, however, did not identify the promissory note as the basis of the debt owed Manuel Pedro and/or Maria Pedro. Without an articulation, we cannot assume that the note is the basis of the court’s order regarding the debt owed Manuel Pedro and/or Maria Pedro.

       Vacating this specific portion of the court’s financial orders will not affect the court’s mosaic. It affects both parties equally and is severable. See Maturo v. Maturo, 296 Conn. 80, 124, 995 A.2d 1 (2010). Moreover, assuming without deciding that the order was predicated on the promissory note, it is the debt of a corporation, not the parties to this dissolution action.

       The plaintiff did not receive alimony pendente lite.

       The parties were ordered to “engage a broker and list the real estate for no less than $600,000. If it cannot be sold within ninety days, the real estate listing price shall be reduced 7 percent every ninety days successively until sold. Both parties shall share from the date of this judgment all carrying expenses on a fifty-fifty . . . basis, i.e., taxes and insurance. Any improvement or repairs needed to enhance the marketability shall be shared by the parties equally. The net proceeds of sale after the payment of closing expenses shall be divided equally.”

       The court did not find the value of the funds in the various accounts.

       In his brief, the plaintiff contends that he is in “very poor health . . . .” The plaintiff, however, has not pointed us to any expert testimony to substantiate the extent of his medical problems. The essence of the plaintiffs claim is that he is unable to earn an income. The court found that he did not have regular employment.

       The plaintiff makes no mention of this factual finding in his brief and how it may have affected the court’s financial orders.

       The plaintiffs counsel then made a statement to the court unrelated to the personalty. This colloquy must have transpired at the end of the day, as the court interrupted and stated: “Please finish because the time is . . . we’ve got to be out of here — ”