author: BORDEN, J. BERDON, J.,

text:
    JOHANNA C. NEWMAN v. FRED M. NEWMAN
    (15069)
    Peters, C. J., and Callahan, Borden, Berdon and Katz, Js.
    Argued April 25
    decision released August 15, 1995

      Sharon Wicks Domfeld, for the appellants (minor children).

      William B. Barnes, with whom, on the brief, was Sheila K. Rosenstein, for the appellee (defendant).
   BORDEN, J.

The sole issue in this certified appeal is whether, in a marriage dissolution case, minor children who are represented by an attorney appointed by the trial court pursuant to General Statutes § 46b-54, but not by a guardian ad litem or next friend, may appeal from a judgment of the trial court concerning the support obligations of the children’s parents. The minor children appeal, following our grant of certification, from the judgment of the Appellate Court dismissing their appeal from the judgment of the trial court, which had modified the support obligation of the defendant, who is the father of the minor children, to zero dollars. The Appellate Court dismissed the appeal because it concluded that the attorney for the minor children could not prosecute the appeal on behalf of the children. We conclude that, under certain limited circumstances outlined herein, minor children may appeal from such atrial court judgment. Accordingly, we reverse the judgment of the Appellate Court, and remand the case for further proceedings for the trial court to determine whether those circumstances are present in this case.

The prior procedural history and facts are undisputed. The plaintiff, Johanna C. Newman, and the defendant, Fred M. Newman, who were married in 1981, have two minor children, a daughter bom on August 16, 1983, and a son bom on May 20, 1987.

In September, 1991, the plaintiff brought this dissolution action, and the defendant filed a cross complaint, both claiming custody of the children, support, alimony and a property distribution. In March, 1992, attorney Sharon Wicks Domfeld was appointed by the court pursuant to § 46b-54; see footnote 1; to represent the minor children. In March, 1993, the trial court, Hon. T. Clark Hull, state trial referee, after what it described as an “almost incredibly bitter battle between the parties,” rendered a judgment dissolving their marriage. In addition to orders of property distribution and nominal alimony to be paid by the defendant to the plaintiff, the court awarded custody of the minor children to the plaintiff, with certain visitation rights in the defendant. The plaintiff was permitted to move with the children to North Carolina. The court also ordered the defendant to pay child support for the two children in the amount of $300 per week.

Thereafter, in September, 1993, the defendant filed a motion to modify the judgment by reducing the amount of child support “in accordance with the child support guidelines presently in effect, and in accordance with his income.” The basis of the motion was that, on or about July 31, 1993, he had lost his only source of income, a consulting position, and that, although he had applied for unemployment benefits, he had not received confirmation that he would be awarded any such benefits.

The defendant’s motion for modification was heard by the trial court, Mihalakos, J., on November 15, 1993. The plaintiffs counsel represented to the court that the plaintiff was residing in North Carolina, that he had explained to her by telephone the previous week that the matter would proceed, that the plaintiff was “without funds ... to come to Connecticut to defend” against the motion, and that “apparently we are going to have to proceed in her absence.” Moreover, the plaintiffs counsel informed the court that he did not have a financial affidavit of the plaintiff, and that he did not know what she was earning because he had “not askfed] her.” When the defendant’s counsel represented to the court that the defendant was relying on the fact that, although he then was receiving unemployment compensation, he was “not working at all,” and that the defendant did not rely at all for his motion on “any of [the plaintiffs] income,” the trial court instructed the defendant to proceed.

The defendant testified that he had lost his last job at the end of July, and that he was receiving $325 per week as unemployment compensation from the state of New Jersey. He also testified that, because he had suffered a heart attack on October 17, 1993, on his physician’s advice he had not sought employment since he had been released from the hospital approximately two weeks earlier. After cross-examination by the plaintiffs counsel, the trial court found, from the defendant’s financial affidavit, that he had a net weekly income of approximately $150. Applying the child support guidelines, the court granted the defendant’s motion, reducing his support obligation to zero dollars.

At that point, the children’s counsel sought to be heard regarding the support obligation. The court denied her request. The children did not seek, through their counsel, the appointment of a guardian ad litem for purposes of taking an appeal, nor did their counsel take an appeal as their next friend. Instead, the minor children, represented by Domfeld, appealed from the modification of the judgment to the Appellate Court, claiming that the trial court had improperly: (1) refused to permit the children’s attorney to participate in the hearing; and (2) failed to consider certain statutory criteria regarding support for minor children.

The Appellate Court ultimately dismissed the minor children’s appeal, on the ground that the “appeal, brought in the name of the minor children, without a next friend or the appointment of a guardian ad litem, is improper.” Newman v. Newman, 35 Conn. App. 449, 453, 646 A.2d 885 (1994). Reasoning that, although the lack of a guardian ad litem or next friend for purposes of a minor child’s appeal is an amendable and waivable irregularity, the irregularity neither had been cured by amendment nor waived by the defendant in this case. Id., 453-54. Thus, the court concluded that “this appeal has not been brought properly because court-appointed counsel cannot prosecute this appeal on behalf of the children.” Id., 455. Accordingly, the court dismissed the appeal. Id.

We granted the minor children’s petition for certification, limited to the following issue: “Did the Appellate Court properly conclude that minor children, acting through counsel appointed pursuant to General Statutes § 46b-54 and not through a guardian ad litem or next friend, lack standing to appeal from a trial court’s order regarding their support?” Newman v. Newman, 231 Conn. 928, 648 A.2d 879 (1994). This appeal followed.

We note, initially, that our phrasing of this certified question was improper. The Appellate Court did not conclude that the minor children lacked standing to appeal. Although lack of standing, and thus lack of subject matter jurisdiction, had been one of the bases of the defendant’s motion to dismiss, it was not the basis of the Appellate Court’s dismissal. Because on certification our focus is generally on the judgment of the Appellate Court; see State v. Gilbert, 229 Conn. 228, 246, 640 A.2d 61 (1994); we rephrase the certified question as follows: “Did the Appellate Court properly conclude that an appeal by minor children, acting through counsel appointed pursuant to § 46b-54 and not through a guardian ad litem or next friend, is improper and is thus subject to dismissal?”

The minor children raise several closely related arguments in support of their right to appeal in their own name. First, they argue that “[t]here is ample precedent in Connecticut for considering children to be ‘parties’ in proceedings affecting their custody and care.” They point to certain statutes, which provide for the protection of children’s interests; see, e.g., General Statutes § 46b-56 (b) (requiring court, in making or modifying any order with respect to custody or visitation, to consider wishes of child, if child is of sufficient age and capable of forming intelligent preference); General Statutes § 46b-57 (requiring court, in making any order granting custody to third party, to consider the wishes of child, if child is of sufficient age and capable of forming intelligent preference); General Statutes § 46b-55 (b) (child, or his representative, bom during marriage but not issue of marriage may bring paternity action); General Statutes § 46b-37 (joint duty of each spouse to support his or her family); General Statutes § 46b-84 (following annulment or dissolution of marriage, parents of minor child shall maintain child according to their respective abilities, if child is in need of maintenance); General Statutes § 46b-215 (a) (child can bring petition for orders of support); General Statutes § 46b-54 (a) (court may appoint counsel to represent minor children in dissolution action); and General Statutes § 46b-54 (c), the statute pursuant to which Domfeld was appointed in this case; and certain of our precedents; see, e.g., Nye v. Marcus, 198 Conn. 138, 502 A.2d 869 (1985); Guille v. Guille, 196 Conn. 260, 492 A.2d 175 (1985); Salvio v. Salvio, 186 Conn. 311, 441 A.2d 190 (1982); Yontef v. Yontef, 185 Conn. 275, 440 A.2d 899 (1981); as evidence of legislative and judicial recognition “that children who are the subject of contested family relations matters have separate interests in the proceeding which are directly affected and to which injury may result.”

Second, the minor children argue that they are aggrieved by the trial court’s decision in two ways. They are statutorily aggrieved, they assert, because they have a statutory right to be supported by both parents pursuant to §§ 46b-37 and 46b-84, and the trial court’s decision deprives them of their right to be supported by the defendant, their father. They are classically aggrieved, they contend, because they have been deprived of their property rights without an opportunity for them to be heard by counsel.

Third, the minor children argue that they have the capacity to prosecute an appeal in this case, despite the absence of a guardian ad litem or next friend, because, where an attorney has been appointed to represent them pursuant to § 46b-54, the appointed attorney serves a function essentially similar to the guardian ad litem. Therefore, the minor children argue, to hold that the absence of either such a guardian or next friend is fatal to an appeal “is to elevate form over substance.” In their view, the fact that the appeal is brought by their attorney “satisfies any requirement that the children bring suit via an adult representative.”

Fourth, the minor children point out, as did the Appellate Court, that the absence from the appeal of a guardian ad litem or next friend is a mere irregularity that does not affect the Appellate Court’s jurisdiction. They contend, therefore, that the defendant’s motion to dismiss was untimely because the appeal had been filed on December 6, 1993, and the motion to dismiss was not filed until January 24, 1994, which was beyond the ten day time limit provided by Practice Book § 4056.

Finally, the minor children argue that, even if the common law requires a minor child to bring an action by a guardian ad litem or next friend, that common law rule does not apply to the filing of an appeal. Thus, they contend that their appeal is simply a continuation of the trial court action that was properly brought by the plaintiff, and that they are not saddled with any legal disability in continuing that action.

The defendant responds in kind. He argues first that the Appellate Court was correct in dismissing the appeal because the minor children were not parties to the underlying dissolution action. Thus, the defendant, reminding us that the right to appeal is purely statutory, contends that under General Statutes § 52-263 and Practice Book § 4000 only an aggrieved party may appeal, and that the parties to this action were the plaintiff and the defendant, and not the minor children.

Second, the defendant maintains that the minor children lacked standing to appeal because they did not act through a guardian or next friend. Because the minor children could not, by themselves, set the appellate machinery in motion, the defendant asserts, and because standing involves the legal right to set that machinery in motion, they lacked standing to appeal. In this respect, the defendant contests the minor children’s asserted functional equivalence between an attorney for minor children and a guardian ad litem or next friend, and the minor children’s argument that their appeal is simply a continuation of the trial court proceeding to which they were not parties.

Third, the defendant argues that, even if their lack of party status in the trial court and the absence of a guardian ad litem or next friend were not dispositive, the minor children lacked standing to appeal because they were not aggrieved by the trial court’s ruling. The defendant asserts that, because the order of support in this case is payable to the plaintiff, their mother, only she has a direct legal interest in the order, and that they “have at best an indirect practical interest.”

Finally, the defendant offers several policy considerations in support of the Appellate Court’s judgment. These are that permitting such an appeal: (1)“pits the children against their parents” — against their father by forcing him to destitution “probably without [their] knowing it,” and against their mother, who chose not to contest the modification — in contravention of the public policy against unwarranted intrusions into the family unit; (2) encourages the pursuit of “merely color-able claims though the chances of winning are slim and the expense prohibitive,” because “the children could not possibly suffer any harm from an appeal, not even an award of costs,” and an unprincipled attorney for a child might appeal solely to generate a fee; and (3) unduly burdens the legal system because “[w]hen a judge has made a decision, and the parties have decided to live with it, there is no reason to allow . . . minor children to contest it.”

Thus, both parties present this case as an all or nothing proposition. The minor children claim that they have an unrestricted right to appeal irrespective of the presence of a guardian ad litem or next friend. The defendant claims that the minor children have no right to appeal whatsoever, absent the presence of a guardian ad litem or next friend. We conclude, however, that the appropriate rule is somewhere in between: by analogy to § 46b-54, which articulates the standard for appointment of, and participation by, counsel for minor children in a dissolution of marriage case, the counsel for minor children in such a case may file an appeal on their behalf from an order regarding their support, without the intervention of a guardian ad litem or next friend, if the minor children first persuade the trial court that it is in their best interests to take such an appeal.

We begin our analysis by acknowledging the strength of the precedents and policies urged by the defendant. The right to appeal is purely statutory, and only an aggrieved party may appeal. Durso v. Misiorek, 200 Conn. 656, 660, 512 A.2d 917 (1986). In the context of dissolution actions, only those who were parties to the underlying dissolution action may appeal. Bergeron v. Mackler, 225 Conn. 391, 391-92 n.1, 623 A.2d 489 (1993). Moreover, “[ojrdinarily, the term party has a technical legal meaning, referring to those by or against whom a legal suit is brought . . . the party plaintiff or defendant . . . .” (Internal quotation marks omitted.) Lieberman v. Reliable Refuse Co., 212 Conn. 661, 669, 563 A.2d 1013 (1989). We implicitly have recognized that definition to exclude the minor children of parents involved in a dissolution action, absent some additional effort to make the children formal parties to that action. Salvio v. Salvio, supra, 186 Conn. 324.

Furthermore, the general rule is well established that “a child may bring a civil action only by a guardian or next friend, whose responsibility it is to ensure that the interests of the ward are well represented. Cottrell v. Connecticut Bank & Trust Co., 175 Conn. 257, 261, 398 A.2d 834 (1978); Collins v. York, 159 Conn. 150, 153, 267 A.2d 668 (1970). When a guardian has been appointed to protect the interests of a child, the guardian is usually the proper person to bring an action on behalf of the child. Williams v. Cleaveland, 76 Conn. 426, 434, 56 A. 850 (1904). There are, however, certain exceptional circumstances; Cottrell v. Connecticut Bank & Trust Co., supra, 263; when a child may properly sue by next friend, notwithstanding the existence of such guardian, as when the guardian is absent, or is unwilling or unable to institute or prosecute the required action or appeal, and especially when, though declining to take such action himself, he does not forbid such proceeding, or when he is disqualified by interest hostile to that of the infant, or is for other reasons an improper or unsuitable person to prosecute such actions on behalf of the ward. Williams v. Cleaveland, supra, 432. Although generally a person who brings an action as next friend need not obtain prior authorization from the court to do so; id., 433; McCarrick v. Kealy, 70 Conn. 642, 646, 40 A. 603 (1898); the court must determine whether the person seeking to represent the child as next friend is a proper or suitable person to make a claim on behalf of the child. Williams v. Cleaveland, supra, 433-34; McCarrick v. Kealy, supra, 646.” (Internal quotation marks omitted.) Orsi v. Senatore, 230 Conn. 459, 466-67, 645 A.2d 986 (1994).

Although these precedents limit the right of a minor child to bring an action in the trial court, we see no reason not to apply their principles to the right of appeal as well. As a general matter, there is no reason to afford a right of appeal greater than a right to sue in the first instance.

The policy arguments proffered by the defendant also have much to commend them. Affording the minor children in a dissolution action an unrestricted right to appeal orders regarding their support carries with it significant risks of widening the fissures in an already sorely tried family, and of imposing burdens on the noncustodial parent and the legal system that may well outweigh the potential benefits.

Furthermore, absent special circumstances; see, e.g., Salvio v. Salvio, supra, 186 Conn. 324; there are good reasons not to consider the minor children as “parties” to the dissolution action or to require that they formally be made such parties. Treating the children as parties might well force them to choose sides and thus threaten to exacerbate their already heavy emotional burden, and would add a level of participation — even if only symbolic in most cases — that is inconsistent with a wise attempt to shield them as much as reasonably possible from the legal aspects of their parents’ conflicts.

Additionally, we are concerned about creating conflict in the attorney’s role by conflating the role of counsel for a child with the role of a guardian ad litem or next friend. Typically, the child’s attorney is an advocate for the child, while the guardian ad litem is the representative of the child’s best interests. As an advocate, the attorney should honor the strongly articulated preference regarding taking an appeal of a child who is old enough to express a reasonable preference; as a guardian, the attorney might decide that, despite such a child’s present wishes, the contrary course of action would be in the child’s long term best interests, psychologically or financially. We recognized a similar concern in State v. Garcia, 233 Conn. 44, 90 n.36, 658 A.2d 947 (1995), in which we concluded that, because his legal interests and medical interests may diverge, an incompetent criminal defendant should have both legal counsel to represent his legal, or expressed, interests, and a guardian appointed to represent his medical, or best, interests. See also A. Lurie, “Representing the Child-Client: Kids are People Too,” 11 N.Y.L. Sch. J. Hum. Rts. 205 (1993). Accordingly, we recognize that to the extent we allow the children to take an appeal through counsel, and not next friend or guardian, we can only allow such an appeal where such conflicts will not arise.

At the same time, however, there is considerable persuasive power to much of what the minor children offer in support of their position. Although they are not parties to the underlying dissolution action, it cannot be denied that our statutes and precedents regarding the appointment of an attorney to represent their interests in dissolution proceedings do constitute legislative and judicial recognition that the orders entered by the trial courts in such proceedings may affect those interests. Furthermore, the fact that, in the trial court, the law deems it sufficient to protect those interests by way of an appointment of an attorney, rather than also requiring a simultaneous appointment of a guardian ad litem or the naming of a next friend, is an implicit recognition that, under most circumstances, that attorney is an appropriate adult to provide such protection. Also, contrary to the argument of the defendant that the minor children could not be aggrieved in this case because the defendant’s legal obligation of support runs only to the plaintiff, the legal obligation of support for minor children runs, not solely to the custodial parent, but directly to the children as well. See In re Bruce R., 234 Conn. 194, 209-10, 662 A.2d 107 (1995).

These considerations supporting the position of the minor children in this appeal are sufficient to persuade us that there may be circumstances in which the precedents and policies in favor of the general rule should give way to a right of appeal in the minor children without the necessity of an appointment of a guardian ad litem or the naming of a next friend. For example, the custodial parent may not have the will or the wherewithal to prosecute an appeal, even if the court were to order the other party to pay attorney’s fees for such an appeal; see Miller v. Kirshner, 225 Conn. 185, 210, 621 A.2d 1326 (1993) (court may award attorney’s fees to prosecute appeal); and where the ruling at issue significantly and adversely may affect the child’s interest in being provided with adequate support. In such a case, unless an appeal is permitted that interest may go unprotected.

Why, then, it may be asked, is it necessary in such a case to permit the minor children to appeal through their attorney, rather than simply to require them to secure the appointment of a guardian ad litem or the naming of a next friend — who conceivably could be the same attorney? The answer is that, if the law were to require that course in such a case, the law would be elevating form over substance. Presumably, if the trial court were to be asked to appoint a guardian ad litem or to pass upon the naming of a next friend; see Orsi v. Senatore, supra, 230 Conn. 467; solely for the purpose of permitting such an appeal, the court in doing so would have to take into account the best interests of the child. Anything less would be an abdication of the court’s independent obligation for the welfare of the children before it, an obligation that has deep roots in our jurisprudence. See Apthorp v. Backus, 1 Kirby (Conn.) 407, 409-10 (1788) (“the court under whose inspection the suit [by a minor’s next friend] is prosecuted, is bound to take care for the infant; and if the prochein ami is not a responsible and proper person, or misconducts the suit, or institutes one not apparently for the benefit of the infant, will displace him, and, if need be, appoint another”). Thus, in such a case, if the court were to conclude that the attorney for the minor child would be a proper person to be named as guardian ad litem or next friend for purposes of taking an appeal, requiring the additional step of formally appointing the attorney as guardian ad litem or approving the attorney as next friend would add nothing substantive to the minor children’s rights.

We conclude, therefore, that there is a need for a rule that will accommodate both the precedents and policies that we have outlined in favor of the general rule requiring that minor children may appeal only through a guardian or next friend and the limited circumstances where those precedents and policies may not sufficiently protect the best interests of the minor children. The question, then, is how to formulate that rule.

“It is when the colors do not match, when the references in the index fail, when there is no decisive precedent, that the serious business of the judge begins.” B. Cardozo, The Nature of the Judicial Process (1921) p. 21. In this case, the colors do not match, and we are called upon to exercise our creativity as common law judges to create an exception to the general rule that will accomplish the accommodation between, on one hand, prior precedent and policies and, on the other hand, the perceived need for a rule that will fill the interstices of those precedents and policies.

We find that accommodation in the contours of § 46b-54. See footnote 1. That statute governs the appointment of, and the degree of participation by, counsel for minor children in a dissolution action between their parents. It provides in relevant part that the court may appoint such counsel “if the court deems it to be in the best interests of the child or children”; General Statutes § 46b-54 (a); and that such counsel “shall be heard on all matters pertaining to the interests of any child ... so long as the court deems such representation to be in the best interests of the child.” General Statutes § 46b-54 (c). Under this statute, therefore, the governing standard is the best interests of the minor children.

Using that statutory standard for a determination of when minor children may appeal without the necessity of the court appointing a guardian ad litem or passing upon the naming of a next friend, we hold that they may do so if the minor children first persuade the trial court that such an appeal is in their best interests. Although the children were not parties to the trial court action, we are persuaded that their interests were sufficiently implicated by the ruling at issue that, if the trial court determines that such an appeal is in their best interests, they ought to be deemed to be parties for purposes of taking that appeal pursuant to General Statutes § 52-263 and Practice Book § 4000. As we explain in more detail below, this standard ought to accommodate both the reasons for the general rule that a child may act only by a guardian or next friend and the limited circumstances in which the general rule arguably would prohibit an appeal that otherwise should be permitted.

We have on occasion looked to statutes as a source of policy for common law adjudication, particularly where there is a close relationship between the statutory and common law subject matters. See Fahy v. Fahy, 227 Conn. 505, 514-16, 630 A.2d 1328 (1993) (modification of alimony need not be based on change of circumstances not contemplated at time of original order), and the authorities cited therein. “We consider this case to be a similarly appropriate instance for this adjudicative technique.” Id., 514.

There is a close relationship between the protection of the interests of minor children in the trial court and the need for similar protection of those interests by way of an appeal from a trial court order regarding the support of those children, when no other appeal aimed at protection of those interests is being prosecuted. Thus, both ought to be governed by the same standard, namely, the best interests of the children.

Furthermore, although the right of appeal is purely statutory pursuant to § 52-263, the definition of aggrievement for purposes of determining whether a party may appeal from a final judgment had its inception, and consistently has been applied as, a judicial, common law gloss on the term “aggrievement” in that statute, rather than having been drawn from any particular statutory definition or origin. See Waterbury Trust Co. v. Porter, 130 Conn. 494, 498-99, 35 A.2d 837 (1944); cf. Water Pollution Control Authority v. Dept. of Environmental Protection, 234 Conn. 488, 493, 662 A.2d 124 (1995). Thus, just as in Fahy, wherein we relied on the fact that a statutory requirement had its inception in judicial, common law adjudication, in this case we rely on the fact that the statutory concept of aggrievement has a similar origin. Moreover, the general rule requiring the appointment of a guardian or next friend for a minor to prosecute an action or appeal is a common law, judicially created rule, and is not statutory in origin. See Apthorp v. Backus, supra, 1 Kirby 409. Thus, there is no jurisprudential impediment to creating, by way of common law adjudication, an exception to that rule.

There may be instances in which the functions of counsel for minor children differ fundamentally from those of a guardian ad litem; see Knock v. Knock, 224 Conn. 776, 791, 621 A.2d 267 (1993) (“[t]he legislature has not delineated, nor has this court yet been presented with the opportunity to delineate, the obligations and limitations of the role of counsel for a minor child”); and before the trial court determines that the children should be allowed to take an appeal, it must be persuaded that, under the circumstances of the case before it, the children’s attorney will not experience a conflict between her role as an advocate and the children’s best interests. In other words, for the trial court to determine that the children may take an appeal, the court must consider and determine on the record that there is no conflict between the children’s best interests and the children’s articulated preference to bring the appeal. Such a finding is necessary to make sine that the attorney for the children will not be faced with the dilemma of reconciling such diverging interests while conforming to her role as advocate.

We turn next to the defendant’s contention that the absence of a guardian ad litem or next Mend deprives the minor children of standing to appeal because, in the absence of such representatives, the minor children have no right to set the appellate machinery in motion. We disagree, because that contention is inconsistent with the precedents that recognize the requirement of such representatives. Lack of standing is a subject matter jurisdictional defect that cannot be waived. Sadloski v. Manchester, 228 Conn. 79, 83-84, 634 A.2d 888 (1993). As the Appellate Court aptly noted, however, “the bringing of an action for the minor child without the aid of a next Mend or guardian ad litem is an amendable irregularity which could be waived. Collins v. York, [supra, 159 Conn. 154].” (Internal quotation marks omitted.) Newman v. Newman, supra, 35 Conn. App. 453-54. Thus, the lack of a guardian or next Mend does not deprive the children of standing to appeal.

We also conclude that, ordinarily, minor children will qualify as “aggrieved” by a trial court order that significantly diminishes or, as in this case, eliminates the amount of support payable for their benefit by the noncustodial parent to the custodial parent. The two part test for aggrievement by a particular decision is well established. First, the person claiming to be aggrieved must have a specific, personal and legal interest in the subject matter of the decision, as distinguished from the general interest of the community as a whole. Second, the person must establish that his or her interest has been specially and injuriously affected by the decision. Water Pollution Control Authority v. Dept. of Environmental Protection, supra, 234 Conn. 494. Moreover, with respect to the second part, the person need only establish a possibility, rather than a probability or certainty, of such injury. Rose v. Freedom of Information Commission, 221 Conn. 217, 230, 602 A.2d 1019 (1992).

As we have indicated, the first part of the test is met in a case such as this because the parent’s support obligation runs, not only to the noncustodial parent, but directly to the minor children as well. The second part ordinarily also would be met by an order reducing or eliminating a support obligation, because there would be at least a possibility that the reduction or elimination of the amount of support payable by the noncustodial parent would mean a reduction in the total amount of money available to provide for such commonly indivisible items as food and shelter for the custodial family unit of which the minor children are a part.

Finally, we turn to the nature of the trial court’s considerations in determining whether to authorize an appeal under the standards that we have articulated. Without attempting to limit the trial court’s examination of all of the available facts and circumstances regarding whether to authorize an appeal by minor children from a trial court support order, we suggest the following as some of those factors: the nature of the particular trial court order at issue; whether there is likely to be an appeal of the order, irrespective of that requested by the minor children; the desires of the parent who would otherwise be an appellant but who does not intend to file such an appeal, and the reasons for that intention; whether the particular risks that underlie the general rule are likely to be realized by permitting such an appeal in the particular case; the potential for conflicts to arise between the best interests of the children and their desire to prosecute the appeal; the good faith of the attorney making the request for such an appeal on behalf of the children; the degree to which an appeal will unduly drain resources that could be better spent on the children; and whether there is any reasonable basis for such an appeal. We emphasize that this list is not exhaustive. The range of factors to be considered by the trial court is limited only by the applicable standard of the best interests of the children.

In summary, we conclude that the general rule is that minor children may not appeal from a trial court order in a dissolution case regarding their support in the absence of a guardian or next friend. An exception to that rule is that the counsel for the minor children appointed pursuant to § 46b-54 may file such an appeal on their behalf if the children, through their counsel, first persuade the trial court that it is in their best interests to do so. The court should take all available information into account in making that determination. If the court grants the request, the minor children will be deemed to be parties within the contemplation of General Statutes § 52-263 and Practice Book § 4000. If the court denies the request, the court’s ruling will be subject to appellate review under an abuse of discretion standard. See footnote 17.

Because the minor children took this appeal without the benefit of this new exception to the general rule, they must be given the opportunity to meet the requirements that we have now articulated. The case must therefore be remanded to the trial court for that determination.

The judgment of the Appellate Court is reversed, and the case is remanded to that court with direction to remand the case to the trial court for further proceedings in accordance with this opinion.

In this opinion Peters, C. J., and Callahan and Katz, Js., concurred.

BERDON, J.,

concurring. I agree with the majority that an attorney appointed for a minor child pursuant to General Statutes § 46b-54 may appeal on behalf of the child any judgment of the trial court that affects the child, provided the trial court determines that such an appeal is in the child’s best interests.

I reach this conclusion, however, based solely on § 46b-54, which authorizes the trial judge to appoint an attorney for the minor child. First, § 46b-54 does not condition the court’s power to appoint an attorney for the child on the presence of a guardian ad litem or next friend. Second, according to the plain meaning of the statute, once an attorney is appointed for the child, he or she gains the status of a de facto party, the only limitation being that the court must consider the best interests of the child when deciding on which matters the attorney will be heard. General Statutes § 46b-54 (c) (“[c]ounsel for the child or children shall be heard on all matters pertaining to the interests of any child, including the custody, care, support, education and visitation of the child, so long as the court deems such representation to be in the best interests of the child” [emphasis added]). It would defy common sense to interpret the statute to provide for the protection of a child’s best interests only at trial and not during subsequent related proceedings. In my view, the broad language of the statute includes the right of the attorney on behalf of his or her minor client to appeal, subject to the approval of the trial court.

Section 46b-54 acknowledges what authorities on the subject have widely recognized — the need for children to be permitted separate party status and representation in divorce and custody proceedings. See J. Goldstein, A. Freud & A. Solnit, Beyond the Best Interests of the Child (1979) pp. 65-67 (regarding custody of child, “court cannot do ‘complete justice’ unless the child is recognized as a necessary, indeed, indispensable party to the proceedings .... This is because children, far from sharing the adults’ concerns, are frequently put in direct conflict . . . [and] their rights cannot be represented adequately by either the adult claimant or the adult defendant. . . .”); see also S. Lefco, “The Child as a Party in Interest in Custody Proceedings,” 10 Ga. St. B.J. 577, 581 (1974) (permitting only parental parties in divorce proceedings to argue their own most favorable positions often overlooks best interests of child; similarly court often “rubber stamps” settlement agreement between parties subordinating best interests of child to interests of parents).

I recognize that very complex issues may arise in circumstances in which a child, without a guardian ad litem or next friend, is represented by an attorney appointed pursuant to § 46b-54. Nevertheless, none of these issues has been raised in this appeal. Furthermore, there is no evidence that by advocating the children’s entitlement to support in this case, the children’s attorney was not acting in their best interests. Therefore, such a conflict is not at issue here and those issues must be left for another day.

Accordingly, I agree with the result.

       General Statutes § 46b-54 provides: “Counsel for minor children. Duties, (a) The court may appoint counsel for any minor child or children of either or both parties at any time after the return day of a complaint under section 46b-45, if the court deems it to be in the best interests of the child or children. The court may appoint counsel on its own motion, or at the request of either of the parties or of the legal guardian of any child or at the request of any child who is of sufficient age and capable of making an intelligent request.
      “(b) Counsel for the child or children may also be appointed on the motion of the court or on the request of any person enumerated in subsection (a) of this section in any case before the court when the court finds that the custody, care, education, visitation or support of a minor child is in actual controversy, provided the court may make any order regarding a matter in controversy prior to the appointment of counsel where it finds immediate action necessary in the best interests of any child.
      “(c) Counsel for the child or children shall be heard on all matters pertaining to the interests of any child, including the custody, care, support, education and visitation of the child, so long as the court deems such representation to be in the best interests of the child.”

       Thus, in this case we reach and decide the issue that we found unnecessary to decide in Knock v. Knock, 224 Conn. 776, 777 n.1, 621 A.2d 267 (1993) (“[bjecause the minor child’s claims on appeal are also raised by the plaintiff, we need not decide whether the minor child is a party to this action and capable of individually appealing”).

        Newman v. Newman, 231 Conn. 928, 648 A.2d 879 (1994).

       The plaintiff has not participated in this appeal.

       The defendant had appealed from the judgment of the trial court, Hull, J., and that appeal was pending at the time of the hearing on the motion to modify in this case. The defendant subsequently withdrew that appeal.

       The defendant’s financial affidavit disclosed deductions from his weekly unemployment compensation of $65 in income taxes, and $110 m court-ordered health insurance payments.

       The following colloquy tookplace: “Ms. Dornfeld: I didhave afewquestions for Mr. Newman on cross that I had not—
      “The Court: About what?
      “Ms. Domfeld: About his financial affidavit.
      “The Court: Why? You represent the children.
      “Ms. Dornfeld: Yes, Your Honor, and—
      “The Court: Denied. You may take an appeal from that.”

       The defendant had moved to dismiss the appeal, claiming that the Appellate Court had no subject matter jurisdiction because of the lack of either a guardian ad litem or next friend. The defendant “contended that the minor children lacked standing to appeal, as they were not parties to the dissolution action and that, due to their status as minors, they could appeal only through a guardian [ad litem] or next friend.” Newman v. Newman, 35 Conn. App. 449, 450, 646 A.2d 885 (1994). The court denied the motion to dismiss without prejudice to the defendant’s raising it at oral argument. Id., 451.

       Indeed, the Appellate Court specifically did “not reach the issue of whether the children were aggrieved by the decision determining their support and whether they were, or must be, parties to the action in order to appeal.” Newman v. Newman, supra, 35 Conn. App. 455.

       General Statutes § 46b-37 provides: “Joint duty of spouses to support family. Liability for purchases and certain expenses. Abandonment, (a) Any purchase made by either a husband or wife in his or her own name shall be presumed, m the absence of notice to the contrary, to be made by him or her as an individual and he or she shall be liable for the purchase.
      “(b) Notwithstanding the provisions of subsection (a) of this section, it shall be the joint duty of each spouse to support his or her family, and both shall be liable for: (1) The reasonable and necessary services of a physician or dentist; (2) hospital expenses rendered the husband or wife or minor child while residing in the family of its parents; (3) the rental of any dwelling unit actually occupied by the husband and wife as a residence and reasonably necessary to them for that purpose; and (4) any article purchased by either which has in fact gone to the support of the family, or for the joint benefit of both.
      “(c) Notwithstanding the provisions of subsection (a) of this section, a spouse who abandons his or her spouse without cause shall be liable for the reasonable support of such other spouse while abandoned.
      “(d) No action may be maintained against either spouse under the provisions of this section, either during or after any period of separation from the other spouse, for any liability incurred by the other spouse during the separation, if, during the separation the spouse who is liable for support of the other spouse has provided the other spouse with reasonable support.
      “(e) Abandonment without cause by a spouse shall be a defense to any liability pursuant to the provisions of subdivisions (1) to (4), inclusive, of subsection (b) of this section for expenses incurred by and for the benefit of such spouse. Nothing in this subsection shall affect the duty of a parent to support his or her minor child.”

       General Statutes § 46b-84 provides: “Parents’ obligation for maintenance of minor child. Order for health insurance coverage, (a) Upon or subsequent to the annulment or dissolution of any marriage or the entry of a decree of legal separation or divorce, the parents of a minor child of the marriage, shall maintain the child according to their respective abilities, if the child is in need of maintenance.
      “(b) If there is an unmarried child of the marriage who has attained the age of eighteen, is a full-time high school student and resides with a parent, the parents shaE maintain the child according to their respective abüities if the child is in need of maintenance until such time as such child completes the twelfth grade or attains the age of nineteen, whichever first occurs. The provisions of this subsection shall apply only in cases where the decree of dissolution of marriage, legal separation or annulment is entered on or after July 1, 1994.
      “(c) In determining whether a child is in need of maintenance and, if in need, the respective abilities of the parents to provide such maintenance and the amount thereof, the court shall consider the age, health, station, occupation, earning capacity, amount and sources of income, estate, vocational skills and employability of each of the parents, and the age, health, station, occupation, educational status and expectation, amount and sources of income, vocational skills, employability, estate and needs of the child.
      “ (d) At any time at which orders are entered in a proceeding for dissolution of marriage, annulment, legal separation, custody, or support, whether before, at the time of, or after entry of a decree or judgment, if health insurance coverage for a child is ordered by the court to be maintained, the court shall provide in the order that (1) the signature of the custodial parent or custodian of the insured dependent shall constitute a valid authorization to the insurer for purposes of processing an insurance reimbursement payment to the provider of the medical services, to the custodial parent or to the custodian, (2) neither parent shall prevent or interfere with the timely processing of any insurance reimbursement claim and (3) if the parent receiving an insurance reimbursement payment is not the parent or custodian who is paying the bill for the services of the medical provider, the parent receiving such insurance reimbursement payment shall promptly pay to the parent or custodian paying such bill any insurance reimbursement for such services. For purposes of subdivision (1), the custodial parent or custodian is responsible for providing the insurer with a certified copy of the order of dissolution or other order requiring maintenance of insurance for a child provided if such custodial parent or custodian fails to provide the insurer with a copy of such order, the commissioner of social services may provide the insurer with a copy of such order. Such insurer may thereafter rely on such order and is not responsible for inquiring as to the legal sufficiency of the order. The custodial parent or custodian shall be responsible for providing the insurer with a certified copy of any order which materially alters the provision of the original order with respect to the maintenance of insurance for a child. If presented with an insurance reimbursement claim signed by the custodial parent or custodian, such insurer shall reimburse the provider of the medical services, if payment is to be made to such provider under the policy, or shall otherwise reimburse the custodial parent or custodian.
      “(e) After the granting of a decree annulling or dissolving the marriage or ordering a legal separation, and upon complaint or motion with order and summons made to the superior court by either parent or by the commissioner of administrative services in any case arising under subsection (a) or (b) of this section, the court shall inquire into the child’s need of maintenance and the respective abilities of the parents to supply maintenance. The court shall make and enforce the decree for the maintenance of the child as it considers just, and may direct security to be given therefor, including an order to either party to contract with a third party for periodic payments or payments contingent on a life to the other party. The court may order either parent to name any child who is subject to the provisions of subsection (a) or (b) of this section as a beneficiary of any medical or dental insurance or benefit plan carried by such parent or available to such parent on a group basis through an employer or a union.
      “(f) Whenever an obligor is before the court in proceedings to establish, modify or enforce a support order, and such order is not secured by a wage garnishment, the court may require the obligor to execute a bond or post other security sufficient to perform such order for support, provided the court finds that such a bond is available for purchase within the financial means of the obligor. Upon failure of such obligor to comply with such support order, the court may order the bond or the security forfeited and the proceeds thereof paid to the state in AFDC cases or to the obligee in non-AFDC cases.”

       Practice Book § 4056 provides: “Any claim that an appeal or writ of error should be dismissed, whether based on lack of jurisdiction, failure to file papers within the time allowed or other defect, shall be made by a motion to dismiss the appeal or writ. Any such motion must be filed in accordance with Secs. 4041 and 4042 within ten days after the filing of the appeal or the return day of the writ, or if the ground alleged subsequently occurs, within ten days after it has arisen, provided that a motion based on lack of jurisdiction may be filed at any time. The court may on its own motion order that an appeal be dismissed for lack of jurisdiction.”

       Some of the defendant’s arguments consist of responses to the certified question as originally phrased. Some are presented in effect as alternate grounds on which to affirm the Appellate Court’s judgment. We consider all of the arguments together.

       General Statutes § 52-263 provides: “Appeals from superior court. Exceptions. Upon the trial of all matters of fact in any cause or action in the superior court, whether to the court or jury, or before any judge thereof when the jurisdiction of any action or proceeding is vested in him, if either party is aggrieved by the decision of the court or judge upon any question or questions of law arising in the trial, including the denial of a motion to set aside a verdict, he may appeal to the court having jurisdiction from the final judgment of the court or of such judge, or from the decision of the court granting a motion to set aside a verdict, except in small claims cases, which shall not be appealable, and appeals as provided in sections 8-8 and 8-9.”

       Practice Book § 4000 provides: “If a party is aggrieved by the decision of the court or judge upon any question or questions of law arising in the trial, including the denial of a motion to set aside a verdict, that party may appeal from the final judgment of the court or of such judge, or from a decision setting aside a verdict, except in small claims cases, which shall not be appealable, and appeals as provided in Gen. Stat. §§ 8-8,8-9,8-28 and 8-30.”

       The defendant in no way implies that this is the case in this appeal and, indeed, describes the children’s counsel here as “highly principled.”

       In this respect, we also borrow from General Statutes § 52-470 (b), which permits a habeas corpus litigant to appeal upon a certification by the trial court “that a question is involved which . . . ought to be reviewed” on appeal. Similarly, if in a given case the trial court granted or denied the minor children’s request to prosecute an appeal without either a guardian ad litem or next friend, that grant or denial would be subject to review on appeal under an abuse of discretion standard. Cf. Simms v. Warden, 229 Conn. 178, 198-99, 640 A.2d 601 (1994).

       General Statutes § 46b-54 provides: “Counsel for minor children. Duties, (a) The court may appoint counsel for any minor child or children of either or both parties at any time after the return day of a complaint under section 46b-45, if the court deems it to be in the best interests of the child or children. The court may appoint counsel on its own motion, or at the request of either of the parties or of the legal guardian of any child or at the request of any child who is of sufficient age and capable of making an intelligent request.
      “(b) Counsel for the child or children may also be appointed on the motion of the court or on the request of any person enumerated in subsection (a) of this section in any case before the court when the court finds that the custody, care, education, visitation or support of a minor child is in actual controversy, provided the court may make any order regarding a matter in controversy prior to the appointment of counsel where it finds immediate action necessary in the best interests of any child.
      “ (c) Counsel for the child or children shall be heard on all matters pertaining to the interests of any child, including the custody, care, support, education and visitation of the child, so long as the court deems such representation to be in the best interests of the child.”


source: Caselaw Access Project

author: KATZ, J. BERDON, J.,

license: Public Domain

text:
    HARRY CHILDS v. FRANK BAINER
    (15048)
    Borden, Berdon, Norcott, Katz and Palmer, Js.
    Argued May 26
    decision released August 15, 1995

      Katherine C. Callahan, with whom, on the brief, were Karen P. Blado, Robert R. Simpson and David A. Sylvestre, for the appellant (defendant).

      James A. Mulhall, Jr., with whom was Kevin T. Nixon, Sr., for the appellee (plaintiff).
   KATZ, J.

The sole issue on appeal is whether a trial court is required to grant an additur in a personal injury case in which the jury has awarded to the prevailing party economic damages but no noneconomic damages. The plaintiff, Harry Childs, had alleged and attempted to prove at trial that the negligent driving of the defendant, Frank Bainer, had caused him to sustain damages resulting from personal injuries. The jury returned a verdict in favor of the plaintiff and awarded him economic damages only. Because the jury had failed to award noneconomic damages, the plaintiff, pursuant to General Statutes § 52-228b, filed a motion with the trial court for an additur and, alternatively, to set aside the verdict as to damages only. The trial court denied the plaintiffs motion, and the plaintiff appealed from the judgment to the Appellate Court.

The Appellate Court held that the trial court had improperly denied the plaintiffs motion, determining that an award of economic damages coupled with an award of zero noneconomic damages is inadequate as a matter of law. The Appellate Court reversed the judgment and remanded the case “for further proceedings to determine a reasonable additur for noneconomic damages, to give the parties an opportunity to accept the additur, and, if they do not accept the additur, a new trial is ordered as to all issues.” Childs v. Bainer, 35 Conn. App. 301, 305, 645 A.2d 1041 (1994). We granted the defendant’s petition for certification to consider the following question: “Is it an abuse of discretion for a trial court to refuse an additur in a personal injury case in which the jury awarded economic damages but no noneconomic damages?” Childs v. Bainer, 231 Conn. 924, 648 A.2d 162 (1994). We conclude that the trial court did not abuse its discretion in denying the motion for additur in this case and, therefore, we reverse the judgment of the Appellate Court.

The following facts are relevant to this appeal. The plaintiff commenced an action against the defendant seeking damages for personal injuries allegedly arising from a rear end collision caused by the defendant. The plaintiff claimed that, as a result of the defendant’s negligent driving, the plaintiff “was thrown about the interior of his car and sustained bruises, contusions, lacerations and abrasions about his body and an acute strain/sprain of the cervical and lumbosacral area of the spine and from said injuries has suffered great pain and will continue so to suffer for the rest of his life.” The plaintiff claimed that as a direct result of these injuries, he incurred medical expenses for hospitalization, doctor’s care, drugs and medication, and would continue to incur such expenses in the future. The plaintiff also claimed a loss of earnings and earning capacity, which losses would also continue in the future. The defendant denied that he had been negligent and that he had caused the accident, stating that any injuries sustained by the plaintiff were the result of the plaintiffs own negligence and carelessness.

It is undisputed that at trial, the plaintiff claimed medical expenses of $5129, lost earnings of $14,000, and damages for pain and suffering. In support of his claims, the plaintiff submitted evidence of an injury to his shoulder, which resolved itself within one week of the collision, a neck injury, which healed within five months of the collision, and a lower back injury, which left him with a 12 percent permanent disability as a result of the collision. The plaintiff did not claim property damage.

The defendant submitted evidence to rebut the plaintiffs claims, including: an emergency room report, which did not disclose the existence of any bruises, contusions, lacerations or abrasions on the plaintiff following the collision; statements made by the plaintiff to emergency room medical staff that his body had not come into contact with any part of his car; evidence that he had returned to work at his nursery and landscaping job the day after the accident; evidence that the plaintiff did not take painkilling medications despite his allegations of significant pain; emergency room and radiology reports on the day of the accident showing that the plaintiffs only complaint had concerned his neck and shoulder; a diagnosis from the plaintiffs doctor that the neck was “doing fine” and that the plaintiff suffered no permanent disability of the neck; and photographs of the plaintiff lifting large cabinets soon after the collision. In short, the extent and duration of the plaintiffs injuries were “hotly contested.”

The jury returned a verdict in favor of the plaintiff and awarded him $3649 in economic damages, but did not award any noneconomic damages. Thereafter, the plaintiff requested that the trial court order an additur or, if the defendant failed to accept the additur, set aside the verdict as to damages only. The trial court denied the motion, finding that “the award [was] not manifestly unjust and palpably against the evidence.” The plaintiff appealed from the judgment to the Appellate Court.

On appeal, the plaintiff claimed that an award of more than nominal economic damages coupled with an award of zero noneconomic damages in an action seeking damages for personal injuries is inadequate as a matter of law. The Appellate Court agreed with the plaintiff and reversed the trial court’s judgment. Childs v. Bainer, supra, 35 Conn. App. 305. The question before this court is whether the Appellate Court improperly imposed a per se rule that an award of economic damages must be coupled with an award of noneconomic damages. The defendant argues that the decision to order an additur is a matter of judicial discretion and that the trial court did not abuse its discretion in light of the conflicting and insubstantial evidence of injury presented at trial. We agree with the defendant and reverse the judgment of the Appellate Court.

“In an appeal following certification, the focus of our review is not the actions of the trial court, but the actions of the Appellate Court.” (Internal quotation marks omitted.) Cahn v. Cahn, 225 Conn. 666, 671, 626 A.2d 296 (1993). We must determine, therefore, whether the Appellate Court improperly concluded, as a matter of law, that a plaintiffs personal injury verdict is defective if the jury awards greater than nominal economic damages but zero noneconomic damages.

We accord great deference to a jury’s award of damages. “Litigants have a constitutional right to have factual issues determined by the jury. This right embraces the determination of damages when there is room for a reasonable difference of opinion among fair-minded persons as to the amount that should be awarded. . . . This right is ‘one obviously immovable limitation on the legal discretion of the court to set aside a verdict, since the constitutional right of trial by jury includes the right to have issues of fact as to which there is room for a reasonable difference of opinion among fair-minded men passed upon by the jury and not by the court.’ . . . The amount of a damage award is a matter peculiarly within the province of the trier of fact, in this case, the jury.” Mather v. Griffin Hospital, 207 Conn. 125, 138, 540 A.2d 666 (1988). Similarly, “[t]he credibility of witnesses and the weight to be accorded to their testimony lie within the province of the jury.” Desmarais v. Pinto, 147 Conn. 109, 110, 157 A.2d 596 (1960). “In considering a motion to set aside the verdict, the court must determine whether the evidence, viewed in the light most favorable to the prevailing party, reasonably supports the jury’s verdict. Campbell v. Gould, 194 Conn. 35, 41, 478 A.2d 596 (1984).” (Internal quotation marks omitted.) Skrzypiec v. Noonan, 228 Conn. 1, 10, 633 A.2d 716 (1993).

“The trial court’s refusal to set aside the verdict or to order an additur is entitled to great weight and every reasonable presumption should be given in favor of its correctness. In reviewing the action of the trial court in denying the motions for additur and to set aside the verdict, our primary concern is to determine whether the court abused its discretion and we decide only whether, on the evidence presented, the j ury could fairly reach the verdict they did. The trial court’s decision is significant because the trial judge has had the same opportunity as the jury to view the witnesses, to assess their credibility and to determine the weight that should be given to their evidence. Moreover, the trial judge can gauge the tenor of the trial, as we, on the written record, cannot, and can detect those factors, if any, that could improperly have influenced the jury. . . . Our task is to determine whether the total damages awarded falls somewhere within the necessarily uncertain limits of fair and reasonable compensation in the particular case . . . .” (Citations omitted; internal quotation marks omitted.) Ginsberg v. Fusaro, 225 Conn. 420, 430-31, 623 A.2d 1014 (1993); accord Skrzypiec v. Noonan, supra, 228 Conn. 10-11; Malmberg v. Lopez, 208 Conn. 675, 679-80, 546 A.2d 264 (1988).

“If, on the evidence, the jury could reasonably have decided as they did, [the reviewing court] will not find error in the trial court’s acceptance of the verdict . . . . However, it is the court’s duty to set aside the verdict when it finds that it does manifest injustice, and is . . . palpably against the evidence. . . .” (Internal quotation marks omitted.) Malmberg v. Lopez, supra, 208 Conn. 679-80. “The only practical test to apply to a verdict is whether the award of damages falls somewhere within the necessarily uncertain limits of fair and reasonable compensation in the particular case, or whether the verdict so shocks the sense of justice as to compel the conclusion that the jury were influenced by partiality, mistake or corruption.” (Internal quotation marks omitted.) Wood v. Bridgeport, 216 Conn. 604, 611, 583 A.2d 124 (1990). “It is the function of this court to determine whether the trial court abused its discretion in denying [a party’s] motion. ... In reviewing this issue, our sole responsibility is to decide whether, on the evidence presented, the jury could fairly have reached the conclusion it did. Wu v. Fairfield, 204 Conn. 435, 440, 528 A.2d 364 (1987).” (Citations omitted; internal quotation marks omitted.) Skrzypiec v. Noonan, supra, 228 Conn. 11.

We have previously explored the parameters of a trial court’s discretion in ruling on a motion for additur. We have considered whether: (1) the jury award “shocks the conscience”; Fazio v. Brown, 209 Conn. 450, 551 A.2d 1227 (1988) (award of $15,570, reduced to $10,899 based upon contributory negligence of plaintiff, so inconsistent with severity of injuries that trial court did not abuse its discretion in granting additur to result in net verdict of $95,200); see Buckman v. People Express, Inc., 205 Conn. 166, 530 A.2d 596 (1987) (abuse of discretion to deny motion for remittitur to reduce “exorbitant” award of $51,595.94, where special damages totaled only $1595.94 and plaintiff suffered emotional distress only as result of defendant’s failure to allow plaintiff, following his discharge from employment, to continue group health insurance as required by General Statutes § 38-262d); (2) the plaintiff, who has proved substantial injuries, is awarded inadequate damages; Johnson v. Franklin, 112 Conn. 228, 229, 152 A. 64 (1930) (where jury awards exact amount of special damages and there is no allowance for pain or substantial physical injuries, trial court abused discretion in denying motion to set aside verdict); and (3) the verdict is “inherently ambiguous.” Malmberg v. Lopez, supra, 208 Conn. 675 (abuse of discretion to deny motion to set aside verdict in favor of plaintiff who had been awarded zero damages). We conclude that these considerations were not implicated in this case, and that the plaintiff has failed otherwise to demonstrate an abuse of the trial court’s discretion in declining to award an additur or to set aside the verdict.

First, the jury verdict awarding $3649 in economic damages in this case was not so extremely low that it “shocked the conscience.” “The test is whether the award falls within the uncertain limits of just damages or whether it is so inadequate that it shocks the sense of justice and compels the conclusion that it was the product of partiality, prejudice, mistake or corruption.” Esaw v. Friedman, 217 Conn. 553, 566, 586 A.2d 1164 (1991); Malmberg v. Lopez, supra, 208 Conn. 679-80 (direct showing of partiality, prejudice, mistake or corruption is not required but may be inferred if amount awarded shocks sense of justice).

We recently addressed a similar claim in Ginsberg v. Fusaro, supra, 225 Conn. 430, wherein a defendant, who had filed a counterclaim for damages including medical expenses of $56,859.74, significant pain and suffering, and permanent injury, had been awarded $5000 damages against the plaintiff Miller and zero damages against Ginsberg. The trial court granted Fusaro’s motion to set aside the verdict against Ginsberg as to liability and damages and denied her motion to set aside the verdict against Miller. On appeal, Fusaro claimed that the damage award against Miller was inadequate and that the trial court should have ordered an additur or set aside the verdict of $5000 against Miller. We held that “[although the $5000 verdict is arguably inadequate as a matter of law when compared to Fusaro’s claims that, as a result of Miller’s negligence, she incurred medical expenses of $56,859.74, experienced great pain and suffering, and sustained a permanent injury, her claims for an additur cannot be sustained.” Id., 430. We based our decision in part on the fact that “the issue of whether Fusaro’s damages were causally related to the negligence of Miller or were incurred for the cosmetic prnpose of correcting Fusaro’s preexisting overbite was hotly contested. On the basis of the scant record before us, and the dispute as to whether the damages were causally related to the [injury], we summarily affirm the trial court’s refusal to order an additur and its denial of the motion to set aside the verdict against Miller.” Id., 432.

In this case, as in Ginsberg, it is undisputed that the cause, nature, and extent of the plaintiffs injuries were “hotly contested.” Although the plaintiff had claimed back problems, there were pictures of him lifting large cabinets soon after the incident in question. Although he had alleged in his complaint “bruises, contusions, lacerations and abrasions,” none were found by the treating medical staff at the hospital where he had been taken immediately following the accident. On the basis of this and other conflicting evidence regarding the injury, the jury could have reasonably concluded that the plaintiff was entitled to only $3649 in damages.

“The existence of conflicting evidence limits the court’s authority to overturn a jury verdict. The jury is entrusted with the choice of which evidence is more credible and what effect it is to be given. Ford v. Blue Cross & Blue Shield of Connecticut, Inc., 216 Conn. 40, 58, 578 A.2d 1054 (1990).” Skrzypiec v. Noonan, supra, 228 Conn. 11. “From the vantage point of the trial bench, a presiding judge can sense the atmosphere of a trial and can apprehend far better than we can, on the printed record, what factors, if any, could have improperly influenced the jury.” Birgel v. Heintz, 163 Conn. 23, 26, 301 A.2d 249 (1972). “If, on the evidence, the jury could reasonably have decided as they did, [the reviewing court] will not find error in the trial court’s acceptance of the verdict . . . .” (Internal quotation marks omitted.) Malmberg v. Lopez, supra, 208 Conn. 679. Because there was evidence in the record tending to support the verdict reached by the jury, the verdict did not “[shock] the sense of justice in that the jury failed to evaluate properly the extent of [the plaintiffs] injuries and the consequences to [him] resulting from the accident.” Birgel v. Heintz, supra, 28.

Second, the plaintiff was not entitled to an additur on the basis of our decision in Johnson v. Franklin, supra, 112 Conn. 229, wherein we held that a verdict for greater than nominal damages, which equaled the exact amount of medical and lost wages claimed, with no allowance for the substantial noneconomic damages, was inadequate. In Johnson, the verdict rendered for each of the three plaintiffs “was for the exact amount of the special damages proved and with no allowance for the pain or the physical injuries suffered which were substantial.” Because the award was for more than mere nominal damages, the jury had found that the defendant was liable and that the plaintiffs injuries were substantial. We concluded that where the plaintiffs are entitled to recover damages for their injuries, an award limited to nominal or special damages is “manifestly inadequate” and should be set aside. Id., 232.

The plaintiffs case is distinguishable from Johnson. First, in this case the jury did not award the entire amount of claimed economic damages, but only 19 percent of that amount. Second, the evidence of physical injury offered by the plaintiff was neither substantial nor uncontested. Thus, the damages awarded by the jury were not manifestly inadequate, and the plaintiff was not entitled, under the rationale of Johnson, to an additur or, in the alternative, to a new trial in accordance with § 52-228b.

Third, there was nothing ambiguous about the jury award. See Malmberg v. Lopez, supra, 208 Conn. 675. In reliance on Malmberg, the plaintiff argues that a jury verdict in his favor for $3649 in economic damages and zero in noneconomic damages was manifestly inadequate as a matter of law, requiring an additur or, alternatively, a new trial. Malmberg is, however, inapposite. In Malmberg, the jury returned a verdict for the plaintiff, but awarded zero damages. The plaintiff moved to set aside the verdict, which was denied by the trial court. On appeal, we found that a plaintiffs verdict, coupled with an award of zero damages, was inherently ambiguous. “A plaintiffs verdict with a nominal damage award ordinarily suggests that the jury found that despite the defendant’s liability, the plaintiff failed to prove damages. . . . The jury’s intent in rendering a plaintiffs verdict with zero damages in a wrongful death action [however,] is far less clear.” Id., 681-82.

In the case before us, however, the jury did not award zero damages; rather, it specifically awarded $3649 in economic damages, but declined to award any noneconomic damages. There is no apparent conflict in the verdict to create an ambiguity such as that at issue in Malmberg. See Ginsberg v. Fusaro, supra, 225 Conn. 425-26 (verdict in favor of defendant on her counterclaim but awarding zero damages, was inconsistent as matter of law).

We have previously determined that a jury may award a plaintiff less than the claimed special damages. Rickert v. Fraser, 152 Conn. 678, 211 A.2d 702 (1965). In Rickert, the jury was confronted with conflicting evidence concerning the plaintiffs injuries. The plaintiff had claimed $755.27 in medical expenses, $2719.20 in lost wages and $46,525.53 for pain and suffering. The jury awarded the plaintiff only $2500 in damages, and this court upheld the trial court’s refusal to set aside the verdict because “ [a]s to the matter of [the plaintiffs] injuries and the pain and suffering resulting therefrom . . . the medical testimony and opinions were conflicting to such an extent that the jury could have refused to credit the plaintiffs claims.” Id., 680-81. Furthermore, we concluded that although medical expenses of $755.27 were unquestioned, “[o]n the basis of the variances in proof as to the plaintiffs ability to work . . . the jury could reasonably have found that her evidence as to lost wages was exaggerated.” Id., 680. In accordance with Rickert, given the conflicting evidence of the plaintiffs injuries, we find that the jury’s award of 19 percent of the economic damages claimed, and an award of zero noneconomic damages, did not mandate an additur.

Finally, we are unpersuaded that the provisions of Tort Reform I and II support the plaintiffs position. General Statutes §§ 52-572h and 52-225d require the fact finder to specify separately the amount of economic damages and the amount of noneconomic damages. These provisions are consistent with our history of recognizing the distinction between different kinds of damages. See Waterbury Petroleum Products, Inc. v. Canaan Oil & Fuel Co., 193 Conn. 208, 223 n.16, 477 A.2d 988 (1984).

“Interpreting a statute to impair an existing interest or to change radically existing law is appropriate only if the language of the legislature plainly and unambiguously reflects such an intent. . . . We recognize only those alterations of the common law that are clearly expressed in the language of the statute because the traditional principles of justice upon which the common law is founded should be perpetuated.” (Citations omitted.) Lynn v. Haybuster Mfg., Inc., 226 Conn. 282, 289-90, 627 A.2d 1288 (1993). As we have discussed, the common law of this state does not recognize the principle that awards limited to economic damages are inadequate as a matter of law and must be set aside, or the principle that a fact finder must award noneconomic damages each time it awards economic damages. Rather, as we have stated numerous times, “[t]he amount of a damage award is a matter peculiarly within the province of the trier of fact”; Mather v. Griffin Hospital, supra, 207 Conn. 138; and “if, on the evidence, the jury could reasonably have decided as they did, fthe reviewing court] will not find error in the trial court’s acceptance of the verdict . . . .” (Internal quotation marks omitted.) Malmberg v. Lopez, supra, 208 Conn. 679. Nothing in the language of §§ 52-225d or 52-572h, the legislative history and circumstances surrounding their enactment, the policies they were designed to implement, or their relationship to existing common law principles governing the same general subject matter suggests that the legislature intended to change our common law or to require that a different rule of law be applied. See, e.g., Connecticut National Bank v. Giacomi, 233 Conn. 304, 319, 659 A.2d 1166 (1995); Williams Ford, Inc. v. Hartford Courant Co., 232 Conn. 559, 581, 657 A.2d 212 (1995).

On the contrary, the language chosen by the legislature reflects an intention that juries should separately determine awards of economic and noneconomic damages and does not hint of a requirement that an award of one type of damages necessarily requires an award of the other type of damages. The thrust of Tort Reform II was to create a distinction between the two kinds of awards. 30 H.R. Proc., Pt. 16, 1987 Sess., pp. 5656-57. The legislature’s intent was for the trier of fact to make “two findings,” one based on economic damages and the other on noneconomic damages. Id. Each finding is required to be “separate.” General Statutes § 52-225d (a) (1). This change was instigated by the insurance industry in order “to obtain necessary information regarding jury behavior in particular areas, such as the assessment of noneconomic damages.” P. Gillies, Report of the Governor’s Task Force on Insurance Costs and Availability (January 30, 1986) p. 17.

The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to affirm the judgment of the trial court.

In this opinion, BORDEN, NORCOTT and PALMER, Js., concurred.

BERDON, J.,

dissenting. The majority concludes that a jury award for the plaintiff that consists of $3649 in economic damages but zero noneconomic damages is not ambiguous and, therefore, may be sustained on appeal. I disagree. Like the Appellate Court,I conclude that in a personal injury case, when a plaintiff has alleged and produced evidence to support an award of both economic and noneconomic damages, a jury verdict that consists of substantial economic damages but zero noneconomic damages is ambiguous as a matter of law. Accordingly, the trial court should have set aside the verdict.

At common law, damages in a personal injury action were classified as either “special damages” or “general damages.” “Ordinarily, such things as loss of earnings, doctors’ and hospital bills are referred to as special damages.” Varley v. Motyl, 139 Conn. 128, 134, 90 A.2d 869 (1952); see Wood v. Bridgeport, 216 Conn. 604, 610, 583 A.2d 124 (1990). General damages, on the other hand, included compensation for conscious pain and suffering. Kiniry v. Danbury Hospital, 183 Conn. 448, 460, 439 A.2d 408 (1981). In personal injury cases, the court would instruct the jury about these categories of damages. If the jury returned a verdict for the plaintiff, however, it would not break down the monetary award into these separate categories. Rather, it would return a lump sum verdict that included both special and general damages.

In the mid-1980s, the legislature rewrote the tort recovery provisions of our civil system in successive legislative enactments known together as Tort Reform. As a result of the latter of these enactments, No. 87-227 of the 1987 Public Acts, the trier of fact in a personal injury action must break down its award of damages into two categories: economic damages and noneconomic damages. Economic damages are defined as “compensation determined by the trier of fact for pecuniary losses including, but not limited to, the cost of reasonable and necessary medical care, rehabilitative services, custodial care and loss of earnings or earning capacity excluding any noneconomic damages.” General Statutes § 52-572h (a) (1). Noneconomic damages are defined as “compensation determined by the trier of fact for all nonpecuniary losses including, but not limited to, physical pain and suffering and mental and emotional suffering.” General Statutes § 52-572h (a) (2). For the most part, therefore, “economic damages” are akin to special damages, and “noneconomic damages” are akin to general damages.

In Johnson v. Franklin, 112 Conn. 228, 152 A. 64 (1930), this court addressed a question identical to that posed here. In Johnson, the jury returned a verdict that awarded substantial special damages, but zero general damages, to each of three plaintiffs. This court concluded that the awards were inadequate as a matter of law. In overturning the trial court’s refusal to set aside the verdicts, this court held that “if the plaintiffs were entitled to verdicts those rendered were manifestly inadequate and the motion to set them aside should have been granted.” (Emphasis added.) Id., 232. Similarly, in Ginsberg v. Fusaro, 225 Conn. 420, 425, 623 A.2d 1014 (1993), we concluded that a jury verdict that found liability issues in favor of a defendant on her counterclaim against a particular plaintiff but that awarded her zero damages was “inherently ambiguous.” We reasoned that “[u]nder these circumstances, we can only speculate as to why the jury failed to award damages in her favor; therefore, the jury’s verdict creates an ambiguity.” Id., 425-26; see Malmberg v. Lopez, 208 Conn. 675, 681, 546 A.2d 264 (1988); Creem v. Cicero, 12 Conn. App. 607, 611, 523 A.2d 234 (1987) (“[a]s a general rule, it is manifestly unjust for the jury to fail to award damages for pain and suffering when it awards special damages”).

In my view, this case is squarely controlled by Johnson and Ginsberg. Although the terminology of Johnson involves “special damages” and “general damages,” the principles announced therein apply with equal force to the economic and noneconomic damages at issue in this case. Under the rationale of Johnson, an award of economic damages without accompanying noneconomic damages cannot stand. Likewise, just as this court in Ginsberg found ambiguity in the jury’s failure to award damages consistent with its verdict, the same ambiguity exists here, where the jury has awarded economic damages but no noneconomic damages to reflect pain and suffering. On the basis of these clear precedents, therefore, the Appellate Court was correct in reversing the judgment of the trial court and remanding the case for agreement on an additur or, in the alternative, a new trial.

The reasoning behind the majority’s attempts to distinguish this case from Johnson eludes me. First, the majority suggests that the percentage recovery of the amount of special damages alleged by the plaintiff is a factor. The majority points out that in Johnson each plaintiff was awarded an amount equal to his or her entire amount of special damages alleged, but that in this case the plaintiff was awarded only 19 percent of the noneconomic damages he had alleged. I do not understand why this makes any difference. In both cases, the jury awarded substantial special damages, but nothing for pain and suffering. That is the significant factor, and that was the basis for this court’s decision in Johnson to set aside the verdict. Indeed, this case is more compelling than Johnson. In Johnson, because the jury was not asked to differentiate between special and general damages, the court was required to assume that the amount awarded to each plaintiff, which matched exactly the amount he or she had alleged as special damages, consisted only of special damages. Johnson v. Franklin, supra, 112 Conn. 229. In this case, however, as a result of the specific jury findings required by § 52-572h, we know for a fact that the jury awarded the plaintiff only economic damages and refused to award noneconomic damages. Under the rationale set forth in Johnson, that ambiguity requires that the verdict be set aside.

Second, the majority attempts to distinguish this case on the basis that, in Johnson, this court stated that the pain and physical injuries suffered by the plaintiffs had been “substantial.” I do not know what the Johnson court meant by substantial, but it is undeniable that the $3649 in special damages awarded in this case is not nominal. Moreover, although the evidence was hotly contested, there was medical evidence that the plaintiff had sustained a 12 percent permanent disability to his lower back and that he had suffered from pain. Accordingly, the majority cannot attempt to distinguish this case from Johnson on the ground that the plaintiff had failed to demonstrate “substantial” injuries.

The majority’s reliance on another aspect of Ginsberg v. Fusaro, supra, 225 Conn. 430, and on Rickert v. Fraser, 152 Conn. 678, 211 A.2d 702 (1965), is misplaced. Both Ginsberg and Rickert went to trial prior to the legislature’s enactment of Tort Reform and, consequently, the juries in those cases had not been required to separate their awards into economic and noneconomic damages. On appeal, therefore, this court was unable to determine whether the jury awards included only special damages, only general damages, or a combination of both. For example, in Ginsberg, a dental malpractice case, the injured party claimed special damages in excess of $50,000, along with general damages; we were unable to determine how the jury had apportioned the $5000 it had awarded to her against one of two dentists and whether that amount might have included damages for pain and suffering. Consequently, we affirmed the jury verdict. Likewise, in Rickert, although the plaintiff had claimed special damages of $3400, we had no way of determining whether any part of the $2500 awarded by the jury constituted damages for pain and suffering. This precise distinction was made clear in Creem v. Cicero, supra, 12 Conn. App. 611 (“there was no reasonable basis upon which the court could have concluded that the jury’s verdict was limited to special damages”). These cases, therefore, are not helpful to the majority.

In sum, I agree with the Appellate Court that the trial court should have ordered an additur and, if the parties failed to agree on that sum, the trial court should have set aside the verdict and ordered a new trial.I respectfully dissent.

       General Statutes § 52-572h (a) defines “economic damages” as “compensation determined by the trier of fact for pecuniary losses including, but not limited to, the cost of reasonable and necessary medical care, rehabilitative services, custodial care and loss of earnings or earning capacity excluding any noneconomic damages.” The same subsection defines “noneconomic damages” as “compensation determined by the trier of fact for all nonpeeuniary losses including, but not limited to, physical pain and suffering and mental and emotional suffering.”

       General Statutes § 52-228b provides: “No verdict in any civil action involving a claim for money damages may be set aside except on written motion by a party to the action, stating the reasons relied upon in its support, filed and heard after notice to the adverse party according to the rules of the court. No such verdict may be set aside solely on the ground that the damages are excessive unless the prevailing party has been given an opportunity to have the amount of the judgment decreased by so much thereof as the court deems excessive. No such verdict may be set aside solely on the ground that the damages are inadequate until the parties have first been given an opportunity to accept an addition to the verdict of such amount as the court deems reasonable.”

       We note that the plaintiff did not file any transcripts in this appeal. Also, the trial exhibits relevant to this appeal were unavailable for our review because they were misplaced by personnel at the Superior Court. The parties, however, submitted copies of these exhibits and stipulated to their accuracy.

       “ ‘Generally, nominal damages are fixed without regard to the extent of harm done and are assessed in some trifling or trivial amount Creem v. Cicero, 12 Conn. App. 607, 611, 533 A.2d 234 (1987).

       The plaintiffs in Ginsberg, Martin Ginsberg and Robert Miller, both dentists, had sued the defendants, Rita Fusaro and John Fusaro, to recover money allegedly owed for dental services. Rita Fusaro counterclaimed against both Miller and Ginsberg, alleging dental malpractice.

       The terms “special damages” and “general damages” have been replaced by statute with the terms “economic damages” and “noneconomic damages,” respectively. See General Statutes § 52-572h (a) (1).

       Although the plaintiff complained of neck pain to the hospital staff immediately after the accident, all subsequent reports by his treating physician, Richard Matza, reflect that he sustained no permanent neck injuries. Furthermore, although there were reports from Matza indicating that the plaintiff suffered spasms of the lower back and that he had a 12 percent permanent partial disability of the lower back, these reports were based on examinations of the plaintiff several months after the accident. Moreover, the radiology report created immediately after the accident shows there already existed a degenerative condition of his back. In light of the plaintiffs employment in the landscaping business and the absence of any reports by him of any injury to his lower back to the hospital staff immediately after the accident, the jury could have reasoned that this permanent disability was a result of his employment and not the defendant’s conduct. Finally, because the plaintiff did not ask to submit interrogatories to the jury and has failed to supply this court with a transcript of the trial, he cannot establish that the award of 19 percent of the claimed economic damages was for medical damages as opposed to lost wages. Consequently, we disagree with the dissent that the jury awarded “substantial special damages” for medical expenses reflecting pain and suffering.

       The plaintiff also relies on Jeffries v. Johnson, 27 Conn. App. 471, 476, 607 A.2d 443 (1992), which affirmed the trial court’s finding that the verdict was inadequate and concluded that the trial court did not abuse its discretion in concluding that the verdict should be set aside. Because the plaintiff in Jeffries met the Johnson requirements, however, this reliance is misplaced. First, in Jeffries, the jury found the plaintiffs economic damages to be the full amount sought by the plaintiff, but explicitly awarded zero noneconomic damages. Id., 473-74. Second, the Appellate Court stated in Jeffries that “where a plaintiff is entitled to recover damages for pain and suffering, an award limited to nominal or special damages is inadequate as a matter of law . . . .” Id., 476. On the basis of the record in this case, the jury could reasonably have concluded that the plaintiff had failed to prove such entitlement.

       Number 86-338 of the 1986 Public Acts is commonly known as “Tort Reform I,” and was codified at General Statutes (Rev. to 1987) §§ 52-225a through 52-225d, 52-251c and 52-572h. Number 87-227 of the 1987 Public Acts, commonly known as “Tort Reform II,” revised those sections.

       General Statutes § 52-572h (f) provides: “The jury or, if there is no jury, the court shall specify: (1) The amount of economic damages; (2) the amount of noneconomic damages; (3) any findings of fact necessary for the court to specify recoverable economic damages and recoverable noneconomic damages; (4) the percentage of negligence that proximately caused the injury, death or damage to property in relation to one hundred per cent, that is attributable to each party whose negligent actions were a proximate cause of the injury, death or damage to property including settled or released persons under subsection (n) of this section; and (5) the percentage of such negligence attributable to the claimant.”

       General Statutes § 52-225d (a) (1) provides: “In any civil action wherein the claimant seeks to recover damages resulting from personal injury, wrongful death or damage to property occurring on or after October 1, 1987, and wherein liability is admitted or determined by the trier of fact, the court shall proceed to enter judgment as follows: (1) The trier of fact shall make separate findings for each claimant specifying the amount of any economic damages and noneconomic damages, as defined in subsection (a) of section 52-572h.”

       See Childs v. Bainer, 35 Conn. App. 301, 305, 645 A.2d 1041 (1994).

       See Public Acts 1986, No. 86-338; Public Acts 1987, No. 87-227.

       My conclusion would be different if the jury had awarded only nominal economic damages, or if the economic damages had been limited solely to damages without accompanying pain and suffering, such as the cost of a physical examination to ascertain whether the plaintiff was injured

       The Appellate Court remanded the case as follows: “The judgment is reversed and the case is remanded for further proceedings to determine a reasonable additur for noneconomic damages, to give the parties an opportunity to accept the additur, and, if they do not accept the additur, a new trial is ordered as to all issues.” Childs v. Bainer, supra, 35 Conn. App. 305.

       In an endeavor to distinguish this case from our well reasoned precedent in Johnson v. Franklin, supra, 112 Conn. 228, the majority speculates in footnote 7 that the jury could have found that the permanent injury to the lower back was related to his employment. But the majority simply misses the point. In this case, as in Johnson, we do not know what the jury found other than that, as a result of the defendant’s negligence, the plaintiff sustained substantial special or economic damages in the amount of over $3600, but no pain and suffering or other noneconomic damages. In light of the medical evidence of injuries to the neck and lower back of the plaintiff, as a result of the defendant’s negligence, an award of over $3600 for special damages and zero for pain and suffering and other noneconomic damages malees this verdict ambiguous. It is ambiguous because if they did not believe the plaintiff was injured, the jury would not have awarded him the substantial special damages. And the suggestion by the majority that the special damages awarded by the jury may have included lost wages does not make the verdict less ambiguous. “We presume that the jury will abide by its duty to make a thoughtful, reasoned decision, applying its common sense and logic to the evidence presented.” Wasfi v. Chaddha, 218 Conn. 200, 211, 588 A.2d 204 (1991). For this reason, the verdict must be set aside.

       To the three plaintiffs in Johnson, the jury awarded $573.25, $240.57 and $142, respectively. Johnson v. Franklin, supra, 112 Conn. 229.

       The jury awarded $3649 of the $19,129 claimed by the plaintiff.

       Three reports of the plaintiffs physician, Richard Matza, were introduced into evidence during the trial. Each of the reports noted that the patient is “being followed along” for cervical and lumbar strain. The first report, dated March 10, 1989, indicated that the plaintiffs “low back has pain. [Physical therapy] definitely helps but the headaches continue.” That report also referred to “[t]enderness in the paraspinous muscle region of the low back with spasm in the paraspinous muscle region of the low back” and “[r]esolved cervical strain with persistent low back strain.”
      The second report, dated May 10,1989, indicated that the plaintiffs “neck is doing quite good; low back is better. He has some tenderness in the left posterior superior iliac spine.” This report also referred to “cervical strain and low back strain.”

        The third report, dated February 7, 1990, concluded that “[h]is neck is doing fine. His low back is still symptomatic. ... On physical exam, the patient has tenderness in the paraspinous muscle region of the neck and low back with pain .... My impression is the patient has improved cervical strain with chronic low back strain which has reached maximum improvement with a 12% permanent, partial disability of the back and none of the neck.”

        Ginsberg was originally a collection case that ripened into a claim of dental malpractice. The plaintiff dentists brought the action against their former patient and her husband, and the patient counterclaimed for negligence. The jury returned a verdict for the patient against both dentists, Robert Miller and Martin Ginsberg. The jury, however, awarded $5000 damages against Miller only and none against Ginsberg. The trial court accepted the jury verdict as to Miller but set aside the verdict as to Ginsberg. We affirmed the trial court’s decision on appeal. Ginsberg v. Fusaro, supra, 225 Conn. 432.

      I disagree with the remand ordered by the Appellate Court. See footnote 4 of this dissent. Because this is a case of an ambiguous jury verdict, the trial court, in my view, should have set aside the verdict without first ordering an additur. See Ginsberg v. Fusaro, supra, 225 Conn. 430; Johnson v. Franklin, supra, 112 Conn. 232.