author: BEACH, J.

text:
    THOMAS COSTANZO v. F. SCOTT GRAY ET AL.
    (AC 29228)
    Bishop, McLachlan and Beach, Js.

      Argued October 22, 2008
    officially released February 17, 2009

      Philip F. von Kuhn, for the appellant (plaintiff).

      Richard A. O’Connor, with whom was S. Peter Sachner, for the appellees (named defendant et al.).
   Opinion

BEACH, J.

The plaintiff, Thomas Costanzo, appeals from the judgment of the trial court rendered after a jury trial in favor of the defendants F. Scott Gray, an orthopedic surgeon, and his employer, Connecticut Family Orthopedics, P.C. On appeal, the plaintiff claims that the court improperly (1) precluded a medical pamphlet from being admitted as a full exhibit, (2) precluded him from questioning a witness regarding the standard of care for keeping medical records, (3) refused to set aside the verdict on the battery count and (4) refused to set aside the verdict on the medical malpractice count. We disagree and, accordingly, affirm the judgment of the trial court.

The jury reasonably could have found the following facts. In late 2002, the plaintiff, complaining of pain in his lower back, presented himself to Gray. Gray determined that the plaintiff was suffering from a left side herniated disc in his lumbar spine. In early 2003, after conservative treatments proved unsuccessful in treating the plaintiffs back pain, Gray recommended that he undergo surgery to repair the disc. At the preoperative visit, Gray proposed performing the surgery using the METRx retractor system. The METRx system is designed to minimize recovery time by allowing the operating surgeon to split the muscles to gain access to the disc rather than having to peel them away.

Prior to the surgery, the plaintiff signed a consent form, authorizing a “left L4-L5 microdiscectomy” using the METRx retractor. Following the preoperative visit, but prior to the surgery, Gray submitted a medical history form in which he described the plaintiffs chief complaint as “[c]hronic history of low back pain and right leg discomfort with a large right-sided L4-L5 disc herniation by MRI [magnetic resonance imaging] scan.” After the surgery, Gray wrote an operative report in which he described both the preoperative and postoperative diagnosis as “[r]ight-sided herniated [disc], L4-L5.” Later, at an office visit following the surgery, Gray noted that he operated on the right side of the plaintiffs back “[bjecause so many of his symptoms were on the right side . . . .’’At trial, the plaintiff stated, and Gray admitted, that the plaintiff never complained to Gray of any right sided symptoms, nor did he have a right sided herniation.

Following the procedure, the plaintiffs symptoms did not improve and further surgery was performed on his back. The plaintiff subsequently brought this action against the defendants. In his operative complaint, the plaintiff alleged medical malpractice and battery as to the defendants. The plaintiff alleged, inter alia, that Gray “acted negligently and carelessly” when “[a] he performed surgery on the wrong side of the plaintiffs back; [b] he surgically removed disc material on the plaintiffs right side at the L4-L5 level when there was no herniation present and removal of such material was unwarranted; [c] he performed a right L4-L5 microdis-cectomy when he did not have consent to do so; and [d] he failed to perform a left L4-L5 microdiscectomy.” The battery count alleged that Gray committed battery by operating on the right side of the plaintiff when the plaintiff consented to an operation on the left side of his spine.

At trial, Gray admitted that he incorrectly had written, at various points described previously, that the plaintiff was suffering from right side back pain. He defended his decision to operate on the right side of the plaintiffs back, however, by stating that he chose to remove material from the right side to create a space for the bulge on the left side to sink back into place. The plaintiffs expert testified that Gray’s approach did not meet the applicable standard of care. The defendants’ expert testified that Gray did indeed perform a left microdiscec-tomy but that he used a right sided approach. The defendants’ expert further testified that such an approach, also called a contralateral approach, is within the applicable standard of care. The jury found in favor of the defendants. This appeal followed. Additional facts will be set forth as necessary.

I

The plaintiff first claims that the court improperly ruled that a manufacturer’s pamphlet could not be admitted as a full exhibit. We disagree.

The following additional facts are relevant to our resolution of the plaintiffs claim. At trial, Gray testified that he used a Krames pamphlet to describe the proposed surgeiy to the plaintiff. Gray stated that he used the Krames pamphlet because it depicted the procedure using the contralateral approach and “there are no documents for the [METRx] procedure itself that are like this that are helpful.” When asked if he ever gave Med-tronic pamphlets regarding the METRx discectomy procedure to his patients, Gray responded: “There’s nothing that I have that I give patients ... I don’t recall it offhand, no.” The plaintiffs counsel subsequently questioned Gray about a pamphlet published by Medtronic, manufacturers of the METRx system that was employed by Gray during the plaintiffs surgery. Gray responded that he “might have” seen the Med-tronic pamphlet before and that “[m]ost of the time” he does not give it to patients. The defendants’ counsel objected when the plaintiffs counsel attempted to question Gray about a prior patient, who was involved in a separate medical malpractice action against Gray, to whom he believed Gray had shown the Medtronic pamphlet prior to a microdiscectomy on that patient. The defendants’ stated reasons for the objection, communicated outside of the presence of the jury, were relevance and risk of unfair prejudice in calling as a witness a patient who is a plaintiff in a separate malpractice action against Gray. The defendants’ counsel also stated that the Medtronic pamphlet, which depicted a same sided approach, as opposed to a contralateral approach, would be unfairly prejudicial because jurors might interpret the illustration to be evidence of the proper approach for the procedure as suggested by the manufacturer. The plaintiff sought to admit the Medtronic pamphlet as a full exhibit as being relevant to Gray’s credibility. Gray had stated earlier that there were no useful documents for the METRx procedure and that he did not believe he gave them to his patients. The court sustained the objection. It stated: “[T]here may be another way to attack his credibility, without the use of this specific document being put into evidence, which I have some trouble with.” The court specifically left open the possibility that the plaintiff could attack Gray’s credibility by calling a witness to testify that Gray had utilized the Medtronic pamphlet during prior consultations.

Review of the court’s ruling is governed by the abuse of discretion standard. “The trial court’s ruling on the admissibility of evidence is entitled to great deference. . . . [T]he trial court has broad discretion in ruling on the admissibility ... of evidence . . . [and its] ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . We will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion.” (Internal quotation marks omitted.) Jacobs v. General Electric Co., 275 Conn. 395, 406, 880 A.2d 151 (2005). Furthermore, “[b]efore a party is entitled to a new trial because of an erroneous evidentiary ruling, he or she has the burden of demonstrating that the error was harmful. . . . The harmless error standard in a civil case is whether the improper ruling would likely affect the result. . . . When judging the likely effect of such a trial court ruling, the reviewing court is constrained to make its determination on the basis of the printed record before it. . . . In the absence of a showing that the [excluded] evidence would have affected the final result, its exclusion is harmless.” (Internal quotation marks omitted.) Desrosiers v. Henne, 283 Conn. 361, 366, 926 A.2d 1024 (2007).

The plaintiffs only stated reason at trial for seeking the admission of the pamphlet was to impeach the credibility of Gray on the issue of whether there was a pamphlet from the manufacturer of the METRx system available to give to patients. Only later did the plaintiff extend the issue to question as well Gray’s testimony regarding why he chose a contralateral approach in the microdiscectomy procedure. The court acted within its discretion to balance the use of the pamphlet for credibility purposes against the concern that the diagram in the pamphlet would be unduly prejudicial and subject to misuse by the jury. The plaintiffs stated purpose for seeking to admit the pamphlet concerned the credibility issue surrounding its existence. The court permitted the plaintiff to question Gray about the existence of the pamphlet. The court also stated that it would permit the plaintiff to call a witness to testify that Gray had given the witness the Medtronic pamphlet prior to a microdiscectomy procedure. The plaintiff never called such a witness. We conclude that the court did not abuse its discretion in precluding the Medtronic pamphlet from being admitted as a full exhibit.

II

The plaintiff next claims that the court improperly precluded him from questioning Gray and the defendants’ expert regarding the standard of care for keeping medical records. We disagree.

The following additional facts are relevant to our resolution of the plaintiff’s claim. On cross-examination, the plaintiffs counsel asked Gray whether he would agree that “it’s a breach of the standard of care to incorrectly report a history and physical examination to Danbury Hospital for a patient who you’re admitting there for surgery?” The defendants’ counsel objected on the ground that the standard of care for record keeping was beyond the scope of the allegations in the complaint. The court sustained the objection on this ground and also because Gray had not been disclosed as an expert on the subject of record keeping. Similarly, on cross-examination, the plaintiff’s counsel asked the defendants’ expert, Michael Muiphy, an orthopedic surgeon, about the standard of care for keeping medical records and whether it is important that a physician keep accurate and complete medical records. The defendants objected on the same grounds and the court again sustained the objection. Subsequently, the plaintiff’s counsel asked Murphy whether “the standard of care requires that a doctor accurately, report the history and physical examination, to the hospital, in advance of the surgery.” The defendants again objected on the same grounds, which were that this was beyond the scope of the complaint and that the witness was not disclosed on this issue, and the court sustained the defendants’ objection.

The court’s ruling is governed by the abuse of discretion standard. “It is well established that [t]he trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . Concerning expert testimony specifically, the trial court has wide discretion in ruling on the admissibility of expert testimony and, unless that discretion has been abused or the ruling involves a clear misconception of the law, the trial court’s decision will not be disturbed. . . . Expert testimony should be admitted when: (1) the witness has a special skill or knowledge directly applicable to a matter in issue, (2) that skill or knowledge is not common to the average person, and (3) the testimony would be helpful to the court or jury in considering the issues.” (Internal quotation marks omitted.) Al-Janet, LLC v. B & B Home Improvements, LLC, 101 Conn. App. 836, 845, 925 A.2d 327, cert. denied, 284 Conn. 904, 931 A.2d 261 (2007).

The plaintiff argues that the evidence that Gray breached the standard of care for medical record keeping was relevant to the plaintiffs claim that Gray mistakenly operated on the wrong side of his back as well as to the credibility of the defendants’ claim that Gray was aware of the inaccurate records but performed the surgery without correcting them. The defendants argue that evidence regarding the standard of care for medical record keeping was not relevant because it was beyond the scope of the allegations in the complaint. We agree with the defendants.

The plaintiffs operative complaint made specific allegations as to how the defendants were responsible for the plaintiffs injuries. None of the allegations pertains to improper record keeping. “[T]o prevail in a medical malpractice action, the plaintiff must prove (1) the requisite standard of care for treatment, (2) a deviation from that standard of care, and (3) a causal connection between the deviation and the claimed injury. . . . Generally, the plaintiff must present expert testimony in support of a medical malpractice claim because the requirements for proper medical diagnosis and treatment are not within the common knowledge of laypersons.” (Citation omitted; internal quotation marks omitted.) Boone v. William W. Backus Hospital, 272 Conn. 551, 567, 864 A.2d 1 (2005). Establishing the applicable standard of care is essential to a medical malpractice claim. In this case, all of the plaintiffs allegations concerned a deviation from the applicable standard of care in that Gray operated on the wrong side of the plaintiffs spine. The allegations were specific to the surgery and did not mention record keeping.

The plaintiff argues that “[i]f the jury heard that the standard of care required the submission of an accurate history and physical to the hospital, the failure of [Gray] to correct the erroneous history and physical would have had a clear tendency to support [the] plaintiffs claim that [Gray] was unaware of his mistake and that he operated on the wrong side.” The court, however, did permit evidence that Gray made erroneous entries in the plaintiffs records on at least three occasions. Gray himself even admitted that he incorrectly included inaccuracies in the plaintiffs records and that he was embarrassed by this. The court also permitted evidence on the importance of keeping accurate medical records, though not with specific reference to a specific standard of care. The plaintiffs counsel was permitted to ask Murphy whether he would agree “that it is very important for a physician ... to keep records as accurate [ly] and completely as possible,” to which Murphy responded: “In general, yes.” Counsel also asked Murphy whether, in his own practice, he would try to keep records as accurately as possible, whether he would try to fix typographical errors in records and whether he writes important information in records. Murphy responded in the affirmative to all of these queries. Therefore, precluding standard of care evidence as to medical record keeping did not prevent the jury from hearing other evidence regarding the accuracy of the medical records in this case and, more broadly, the importance of keeping accurate records. On the contrary, the jury was able to hear the facts presented on this topic but not whether Gray’s actions violated a standard of care. Accordingly, even if the evidence marginally was relevant as to credibility under the plaintiffs theory, we conclude that the court acted within its discretion to limit the standard of care evidence to the issues raised in the complaint because it admitted other evidence on the issue and the importance of accurate record keeping.

Ill

The plaintiff next claims that the court improperly denied his motion to set aside the verdict on the battery count because the defendants’ expert stated that Gray did not “technically” perform the procedure to which the plaintiff consented. We disagree because there was sufficient evidence from which the jury reasonably could have reached its decision.

We begin with the standard of review. “The standard of review governing our review of a trial court’s denial of a motion to set aside the verdict is well settled. The trial court possesses inherent power to set aside a jury verdict [that], in the court’s opinion, is against the law or the evidence. . . . [The trial court] should not set aside a verdict [when] it is apparent that there was some evidence [on] which the jury might reasonably reach [its] conclusion, and should not refuse to set it aside [when] the manifest injustice of the verdict is so plain and palpable as clearly to denote that some mistake was made by the jury in the application of legal principles. . . . Ultimately, [t]he decision to set aside a verdict entails the exercise of abroad legal discretion . . . that, in the absence of clear abuse, we shall not disturb.” (Internal quotation marks omitted.) Jackson v. Water Pollution Control Authority, 278 Conn. 692, 702, 900 A.2d 498 (2006).

At trial, the defendants’ counsel asked Murphy to explain testimony he gave at his deposition that Gray did not “technically” perform a left L4-L5 microdiscec-tomy. Murphy responded: “I think that he did perform a left sided microdiscectomy but through a different approach. Technically, I think the term would indicate that he did the approach from the left side, and that would not be accurate, because obviously, he did it from the right side.” On the basis of the foregoing testimony, the plaintiff argues that a left L4-L5 microdiscec-tomy is different from a left sided L4-L5 microdiscectomy and that because the plaintiff consented to a left L4-L5 microdiscectomy but received a left sided L4-L5 microdiscectomy, Gray committed battery.

At the outset, we note that it is not clear from Murphy’s testimony in his deposition that he thought there was a distinction between a left and a left sided L4-L5 microdiscectomy as the plaintiff claims, and the testimony is somewhat confusing. Furthermore, even if the plaintiffs interpretation of this statement is accurate, there was ample evidence from which the jury reasonably could have concluded that Gray performed the procedure to which the plaintiff consented. When the plaintiffs counsel asked Murphy whether Gray had “technically” performed a right sided discectomy, he responded: “I would say no.” When the defendants’ counsel asked Murphy to identify the surgery that Gray performed, he responded: “That surgery was a—a left L4-5 microdiscectomy, that was performed through a right sided approach.” The following exchange at trial, between the defendants’ counsel and Murphy, also provides a reasonable basis for the jury’s conclusion that Gray performed the procedure to which the plaintiff consented:

“Q. Do you have an opinion, as to a reasonable degree of medical probability, as to whether the procedure, that Dr. Gray performed, is the same procedure designated on that consent form?

“A. Yes, I believe it is.

“Q. And why is that?

“A. Well, I believe that, again, he attempted to do a left sided microdiscectomy, but simply, through a right sided approach, instead of a left sided approach.

“Q. And when you say, right sided approach, is that— in this case, is that a contralateral approach?

“A. In this case, that would be contralateral, yes.

“Q. [D]o you have an opinion, to a reasonable degree of medical probability, whether the performance of a right hemilaminotomy, made this anything other than a left L4-5 microdiscectomy?

“A. No, sir.”

Gray also testified that prior to the surgery, he described the procedure to the plaintiff in terms of the contralateral approach and that the plaintiff consented to this procedure. Specifically, Gray testified that he used the Frames pamphlet to demonstrate the contra-lateral approach and that he did not, at any time, “indicate to [the plaintiff] that [he] would be taking a surgical approach to come in on the side of the herniation.”

On the basis of the foregoing testimony provided by the defendants’ expert, as well as testimony from Gray himself, there was sufficient evidence from which the jury reasonably could have reached its verdict. Gray testified that he had described the contralateral approach to the plaintiff and obtained his consent for this procedure. Murphy testified that the procedure that Gray performed was the procedure to which the plaintiff had consented. Also, Murphy did not draw any clear distinction between a left L4-L5 microdiscectomy and a left sided L4-L5 microdiscectomy. On the contrary, he appeared to use the two terms interchangeably. He did distinguish between left sided approaches and right sided approaches. Therefore, we conclude that the court did not abuse its discretion in denying the plaintiffs motion to set aside the verdict.

IV

The plaintiffs final claim is that the court improperly denied his motion to set aside the verdict on the medical negligence count because it was a breach of the standard of care for Gray to employ the contralateral approach when he was concerned that there was a free fragment present on the left. We disagree.

The following additional facts are relevant to our resolution of the plaintiffs claim. Murphy testified at his deposition, and again at trial, that it would be a breach of the standard of care to employ the contralat-eral approach if Gray was even suspicious of the presence of a free fragment on the left. In an orthopedic form completed prior to the surgery, Gray wrote that the plaintiffs disc herniation was “probably in part free fragment.” Gray, however, testified that prior to the surgery, he spoke with a radiologist and eventually agreed with the radiologist’s report, which did not show the presence of a free fragment.

We will not disturb a court’s ruling on a denial of a motion to set aside a verdict absent a clear abuse of discretion. “The trial court possesses inherent power to set aside a jury verdict [that], in the court’s opinion, is against the law or the evidence. . . . [The trial court] should not set aside a verdict [when] it is apparent that there was some evidence [on] which the jury might reasonably reach [its] conclusion, and should not refuse to set it aside [when] the manifest injustice of the verdict is so plain and palpable as clearly to denote that some mistake was made by the jury in the application of legal principles. . . . Ultimately, [t]he decision to set aside a verdict entails the exercise of a broad legal discretion . . . that, in the absence of clear abuse, we shall not disturb.” (Internal quotation marks omitted.) Jackson v. Water Pollution Control Authority, supra, 278 Conn. 702.

The plaintiff argues that the jury reasonably could not have believed that Gray’s conversation with the radiologist could have “altered his thought that the herniation was probably in part free fragment.” The plaintiff bases this argument on the fact that the official radiology report relied on by Gray makes no mention of free fragments. Also, the plaintiff claims that it was unreasonable for the jury to credit Gray’s testimony that he adopted the radiology report because Gray stated that his concerns about the presence of a free fragment were based on changes in the plaintiffs symptoms and not MRI films. The defendants argue that there was sufficient evidence from which the jury reasonably could have concluded that Gray had altered his original diagnosis concerning the presence of the free fragment and concluded that one was not present. No actual evidence of a free fragment was presented. We agree with the defendants.

Gray admitted that several months prior to the plaintiffs surgery, he was concerned, on the basis of the plaintiffs symptoms, that there might be a free fragment present and noted this concern in an orthopedic base form report. Gray also testified that subsequent to this report and prior to the surgery, he called a radiologist to review the results of the official radiology report. On the basis of this conversation and the radiology report, Gray testified that he concluded that a free fragment was not present. The jury was free to accept as true Gray’s testimony and conclude that at the time of the surgery, he was not concerned about the presence of a free fragment. “It is settled that the trier of fact has the right to accept part and disregard part of the testimony of a witness.” Griffin v. Nationwide Moving & Storage Co., 187 Conn. 405, 422, 446 A.2d 799 (1982). “[T]he role of the trial court on a motion to set aside the jury’s verdict is not to sit as a seventh juror, but, rather, to decide whether, viewing the evidence in the light most favorable to the prevailing party, the jury could reasonably have reached the verdict that it did.” (Internal quotation marks omitted.) Purzycki v. Fairfield, 44 Conn. App. 359, 362, 689 A.2d 504 (1997), rev’d on other grounds, 244 Conn. 101, 708 A.2d 937 (1998). Therefore, we conclude that there was sufficient evidence from which the jury reasonably could have reached its conclusion and that the court acted within its discretion to deny the plaintiffs motion to set aside the verdict.

Essentially, the plaintiff is asking this court to determine that Gray and Muiphy were not credible. That is not the province of this court. Unless we find that there was no substantial evidence from which the jury reasonably could have reached its conclusion, we cannot disturb its decision. That is not this case.

The judgment is affirmed.

In this opinion the other judges concurred.

       Danbury Hospital, Danbury Office of Physicians Services, P.C., and Ellen Judith Brand also were defendants in this action, but claims against them were withdrawn from the case. Hereinafter, references to the defendants are to Gray and Connecticut Family Orthopedics, P.C.

       Krames is a company that makes pamphlets, manuals and other medical education materials.

       At trial, the plaintiffs counsel specifically was asked by the court whether he was seeking to admit the Medtronic pamphlet for the purpose of demonstrating that the contralateral approach was incorrect, to which the plaintiffs counsel replied: “No, Your Honor, I want it admitted for credibility purposes. The purpose in offering it is for credibility purposes, the doctor’s—this doctor’s testified as to [the issue of the proper medical procedure] and our expert and their expert will testify as to that issue. I’m not offering it for that purpose.”

       In his brief before this court, the plaintiff expands the scope of his credibility argument. At trial he stated that the purpose of admitting the pamphlet was to impeach Gray’s credibility regarding the existence of the pamphlet and not to reach the issue of the proper medical procedure. In his brief, the plaintiff now states that “the existence of the Medtronic pamphlet was relevant to a much larger credibility issue,” namely, whether Gray “actually performed the first surgery on the right side because of the danger a left sided approach would have posed using the Medtronic METRx retractor system.” This court does not reach evidentiary claims not presented to the trial court.

       The plaintiff claims that the defendants’ argument regarding the risk of unfair prejudice resulting from the depiction in the pamphlet of the same sided approach was not raised until a posttrial motion. This argument, however, was before the court when it originally ruled on the objection. Notably, while explaining his objection to the admission of the Medtronic pamphlet, the defendants’ counsel stated: “And, the further objection I have is exactly what [the plaintiffs] counsel is suggesting here, that he’s going to, you know, that even though now he’s not going to argue, that this was showing the appropriate approach, he’s trying to argue—I mean, he’s trying to put that before the [jurors] so they can misuse it, and in that sense, it’s inappropriate to do that and the document would be hearsay as to that.” Though he couches it in terms of a hearsay objection at the end, it is clear that the defendant was concerned that the jury would misuse the depiction in the pamphlet showing the same sided approach and that this carried a risk of unfair prejudice.

       The plaintiff argues that he did not need to call a witness to testify that Gray utilized the Medtronic pamphlet in conjunction with a prior microdiscectomy procedure because Gray effectively admitted as much at trial. Specifically, the plaintiff refers to the following exchange between his counsel and Gray, referring to the Medtronic pamphlet:
      “[The Plaintiffs Counsel]: Doctor, in fact, don’t you give that to patients, upon whom you’re going to do a microdiscectomy using the [METRx] system?
      “[The Witness]: Most of the time, I do not.”
      The plaintiff claims that this implied admission by Gray that he utilizes the Medtronic pamphlet some of the time eliminated the need to call a separate witness. Although the plaintiff may be correct, this also supports the defendants’ claim that the pamphlet did not need to be admitted as a full exhibit to serve the purpose of impeaching Gray’s credibility regarding its existence or Gray’s knowledge of its existence.

       The defendants also note that neither Gray nor Murphy were disclosed as experts on record keeping.

       “[A] patient can recover for assault and battery when the physician . . . performs a different procedure from the one for which consent has been given . . . .” Godwin v. Danbury Eye Physicians & Surgeons, P.C., 254 Conn. 131, 137, 757 A.2d 516 (2000).

       Ordinarily, it is the plaintiffs burden to prove lack of consent by a preponderance of the evidence. See Gemme v. Goldberg, 31 Conn. App. 527, 540, 626 A.2d 318 (1993). Absent a binding admission or other preclusive event, a jury finding in favor of the party without the burden ordinarily would not be set aside.

       See footnote 9.


source: Caselaw Access Project

author: HARPER, J.

license: Public Domain

text:
    LORRAINE A. UTZ v. PETER D. UTZ, SR.
    (AC 28780)
    Gruendel, Harper and Beach, Js.

      Argued September 26, 2008
    officially released February 17, 2009

      Lori Welch-Rubin, with whom, on the brief, was John T. Asselin-Connolly, for the appellant (defendant).

      John F. Morris, for the appellee (plaintiff).

      Cynthia L. Desmond, for the minor children.
   Opinion

HARPER, J.

The defendant, Peter D. Utz, Sr., appeals from the judgment rendered by the trial court dissolving his marriage to the plaintiff, Lorraine A. Utz. On appeal, the defendant takes issue with the court’s financial orders and awards, claiming that the court improperly (1) constructed a property division and support award with which he cannot comply, (2) calculated child support, (3) calculated the alimony award, (4) ordered him to pay counsel fees for the children and guardian ad litem, and (5) ordered him to contribute to the plaintiffs counsel fees. We affirm the judgment of the trial court.

The parties were married on August 18, 1990. The court dissolved the parties’ marriage by a memorandum of decision filed on March 29, 2007. At the time of dissolution, the parties had two minor children. The court found that the marriage had broken down irretrievably, and, in addition to a stipulated custody and visitation order, it entered various financial orders. In relevant part, it ordered the defendant to pay to the plaintiff $435 per week in child support, $1 per year in nominal alimony, $1000 per week in periodic alimony and a lump sum alimony payment of $150,000. The defendant also was ordered to pay all counsel fees for the minor children and guardian ad litem, plus make a $50,000 contribution toward the plaintiffs counsel fees. In addition, the court ordered the defendant to transfer to the plaintiff all right, title and interest in the marital home, which the defendant claimed was used to sustain the revenue in his business. The transfer of the home to the plaintiff was under the proviso that the defendant had a ninety day option to buy the home for $750,000. The defendant timely filed a motion to reargue, which the court denied on April 10,2007. This appeal followed. Additional facts will be set forth as necessary.

At the outset, “[t]he standard of review in family matters is well settled. An appellate court will not disturb a trial court’s orders in domestic relations cases unless the court has abused its discretion or it is found that it could not reasonably conclude as it did, based on the facts presented. ... It is within the province of the trial court to find facts and draw proper inferences from the evidence presented. ... In determining whether a trial court has abused its broad discretion in domestic relations matters, we allow every reasonable presumption in favor of the correctness of its action. . . . [T]o conclude that the trial court abused its discretion, we must find that the court either incorrectly applied the law or could not reasonably conclude as it did. . . . Appellate review of a trial court’s findings of fact is governed by the clearly erroneous standard of review. ... 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.) Elia v. Elia, 99 Conn. App. 829, 831, 916 A.2d 845 (2007).

I

The defendant claims that in order to punish him, the court improperly constructed a property division and support award with which he cannot comply. Specifically, to support his argument, the defendant asserts that the court’s order of $1 per year nominal alimony to ensure that he meets his financial obligations is evidence of the court’s knowledge that he would be unable to comply with the court’s financial order. We disagree.

As previously stated, “[t]he standard of review in family matters is that this court will not disturb the trial court’s orders unless it has abused its legal discretion or its findings have no reasonable basis in fact. . . . [W]here the factual basis of the court’s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, these facts are clearly erroneous.” (Internal quotation marks omitted.) Szegda v. Szegda, 97 Conn. App. 426, 432, 904 A.2d 1266, cert. denied, 280 Conn. 932, 909 A.2d 959 (2006).

The defendant’s claim is directed at the court’s implied finding that he could satisfy the financial order. A party’s ability to pay is a material consideration in formulating financial awards. See Greco v. Greco, 275 Conn. 348, 361, 880 A.2d 872 (2005). Here, the court expressly found that even though the defendant “manipulated his financial situation and asset structure,” the defendant’s “total estate approache[d] $2.5 million.” Nonetheless, the defendant argues that the $1 per year nominal alimony is evidence that the financial order was impossible to comply with. We are unpersuaded.

In Ridolfi v. Ridolfi, 178 Conn. 377, 379-80, 423 A.2d 85 (1979), our Supreme Court upheld an order for the husband to pay the wife alimony of $1 per year because the husband’s future earning capacity was uncertain, and the court wanted to preserve for a future date the power to ascertain and to determine an appropriate amount of periodic alimony. Our Supreme Court concluded that under those circumstances, the $1 per year alimony award was well within the ambit of the court’s discretion. Id., 380; see, e.g., Zern v. Zern, 15 Conn. App. 292, 294, 544 A.2d 244 (1988) (court issues $1 per year alimony to provide contingency for defendant being ill and unable to work); see also Sands v. Sands, 188 Conn. 98, 99, 102-103, 448 A.2d 822 (1982) (court’s decision to award $1 per year alimony upheld as part of court’s general equitable power), cert. denied, 459 U.S. 1148, 103 S. Ct. 792, 74 L. Ed. 2d 997 (1983).

In the present case, the court’s decision to order $1 per year alimony to the plaintiff is not conclusive evidence that the court intentionally imposed an impossible financial order to punish the defendant. To the contrary, the court’s decision to maintain its jurisdiction on any future modifications of the periodic alimony award is well within its discretion. The defendant does not challenge the court’s finding concerning the value of his assets. Therefore, his claim of inability to pay the alimony award is a mere assertion of error without any legal support or showing of how the court’s order is without a factual or legal basis. We conclude that the court did not abuse its discretion when it constructed the property division and support award.

II

The defendant next claims that the court improperly calculated child support. Specifically, the defendant argues that the court improperly used a 20 percent tax rate as a form of punishment to calculate his income. We disagree.

“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. . . . Pursuant to Practice Book § 25-30, each party is required to file certain statements during a dissolution or child support matter. The [child support] guidelines worksheet is based on net income; weekly gross income is listed on the first line on the worksheet, and the subsequent lines list various deductions, including federal income tax withheld and social security tax. . . . The guidelines are used by the court to determine a presumptive child support payment, which is to be deviated from only under extraordinary circumstances.” (Citations omitted; internal quotation marks omitted.) Golden v. Mandel, 110 Conn. App. 376, 386, 955 A.2d 115 (2008).

In the present case, the defendant submitted to the court a financial affidavit and a child support guidelines worksheet to determine his gross and net income that were based on tax rates ranging from 10 to 20 percent. He cannot in turn complain when the court actually relies on the information he has submitted. See id., 388-89. In addition to the court having the financial affidavits and a guidelines worksheet submitted by each party, there was ample evidence, both documentary and testimonial, before the court to calculate the defendant’s net and gross income. In the memorandum of decision, the court found that “[o]n several of the defendant’s financial affidavits, he indicates a 20 percent tax rate; therefore, the court finds his net yearly income to be $156,000 and his net weekly income to be $3000.” (Emphasis added.) The defendant never provided the court with evidence to the contrary. On the basis of our review of the record, we find no abuse of discretion.

Ill

Next, the defendant claims that the court improperly calculated the alimony award. Specifically, the defendant contends that (1) the alimony award serves no rehabilitative purpose because it exceeds the plaintiffs needs and (2) the alimony award and property division results in a calculation that is “double dipping” into his main source of income. We will address each contention in turn.

A

The defendant first argues that the court improperly granted the plaintiff an alimony award that exceeded her needs because it defeats the rehabilitative puipose of the award. We disagree.

“[General Statutes §] 46b-82 governs awards of alimony. That section requires the trial court to consider ‘the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties and the award, if any, which the court may make pursuant to [General Statutes §] 46b-81, and, in the case of a parent to whom the custody of minor children has been awarded, the desirability of such parent’s securing employment’ in ordering either party to pay alimony to the other. ... In particular, rehabilitative alimony, or time limited alimony, is alimony that is awarded primarily for the purpose of allowing the spouse who receives it to obtain further education, training, or other skills necessary to attain self-sufficiency. . . . Rehabilitative alimony is not limited to that purpose, however, and there may be other valid reasons for awarding it.” (Citations omitted; emphasis added.) Bornemann v. Bornemann, 245 Conn. 508, 539-40, 752 A.2d 978 (1998).

In the present case, the court expressly awarded the plaintiff a time limited award of alimony “[b]ased upon the statutory factors, including the age, education, earnings and work experience of the plaintiff . . . .” The defendant argues that considering the rehabilitative character of a time limited alimony award, the court defeated the award’s purpose because it did not provide the plaintiff with any incentive to work when the award exceeds her needs. Nonetheless, as noted in Bomemann, the court may order a time limited alimony award for valid reasons other than self-sufficiency. The defendant has not presented any further arguments to demonstrate that the court abused its discretion. Therefore, on the basis of our review of the record, we conclude that the court did not abuse its discretion by awarding the plaintiff alimony that was not limited to a rehabilitative purpose.

B

Last, the defendant argues that the court improperly granted the plaintiff an alimony award that is “double dipping” into his main source of income as a result of the court’s having made a property division of that same source of income. We are unpersuaded.

The defendant argues that because the court ordered ownership of the marital home to the plaintiff, he is unable to continue his daily business because he no longer has access to the equity line of credit from the home. The defendant asserts that he uses the equity line of credit from the home to generate revenue for his business. He further argues that the court’s decision to take into account his business in both the property division and alimony award results in “double dipping” because the business is his only significant stream of income that he can use to meet the court’s alimony order.

The defendant cites Greco v. Greco, supra, 275 Conn. 361, in which the court noted that one’s ability to pay is a material consideration in formulating financial awards. Our Supreme Court in Greco disagreed with a “double dipping” argument where the husband’s business, his main source of income, was transferred to his wife but also was taken into account in the court’s order for the husband to pay his wife alimony. Id., 357 n.8. Unlike the husband in Greco, in the present case, the defendant still owns his business, and no restrictions have been placed on his ability to get a line of credit using the business as security. In addition, the defendant did not present any legal basis for the court to consider as to why the home equity loan is the only viable credit line for the business. Therefore, we will not entertain such a claim here. We conclude that, on the record before us, the court did not abuse its discretion.

IV

Next, the defendant claims that the court improperly ordered him to pay fees for the children’s counsel and for their guardian ad litem to punish him for being litigious during the marriage dissolution. We disagree.

The statutory authority for the award of counsel fees is found in General Statutes § 46b-62. Section 46b-62 provides in relevant part: “If, in any proceeding under this chapter and said sections, the court appoints an attorney for a minor child, the court may order the father, mother or an intervening party, individually or in any combination, to pay the reasonable fees of the attorney. . . “The court may order either party to pay the fees . . . pursuant to ... § 46b-62, and how such expenses will be paid is within the court’s discretion. ... An abuse of discretion in granting . . . fees will be found only if [an appellate court] determines that the trial court could not reasonably have concluded as it did.” (Citation omitted; internal quotation marks omitted.) Lamacchia v. Chilinsky, 79 Conn. App. 372, 374-75, 830 A.2d 329 (2003).

“The order for payment of . . . fees under . . . § 46b-62 requires consideration of the financial resources of both parties and the criteria set forth in ... § 46b-82. . . . Section 46b-82 instructs the court to consider, inter aha, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties. . . . Although the trial court is not required to find expressly on each of the § 46b-82 factors, it must have sufficient evidence to support each factor.” (Citations omitted; internal quotation marks omitted.) Id., 376.

In the present case, the record provides ample evidence to support the court’s order to allocate all costs to the defendant, in light of the fact that he had a higher earning capacity than the plaintiff. See part V. Accordingly, we conclude that the court did not abuse its discretion in ordering the defendant to pay the outstanding counsel fees for the children and guardian ad litem.

V

Last, the defendant claims that the court improperly ordered him to contribute to the plaintiffs counsel fees, on the basis of his litigation misconduct. We disagree.

As previously noted, “§ 46b-62 governs the award of counsel fees in dissolution proceedings. It provides in relevant part that 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 [§] 46b-82. . . . Courts ordinarily award counsel fees in divorce cases so that a party . . . may not be deprived of his or her rights because of lack of funds. . . . Whether to allow counsel fees and in what amount calls for the exercise of judicial discretion. ... An abuse of discretion in granting the counsel fees will be found only if this court determines that the trial court could not reasonably have concluded as it did.” (Internal quotation marks omitted.) Racsko v. Racsko, 91 Conn. App. 315, 327, 881 A.2d 460 (2005); see also part IV.

In the present case, the record supports the finding that the plaintiff lacked sufficient liquid assets with which to pay her counsel fees. In addition, even if the plaintiff had sufficient liquid assets, the court made a finding that to “require the plaintiff to pay all of these fees from her portion of the marital assets awarded to her by virtue of this memorandum of decision would undermine the purposes of it . . . .” See, e.g., Eslami v.Eslami, 218 Conn. 801, 820, 591 A.2d 411 (1991) (court uniquely qualified to determine whether financial award would be undermined by rejecting wife’s request for counsel fees and expenses). Therefore, although the court characterized the defendant’s behavior as “litigation misconduct,” the record reflects that the defendant’s behavior during litigation was not the focal point for the court’s decision. Accordingly, we conclude that the court did not abuse its discretion in ordering the defendant to contribute to the plaintiffs counsel fees.

The judgment is affirmed.

In this opinion the other judges concurred.

       The court ordered nominal alimony of $1 per year “until such time as the property settlement [entered by the court was] paid in full and the liens and encumbrances on the [marital home], which the defendant is obligated to indemnify on account of [the property settlement was] paid in full and, or, released, or he exercises his option to purchase the residence and acreage. ” It further stated that the order of $1 per year alimony would be “modifiable to the extent necessary to ensure that the defendant satisfies all of his obligations” under the property settlement, periodic alimony and lump sum alimony orders.
      Nominal alimony, commonly $1 per year, is typical when the court chooses to preserve for a future date the power to ascertain and to determine the appropriate amount of periodic alimony. See Simmons v. Simmons, 244 Conn. 158, 185-86, 708 A.2d 949 (1998) (“]n]ominal awardfs] may often be appropriate ... to afford the court continuing jurisdiction to make appropriate [alimony] modifications”); Ridolfi v. Ridolfi, 178 Conn. 377, 379, 423 A.2d 85 (1979) (court entered nominal alimony order of $1 per year to retain power to grant appropriate alimony at a later date).

       The court ordered periodic alimony of $1000 per week “until the death of either party, the remarriage of the [plaintiff] or March 31,2017, whichever shall sooner occur” with the intent that the order “shall be nonmodifiable by either party as to term.”

       The defendant asserts that the financial awards and orders were intended to punish him for his alleged “litigation misconduct” during the marriage dissolution. Some examples of the alleged “litigation misconduct” consisted of the following: (1) the defendant’s execution of a second promissory note and mortgage on the marital home to defraud the court and the plaintiff; (2) the defendant’s absorption of 100 percent of the costs of a business, in which he was a 50 percent shareholder; (3) the defendant’s sale of certain assets to his brother; (4) the defendant’s inconsistent reporting of income to the court; and (5) the defendant’s motives in making a custody claim in the final hour of trial.

         See footnote 3.

       These statements include “a sworn statement ... of current income, expenses, assets and liabilities. . . . Where there is a minor child who requires support, the parties shall file a completed child support and arrear-age guidelines worksheet at the time of any court hearing concerning child support; or at the time of a final hearing in an action for dissolution of marriage .... Practice Book § 25-30.” (Internal quotation marks omitted.) Golden v. Mandel, 110 Conn. App. 376, 386 n.12, 955 A.2d 115 (2008).

       “General Statutes § 46b-215b requires the court to consider and to apply the child support and arrearage guidelines (guidelines) to all determinations of child support amounts. Section 46b-215a-2a of the guidelines, as embodied in the Regulations of Connecticut State Agencies, provides procedures for using the child support worksheet ... to determine the presumptive child support payments and the health care coverage contributions. The presumptive child support payments and health care coverage contributions indicated by the guidelines should be identical to the court’s orders for such payments and contributions by the noncustodial parent to the custodial parent pursuant to § 46b-215a-3 of the guidelines unless application of the guidelines is inequitable or inappropriate under the circumstances. . . . We note that although § 46b-215a-2a has been repealed, under § 46b-215a-2b, the guidelines still create a presumptive support number.” (Citation omitted; internal quotation marks omitted.) Golden v. Mandel, 110 Conn. App. 376, 387 n.13, 955 A.2d 115 (2008).

       The record reflects the court’s difficulty in calculating the defendant’s net and gross income because the defendant inconsistently reported his revenue and debt on various sworn financial affidavits.

       We note that although § 46b-62 addresses only the issue of attorney’s fees, we previously have recognized that the same criteria properly informs the court’s exercise of discretion regarding fees for a guardian ad litem appointed for a minor child in a dissolution of marriage action or in an action seeking a modification of custody and visitation. See Ruggiero v. Ruggiero, 76 Conn. App. 338, 347-48, 819 A.2d 864 (2003); Roach v. Roach, 20 Conn. App. 500, 508, 568 A.2d 1037 (1990).

       The defendant also claims that the court improperly entered a modified order for him to pay the plaintiffs appellate counsel fees. Because the defendant has failed to brief this issue, we decline to afford it review. See Elia v. Elia, supra, 99 Conn. App. 838; see also footnote 3 (discussing examples of “litigation misconduct”).

       The defendant argues that because his conduct did not rise to the level of behavior cited in Ramin v. Ramin, 281 Conn. 324, 915 A.2d 790 (2007), the court improperly ordered Mm to contribute to the plaintiffs counsel fees due to Ms conduct. Pursuant to Ramin, the court can determine financial orders by reallocating the burden for the increased fees to the party responsible for causing them. See id., 358.


text:
    IN RE ANTHONY A.

    (AC 29399)
    (AC 29400)
    Harper, Beach and Berdon, Js.

      Argued October 28, 2008
    officially released February 17, 2009

      Adis M., pro se, the appellant (respondent mother).

      Rosaiina R., pro se, the appellant (intervenor).

      Michael J. Besso, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Susan T. Pearlman, assistant attorney general, for the appellee (petitioner).

      James W. Lux, 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 tMs case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Opinion

BEACH, J.

The respondent mother appeals from the judgment of the trial court rendered in favor of the petitioner, the commissioner of children and families, terminating the respondent’s parental rights with respect to her minor child, Anthony A. In AC 29399, the respondent claims that the court improperly terminated her parental rights. In AC 29400, the intervening maternal great-grandmother of Anthony, Rosalina R., appeals from the court’s denial of the motion to revoke Anthony’s commitment and to transfer guardianship of Anthony from his foster parents to her. She claims that the court improperly failed to find that it was in the best interest of Anthony to have guardianship transferred to her. We affirm the judgment of the trial court.

The record reflects the following facts and procedural history. At the time of trial in 2007, the respondent was nineteen years old and was residing at the home of her grandmother, the intervenor. Anthony’s father was twenty years old and was residing with Anthony’s paternal grandmother. On March 22, 2006, when Anthony was nine months old, the respondent and Anthony’s father were involved in an altercation during which the respondent told the father that she was going to take Anthony from him. Anthony was pulled between the respondent and Anthony’s paternal grandmother as each tried to take him. Anthony was not harmed. As a result of this incident, the respondent was arrested.

On March 22, 2006, the petitioner invoked a ninety-six hour hold on Anthony. See General Statutes § 17a-lOlg. On March 24, 2006, the petitioner filed a motion for an order of temporary custody and a petition alleging that Anthony was a neglected child. On that same date, the court issued an ex parte order of temporary custody. The parents requested that Anthony be placed in the home of his paternal great-aunt and uncle. The department of children and families (department) honored that request, and on March 24, 2006, placed Anthony with those foster parents. On November 14, 2006, the court adjudicated Anthony a neglected child and committed him to the care and custody of the petitioner.

The department provided the respondent with numerous services to address her engaging in domestic violence and to improve her parenting skills and her ability to maintain employment and housing. In June, 2006, the parents were referred to Casey Family Services to participate in a reunification program. The respondent was unable to participate in the program because it was determined that she was not in a stable enough condition to benefit from the program. She was given a new date of September, 2006, for entering the program. In September, 2006, she still had not taken steps to stabilize herself so she could benefit from the program and, accordingly, was not accepted into it. In January, 2007, when she finally was accepted into the reunification program, she did not cooperate with the program requirements and did not complete the program. In November, 2006, the respondent completed an anger management program through Catholic Charities. The department also referred her to a domestic violence program, the DOVE program, for which she was on a waiting list. The department additionally referred the respondent to Connecticut Works, for educational and employment services. She did not comply with that program. In addition to being arrested on March 22, 2006, the respondent was arrested on May 30,2006, and again on April 5,2007, as a result of additional instances of domestic violence.

On April 4, 2007, the acting commissioner filed a petition for the termination of parental rights. He sought the termination of the parental rights of both the respondent and the father. Thereafter, on April 18, 2007, the intervenor filed a motion to intervene, which was later granted by the court “for dispositional purposes only . . . .” The respondent thereafter filed a motion to revoke the commitment and to transfer guardianship of Anthony to the intervenor.

After a trial, the court issued a memorandum of decision in which it terminated the parental rights of both parents and denied the motion to transfer guardianship to the intervenor. The respondent and the intervenor thereafter filed separate appeals. Additional facts will be set forth as necessary.

I

AC 29399

The respondent appears to claim that the court improperly terminated her parental rights with respect to Anthony. She essentially argues that “everyone changes” and that she ought to have a “second chance.” We affirm the judgment of the court.

“In order to terminate a parent’s parental rights under [General Statutes] § 17a-112, the petitioner is required to prove, by clear and convincing evidence, that: (1) the department has made reasonable efforts to reunify the family ... (2) termination is in the best interest of the child . . . and (3) there exists any one of the seven grounds for termination delineated in § 17a-112 CD (3)-” (Citations omitted; internal quotation marks omitted.) In re Shaiesha O., 93 Conn. App. 42, 46-47, 887 A.2d 415 (2006).

“A hearing on a petition to terminate parental rights consists of two phases, adjudication and disposition. ... In the adjudicatory phase, the trial court determines whether one of the statutory grounds for termination of parental rights [under § 17a-112 (j)] exists by clear and convincing evidence. If the trial court determines that a statutory ground for termination exists, it proceeds to the dispositional phase. In the dispositional phase, the trial court determines whether termination is in the best interests of the child.” (Internal quotation marks omitted.) In re Anthony H., 104 Conn. App. 744, 756, 936 A.2d 638 (2007), cert. denied, 285 Conn. 920, 943 A.2d 1100 (2008).

“Our standard of review on appeal from a termination of parental rights is whether the challenged findings are clearly erroneous. . . . The determinations reached by the trial court that the evidence is clear and convincing will be disturbed only if [any challenged] finding is not supported by the evidence and [is], in light of the evidence in the whole record, clearly erroneous. . . . On appeal, our function is to determine whether the trial court’s conclusion was legally correct and factually supported. . . . We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached . . . nor do we retry the case or pass upon the credibility of the witnesses. . . . Rather, on review by this court every reasonable presumption is made in favor of the trial court’s ruling.” (Internal quotation marks omitted.) In re Christian P., 98 Conn. App. 264, 268, 907 A.2d 1261 (2006).

The court’s finding, by clear and convincing evidence, that the department had made reasonable efforts to reunite the respondent with Anthony, was not clearly erroneous. On March 31, and November 14, 2006, the court ordered specific steps to facilitate the return of the child to the respondent, which included parenting aid services, parenting classes, psychological evaluations, anger management, reunification service through Casey Family Services, education and vocational assistance through Connecticut Works and domestic violence counseling.

The court found that the respondent had failed to achieve such a degree of rehabilitation as would encourage the belief that within a reasonable time, she could assume a responsible position in Anthony’s life. Our review of the record reveals that the evidence credited by the court supports this finding. The respondent failed to attend or to complete numerous treatment and counseling programs offered to her. She had been unable to make progress in improving her parenting skills, continued to be involved in domestic violence with the father, and failed to obtain stable housing and employment. The court’s finding, by clear and convincing evidence, that the respondent failed to achieve sufficient personal rehabilitation was not clearly erroneous.

Having found by clear and convincing evidence that the respondent failed to achieve sufficient personal rehabilitation, the court then proceeded to the disposi-tional phase of the proceedings. The court found that Anthony’s best interest would be served by granting the petition to terminate the respondent’s parental rights. In support of that finding, the court noted that Anthony was removed from his parents’ care when he was nine months old and was two and one-half years old at the time of trial; Anthony’s foster parents were his psychological parents; Anthony’s foster parents expressed a willingness to adopt Anthony; and the present lack of permanency and the negative effects on his life are not consistent with Anthony’s best interest. On the basis of those facts, we conclude that the court’s finding that termination was in the best interest of Anthony was not clearly erroneous.

II

AC 29400

A

We next turn to the intervenor’s appeal and first address the issue of standing because it presents a question of the trial court’s subject matter jurisdiction. See Castro v. Viera, 207 Conn. 420, 429, 541 A.2d 1216 (1988) (“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 . . . and the court must fully resolve it before proceeding further with the case” [citations omitted; internal quotation marks omitted]).

“Review by way of appeal is governed in general by General Statutes § 52-263, which provides in relevant part: Upon the trial of all matters of fact in any cause or action in the Superior Court ... if either party is aggrieved by the decision of the court or judge ... he may appeal to the court having jurisdiction from the final judgment of the court .... Further, Practice Book § 61-1 provides: An aggrieved party may appeal from a final judgment, except as otherwise provided by law. . . . Aggrievement, in essence, is appellate standing.” (Internal quotation marks omitted.) Marine Midland Bank v. Ahern, 51 Conn. App. 790, 796-97, 724 A.2d 537 (1999), appeal dismissed, 252 Conn. 151, 745 A.2d 189 (2000).

“Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest . . . has been adversely affected. . . . We traditionally have applied the following two part test to determine whether aggrievement exists: (1) does the allegedly aggrieved party have a specific, personal and legal interest in the subject matter of a decision; and (2) has this interest been specially and injuriously affected by the decision. . . . Proof of aggrievement is, therefore, an essential prerequisite to the court’s jurisdiction of the subject matter of the appeal.” (Internal quotation marks omitted.) Hunt v. Guimond, 69 Conn. App. 711, 715, 796 A.2d 588 (2002).

In her brief, the petitioner contends that there may be an issue concerning the intervenor’s standing on appeal. The petitioner notes that there is ambiguity in the record as to whether the intervenor intervened in the matter concerning the neglect petition, in the matter concerning the termination of parental rights or in both. The intervenor did not indicate in her motion to intervene that she specifically sought intervention in the matter concerning the neglect petition. The court’s order granting intervention “for dispositional purposes only” does not clearly indicate the matter in which she intervened. Even if it were determined that the intervenor intervened in the matter concerning the neglect petition, that intervention alone does not establish aggrievement, the petitioner argues, because there is no record that the intervenor herself filed a motion for transfer of guardianship or explicitly joined in the respondent’s motion. The petitioner acknowledges, however, that it appears as if the court deemed the intervenor both to have intervened in the neglect petition aspect of the case and to have joined in, or adopted, the respondent’s motion to transfer guardianship.

We conclude that on the facts in this case, the interve-nor has standing to appeal from the denial of the motion to transfer guardianship in the neglect petition matter. In its order granting the intervenor’s motion to intervene, the court granted intervenor status “for disposi-tional purposes only . . . .” Practice Book § 35a-4 permits intervention in the dispositional phase of the trial. “Disposition in a neglect petition may take one of a number of forms, including return to parents, return to parents with a protective order, foster care placement, or the initiation of proceedings to terminate parental rights.” (Internal quotation marks omitted.) In re Elisabeth H., 40 Conn. App. 216, 219, 669 A.2d 1246 (1996); see also General Statutes § 46b-129 (j).

In its memorandum of decision, the court apparently granted the intervenor’s motion to intervene as to the neglect petition matter and considered the motion to transfer guardianship to be a request not only from the respondent but also from the intervenor. When analyzing the motion to transfer guardianship, the court concluded: “The request of the mother, father and intervening maternal great-grandmother to remove the child from his current home to the maternal great-grandmother’s home is not in the child’s best interest.” (Emphasis added.)

The court, in its memorandum of decision, treated the motion to intervene as though it applied only to the neglect petition and deemed the intervenor, a self-represented litigant, to have joined in or adopted the respondent’s motion to transfer guardianship from the foster parents to the intervenor. We can conclude that on the facts of this case, the intervenor is aggrieved by the court’s denial of the motion to transfer guardianship, which was adverse to her interest in the disposition of the neglect petition and, thus, has standing to bring this appeal. See In re Shanaira C., 105 Conn. App. 713, 717-19, 940 A.2d 817 (intervening former girlfriend of minor child’s father had standing on appeal to challenge revocation and commitment of minor child where trial court’s ruling revoking commitment was adverse to intervenor’s interest in disposition of neglect petition), cert. granted on other grounds, 286 Conn. 917, 945 A.2d 977 (2008). “[I]n determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged.” (Internal quotation marks omitted.) Lowe v. Shelton, 83 Conn. App. 750, 754, 851 A.2d 1183, cert. denied, 271 Conn. 915, 859 A.2d 568 (2004).

B

The intervenor challenges the court’s denial of the motion to revoke Anthony’s commitment to the petitioner and to transfer guardianship of Anthony from his foster parents to the intervenor. She appears to argue that the court improperly failed to find that it was in the best interest of Anthony to have guardianship transferred to her. We disagree.

We begin with the standard of review. “To determine whether a custodial placement is in the best interest of the child, the court uses its broad discretion to choose a place that will foster the child’s interest in sustained growth, development, well-being, and in the continuity and stability of its environment. . . . We have stated that when making the determination of what is in the best interest of the child, [t]he authority to exercise the judicial discretion under the circumstances revealed by the finding is not conferred upon this court, but upon the trial court, and ... we are not privileged to usurp that authority or to substitute ourselves for the trial court. ... A mere difference of opinion or judgment cannot justify our intervention. Nothing short of a conviction that the action of the trial court is one which discloses a clear abuse of discretion can warrant our interference. ... In determining whether there has been an abuse of discretion, the ultimate issue is whether the court could reasonably conclude as it did. . . . [G]reat weight is given to the judgment of the trial court because of [the court’s] opportunity to observe the parties and the evidence. . . . [Appellate courts] are not in a position to second-guess the opinions of witnesses, professional or otherwise, nor the observations and conclusions of the [trial court] when they are based on reliable evidence.” (Citations omitted; internal quotation marks omitted.) In re Karl J., 110 Conn. App. 22, 26, 954 A.2d 231, cert. denied, 289 Conn. 954, 961 A.2d 420 (2008).

The court concluded that the request of the respondent, father and the intervenor to remove Anthony from his current home and to transfer guardianship to the intervenor was not in Anthony’s best interest. The court reasoned that no evidence was presented that would warrant the disruption of Anthony’s life from his current placement to a new placement. The court found that Anthony’s foster parents were his psychological parents, with whom he had bonded and referred to as “Mommy” and “Daddy.” The court apparently credited the testimony of Regina Wilson, a clinical psychologist, who testified that it would not be in Anthony’s best interest for him to move out of his current foster home to the home of another relative.

We conclude, on the basis of the evidence presented to the court, that the court reasonably concluded that it was in the best interest of Anthony to remain with his foster family and not to have guardianship transferred to the intervenor. Accordingly, the court did not abuse its discretion in denying the motion for transfer of guardianship.

The judgment is affirmed.

In this opinion the other judges concurred.

       When the petitioner instituted termination proceedings, both the mother and father of the child were named and served as respondents. In the present action, only the respondent mother is appealing, and, thus, for purposes of this appeal, all references to the respondent herein shall refer solely to the mother.

       In her statement of issues, the intervenor also claims that the court improperly failed to order the department of children and families to perform a thorough investigation of her petition to adopt Anthony. Although the issue was included in her statement of the issues, her brief fails to provide any legal authority or analysis on this issue. That notwithstanding, there is no evidence in the record that the intervenor had filed a petition to adopt Anthony. The court did not address the issue in its memorandum of decision, and the intervenor failed to seek an articulation. We conclude that the record is inadequate to review this claim. See Ackerly & Brown, LLP v. Smithies, 109 Conn. App. 584, 589 n.4, 952 A.2d 110 (2008).

       To the extent that the respondent attempts to raise new evidence on appeal, we cannot afford it consideration. “To do so would transform an appellate court into a second trial court, and this we cannot allow.” Wendt v. Wendt, 59 Conn. App. 656, 678, 757 A.2d 1225, cert. denied, 255 Conn. 918, 763 A.2d 1044 (2000).

       Practice Book (2007) § 35a-4 (b) provides: “Other persons including, but not limited to, siblings may move to intervene in the dispositional phase of the trial and the judicial authority may grant said motion if it determines that such intervention is in the best interest of the child or in the interests of justice.”