author: MIHALAKOS, J.

text:
    ANTONIO LUCAS v. DEUTSCHE BANK NATIONAL TRUST COMPANY, TRUSTEE
    (AC 27839)
    Bishop, Gruendel and Mihalakos, Js.
    Argued June 4
    officially released September 18, 2007

      John M. Brown, for the appellant (plaintiff).

      Peter A. Ventre, for the appellee (defendant).
   Opinion

MIHALAKOS, J.

The plaintiff, Antonio Lucas, appeals from the judgment of the trial court, which granted the application of the defendant, Deutsche Bank National Trust Company, Trustee, for a discharge of the plaintiffs judgment lien pursuant to General Statutes § 49-51 (a) and (b). The plaintiff claims that the court (1) abused its discretion in prospectively terminating the stay of execution and (2) misapplied the controlling legal standards in discharging the plaintiffs judgment lien. We conclude that we cannot grant the plaintiff any practical relief because the plaintiff failed to seek review of the court’s order terminating the appellate stay; see Practice Book § 61-14; thus enabling the defendant to effect the discharge of the lien by recording it on the West Hartford land records. Accordingly, we dismiss the appeal as moot.

The record reflects the following facts and procedural history. In a separate action, the plaintiff obtained a judgment of $55,021.47 against Frederick A. Bentley III. The plaintiff secured the judgment by filing a lien on real property owned by Bentley in West Hartford. The judgment lien was recorded subsequent to the defendant’s recorded mortgage. The defendant’s mortgage on the property secured a debt of $320,418.24.

Thereafter, the defendant commenced an action against Bentley, among others, to foreclose its mortgage on the property. The defendant failed to make the plaintiff a party to the foreclosure action. A judgment of strict foreclosure was rendered on August 22, 2005, and title vested in the defendant on October 7, 2005. The defendant subsequently recorded a certificate of foreclosure in the West Hartford land records.

In March, 2006, the defendant asked the plaintiff to execute a voluntary release of his judgment lien, in accordance with § 49-51 (a). The plaintiff declined and, instead, filed the present action against the defendant to foreclose his judgment lien. The defendant responded by filing an omitted party foreclosure action pursuant to General Statutes § 49-30.

The defendant thereafter filed an application in the plaintiffs foreclosure action to discharge the judgment lien and lis pendens, and a motion to terminate the stay on appeal. The court, Hon. Samuel Freed, judge trial referee, held a hearing on the matter on July 3, 2006. At that hearing, the plaintiff stipulated before the court that the current value of the property was $265,000 and that he would not have redeemed the mortgage had he been given a law day in the original foreclosure action. By order dated July 6, 2006, the court discharged the judgment lien and lis pendens on the basis of its finding that the judgment lien was worthless.

At the time it filed the application to discharge the lien, the defendant also filed an anticipatory motion to terminate the stay of execution that would go into effect in the event that the plaintiff filed an appeal from the court’s judgment discharging the lien. The court granted the defendant’s anticipatory motion to terminate an appellate stay, concluding that an appeal would be mer-itless and for the purpose of delay only.

On July 12, 2006, the plaintiff filed this appeal, challenging the court’s order discharging the judgment lien and lis pendens. On July 17, 2006, the defendant recorded the court’s discharge order on the West Hartford land records. On August 15, 2006, the defendant sold the property to a third party, who is not a party to this appeal. Additional facts will be set forth as necessary.

The crux of the plaintiffs claim is that the court abused its discretion in prospectively terminating the stay of execution and misapplied the controlling legal standards in discharging the plaintiffs judgment lien. We conclude, however, that the appeal is moot because the plaintiff did not file a motion for review of the order terminating the appellate stay, and the defendant has filed the unstayed, properly issued discharge order in the West Hartford land records.

“Mootness implicates [this] court’s subject matter jurisdiction and is thus a threshold matter for us to resolve. ... It is a well-settled general rule that the existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow. ... An actual controversy must exist not only at the time the appeal is taken, but also throughout the pen-dency of the appeal. . . . When, during the pendency of an appeal, events have occurred that preclude an appellate court from granting any practical rehef through its disposition of the merits, a case has become moot. ... [A] subject matter jurisdictional defect may not be waived ... [or jurisdiction] conferred by the parties, explicitly or implicitly. . . . [T]he question of subject matter jurisdiction is a question of law . . . and, once raised, either by a party or by the court itself, the question must be answered before the court may decide the case.” (Citation omitted; internal quotation marks omitted.) Lichtman v. Beni, 280 Conn. 25, 30, 905 A.2d 647 (2006).

In the present case, the defendant complied with the provisions of § 49-51 and filed an application for discharge of the plaintiffs judgment lien on the ground that the subject property had no equity that could satisfy the judgment lien. See, e.g., Bankers Trust of California, N.A. v. Neal, 64 Conn. App. 154, 158, 779 A.2d 813 (2001) (“[w]hen the debt of a prior mortgage exceeds that of a later encumbrance, the latter is worthless because the property contains no equity to satisfy the later encumbrance”); Federal Deposit Ins. Corp. v. Bombero, 37 Conn. App. 764, 771, 657 A.2d 668 (1995), appeal dismissed, 236 Conn. 744, 674 A.2d 1324 (1996).

At the hearing on the application for discharge, the plaintiff stipulated that the property was worth approximately $265,000 and that the defendant’s mortgage was worth more than $320,000. Additionally, the plaintiff stated that he would not have redeemed and was seeking only to sell the property in satisfaction of his judgment lien. The court agreed with the defendant that the value of the property was insufficient to satisfy the mortgage debt and the plaintiff s judgment lien. On July 6,2006, the court ordered the discharge of the plaintiffs judgment lien, as it found that the lien was worthless. The court also concluded that because the judgment lien was worthless, an appeal had no merit and would be filed only for delay. The court, therefore, granted the defendant’s motion to terminate the appellate stay.

Although we note that the plaintiff filed a timely appeal from the court’s order discharging the judgment lien, he did not file a motion for review of the order terminating the appellate stay. Practice Book § 61-14 provides that the sole remedy for review of a court’s granting of a motion to terminate a stay of execution is to file a motion for review. Under this section, the court’s order granting the motion to terminate the stay is stayed for ten days from the issuance of the order to permit a party to file a motion for review. The plaintiff, therefore, had ten days from the court’s July 6, 2006 ruling in which to file a motion for review. Although the plaintiff filed an appeal within ten days, he did not file a motion for review. The practical effect of this failure is to terminate the stay of execution during the pendency of the appeal.

Without a valid stay in effect, the defendant was able to perfect the court’s order of discharge by recording it on the West Hartford land records. Section 49-51 (b) provides that when a lien is discharged by the court, a certified copy of the discharge recorded on the land records of the town where the certificate of lien was filed fully discharges the lien. The defendant’s July 17, 2006 recording thereby fully discharged the hen pursuant to the plain language of § 49-51 (b). There is, therefore, no longer a lien the validity of which can be challenged on appeal. See Lichtman v. Beni, supra, 280 Conn. 33 (“upon the recording of the court’s order discharging the lien, there was no hen, the validity of which could be affected on appeal”). This renders the plaintiffs appeal moot.

To conclude otherwise would resurrect a hen that the West Hartford land records hold out to the world as fully discharged. “It has always been the pohcy of our law that the land records should be the authentic oracle of title on which a bona fide purchaser or attaching creditor might safely rely. . . . Indeed the whole system of registering deeds of land would become of no value if a purchaser could not rely upon the records as he finds them.” (Citation omitted; internal quotation marks omitted.) First Constitution Bank v. Harbor Village Ltd. Partnership, 37 Conn. App. 698, 707, 657 A.2d 1110, cert. denied, 235 Conn. 902, 665 A.2d 901 (1995). “[H]omeowners should not have to wake up to find their property encumbered by a resurrected lien. Property owners, prospective purchasers, potential lenders, title searchers and title insurers alike must each be able to rely confidently on the integrity of the land records.” Lichtman v. Beni, supra, 280 Conn. 35.

The plaintiffs failure to request an order for review within the period of time allotted by Practice Book § 61-14 permitted the defendant to perfect the discharge order before this appeal could be decided. Because the discharge order was duly issued and recorded, the lien no longer exists. We therefore are unable to provide the plaintiff with any practical relief.

The appeal is dismissed.

In this opinion the other judges concurred.

       General Statutes § 49-51 provides in relevant part: “(a) Any person having an interest in any real . . . property described in any certificate of lien, which lien is invalid but not discharged of record, may give written notice to the lienor ... to discharge the lien. ... If the lien is not discharged within thirty days of the notice, that person may apply to the Superior Court for such a discharge, and the court may adjudge the validity or invalidity of the lien ....
      “(b) When a lien on real property is adjudged invalid or is otherwise discharged by the court, a certified copy of the judgment of invalidity or discharge recorded on the land records of the town where the certificate of lien was filed fully discharges the lien. ...”

       In light of this conclusion, we need not reach the merits of the plaintiffs claims.

       The title of the foreclosure action was Deutsche Bank National Trust Co., Trustee v. Bentley, Superior Court, judicial district of Hartford, Docket No. CV-05-4008177-S. Additional lienholders, irrelevant to the present appeal, were involved in the foreclosure action.

       The plaintiffs judgment lien survived the initial foreclosure action by virtue of its omission from those proceedings. See generally Mortgage Electronic Registration Systems, Inc. v. White, 278 Conn. 219, 234, 896 A.2d 797 (2006) (discussing how General Statutes § 49-30 “does not change the [common-law] rights of those parties who had been omitted from the first foreclosure”).

       General Statutes § 49-30 provides in relevant part: “When a mortgage ... on real estate has been foreclosed and one or more parties owning any interest in or holding an encumbrance on such real estate subsequent or subordinate to such mortgage . . . has been omitted or has not been foreclosed of such interest or encumbrance because of improper service of process or for any other reason, all other parties foreclosed by the foreclosure judgment shall be bound thereby as fully as if no such omission or defect had occurred .... Such omission or failure to properly foreclose such party or parties may be completely cured and cleared by deed or foreclosure or other proper legal proceedings to which the only necessary parties shall be the party acquiring such foreclosure title . . . and the party or parties thus not foreclosed . . . .”

       General Statutes § 49-30 does not act as a sword that the foreclosing party may use to discharge an omitted encumbrance. As the court stated in Mortgage Electronic Registration Systems, Inc. v. White, 278 Conn. 219, 228, 896 A.2d 797 (2006), § 49-30 simply “provides a procedural mechanism for bringing a subsequent, constitutionally valid proceeding with respect to the omitted encumbrance.” Unlike the situation in Mortgage Electronic Registration Systems, Inc., the defendant in the present case is not attempting to rely on § 49-30 to effectuate the discharge. The defendant’s application for discharge pursuant to General Statutes § 49-51 is a valid legal proceeding that can unencumber the property of an invalid lien.

       Practice Book § 61-14 provides in relevant part: “The sole remedy of any party desiring the court to review an order concerning a stay of execution shall be by motion for review under Section 66-6. Execution of an order of the court terminating a stay of execution shall be stayed for ten days from the issuance of notice of the order, and if a motion for review is filed within that period, the order shall be stayed pending decision of the motion, unless the court having appellate jurisdiction rules otherwise. . . .”


source: Caselaw Access Project

author: DiPENTIMA, J.

license: Public Domain

text:
    RICHARD MACCHIETTO v. JOHN M. KEGGI ET AL.
    (AC 26987)
    Flynn, C. X, and DiPentima and Lavine, Js.

      Argued April 23
    officially released September 18, 2007

      Carey B. Reilly, with whom was Cynthia C. Bott, for the appellant (plaintiff).

      Augustus R. Southworth III, with whom, on the brief, was Russell A. Green, for the appellee (named defendant).
   Opinion

DiPENTIMA, J.

In this medical malpractice action, the plaintiff, Richard Macchietto, appeals from the judgment of the trial court setting aside the jury verdict in his favor and rendering judgment in favor of the defendant John M. Keggi. The plaintiffs primary claim on appeal is that the court abused its discretion in setting aside the verdict because the evidence presented at trial was sufficient to support the jury’s finding that the negligent actions of the defendant proximately caused the plaintiffs injuries. As an alternative argument, the plaintiff claims that if the court properly set aside the verdict, it then should have ordered a new trial rather than render judgment in favor of the defendant. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. In April, 1997, the plaintiff began treatment with the defendant for left hip pain. On May 6, 1997, the defendant performed a total hip replacement on the plaintiff at Waterbury Hospital. During his recuperation, the plaintiffs hip became infected. On June 17, 1997, the defendant performed a debridement procedure to cleanse the septic hip. The plaintiff followed up with the defendant, but the plaintiffs hip was unstable, and he was experiencing pain. The plaintiff began treatment with a different orthopedic surgeon, and on May 18, 1999, that surgeon performed a Girdlestone procedure, which removed all of the components of the hip replacement. Following the Girdlestone procedure, the plaintiffs left leg was almost two inches shorter than his right leg. At the time of trial, the plaintiff continued to be unable to walk without a walker and experienced pain with any movement.

In June, 1999, the plaintiff brought this action for medical malpractice against the defendant, alleging, inter alia, that the defendant breached the standard of care in reading, recording or reporting the plaintiffs postoperative X ray findings. The jury trial commenced on January 5, 2005. At the close of evidence, the court granted the plaintiffs motion to amend the complaint to conform to the proof and denied the defendant’s motion for a directed verdict. The jury returned a verdict in favor of the plaintiff, awarding him economic and noneconomic damages totaling $100,000. There was an inconsistency between the verdict and the jury’s answers to the interrogatories that had been submitted to it in that the jury returned a verdict in favor of the plaintiff but found no proximate cause. Thereafter, the court reinstructed the jury on the issue of proximate cause and on one of the interrogatories. The defendant objected to the court’s failure to direct a verdict in his favor. After further deliberations, the jury amended its responses to the interrogatories and again returned with a verdict in favor of the plaintiff. According to the interrogatories, the jury found that the defendant improperly read, recorded or reported the plaintiff’s postoperative X ray findings. The jury further found that those actions were the proximate cause of the plaintiffs injuries. The court accepted the amended interrogatories and the verdict.

Two weeks after the court accepted the verdict, the defendant moved to set aside the verdict, and for judgment notwithstanding the verdict and for remittitur. The plaintiff objected to that motion. The court heard argument on the postverdict motion. By its memorandum of decision, filed September 16, 2005, the court granted the defendant’s motion to set aside the verdict and for judgment notwithstanding the verdict. This appeal followed. Additional facts will be set forth as necessary.

Our standard of review concerning a motion to set aside a verdict is well settled. “[T]he proper appellate standard of review when considering the action of a trial court granting or denying a motion to set aside a verdict . . . [is] the abuse of discretion standard. . . . In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court’s ruling. . . . Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done. . . . We do not . . . determine whether a conclusion different from the one reached could have been reached.” (Internal quotation marks omitted.) Kramer v. Petisi, 91 Conn. App. 26, 37, 879 A.2d 526, cert. granted on other grounds, 276 Conn. 916, 888 A.2d 84 (2005). As recently restated by our Supreme Court, “[a] motion to set aside the verdict should be granted if the jury reasonably and legally could not have reached the determination that [it] did in fact reach. . . . If the jury, without conjecture, could not have found a required element of the cause of action, it cannot withstand a motion to set aside the verdict.” (Internal quotation marks omitted.) Carrano v. Yale-New Haven Hospital, 279 Conn. 622, 646, 904 A.2d 149 (2006).

Although the plaintiff presents a litany of arguments in support of his appeal, the crux of the plaintiffs primary claim is that the jury reasonably could have found that the defendant improperly read, recorded or reported postoperative X ray findings, which actions proximately caused the plaintiffs injuries. Alternatively, the plaintiff claims that even if the court properly set aside the verdict, it should have ordered a new trial rather than render judgment in favor of the defendant. Pursuant to the standard previously outlined, we first review the law governing the plaintiffs primary claim and the evidence presented at trial to determine whether the court abused its discretion in setting aside the jury’s verdict.

I

The plaintiffs primary claim is that the court abused its discretion in setting aside the jury’s finding that the defendant’s improper reading, recording or reporting the plaintiffs postoperative X ray findings proximately caused the plaintiffs injuries. We are not persuaded.

In setting aside the jury’s verdict and rendering judgment in favor of the defendant, the court ruled that there was “absolutely no testimony concerning the necessity to remove the prosthesis or restrain the plaintiff from weight bearing until after the postoperative X rays were taken. There is no evidence to support the jury’s finding that the defendant’s breach of the standard of care of reading, recording and reporting the postoperative X rays was a proximate cause of the plaintiffs injuries.” Although the plaintiff represents that the court granted the defendant’s postverdict motion solely on the basis of the first half of that ruling, we consider the court’s ruling as a whole and do not isolate individual parts as suggested by the plaintiff.

“[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.” (Internal quotation marks omitted.) Carrano v. Yale-New Haven Hospital, supra, 279 Conn. 656; Boone v. William W. Backus Hospital, 272 Conn. 551, 567, 864 A.2d 1 (2005). “The test for cause in fact is [w]ould the injury have occurred were it not for [the defendant’s] negligent . . . conduct . . . ? Proximate cause is defined as [a]n actual cause that is a substantial factor in the resulting harm .... The substantial factor test, in truth, reflects the inquiry fundamental to all proximate cause questions; that is, whether the harm which occurred was of the same general nature as the foreseeable risk created by the defendant’s negligence.” (Internal quotation marks omitted.) Carrano v. Yale-New Haven Hospital, supra, 656. As we have stated previously, “[i]n Connecticut, both breach of the standard of care and proximate cause must be proved by expert testimony.” (Emphasis added.) Campbell v. Pommier, 5 Conn. App. 29, 32, 496 A.2d 975 (1985); see also Grody v. Tulin, 170 Conn. 443, 449, 365 A.2d 1076 (1976).

It was incumbent on the plaintiff to prove not only that the defendant’s actions breached the standard of care but also that those actions were the proximate cause of the plaintiffs injuries. Although the plaintiff had two experts, Stephen Woolson, a board certified orthopedic surgeon, and Allen Elster, a board certified radiologist, who both testified as to the defendant’s breach of the standard of care with respect to the reading, recording and reporting of the plaintiffs postoperative X rays, neither Woolson nor Elster testified as to whether that breach was the proximate cause of the plaintiffs injuries. Although we acknowledge that an expert opinion need not walk us through the precise language of causation, there must be more than mere speculation or conjecture. State v. Nunes, 260 Conn. 649, 672-73, 800 A.2d 1160 (2002); Struckman v. Burns, 205 Conn. 542, 554-55, 534 A.2d 888 (1987). “To be reasonably probable, a conclusion must be more likely than not. . . . Whether an expert’s testimony is expressed in terms of a reasonable probability that an event has occurred does not depend upon the semantics of the expert or his use of any particular term or phrase, but rather, is determined by looking at the entire substance of the expert’s testimony.” (Citation omitted.) Struckman v. Burns, supra, 555; see, e.g., State v. Weinberg, 215 Conn. 231, 245, 575 A.2d 1003 (“[a]n expert witness is competent to express an opinion, even though he or she may be unwilling to state a conclusion with absolute certainty, so long as the expert’s opinion, if not stated in terms of the certain, is at least stated in terms of the probable, and not merely the possible” [internal quotation marks omitted]), cert. denied, 498 U.S. 967, 111 S. Ct. 430, 112 L. Ed. 2d 413 (1990); Aspiazu v. Orgera, 205 Conn. 623, 632-33, 535 A.2d 338 (1987) (“[w]hile we do not believe that it is mandatory to use taiismanic words or the particular combination of magical words represented by the phrase reasonable degree of medical certainty [or probability] . . . there is no question that, to be entitled to damages, a plaintiff must establish the necessary causal relationship between the injury and the physical or mental condition that he claims resulted from it” [citation omitted; internal quotation marks omitted]).

After thoroughly reviewing the record and closely examining the entire substance of both Woolson’s and Elster’s testimony, we agree with the court that there was no evidence that the reading, recording and reporting of the postoperative X rays was a proximate cause of the plaintiffs injuries. Although the juiy was most certainly presented with evidence that reasonably could have supported its determination that the defendant breached the standard of care with respect to the plaintiffs postoperative X rays, there was no evidence, let alone expert testimony, that the breach was the cause in fact of the plaintiffs injuries. Without such a showing, the verdict in favor of the plaintiff could not stand. See Grody v. Tulin, supra, 170 Conn. 451. After reviewing the evidence and the law governing the plaintiffs medical malpractice claim, we conclude that the court did not abuse its discretion in setting aside the jury’s verdict thereon. Whether the court’s action in then rendering judgment in favor of the defendant was proper is the next step in our analysis.

II

The plaintiff claims that if the court properly set aside the verdict, it should have then ordered a new trial rather than render judgment in favor of the defendant. The plaintiff posits the following arguments in support of that claim: (1) the defendant’s motion for a directed verdict was untimely and his postverdict motion did not adequately notify the court of the issues raised; and (2) the jury was confused by the court’s instructions. We are not persuaded.

As stated previously, our standard of review is abuse of discretion. Kramer v. Petisi, supra, 91 Conn. App. 37. “The rules of practice establish a procedure pursuant to which a motion for a directed verdict, if denied, is considered renewed by the motion for judgment notwithstanding the verdict.” (Emphasis in original.) Sala-man v. Waterbury, 246 Conn. 298, 309, 717 A.2d 161 (1998); Practice Book § 16-37; see also 2 E. Stephenson, Connecticut Civil Procedure (2d Ed. 1970) § 203, p. 823. Practice Book § 16-37 provides in relevant part: “Whenever a motion for a directed verdict made at any time after the close of the plaintiffs case in chief is denied or for any reason is not granted, the judicial authority is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion. . . . After the acceptance of a verdict and within the time stated in Section 16-35 for filing a motion to set a verdict aside, a party who has moved for a directed verdict may move to have the verdict and any judgment rendered thereon set aside and have judgment rendered in accordance with his or her motion for a directed verdict .... If a verdict was returned the judicial authority may allow the judgment to stand or may set the verdict aside and either order a new trial or direct the entry of judgment as if the requested verdict had been directed. . . .’’As has often been stated, “[a] motion for a directed verdict is a prerequisite to a motion for judgment notwithstanding the verdict. Practice Book § 321 [now § 16-37] . . . .” (Citation omitted.) Frankovitch v. Burton, 185 Conn. 14, 15 n.2, 440 A.2d 254 (1981); Cruz v. Drezek, 175 Conn. 230, 232, 397 A.2d 1335 (1978). As provided for in Practice Book § 16-37, the motion for judgment notwithstanding the verdict merely allows the court to make a “later determination of the legal questions raised” by the earlier motion for a directed verdict. The issues raised in the motion for judgment notwithstanding the verdict, therefore, logically must be made on the same grounds as the motion for a directed verdict. Moreover, “[t]he purpose of the motion for directed verdict with respect to the motions to set aside and for judgment notwithstanding the verdict is to give notice to the trial court.” Salaman v. Waterbury, supra, 246 Conn. 309. As the present case involves a motion to set aside the verdict made in conjunction with a motion for judgment notwithstanding the verdict, on the basis of the same grounds, we will treat the two motions as one for purposes of our resolution of the plaintiffs alternative claim.

A

Notice

The plaintiff asserts that the defendant did not move for a directed verdict until after the parties’ closing arguments, which he argues is too late. In addition, the plaintiff asserts that the defendant’s postverdict motion was made on grounds not presented in the defendant’s motion for a directed verdict. On the basis of those two alleged improper actions, the plaintiff claims that the court was denied notice of the claims made in the defendant’s postverdict motion.

Our review of the record reveals that immediately prior to closing arguments, counsel and the court had a discussion at sidebar. Following closing arguments, the defendant’s counsel addressed the court and stated that he wanted to “renew the motion for directed verdict that was discussed at sidebar that [he] did not argue at that time.” The court allowed the defendant to renew that motion, and the defendant then argued, inter alia, that the expert testimony presented by Woolson with respect to causation was “deficient” and that Woolson had “no basis for that [opinion], whatsoever, not even his own personal experience.” The court denied the defendant’s motion. Following the jury verdict, the defendant moved for judgment notwithstanding the verdict. In that motion, the defendant argued more precisely that there was no evidence presented that his actions with respect to the postoperative X rays were the proximate cause of the injuries.

We first note that although, generally, a motion for a directed verdict should be made prior to closing arguments; Haag v. Beard Sand & Gravel Co., 151 Conn. 125, 127, 193 A.2d 711 (1963); we have recognized exceptions to that timing requirement for good cause, as long as the record supports the court’s reasons for the exception. See id. In the present case, the defendant discussed the motion for a directed verdict at the close of evidence at sidebar and then renewed the motion immediately following closing arguments. We are satisfied that the record supports the court’s decision to allow the defendant to renew his motion for a directed verdict after making the motion earlier at sidebar.

With respect to the plaintiffs claim that the defendant’s postverdict motion was based on factual and legal grounds different from those set forth in the motion for a directed verdict that was denied, we are equally unpersuaded. Fairly viewed, the postverdict motion was sufficiently in accord with the motion for a directed verdict. It is evident that the motion for a directed verdict alerted the court and the plaintiff that the claim was one of insufficiency of the evidence, i.e., that there was no evidence to prove that any of the defendant’s actions were the proximate cause of the plaintiffs injuries. See, e.g., Salaman v. Waterbury, supra, 246 Conn. 309-10; Bauer v. Pounds, 61 Conn. App. 29, 34-35, 762 A.2d 499 (2000). Included as the basis of the motion for a directed verdict and the post-trial motion was that there was no evidence proving proximate cause. We conclude, therefore, that the court was given ample notice of the claims made in the defendant’s postverdict motion.

B

Interrogatories

The plaintiff argues that because the court had to reinstruct the jury with respect to its answers to interrogatories, the jury obviously was confused by the initial charge and that, therefore, a new trial should have been ordered. We are not persuaded.

After the court gave its initial instruction to the jury, it provided interrogatories and verdict forms to be completed by the jury following its deliberations. The first interrogatory concerned whether the jury found that the defendant breached the standard of care of an orthopedic surgeon. If the jury answered yes, it was then to proceed to the second interrogatory, which instructed the jury to indicate which of the nine allegations of a breach of the standard of care the plaintiff had proven. The third interrogatory instructed the jury to indicate whether any of the selected breaches in the second interrogatory were a proximate cause of the plaintiffs injuries.

The jury returned a verdict in favor of the plaintiff and indicated on the interrogatories that the defendant breached the standard of care by improperly reading, recording or reporting the plaintiffs postoperative X ray findings. Although the jury also indicated that it did not find that the defendant’s breach proximately caused the plaintiffs injuries, it proceeded to award damages to the plaintiff. Taking note of this inconsistency, the court returned the jury for further deliberations with instructions to reconsider whether the defendant’s actions were the proximate cause of the plaintiffs injuries. The jury again returned with a verdict in favor of the plaintiff, but this time it indicated on the interrogatories that the defendant’s actions were the proximate cause of the plaintiffs injuries. That was the only change between the jury’s initial and subsequent verdicts and supporting interrogatories. The jury did not find that the defendant’s conduct breached the standard of care in any other respect.

The plaintiff suggests that that chain of events shows such confusion on the part of the jury as to justify the need for a new trial. Although the jury’s initial verdict did not conform to its interrogatories, the jury was reinstructed by the court, and the jury corrected the inconsistency. The level of confusion demonstrated by the jury in the present case does not justify a new trial on that basis alone. Cf. Robbins v. Van Gilder, 225 Conn. 238, 253, 622 A.2d 555 (1993) (mistrial declared where “hopeless confusion, rendering the jury unable to return a verdict and answers that were consistent with each other despite the court’s repeated instructions”).

The plaintiff also suggests that the court’s instructions added to the jury confusion and were harmful. We note that the plaintiff did not provide a request to charge or object to the charge as given. It is only now, faced with the ultimate disappointing result, that the plaintiff argues that the instruction added to the jury’s confusion. Specifically, the plaintiff now claims that the court should not have included the allegation of negligence with respect to the postoperative X rays. Regardless of whether the court presented the jury with the negligence allegation with respect to the X rays, the jmy was not limited to choosing only one of the alleged acts of negligence as presented on the interrogatory. The jury was not restricted in any way from finding that the plaintiff had proven any of the other eight allegations of negligence as stated on the interrogatory. It simply did not find that the plaintiff had proven those alleged acts. The plaintiff suggests that the jury would have chosen one of the other eight allegations if the X ray allegation had been withheld. We cannot speculate, as the plaintiff would have us do, as to how and why the jury arrived at its verdict or what it may or may not have done differently. See Tisdale v. Riverside Cemetery Assn., 78 Conn. App. 250, 263, 826 A.2d 232, cert. denied, 266 Conn. 909, 823 A.2d 74 (2003). If the plaintiff doubted the validity of the court’s instructions, the proper time to have expressed that doubt would have been after the charge was given. On the basis of the facts of the present case, we are satisfied that the motion for judgment notwithstanding the verdict was granted properly and that judgment properly was rendered in favor of the defendant.

The judgment is affirmed.

In this opinion the other judges concurred.

       Waterbury Hospital and Orthopaedic Surgery, P.C., also were named as defendants. Thereafter, the action was withdrawn as to them. Accordingly, in this opinion we refer solely to Keggi as the defendant.

       That surgery involves placing a prosthetic cup inside the hip socket, the acetabulum, and placing a prosthetic ball on the end of the femur, which fits inside the cup.

       According to the plaintiff’s amended complaint, he made two additional claims of postoperative negligence in addition to the defendant’s reading, recording and reporting of the plaintiff’s postoperative X ray findings: first, that the defendant allowed the plaintiff to weight bear following the ischial fracture, and second, that the defendant failed to remove the prosthesis on June 17, 1997, after the infection. Logically, those two claims flow from the alleged improper reading of the X rays.

       As perhaps best articulated by the United States Supreme Court almost one century ago, we continue to reject the proposition that certain formulaic words are essential when an expert renders an opinion. “A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used.” Towne v. Eisner, 245 U.S. 418, 425, 38 S. Ct. 158, 62 L. Ed. 372 (1918).

       As we previously have discussed, “our Supreme Court has indicated that 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. Palomba v. Gray, 208 Conn. 21, 23-24, 543 A.2d 1331 (1988); O’Brien v. Seyer, 183 Conn. 199, 208, 439 A.2d 292 (1981). That inherent power to set aside a jury verdict may be exercised without the filing of a motion for a directed verdict. State v. Avcollie, 178 Conn. 450, 455, 423 A.2d 118 (1979), cert. denied, 444 U.S. 1015, 100 S. Ct. 667, 62 L. Ed. 2d 645 (1980); Belchak v. New York, N. H. & H. R. Co., 119 Conn. 630, 637, 179 A. 95 (1935).” Salaman v. Waterbury, 44 Conn. App. 211, 216-17, 687 A.2d 1318 (1997), rev’d on other grounds, 246 Conn. 298, 717 A.2d 161 (1998). We also note, however, that the court’s inherent power does not extend to rendering judgment in the absence of a motion requesting such an action.

       The defendant’s counsel addressed the court as follows: “I did want to renew the motion for directed verdict that was discussed at sidebar that we did not argue at the time. If I may do that now, I’d appreciate it.” The court allowed the defendant to renew his motion for a directed verdict.

       The record shows that the court recalled that the defendant’s earlier motion for a directed verdict had addressed the issue of proximate cause.

       Included in the court’s charge was the following relevant instruction: “Under our law, it is not necessary for the plaintiff to prove all of his allegations against the defendant. The plaintiff must prove by a fair preponderance of the evidence at least one of his allegations of negligence. Thus, it is sufficient to establish the defendant’s liability if you find that one or more of the acts or omissions as alleged by [the plaintiff] against [the defendant] was proved by the plaintiff to be a legal cause of the injury [the plaintiff] sustained.
      “If you do not find that the plaintiff has proved at least one of the allegations of negligence and that that negligence was a proximate cause of the plaintiffs injuries, then you would find in favor of the defendant.”

       The second interrogatory instructed the jury to indicate which of the nine separate breaches as alleged by the plaintiff in his amended complaint were proven. Those alleged breaches included the following three allegations concerning postoperative care: “(2) . . . (g) Did you find that [the defendant] improperly read, recorded or reported post operative X ray findings? . . . (h) Did you find that [the defendant] improperly treated [the plaintiffs] hip on or about June 17, 1997 by failing to remove the prosthesis at that time? . . . (i) Did you find that [the defendant] improperly allowed [the plaintiff] to weight bear following the ischial fracture?”

       In support of his argument, the plaintiff draws our attention to the court’s statement in its September 16,2005 memorandum of decision concerning its instructions. The court stated that “ [t]he problem with the court’s instruction was that, in the case of the allegation concerning X rays, proof of that allegation alone was not sufficient because there was no evidence that misreading the X rays, without the consequent failures indicated in interrogatories 2 (h) and 2 (i), was a substantial factor in causing the plaintiffs injuries.” The court’s statement does not advance the argument made by the plaintiff, as the court merely was commenting on the lack of evidence to support the plaintiffs postoperative care allegations, which, as stated previously, logically flowed from the allegation concerning X rays. See footnotes 3 and 8.


author: FOTI, J.

text:
    STATE OF CONNECTICUT v. GERALD W.

    (AC 26980)
    Flynn, C. J., and Gruendel and Foti, Js.

      Argued May 22
    officially released September 18, 2007

      Raymond L. Durelli, special public defender, for the appellant (defendant).

      Susann E. Gill, senior assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, and Cornelius P. Kelly, senior assistant state’s attorney, for the appellee (state).

       In accordance with our policy of protecting the privacy interests of the victims of sexual abuse and the crime of risk of injury to a child, we decline to identify the victims or others through whom the victims’ identities may be ascertained. See General Statutes § 54-86e.

   Opinion

FOTI, J.

The defendant, Gerald W., appeals from the judgment of conviction, rendered after a jury trial, of three counts of risk of injury to a child in violation of General Statutes § 53-21 (a) (2) and one count of attempt to commit sexual assault in the first degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-70 (a) (2). On appeal, the defendant claims that the trial court improperly (1) instructed the jury regarding the presumption of innocence and (2) applied the rape shield statute by (a) failing to hold an evidentiary hearing to determine the admissibility of evidence relating to the prior sexual assault of one of the alleged victims, thereby denying the defendant his right to confrontation in violation of the sixth amendment to the United States constitution, and (b) extending the rape shield statute to the prosecution for risk of injury to a child. We affirm the judgment of the trial court.

From the evidence adduced at trial, the jury reasonably could have found the following facts. The victims are three minor children, S, the defendant’s daughter; P, the defendant’s cousin; and T, the cousin of the defendant’s girlfriend. At the time of trial, the three victims were age fourteen, fifteen and sixteen, respectively. The victims often would visit the defendant at his apartment, where he lived with his girlfriend. When S was approximately six years old, she began visiting the defendant on a weekly basis. Sometime in December, 2001, when she was eleven years old, the defendant engaged in what would become a pattern of sexual abuse of S, which continued until sometime in early 2003. During some of these visits, the defendant would touch her chest and vaginal area with his penis, finger or hand. On one evening during 2001, when P was eleven, the defendant pulled down her pants and attempted to engage in sexual intercourse. When T was nine years old, she began to visit the defendant and her cousin. During the ensuing five year period, the defendant inappropriately touched both her chest and vaginal area approximately ten times.

After the defendant’s conduct was disclosed to the police, the defendant was arrested and charged in a substitute information dated May 5, 2005, with three counts of risk of injury to a child and one count of attempt to commit sexual assault in the first degree. Following a jury trial, the defendant was convicted on all counts and sentenced to a total effective term of forty years imprisonment. This appeal followed. Additional facts and procedural history will be set forth as necessary.

I

The defendant first claims that the court’s jury instructions were improper because they deprived him of the presumption of innocence. This claim concerns language taken out of context regarding the presumption of innocence. The defendant claims that it was reasonably possible that the jury was misled and could have believed that the presumption of innocence disappeared after finding him guilty of one of the charged crimes. We are not persuaded.

The defendant constructed his claim from several portions of the court’s instructions to the jury given on the presumption of innocence. The court stated that “the presumption of innocence remains with [the defendant] unless and until the state proves beyond a reasonable doubt that he is guilty of one or more of those charges.” In the final charge to the jury, the court instructed that “the presumption of innocence remains with the defendant unless and until the evidence . . . persuades you beyond a reasonable doubt that the defendant is guilty of one or more charges.”

In his brief, the defendant challenges this portion of the instructions, highlighting the court’s language in isolation from the remainder of the charge. Specifically, the defendant contends that by instructing the jury that the presumption of innocence applied until he was found guilty of “one or more charges,” the court deprived him of the presumption of innocence, as the challenged language “implied that once the jurors found the defendant guilty as to one of the crimes with which he was charged, he was no longer entitled to the presumption of innocence ... as to the other crimes he had been charged with.”

Because he failed to preserve his claim by submitting a request to charge to the trial court or by objecting to the charge given at trial, the defendant seeks review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). We will review the defendant’s claim under Golding because the record is adequate for our review, and “a claim of instructional impropriety regarding the presumption of innocence ... is of constitutional magnitude.” State v. Lawrence, 282 Conn. 141, 178 n.22, 920 A.2d 236 (2007). “[U]nder . . . Golding, a defendant may prevail on an unpreserved constitutional claim of instructional error only if, considering the substance of the charge rather than the form of what was said, [i]t is reasonably possible that the jury was misled.” (Internal quotation marks omitted.) State v. Serrano, 91 Conn. App. 227, 244, 880 A.2d 183, cert. denied, 276 Conn. 908, 884 A.2d 1029 (2005). In determining whether the jury was misled, “[i]t is well established that [a] charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but it is to be considered rather as to its probable effect upon the jury in guiding [it] to a correct verdict in the case. . . . The charge is to be read as a whole and individual instructions are not to be judged in artificial isolation from the overall charge.” (Internal quotation marks omitted.) State v. White, 97 Conn. App. 763, 773, 906 A.2d 728, cert. denied, 280 Conn. 939, 912 A.2d 476 (2006). “The test to be applied ... is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result.” (Internal quotation marks omitted.) State v. Reynolds, 264 Conn. 1, 128, 836 A.2d 224 (2003), cert. denied, 541 U.S. 908, 124 S. Ct 1614, 158 L. Ed. 2d 254 (2004). We turn now to the merits of the defendant’s instructional claim.

In resolving the defendant’s claim, we begin by setting forth the legal principles relevant to our discussion. “In Taylor [v. Kentucky, 436 U.S. 478, 484, 98 S. Ct. 1930, 56 L. Ed. 2d 468 (1978)], the [United States Supreme Court] defined the principal function of the presumption of innocence: It is aimed to ensure that the jury bases its decision solely on the evidence presented, and not on extraneous factors such as arrest, information, arraignment, custody and the status of the defendant as an accused.” State v. Coleman, 14 Conn. App. 657, 669-70, 544 A.2d 194, cert. denied, 208 Conn. 815, 546 A.2d 283 (1988). “[T]he presumption of innocence is not evidence . . . but instead is a way of describing the prosecution’s duty both to produce evidence of guilt and to convince the jury beyond a reasonable doubt.” (Internal quotation marks omitted.) Id., 669.

In the present case, having considered the court’s jury instructions in their entirety, we conclude that, when considered in the broader context of the charge as a whole, the court correctly charged the jury regarding the presumption of innocence. In its preliminary remarks to the jury, the court informed the jury that the defendant was not required to prove his innocence. In the court’s final charge to the jury, the court informed the jury that it was to “make [its] own conscientious decision with respect to each charge, but only after [it] considered all of the evidence and discussed the evidence fully with the others.” After discussing the presumption of innocence and the reasonable doubt standard, the court stated that “[e]ach charge must be evaluated separately.” In light of these instructions, we conclude that the court’s instructions communicated to the jury that the presumption of innocence applies individually to each charged crime and that it may be overcome as to each specific charge only after the state introduces evidence that establishes the defendant’s guilt as to each crime beyond a reasonable doubt. Accordingly, the defendant’s claim fails to meet the third prong of Golding because he has not established that a constitutional violation clearly exists and clearly deprived him of a fair trial.

II

The defendant next claims that the court improperly applied the rape shield statute to exclude evidence relating to T’s allegations of prior sexual abuse by her biological father. Specifically, the defendant contends that the court improperly declined to hold an evidentiary hearing under General Statutes § 54-86f (4) to determine the admissibility of this evidence. Additionally, the defendant claims that the rape shield statute does not apply to prosecutions for risk of injury to a child under § 53-21, where a defendant has not been charged with any of the crimes enumerated in § 54-86f.

A

The defendant first claims that the court violated his constitutional rights under the sixth and fourteenth amendments to the United States constitution by failing to hold an evidentiary hearing regarding the admissibility of T’s allegations of prior sexual abuse by her biological father. On appeal, as he did at trial, the defendant contends that an evidentiary hearing was required under subdivision (4) of § 54-86f because the proffered evidence was relevant to aid the jury in evaluating the victim’s credibility and to highlight the possible risk of misidentification of the perpetrator of the sexual abuse at issue in this matter. We disagree.

The following facts are relevant to the defendant’s claim. At trial, during direct examination, T detailed her allegations against the defendant and her subsequent disclosures to her aunt and the police. During the defendant’s cross-examination of T, outside the presence of the jury, defense counsel sought permission from the court to question T about allegations that she had made to an investigator employed by the department of children and families (department) concerning prior sexual abuse by her biological father. These allegations indicated that T’s biological father had abused her for a one year period commencing sometime in 2002.

In defense counsel’s resulting offer of proof, he claimed that because this abuse may have been contemporaneous with that of the defendant’s alleged abuse, this line of inquiry should have been permitted. He argued that it was relevant to assist the jury in evaluating the credibility of T, to demonstrate that T may have been confused regarding the identity of the perpetrator of the alleged sexual abuse and to establish that she may have had a motive to be untruthful. The prosecutor objected to the inquiry on the grounds of relevance and the possible embarrassment that such questioning would cause the victim. Following an in camera review of the department records, the court precluded defense counsel from questioning the victim about the prior sexual abuse, noting that such evidence was irrelevant and therefore barred by the rape shield statute. In reaching this decision, the court found that T, who was sixteen years of age at the time of trial, exhibited no confusion in identifying the defendant as the individual who had committed the charged crimes.

We first set forth the standard of review for determining whether the court properly denied the defendant’s request for an evidentiary hearing under subdivision (4) of § 54-86f. Section 54-86f “requires a defendant to make a preliminary showing that the evidence sought to be explored in the evidentiary hearing is relevant.” State v. Barrett, 43 Conn. App. 667, 674, 685 A.2d 677 (1996), cert. denied, 240 Conn. 923, 692 A.2d 819 (1997). “Upon review of a trial court’s decision, we will set aside an evidentiary ruling only when there has been a clear abuse of discretion. . . . The trial court has wide discretion in determining the relevancy of evidence and the scope of cross-examination and [e]very reasonable presumption should be made in favor of the correctness of the court’s ruling in determining whether there has been an abuse of discretion.” (Citations omitted; internal quotation marks omitted.) State v. Rolon, 257 Conn. 156, 173, 777 A.2d 604 (2001).

Subject to certain exceptions, the rape shield statute “greatly restricts the admissibility of evidence of the prior sexual conduct of a sexual assault victim.” (Internal quotation marks omitted.) State v. Kulmac, 230 Conn. 43, 53, 644 A.2d 887 (1994). Our Supreme Court has stated “that the rape shield statute was enacted specifically to bar or limit the use of prior sexual conduct of an alleged victim of a sexual assault because it is such highly prejudicial material. . . . Our legislature has determined that, except in specific instances, and taking the defendant’s constitutional rights into account, evidence of prior sexual conduct is to be excluded for policy purposes. Some of these policies include protecting the victim’s sexual privacy and shielding her from undue harassment, encouraging reports of sexual assault, and enabling the victim to testify in court with less fear of embarrassment. . . . Other policies promoted by the law include avoiding prejudice to the victim, jury confusion and waste of time on collateral matters.” (Internal quotation marks omitted.) State v. Ritrovato, 280 Conn. 36, 53, 905 A.2d 1079 (2006).

Section 54-86f (4), however, permits evidence to be introduced if the evidence is “otherwise so relevant and material to a critical issue in the case that excluding it would violate the defendant’s constitutional rights. . . .’’In cases involving child sexual abuse, to admit evidence under subdivision (4) of § 54-86f, “the defendant must make an offer of proof showing: (1) that the prior acts clearly occurred; (2) that the acts closely resembled those of the present case; (3) that the prior act is clearly relevant to a material issue; (4) that the evidence is necessary to [the] defendant’s case; and (5) that the probative value of the evidence outweighs its prejudicial effect.” (Internal quotation marks omitted.) State v. Rolon, supra, 257 Conn. 184.

Thus, “[a] clear statement of the defendant’s theory of relevance is all important in determining whether the evidence is offered for a permissible purpose.” (Internal quotation marks omitted.) Id., 179. “if the evidence is probative, the [rape shield] statute’s protection yields to constitutional rights that assure a full and fair defense. ... If the defendant’s offer of proof is sufficient to show relevancy, and that the evidence is more probative to the defense than prejudicial to the victim, it must be deemed admissible at trial.” (Emphasis in original; internal quotation marks omitted.) State v. Morris, 95 Conn. App. 793, 798, 898 A.2d 822, cert. denied, 280 Conn. 239, 912 A.2d 476 (2006).

The defendant attempts to distinguish the present case from two cases involving allegations of child sexual abuse, State v. Kulmac, supra, 230 Conn. 43, and State v. Morris, supra, 95 Conn. App. 793. In Kulmac, our Supreme Court affirmed the trial court’s ruling prohibiting a defendant from cross-examining the victim about prior sexual abuse because the victim did not “[appear] confused, and . . . any . . . abuses committed on [the victim] were too remote in time from the abuses at issue in the trial to cause confusion.” State v. Kulmac, supra, 55. Similarly, in Morris, this court upheld the trial court’s ruling that precluded a defendant from cross-examining the victim about prior sexual abuse perpetrated by her father, reasoning that such line of inquiry was irrelevant, as the defendant failed to establish that his alleged abuse of the victim was both contemporaneous with that of the father’s abuse of the victim and that the victim was confused as to “either . . . the identity of the defendant, or the circumstances under which [the victim] was abused by the defendant . . . .” State v. Morris, supra, 799-800.

The defendant argues that, unlike the situation in Kulmac, the court had no basis for concluding that the victim had not exhibited any confusion regarding the identity of her abuser and, contrary to Moms, the instances of sexual abuse at issue in the present matter were contemporaneous. The defendant’s attempt to distinguish these cases is unavailing. Here, as was the case in both Kulmac and Morris, after observing the victim testify, the court concluded that the victim was not confused when she identified the defendant as her abuser. See State v. Kulmac, supra, 230 Conn. 55; State v. Morris, supra, 95 Conn. App. 799-800. “Whether there is a sufficient basis for a claim that a witness is confused, so as to permit cross-examination that would otherwise be inadmissible, is a question of fact that is properly left to the discretion of the trial court.” State v. Kulmac, supra, 55.

In the present case, we have thoroughly reviewed the department records concerning T’s allegations of sexual abuse by her biological father. We conclude that the court properly determined that the evidence of the prior sexual abuse was irrelevant because none of the testimony adduced at trial indicated that the victim was confused when she identified the defendant as her abuser. In assessing whether a child victim would be likely to misidentify his or her sexual abuser, our Supreme Court has focused on the possible confusion inherent in a very young child’s perception of such a traumatic event. See State v. Rolon, supra, 257 Conn. 181. Here, although there may have been a temporal overlap, between 2002 and 2003, of the alleged abuse by her biological father and the defendant’s abuse, we note that T was not a preschool-aged child, but rather a sixteen year old teenager at the time she testified. Nonetheless, even if we were to disregard the significance of T’s age, the court could rely on the fact that the victim had a preexisting relationship with both of the alleged abusers, the defendant, who was her cousin’s boyfriend, and her biological father, to conclude that a risk of misidentification was not implicated.

The defendant further contends that this line of inquiry would have been relevant to establish the victim’s bias or motive to testify against the defendant. In support of this claim, the defendant argues that the victim may have been testifying against him in an attempt to protect her biological father from prosecution. The defendant maintains that evidence of the biological father’s sexual abuse would have permitted the jury to infer such bias or motive. We conclude that the record does not support this claim, as the record establishes that the victim reported the alleged instances of abuse by her biological father. This fact makes it unlikely that the victim testified against the defendant in an attempt to protect her biological father. See State v. Kulmac, supra, 230 Conn. 56. Thus, under the circumstances of this case, because this evidence would not have provided the jury with any insight into the victim’s ability to comprehend, know and communicate the truth, the court acted within its discretion in precluding any inquiry relating to the prior sexual abuse allegedly perpetrated by the victim’s biological father. Accordingly, the court did not abuse its discretion in declining to hold an evidentiary hearing.

B

The defendant finally claims that the court improperly applied the rape shield statute to his prosecution for risk of injury to a child to exclude evidence relating to the prior sexual abuse of T by her biological father. The defendant argues that as the rape shield statute does not reference § 53-21, the statute does not apply to prosecutions for risk of injury to a child. The defendant acknowledges that he did not object to the court’s application of § 54-86f. On appeal, however, he now argues that the court’s application of the rape shield statute violated his sixth amendment right to confrontation. The defendant asks us to review this claim under State v. Golding, supra, 213 Conn. 239-40. We decline to accept the invitation.

As noted previously, a claim is reviewable under Golding if the record is adequate to review the claim and the claim is of constitutional magnitude alleging the violation of a fundamental right. Id., 239. It is well established that “every evidentiary ruling that denies a defendant a line of inquiry is not a violation of his constitutional rights. The defendant’s right to confront witnesses against him is not absolute, but must bow to other legitimate interests in the criminal trial process.” (Internal quotation marks omitted.) State v. Kulmac, supra, 230 Conn. 55. Accordingly, “[t]he defendant can not raise a constitutional claim by attaching a constitutional label to a purely evidentiary claim or by asserting merely that a strained connection exists between the evidentiary claim and a fundamental constitutional right.” (Internal quotation marks omitted.) State v. D’Haity, 99 Conn. App. 375, 394, 914 A.2d 570, cert. denied, 282 Conn. 912, 924 A.2d 137 (2007).

Thus, “[o]nce identified, unpreserved evidentiary claims masquerading as constitutional claims will be summarily dismissed.” State v. Golding, supra, 213 Conn. 241. “We previously have stated that the admissibility of evidence is a matter of state law and unless there is a resultant denial of fundamental fairness or the denial of a specific constitutional right, no constitutional issue is involved.” (Internal quotation marks omitted.) State v. Boyd, 89 Conn. App. 1, 19, 872 A.2d 477, cert. denied, 275 Conn. 921, 883 A.2d 1247 (2005). Accordingly, as we have concluded that the court properly determined that the victim’s allegations of prior sexual abuse were irrelevant and thus did not deny the defendant his constitutional right to confrontation, we decline to review the defendant’s unpreserved evidentiary claim.

The judgment is affirmed

In this opinion the other judges concurred.

       The charges of risk of injury to a child stem from incidents that occurred between 1996 and 2003. During that time, General Statutes § 53-21 was amended several times, although none of the revisions have any bearing on the merits of this appeal. In the interest of simplicity, we refer in this opinion to the current revision of § 53-21.

       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. In the absence of any of these conditions, the defendant’s claim will fail. ” (Emphasis in original.) State v. Golding, supra, 213 Conn. 239-40.

       Further, our Supreme Court has recognized that the reasonable doubt standard and the presumption of innocence are inextricably intertwined. See Stats v. Jackson, 283 Conn. 111, 116, 925 A.2d 1060 (2007) (“[t]he [reasonable doubt concept] provides concrete substance for the presumption of innocence—that bedrock axiomatic and elementary principle whose enforcement lies at the foundation of the administration of our criminal law” [internal quotation marks omitted]).

       General Statutes § 54-86f provides: “In any prosecution for sexual assault under sections 53a-70, 53a-70a, and 53a-71 to 53a-73a, inclusive, no evidence of the sexual conduct of the victim may be admissible unless such evidence is (1) offered by the defendant on the issue of whether the defendant was, with respect to the victim, the source of semen, disease, pregnancy or injury, or (2) offered by the defendant on the issue of credibility of the victim, provided the victim has testified on direct examination as to his or her sexual conduct, or (3) any evidence of sexual conduct with the defendant offered by the defendant on the issue of consent by the victim, when consent is raised as a defense by the defendant, or (4) otherwise so relevant and material to a critical issue in the case that excluding it would violate the defendant’s constitutional rights. Such evidence shall be admissible only after a hearing on a motion to offer such evidence containing an offer of proof. On motion of either party the court may order such hearing held in camera, subject to the provisions of section 51-164x. If the proceeding is a trial with a jury, such hearing shall be held in the absence of the jury. If, after hearing, the court finds that the evidence meets the requirements of this section and that the probative value of the evidence outweighs its prejudicial effect on the victim, the court may grant the motion. The testimony of the defendant during a hearing on a motion to offer evidence under this section may not be used against the defendant during the trial if such motion is denied, except that such testimony may be admissible to impeach the credibility of the defendant if the defendant elects to testify as part of the defense.”

       On May 10, 2005, the day of trial, the defendant also had filed a motion to admit evidence relating to the sexual conduct of T for the purposes of (1) eliciting evidence as to whether the defendant was the source of her injuries and (2) attacking her credibility- Because no evidence was presented to the court establishing that T had sustained any type of injury, the court did not consider the defendant’s apparent “source of injury” argument.

       “Determining whether evidence is relevant and material to critical issues in a case is an inherently fact-bound inquiry. ... As a general principle, evidence is relevant if it has a tendency to establish the existence of a material fact. One fact is relevant to another fact whenever, according to the common course of events, the existence of the one, taken alone or in connection with other facts, renders the existence of the other either certain or more probable. ... If the proffered evidence is not relevant, the defendant’s right to confrontation is not affected, and the evidence [is] properly excluded.” (Citations omitted; internal quotation marks omitted.) State v. DeJesus, 270 Conn. 826, 837-38, 856 A.2d 345 (2004). “The proffering party bears the burden of establishing the relevance of the offered testimony. Unless such proper foundation is established, the evidence ... is irrelevant.” (Internal quotation marks omitted.) State v. Rolon, supra, 257 Conn. 177 n.24.


author: WEST, J.

text:
    ANN L. CLEARY v. JOSEPH P. CLEARY
    (AC 27677)
    Schaller, McLachlan and West, Js.

      Argued April 16
    officially released September 18, 2007

      Leo E. Ahem, for the appellant (defendant).

      John-Henry M. Steele, for the appellee (plaintiff).
   Opinion

WEST, J.

In this marital dissolution action, the defendant, Joseph P. Cleary, appeals from the judgment of the trial court with respect to the court’s financial orders awarding alimony to the plaintiff, Ann L. Cleary. Specifically, the defendant claims that the court abused its discretion by improperly (1) entering alimony orders on the basis of his gross income rather than net income and (2) ordering that the award of alimony be nonmodi-fiable on the basis of the defendant’s retirement. We agree with the defendant on both claims. Accordingly, we reverse the judgment of the trial court with respect to the financial orders.

The following facts and procedural history are relevant to our resolution of the defendant’s appeal. The parties were married in July, 1973. The parties have three minor grandchildren of whom they jointly have agreed to assume legal guardianship. The plaintiff commenced this dissolution action in April, 2005, on the ground of irretrievable breakdown. By agreement, the minor children continue to reside with the plaintiff. Evidence was taken on two days, November 9 and December 21, 2005. At the conclusion of the second day of evidence, the court issued rulings and findings of fact. The court distributed the assets of the marital estate and ordered that the defendant pay to the plaintiff $1000 per week in alimony for her lifetime. Thereafter, the defendant filed a motion for reconsideration and a motion to reargue. During a hearing held on April 7, 2006, the court denied both motions. Additional facts will be set forth as necessary.

We begin by setting forth the well settled standard of review. “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. ... 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. . . . Appellate 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. ... 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. . . .

“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.” (Citation omitted; internal quotation marks omitted.) Finan v. Finan, 100 Conn. App. 297, 300, 918 A.2d 910, cert. granted on other grounds, 282 Conn. 926, 926 A.2d 666 (2007).

I

The defendant first claims that the court improperly entered alimony orders on the basis of his gross income rather than net income. We agree.

“It is well settled that a court must base its child support and alimony orders on the available net income of the parties, not gross income. . . . Whether or not an order falls within this prescription must be analyzed on a case-by-case basis. Thus, while our decisional law in this regard consistently affirms the basic tenet that support and alimony orders must be based on net income, the proper application of this principle is context specific.” (Citation omitted.) Hughes v. Hughes, 95 Conn. App. 200, 204, 895 A.2d 274, cert. denied, 280 Conn. 902, 907 A.2d 90 (2006).

In Morris v. Morris, 262 Conn. 299, 811 A.2d 1283 (2003), our Supreme Court reversed the judgment of the trial court because the court relied on the parties’ gross incomes in modifying the defendant’s child support obligation. Id., 305. In reversing the judgment, the court relied on the trial court’s statement that it was “expressly and affirmatively” relying on the parties’ gross incomes. Id., 307.

Similarly, in. Ludgin v. McGowan, 64 Conn. App. 355, 780 A.2d 198 (2001), this court reversed the judgment of the trial court because the court fashioned its financial orders on the basis of the parties’ gross incomes. Id., 358. In reversing the court’s decision, we stated: “[T]he court repeatedly referred to and compared the parties’ gross incomes. . . . Although the court had before it evidence of the parties’ net incomes, it appears that the court chose not to rely on such information. The court’s memorandum of decision is devoid of any mention of the parties’ net incomes.” Id., 358-59.

In the present case, similar to Morris and Ludgin, it is clear that the court relied on the defendant’s gross income. The court found that the defendant’s “annualized income from [his job as a railroad supervisor] is currently about . . . $142,800 a year.” That amount is equal to the defendant’s gross yearly income from principal employment, as stated in his financial affidavit. After adding other income, the court concluded that the defendant has an income annually of about $177,000, which is equal to the amount of total income listed on the parties’ joint 2004 tax return. At the conclusion of the December 21, 2005 proceeding, the defendant’s counsel asked: “Your Honor, if I may just ask for clarification. Your Honor made a finding, I believe, of [the defendant’s] income to be $177,000? Could you just break that down for me . . . as to . . . where those numbers came from?” The court responded: “His gross weekly income is . . . $2747. Annually, that’s about $142,844. . . . His disability income at the rate of $109 a week is about $5668. And his tax return shows that he has gambling income of about . . . $38,000 a year.” The court’s response, upon a request to clarify, demonstrated that in calculating the defendant’s income, it used the defendant’s gross weekly income as well as his gambling winnings without mention of his $28,100 in receipted gambling losses as indicated on the parties’ 2004 joint income tax return.

Although the court had before it evidence of the parties’ net incomes, it appears that the court chose not to rely on such information. The court’s decision is devoid of any mention of the parties’ net incomes, and the court expressly stated that its finding as to the defendant’s income was based on his gross income. Because the court relied solely on the defendant’s gross income in fashioning the financial orders, we conclude that the court improperly designed its financial orders by relying on the defendant’s gross income rather than on his net income.

II

The defendant next claims that the court improperly ordered that the award of alimony was nonmodifiable downward unless the plaintiff earns more than $30,000 annually from sources other than alimony. The defendant takes particular issue with the nonmodifiability of the court’s award of alimony as it relates to his pending retirement and specifically argues that according to the evidence presented during the dissolution proceeding, the alimony award exceeds his income upon retirement. We agree.

In its December 21, 2005 oral decision, the court ordered that the defendant pay the plaintiff alimony for life at the rate of $1000 per week, which was only modifiable if the plaintiff has income other than alimony in excess of $30,000 annually, if the defendant has a $30,000 increase over his present level of income from a source other than consulting, if the plaintiff remarries or cohabits with another under circumstances that can amount to marriage or if either parties dies. The court found that the defendant had been employed with the railroad for approximately forty years and that he likely will retire in about four years. The court ordered that the defendant’s decrease in income as a result of his retirement could not form a basis for a downward modification of alimony. When questioned by the defendant’s counsel, the court reiterated that the defendant’s decrease in income, resulting from his retiring, could not form the basis for a downward modification of alimony. The defendant’s counsel inquired as to how the defendant was to continue paying $1000 per week in alimony after he retires, and the court responded: “I think you know the answer to that question .... He has other sources of income.”

The plaintiff argues that the issue of the nonmodifi-ability of the court’s award is not subject to review because the defendant did not ask, and the court did not articulate, what “other sources of income” the court relied on in reaching its conclusion that the defendant was precluded from seeking a modification of the alimony award solely on the basis of a decrease in income after retirement. Without an articulation, the plaintiff argues, this court must speculate what “other sources of income” the court relied on in making its award of alimony. No further clarification is necessary. The court, prior to giving its orders orally, stated that the defendant’s “income from other sources [was] not all that significant.” These other sources of income, which, by the court’s own words, are not all that significant, would not give the defendant the ability to pay $52,000 per year in alimony.

Furthermore, the evidence does not reveal any sources of income sufficient to support an award of $1000 per week. The only evidence regarding the defendant’s income on retirement, as indicated on his financial affidavit, is approximately $1700 monthly from the railroad retirement plan and a pension plan in the total amount of approximately $173,000. Additionally, the court ordered that the plaintiff is entitled to half of the defendant’s retirement benefits, as well as half of his pension benefits upon his retirement. The defendant also receives $109 per week in disability. The parties’ joint income tax return for 2004 indicated $38,098 in other income, which the plaintiff testified was attributable to the defendant’s gambling winnings, and it also indicated $28,100 in receipted gambling losses. Other assets indicated on the defendant’s financial affidavit were relatively insignificant and included $1902 in bank accounts and $4486 in stocks. There also was testimony from the plaintiff that the defendant had discussed with her the possibility of doing consulting work after he retires. There was, however, no evidence as to whether this would take place or how much income he would make as a result.

Accordingly, the court’s order is irreconcilable with the principle that alimony is not designed to punish, but to ensure that the former spouse receives adequate support. See Fattibene v. Fattibene, 183 Conn. 433, 441, 441 A.2d 3 (1981). Requiring that the defendant pay alimony that consumes his income offends the long settled principle that the defendant’s ability to pay is a material consideration in formulating financial awards. Greco v. Greco, 275 Conn. 348, 361, 880 A.2d 872 (2005); see also Panganiban v. Panganiban, 54 Conn. App. 634, 642-43, 736 A.2d 190 (“[i]t is hornbook law that what a spouse can afford to pay for support and alimony is a material consideration in the court’s determination as to what is a proper order” [internal quotation marks omitted]), cert. denied, 251 Conn. 920, 742 A.2d 359 (1999).

“The issues involving financial orders are entirely interwoven. The rendering of a judgment in a complicated dissolution case is a carefully crafted mosaic, each element of which may be dependent on the other.” (Internal quotation marks omitted.) Ludgin v. McGowan, supra, 64 Conn. App. 359; see also Smith v. Smith, 249 Conn. 265, 277, 752 A.2d 1023 (1999) (noting “when an appellate court reverses a trial court judgment based on an improper alimony, property distribution, or child support award, the appellate court’s remand typically authorizes the trial court to reconsider all of the financial orders”). Accordingly, we reverse the judgment with respect to all financial orders.

The judgment is reversed as to the financial orders only and the case is remanded for a new hearing on all financial issues in accordance with law.

In this opinion the other judges concurred.

       The present case is distinguishable from our recent holdings in Hughes v. Hughes, supra, 95 Conn. App. 200, and Medvey v. Medvey, 98 Conn. App. 278, 908 A.2d 1119 (2006). In Hughes, supra, 206, we acknowledged that the mere notation by the court of a party’s gross earnings is not fatal to its support and alimony orders as long as its orders are not based on the parties’ gross earnings. We reasoned that although the trial court referred to the plaintiffs gross income in its decision to demonstrate his ability to pay support, it did not expressly state that it was relying on the plaintiffs gross earnings in framing its order. Id., 207. We differentiated between an order that is a function of gross income and one that is based on gross income, noting that “we have found no case in which an order for support or alimony has been reversed on review simply because it was expressed as a function of a party’s gross income.....[T]he term ‘based’ as used in this context connotes an order that only takes into consideration the parties’ gross income and not the parties’ net income. Consequently, an order that takes cognizance of the parties’ disposable incomes may be proper even if it is expressed as a function of the parties’ gross earnings.” Id., 207. In Medvey v. Medvey, supra, 278, we similarly held that because the trial court was aware of both the gross and net incomes of the defendant and fashioned its financial orders on the basis of that evidence, it was not improper to order alimony as a function of gross income. Id., 281-85.
      In the present case, although the court had the financial affidavits of the parties before it, the court, by its own response upon a request to clarify demonstrated that it took into consideration the defendant’s gross income and not his net income. Therefore, the court’s only award of alimony was not a function of gross income, but rather it improperly was based on gross income.

       Specifically, the court found: “[The defendant] has been successfully employed and has steadily moved up in his employment to as high as he can go with the railroad. . . . [H]e has been employed now with the railroad for about forty years and looks to retire in about four years. The testimony is that his annualized income from the railroad is currently about . . . $142,800 a year. Plus, he receives a disability income of about $5600 a year. Teslimony also disclosed that at various limes, he has sustained gambling losses, and he has also been the beneficiary of significant winnings from his gambling. The evidence is . . . that during the past calendar year, his winnings from gambling were about $38,000, and he has had income from other sources, as not all that significant. The court concludes that ... he has an income, annually, of about $177,000.”

       On Ihe 2004 joint income tax return and on the plaintiffs financial affidavit, her occupation is listed as homemaker. The plaintiff testified that she had a few jobs in the 1980s, lasting only a few months.

       Both parties submitted financial affidavits in which they stated their net income. The court failed to note such income and, instead, focused only on the defendant’s gross income.

       The cotut specifically ordered that “the [defendant] pay periodic lifetime alimony to the plaintiff wife of $1000 per week. The alimony is not modifiable as to duration. In the event that the plaintiff wife has income other than the alimony in excess of $30,000 annually, it may be modified. And, of course, the alimony may terminate if the [plaintiff] remarries, [cohabits] with another under circumstances that can amount to marriage or in the event of death of either party.”

        Subsequently, the following colloquy occurred:
      “[The Plaintiffs Counsel]: If I may, with regard to the alimony order, Your Honor indicated that you were ordering this specific safe harbor so that the [plaintiff] could earn up to $30,000 without that being the basis for a modification, but ... all of the other bases for her to modify, for example, upward in the event he were to malee more money still remains in effect, correct? Just the way that it was stated, I just wanted to clarify that it is nonmodifiable solely . . . based on her income, unless she makes more than $30,000, but all other modification bases still remain.
      “The Court: All right. The court is aware that [the defendant] may engage in consulting, and any moneys that he earns through any consulting that he commences after today’s date shall not be the basis for a modification. If there’s earned income from some other source or through gambling, then that shall be a basis for a modification of the alimony, if there is a $30,000 increase over his present level of income. So, that gives him a $30,000 safe harbor.
      “[The Plaintiffs Counsel]: Fair enough, Your Honor. And if I may, with regard to the limit on his consulting income, in the event that that is the only income he has for—is there a cap? I mean, if he starts consulting and making $300,000 a year, she’s limited at—that’s my only concern ....
      “The Court: He still has to pay $1000 a week alimony.
      “[The Plaintiffs Counsel]: ... so, it is a limit for her to go above $1000 because . . . there’s always the scenario—I’m just trying to imagine that the alimony . . . somehow gets decreased in six years ....
      “The Court: It would only be decreased if she’s . . . earning more than $30,000 a year.
      “[The Defendant’s Counsel]: Well, Your Honor, on that point, if I may inquire. If [the defendant’s] income decreases, he has the right, still, to come back and ask for a modification downward, correct?
      “The Court: It’s nonmodifiable .... I am mindful of the fact that he will be retiring, or based upon his testimony, he will be retiring in four years. . . . And I expect that when he retires, that there is going to be a decrease in his income. . . . And, so, when I issued my order that he pay alimony for life at the rate of $1000 per week, I took that into consideration.
      “[The Defendant’s Counsel]: Okay. So, he can decrease it when he retires if his income goes down.
      “The Court: No. The answer is ‘no.’ ”

       See footnote 2.