author: Peters, C. J.

text:
    State of Connecticut v. Robert Rinaldi
    (14137)
    Peters, C. J., Shea, Callahan, Glass and Borden, Js.

      Argued September 24
    decision released November 12, 1991

      Walter H. Scanlon, for the appellant (defendant).

      Timothy J. Sugrue, assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Corinne Klatt, assistant state’s attorney, for the appellee (state).
   Peters, C. J.

The principal issue in this appeal is whether the trial court improperly excluded evidence offered by the defendant on the issue of the source of semen found inside the complainant on the night she was allegedly sexually assaulted. After a jury trial, the defendant, Robert Rinaldi, was convicted of sexual assault in the first degree in violation of General Statutes § 53a-70, sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (1), and kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (A). The trial court rendered a judgment sentencing the defendant to a term of imprisonment of fifteen years, suspended after ten years, and placing him on probation for three years. The defendant appealed directly to this court pursuant to General Statutes § 51-199 (b) (3). We reverse and remand for a new trial.

The jury reasonably could have found the following facts. On June 21,1989, the complainant, who was then fourteen years old, and two friends, Ronald and Colleen, were drinking beer and rum at the Waterbury apartment of the complainant’s father. The complainant spoke by telephone to another friend, Dino, and arranged to meet him. The three friends got a ride to Dino’s house and then they all walked to Fairlawn Park. The complainant and Dino soon left the other two and went to the rear of the park where they remained alone for approximately fifteen minutes to one-half hour. After their reappearance, Dino departed, leaving the complainant upset. The other three then returned to Dino’s house.

While the three friends were standing in front of Dino’s house, the defendant and a male passenger drove by in the defendant’s sports car. The defendant stopped his car and spoke with Ronald, with whom he was acquainted. At some point, the complainant’s father also drove up in his car. After an argument between the complainant and her father, the complainant ran and hid behind some bushes on the side of Dino’s house. Her father then drove away.

The defendant subsequently agreed to drive the three friends home. They got into the back seat of the car and the defendant drove to a nearby gas station, where the complainant’s friends got out of the car. The complainant also tried to leave, but was forcibly prevented from doing so by the passenger in the defendant’s car. As the car departed, the complainant screamed for help. Her friends chased the car but were unable to catch it. Two patrons at the gas station also noticed the car and heard the complainant screaming.

The defendant drove the car to a parking lot, where he and his passenger engaged in forced sexual intercourse with the complainant. They then threw the complainant into the back of the car and drove to another parking lot. The witnesses at the gas station, who had once again spotted the defendant’s car, followed the car into the second parking lot and watched as the complainant was thrown from the defendant’s car. The complainant’s clothes had been partially removed and she told the witnesses that she had been raped. The complainant was returned to her home and, shortly thereafter, was taken by her father to Waterbury Hospital.

At the hospital, the examining physician found a cigarette burn on the complainant’s cheek, a superficial laceration on her right forearm, and some grass in her pubic hair and near the entrance of her vagina. The complainant’s mother, who was with her daughter at the hospital, noticed grass on her daughter’s buttocks. A screening for alcohol and drugs indicated the presence of alcohol, marihuana and cocaine in the complainant’s system. A technician employed by the Connecticut state police forensic laboratory analyzed the components of a sex crime kit prepared by the examining physician and determined that semen was present on the vaginal smear and in the crotch area of the complainant’s underpants. Because the defendant, his passenger and the complainant all had the same blood type, the technician could not determine or identify the source of the semen.

The jury also heard the contrary testimony of the defendant, who denied having had sexual intercourse with the complainant at any time. According to the defendant, in the confrontation involving the complainant’s father at Dino’s house, the father threatened to shoot the defendant and his friend if they went near his daughter or his house. The defendant testified that after the complainant’s friends got out of his car at the gas station, the complainant asked him to drive her home. As he drove toward her home he noticed a car following closely behind him. The driver was blinking the car’s lights and honking its horn. Believing that the car belonged to the complainant’s father, and recalling his previous threats, the defendant pulled into a parking lot, dropped the complainant off and drove away. The jury apparently disbelieved the defendant, because it convicted him on all counts.

In his appeal, the defendant raises three claims. He maintains that he is entitled to a new trial because the trial court improperly: (1) precluded the defendant from eliciting evidence regarding the source of the semen found in the complainant; (2) precluded the defendant from eliciting evidence regarding a comparison of a pubic hair found on the complainant’s blouse; and (3) ordered defense counsel not to refer in his summation to the possibility that the complainant had had sexual intercourse with Dino at the park. We agree with the first of these claims.

I

At trial the defendant moved for permission to present evidence that the complainant had engaged in sexual intercourse with someone other than the defendant on the night of the alleged sexual assault. He offered this evidence pursuant to General Statutes § 54-86f, known as the Rape Victims Shield Law. Although this statute limits the admissibility of evidence of a sexual assault victim’s prior sexual conduct, such evidence is admissible under subsection (1) of the statute “on the issue of whether the defendant was, with respect to the victim, the source of semen.” In compliance with § 54-86f, the defendant submitted a written motion containing an offer of proof. At the hearing on this motion conducted outside the presence of the jury, the defendant presented the proposed testimony of the complainant’s friend Colleen concerning events that transpired on the evening of June 21,1989.

A

Colleen testified at the hearing that she overheard the complainant tell Dino over the telephone that she wanted to have sexual intercourse with him. She further testified that after she, the complainant, Ronald and Dino had walked to Fairlawn Park, Dino and the complainant had kissed and gone off by themselves toward a slide in the back of the park. They remained alone together for approximately twenty minutes to one-half hour. Colleen testified that she subsequently called for the complainant, who emerged from the back of the park with her pants unbuttoned. After Dino had walked away, the complainant told Colleen: “I finally got it.” In response to Colleen’s question to the complainant: “Are you happy now?” the complainant answered, “Yes.”

The trial court heard the proffered oral testimony and then ruled upon each paragraph of the defendant’s written offer of proof. The court excluded the testimony “that the victim told [Colleen] . . . how bad she wanted to get laid or—and the language she used here today” as not constituting evidence of sexual conduct. It ruled admissible the proffered testimony that the complainant spoke with Dino on the telephone, made plans to meet him, met him, walked to the park with him and walked into the woods at the back of the park alone with Dino. The court excluded testimony of the complainant’s statement, “I finally got it,” ruling that it was hearsay evidence, and excluded testimony that the complainant’s pants were unbuttoned as “not evidence that there was any semen transferred from Dino to the victim.” The defendant took an exception to the court’s rulings. Following a recess, the trial court further stated that it found the excluded evidence to be more prejudicial than probative.

The defendant claims on appeal that the exclusion of the proffered evidence violated his right to present a defense and to confront witnesses against him as guaranteed by the sixth and fourteenth amendments to the United States constitution; Pointer v. Texas, 380 U.S. 400, 85 S. Ct. 1065, 13 L. Ed. 2d 923 (1965); and by article first, § 8 of the constitution of Connecticut. We decline, however, to reach the defendant’s constitutional claims because we conclude that the trial court’s rulings violated § 54-86f. “ ‘We thus follow the recognized policy of self-restraint and the basic judicial duty to eschew unnecessary determinations of constitutional questions.’ ” State v. Gold, 180 Conn. 619, 639, 431 A.2d 501, cert. denied, 449 U.S. 920, 101 S. Ct. 320, 66 L. Ed. 2d 148 (1980), citing Pepin v. Danbury, 171 Conn. 74, 88, 368 A.2d 88 (1976).

The trial court’s first conclusion was that the proffered statement “I want to fuck you” or “I want to fucking do you” did not meet the requirements of § 54-86f because it did not provide evidence of sexual conduct. The court’s ruling was, in effect, that the statement was insufficiently relevant to the issue of the complainant’s alleged sexual conduct with Dino in the park. “One fact is relevant to another fact whenever, according to the common course of events, the existence of the one, taken alone or in connection with other facts, renders the existence of the other either certain or more probable.” (Internal quotation marks omitted.) State v. Kelly, 208 Conn. 365, 376, 545 A.2d 1048 (1988); State v. Mastropetre, 175 Conn. 512, 521, 400 A.2d 276 (1978); State v. Lombardo, 163 Conn. 241, 243, 304 A.2d 36 (1972). To be relevant, the evidence need not exclude all other possibilities; it is sufficient if it tends to support the conclusion, even to a slight degree. State v. Miller, 202 Conn. 463, 482, 522 A.2d 249 (1987); State v. Briggs, 179 Conn. 328, 426 A.2d 298 (1979), cert. denied, 447 U.S. 912, 100 S. Ct. 3000, 64 L. Ed. 2d 862 (1980). “Although the trial court has wide discretion in its rulings on the relevancy of evidence . . . its rulings will be reversed if the court has abused its discretion or where injustice appears to have been done.” State v. Echols, 203 Conn. 385, 393, 524 A.2d 1143 (1987); State v. Smith, 198 Conn. 147, 157, 502 A.2d 874 (1985).

We disagree with the trial court’s characterization of this evidence and conclude that it is indeed evidence of sexual conduct. Section 54-86f encompasses inferential as well as direct evidence of sexual conduct. There is a sufficient relationship between the proffered evidence and the sexual conduct sought to be proved that a reasonable juror could infer from the statement that Dino and the complainant had engaged in sexual intercourse on June 21, 1989. This inference is reinforced by other facts in evidence, such as the appearance of the complainant’s clothing when she emerged from the rear of the park and the discovery of the presence of grass on her buttocks, and in her pubic hair and vagina found during the medical examination.

Presumptively, § 54-86f excludes evidence of the sexual conduct of the victim of a sexual assault. The question therefore is whether the evidence in this case falls within one of the exceptions contained in the statute. Before the defendant made his offer of proof, the state had introduced evidence that an analysis of the vaginal swab taken at the hospital on the night of the alleged sexual assault indicated the presence of sperm in the complainant’s vagina. The defendant expressly offered Colleen’s testimony “on the issue of whether the defendant was, with respect to the victim, the source of semen, disease, pregnancy or injury.” General Statutes § 54-86f (1). Understate v. Mastropetre, supra, 519, the proffered evidence of sexual activity is admissible if it offers an explanation for the source of the semen found in the complainant. Colleen’s testimony could have persuaded the jury to infer that the semen was transferred when the complainant and Dino had engaged in sexual intercourse. Because subsection (1) of the rape shield statute specifically exempts evidence offered on the source of semen when that question becomes an issue at trial, the admissibility of Colleen’s statement was not automatically barred by that statute.

We turn now to the proffered testimony regarding the appearance of the complainant’s clothing when she emerged from the rear of the park with Dino. The court apparently excluded this testimony as irrelevant to the issue of the source of the semen. We disagree. Like the testimony regarding the complainant’s telephone conversation with Dino, the proffered evidence that the complainant’s pants were unbuttoned upon her emergence from the rear of the park was relevant to the issue of whether she and Dino had engaged in sexual intercourse. Again, a jury could reasonably infer that this act of sexual intercourse resulted in the transfer of semen to the complainant. In light of the fact that the state had introduced the evidence of the semen found inside the complainant’s vagina, the proffered testimony fell within the exception delineated in subsection (1) of § 54-86f.

The trial court buttressed its decision to exclude the proffered evidence by a finding, as authorized by § 54-86f, that the probative value of the evidence was outweighed by its prejudicial effect on the victim. “[T]he determination of whether the prejudicial impact of evidence outweighs its probative value is left to the sound discretion of the trial court judge and is subject to reversal only where an abuse of discretion is manifest or injustice appears to have been done.” State v. Braman, 191 Conn. 670, 681-82, 469 A.2d 760 (1983); State v. Tucker, 181 Conn. 406, 416, 435 A.2d 986 (1980).

This court has previously enumerated situations in which the potential prejudicial effect of relevant evidence would counsel its exclusion. Evidence should be excluded as unduly prejudicial: (1) where it may unnecessarily arouse the jury’s emotions, hostility or sympathy; (2) where it may create distracting side issues; (3) where the evidence and counterproof will consume an inordinate amount of time; and (4) where one party is unfairly surprised and unprepared to meet it. State v. DeMatteo, 186 Conn. 696, 702-703, 443 A.2d 915 (1982). The proffered testimony does not pose any of these dangers.

The prejudice sought to be avoided through the rape shield statute extends, however, beyond those listed above. When balancing the probative value of evidence of a sexual assault victim’s prior sexual conduct against its prejudicial effect on the victim, the court should also consider whether the evidence invades the victim’s sexual privacy, whether it is unnecessarily harassing, and whether it will subject the victim to undue embarrassment. See State v. Williams, 20 Conn. App. 263, 270, 565 A.2d 1365 (1989).

The evidence offered in this case is highly probative of a critical piece of evidence introduced by the state, namely the presence of semen in the complainant following the alleged sexual assault. Colleen’s testimony could greatly have lessened the impact the state’s evidence had on the jury. The centrality of this issue distinguishes this case from others in which sexual conduct evidence has been excluded. See, e.g., State v. Franko, 199 Conn. 481, 484-85, 508 A.2d 22 (1986) (question whether complainant was a virgin prior to sexual assault properly excluded as irrelevant); State v. Mastropetre, supra, 514 (question whether complainant had had sexual relations with anyone prior to sexual assault properly excluded as irrelevant). A more closely analogous case is Demers v. State, 209 Conn. 143, 547 A.2d 28 (1988), in which this court concluded that evidence of a victim’s prior prostitution arrest was admissible under subsection (4) of § 54-86f as it was relevant to the substantive issue of consent raised by the defendant. In this case, similarly, Colleen’s testimony would have shed light on a substantive issue in the case.

In weighing the possible prejudicial effect of the proffered testimony, the trial court should have also considered what the testimony did not purport to establish. The defendant was not impugning the complainant’s character in front of the jury by introducing lurid details of prior sexual behavior. Rather, it was offered to provide an alternative explanation for an important piece of objective evidence introduced by the state. This is precisely the type of evidence the legislature intended to allow an accused sexual offender to offer in his defense. We therefore conclude that the trial court abused its discretion, in violation of § 54-86f, by excluding as prejudicial the proffered testimony offered by the defendant.

The state urges us to conclude that any error in excluding this testimony was harmless. “When a trial error in a criminal case does not involve a constitutional violation the burden is on the defendant to demonstrate the harmfulness of the error.” State v. Flanders, 214 Conn. 493, 502, 572 A.2d 983, cert. denied, U.S. , 111 S. Ct. 260, 112 L. Ed. 2d 217 (1990); State v. Ruth, 181 Conn. 187, 196-97, 435 A.2d 3 (1980). The defendant must demonstrate “that the erroneous action of the trial court would have been likely to affect the result.” State v. Flanders, supra; State v. Castonguay, 218 Conn. 486, 505, 590 A.2d 901 (1991).

We are persuaded that the exclusion of Colleen’s testimony, in all likelihood, affected the jury’s verdict against the defendant. The state introduced into evidence the presence of semen to provide crucial independent and objective proof that sexual intercourse had occurred. This evidence was critical to corroborate the claimed sexual assault. Presented with diametrically opposed versions of what occurred on June 21, 1989, between the complainant and the defendant, the jury very likely gave great weight to the fact that semen was detected during the examination of the complainant. Without any evidence from which to infer that the complainant might have had sexual intercourse, only shortly before, with someone other than the defendant, it is probable that the jury would have disbelieved the defendant’s denial of sexual intercourse with the complainant. Disbelief of the defendant on this crucial issue would probably have persuaded the jury to disbelieve the defendant’s testimony in its entirety, and to attach sufficient credence to the alternative explanation of what had transpired to find the defendant guilty beyond a reasonable doubt. We therefore conclude that the trial court’s error was harmful. Because the exclusion of this testimony was likely to have affected the jury’s verdict on the three charges of which the defendant was convicted, we reverse the trial court’s judgment as to all charges and remand for a new trial.

B

The defendant further claims that the trial court improperly excluded Colleen’s testimony that the complainant made the statement “I finally got it” when she emerged from the rear of the park. The court disallowed this testimony, not because it was barred by the rape shield statute, but rather because it was inadmissible hearsay. Hearsay is an out-of-court statement offered into evidence to establish the truth of the matters contained therein. State v. Cruz, 212 Conn. 351, 356, 562 A.2d 1071 (1989). The trial court ruled that this statement was offered for the purpose of proving the truth of the defendant’s allegations that the complainant had engaged in sexual intercourse with Dino. The defendant took an exception to the trial court’s ruling.

The defendant now contends that, although hearsay, the statement constituted a spontaneous utterance, a recognized exception to the hearsay rule. A key requisite to this exception is that the statement must follow a startling event, that is, “one of such a nature as to produce nervous excitement in the declarant and render his utterances spontaneous and unreflecting.” C. Tait & J. LaPlante, Handbook of Connecticut Evidence (2d Ed. 1988) § 11.11.2, pp. 373-74. Without more details as to what actually transpired between Dino and the complainant in the park, we cannot determine whether the requirements of this exception have been met. Thus, upon the basis of the record before us, we conclude that the trial court did not abuse its discretion in excluding the proffered testimony concerning the statement on hearsay grounds.

II

Although we have concluded that a new trial will be necessary, we will address the defendant’s second claim because the issue may arise at retrial. At trial, the defendant sought to have Mary Beth Guman, a state police laboratory technician, testify that a pubic hair taken from the complainant’s blouse possessed characteristics similar to a pubic hair sample taken from Dino. The defendant offered the evidence as tending to show that Dino had committed the crime for which the defendant was charged. The defendant asserted that this piece of evidence was admissible, regardless of whether it related to sexual conduct, because it would have supported charging Dino with a violation of General Statutes § 53a-71 (a) (1), which criminalizes engaging in sexual intercourse with another person under the age of sixteen. The court ultimately excluded the evidence as irrelevant and speculative.

We agree with the trial court’s ruling that the evidence was inadmissible on the ground on which it was offered. It was entirely reasonable for the trial court to determine, in the exercise of its discretion, that evidence of an alleged violation of § 53a-71 (a) (1) by Dino had no relevance to whether the defendant violated § 53a-71 (a) (1) at a different time and in a different place. The rules of relevancy govern the presentation and admissibility of evidence tending to show that a third party, and not the defendant, committed the crime with which the defendant is charged. State v. Milner, 206 Conn. 512, 517, 539 A.2d 80 (1988); State v. Echols, 203 Conn. 385, 392, 524 A.2d 1143 (1987). To be admissible, the evidence must show more than motive or bare suspicion; it must directly connect the third party to the crime charged. State v. Milner, supra. “Generally, the evidence must demonstrate that guilt in the other party is inconsistent with guilt in the accused.” State v. Delossantos, 211 Conn. 258, 270, 559 A.2d 164, cert. denied, 493 U.S. 866, 110 S. Ct. 188, 107 L. Ed. 2d 142 (1989). The trial court did not abuse its discretion in ruling as it did.

The question that remains is whether we should decide, at this juncture, the admissibility of the pubic hair comparison on a ground other than that raised by the defendant at trial. Such an alternative would not, of course, invalidate the trial court’s ruling. “ ‘Error does not lie in the exclusion of evidence claimed on an inadmissible ground even though it might have been admissible had it been claimed on another and different ground.’ ” Mays v. Mays, 193 Conn. 261, 268, 476 A.2d 562 (1984), quoting Johnson v. Rockaway Bus Corporation, 145 Conn. 204, 210, 140 A.2d 708 (1958). At a retrial in which the court admits the evidence on the issue of the source of the semen discussed in Part I of this opinion, the defendant might, however, offer this testimony to buttress his assertion that the complainant had engaged in sexual conduct with Dino. In such an event the trial court will have to exercise its discretion to determine the admissibility of that evidence on this ground.

III

We decline to reach the defendant’s third claim of error, which concerns the court’s refusal to allow the defendant to suggest in his closing argument that the complainant and Dino had engaged in sexual intercourse prior to the alleged sexual assault. Our ruling that evidence of such conduct should not have been omitted makes it unlikely that such an issue will arise at retrial.

The judgment is reversed and the case is remanded for a new trial in accordance with this opinion.

In this opinion the other justices concurred.

       “[General Statutes] Sec. 53a-70. sexual assault in the first degree: class b felony: one year not suspendable. (a) A person is guilty of sexual assault in the first degree when such person (1) compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or by the threat of use of force against such other person or against a third person which reasonably causes such person to fear physical injury to such person or a third person, or (2) engages in sexual intercourse with a person under thirteen years of age.
      “(b) Sexual assault in the first degree is a class B felony for which one year of the sentence imposed may not be suspended or reduced by the court.”
      General Statutes § 53a-71 provides in relevant part: “(a) A person is guilty of sexual assault in the second degree when such person engages in sexual intercourse with another person and such other person is (1) under sixteen years of age . . . .”
      General Statutes § 53a-92 provides in pertinent part: “(a) A person is guilty of kidnapping in the first degree when he abducts another person and when . . . (2) he restrains the person abducted with intent to (A) inflict physical injury upon him or violate or abuse him sexually . . . .”

       The male passenger was also arrested and charged with sexual assault in the first degree in violation of General Statutes § 53a-70, sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (1), and kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (A). He preceded the defendant to trial and, just prior to the conclusion of his trial, entered guilty pleas under the Alford doctrine to charges of sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (1) and unlawful restraint in the first degree in violation of General Statutes § 53a-95. See North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).

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

       The specific words used by the complainant as testified to by Colleen were, “I want to fuck you” or “I want to fucking do you.”

       The defendant’s written offer of proof on which the court ruled differed somewhat from the defendant’s oral offer of proof, which reflected the testimony of Colleen. In his motion, the defendant offered to present the following evidence: “1. Testimony of Colleen . . . that the victim told [Colleen] that on or about the evening of June 21,1989, ‘how bad she wanted to get laid.’
      “2. Thereafter, the victim telephoned a male by the name of Dino and made plans to meet him somewhere on Frost Road, Waterbury, Connecticut.
      “3. That the victim went to Dino’s house; knocked on the door; Dino came out and the pair walked to a park.
      “4. Therefore, Dino and the victim walked into the woods at the back of this park.
      “5. After awhile [Colleen] called for the victim and she came out of the wooded area saying, T finally got it.’ Her pants were half down and her shirt was unbuttoned when she came out.”

       Had the trial court been correct in its conclusions, this evidence would not have been barred by General Statutes § 54-86Í as that statute excludes only the introduction of “evidence of sexual conduct.”

       The state presents an alternative basis upon which we could uphold the court’s ruling excluding testimony of the complainant’s statement to Dino “I want to fuck you” or “I want to fucking do you.” It claims that this evidence is inadmissible hearsay. This court has long recognized that a declaration of present intention to do a particular act in the near future, if made in good faith and not for self-serving purposes, is admissible to prove that the act was in fact performed. State v. Perelli, 125 Conn. 321, 324-25, 5 A.2d 705 (1939) (testimony that the deceased said he was going to New Haven is admissible to prove that he went to New Haven); see also Spencer’s Appeal, 77 Conn. 638, 642, 60 A. 289 (1905) (testimony that testator had stated that he did not want to leave his wife anything at his death was admissible to show that it was unlikely that he left his entire estate to her). Testimony regarding the complainant’s statement is therefore admissible under an exception to the hearsay rule.

       The trial court’s ruling on the ground of relevancy may well have been grounded at least in part on the confusing argument offered by the defendant for the admissibility of this evidence. In contrast to the testimony of Colleen proffered pursuant to General Statutes § 54-86f, the defendant’s counsel specifically advised the court that testimony regarding the similarity of the pubic hair found on the complainant’s blouse had “nothing to do with the rape shield statute.” When asked by the court whether the defendant was offering the evidence “as one of the exceptions to the rape shield statute?” the defendant’s counsel replied, “No, I’m not.” The defendant continues to put forth this argument to this court. In his appellate brief, the defendant asserts that the evidence of the pubic hair was “not technically evidence of [sexual] conduct that would be afforded protection under § 54-86f.” The defendant has not explained how this evidence could tend to show that someone else committed the crime with which he is charged without being some evidence of sexual conduct which is governed by § 54-86f.

       If at retrial the state does not offer the presence of semen into evidence, the source of the semen is no longer an issue and Colleen’s testimony as well as the pubic hair comparison would not be admissible under subsection (1) of General Statutes § 54-86f.


source: Caselaw Access Project

author: Shea, J.

license: Public Domain

text:
    Robert Cioffoletti et al. v. Planning and Zoning Commission of the Town of Ridgefield
    (14329)
    Peters, C. J., Shea, Glass, Covello and Berdon, Js.

      Argued October 1
    decision released November 12, 1991

      Melvin J. Silverman, for the appellants (plaintiffs).

      Thomas W. Beecher, for the appellee (defendant).
   Shea, J.

This appeal is the sequel to our decision in Cioffoletti v. Planning & Zoning Commission, 209 Conn. 544, 552 A.2d 796 (1989) (Cioffoletti I). In our order of remand, we instructed the trial court to conduct further proceedings related to whether the plaintiffs, Robert and Catherine Cioffoletti, had been deprived of their property rights unconstitutionally by the refusal of the defendant, the planning and zoning commission of the town of Ridgefield, to grant in its entirety their application for a permit to expand their sand and gravel mining activities. After the remand hearing, the trial court, Karazin, Jagain rendered judgment upholding the action of the commission, concluding that no taking without just compensation had occurred. In appealing from that judgment, the plaintiffs contest the court’s conclusion as unsupported by the evidence and as involving a deviation from our mandate in Cioffoletti I. They also contend that the denial of a permit to excavate the entire area proposed in their application constitutes a taking as a matter of law, in view of the evidence of the financial benefits they are prevented from realizing and the minimal evidence of adverse effects upon the public interest. We affirm the judgment.

In Cioffoletti I, the trial court, Moraghan, J., had upheld the decision of the commission, but had refused to admit evidence offered to the court by the plaintiffs of the economic impact of the partial denial of their permit application, thus limiting the evidentiary basis for determining their claim of a taking of property without due process of law to the record of the hearing before the defendant commission. We concluded that General Statutes 22a-43a (a) contemplated “that the trial court should decide the taking issue de novo in the light of all the evidence properly presented to it, including, but not limited to, the administrative record.” Id., 551. We also declared that the incorrect “evidentiary ruling has necessitated a remand for further proceedings related to [the taking] claim so that the trial court [could] make findings related thereto.” Id., 562.

At the remand hearing, the plaintiffs were permitted to present their economic impact evidence as well as other testimony. Their expert witnesses testified that, if an excavation permit had been granted, as requested, for the entire ten acre tract, which consisted mostly of wetlands that included a 2.6 acre pond, the plaintiffs’ property would have a value of $1,685,000, but that its value with the permit granted by the commission, limiting the excavation area to 4.6 acres, was only $760,000, a diminution in potential value of $925,000. Evidence was also presented that the plaintiffs had acquired the ten acre wetlands area as part of a twenty-four acre property purchased on October 15, 1982, for $260,000.

At the remand hearing it appeared that the plaintiffs had applied for a permit to remove no more than 200,000 cubic yards of sand and gravel from the ten acre wetlands tract over a period of ten years. An engineer who testified for the plaintiffs at the remand hearing stated that his computations indicated that 175,000 cubic yards of gravel and 25,000 cubic yards of fill could be excavated from the 4.6 acres.

Although it did not rely upon adverse effects of the proposed excavation upon the public, the trial court found that the record of the hearing before the commission was “full of reasons concerning the public interest and the advancement of the public interest.” The memorandum of decision refers specifically to complaints about “traffic and noise problems at the mining site” and to the testimony of experts concerning the “adverse impact on the existing flood plain portions of the wetlands” from the proposed excavation and the “possibility of diminished water quality that might result if oil and gasoline used to operate the mining equipment were spilled and thereafter entered the ground water system.” The court held it unnecessary, however, to decide whether these concerns outweighed the economic detriment suffered by the plaintiffs from the denial of permission to extract the maximum quantity of material from their property.

The trial court made two findings that it considered decisive: (1) the value of the plaintiffs’ property had increased from $260,000, its purchase price on October 15, 1982, to $760,000 on April 10, 1985, the date of their expert’s appraisal, as a result of the commission’s approval of mining operations on the 4.6 acre parcel; and (2) the plaintiffs, under the permit granted, could remove approximately the same amount of material that they had declared to the commission they intended to remove if their application were granted in full. Relying upon these findings, the court concluded that “no taking ha[d] occurred without just compensation.”

I

The plaintiffs claim that there is no competent evidence to support the trial court’s finding that the value of their property had increased as a result of the commission’s grant of a permit to excavate 4.6 acres of the ten acre tract for which the application sought a permit. This contention is virtually frivolous because the testimony and report of their own expert witness amply support that finding. Using the capitalization of income approach to valuation, the plaintiffs’ appraiser capitalized the projected net income that would be generated from the excavation of the 4.6 acre parcel and arrived at a value of $760,000 for the twenty-four acre tract on April 10,1985, the appraisal date. That witness also testified that the property had been purchased on October 15, 1982, by the plaintiffs for $260,000. Because the valuation of $760,000 was based almost entirely on the capitalization of income from the excavation of the 4.6 acre parcel, it was not unreasonable for the court to infer that the increase of $500,000 since its purchase, two and one-half years previously, had resulted from the grant of a permit to excavate on that parcel. Dotson v. Warden, 175 Conn. 614, 616, 402 A.2d 790 (1978). There was no evidence of any factor other than the granting of the permit for the 4.6 acres that would account for this remarkable appreciation in land value during such a relatively brief period of time.

The plaintiffs have not attacked the evidentiary basis for the finding of the trial court that the permit granted by the commission allows the removal of approximately 200,000 cubic yards of material, approximately the same quantity that they stated at the hearing before the commission that they intended to excavate from the entire ten acre tract, if their application had been granted as proposed.

II

The plaintiffs claim that the trial court departed from our remand order in Cioffoletti I by failing to set forth the facts they claim to have proved relating to the financial loss they have sustained from the denial of permission to excavate on the remaining 5.4 acres of the land described in the application. “It is the duty of the trial court on remand to comply strictly with the mandate of the appellate court according to its true intent and meaning.” Nowell v. Nowell, 163 Conn. 116, 121, 302 A.2d 260 (1972).

Our rescript in Cioffoletti I, supra, 563, set aside the judgment and remanded the case “for further proceedings in respect to the takings issue.” We explained in the opinion that the trial court ruling excluding the evidence offered by the plaintiffs of the financial loss resulting from the denial of an excavation permit for 5.4 acres of their property “necessitated a remand for further proceedings related to that claim so that the trial court [could] make findings related” to that issue. Id., 562. We indicated that, in determining whether a taking had occurred, consideration should be given not only to “the degree of diminution in the value of the land but also to the nature and degree of public harm to be prevented and to the alternatives available to the landowner.” Id., 562-63; Brecciaroli v. Commissioner of Environmental Protection, 168 Conn. 349, 356, 362 A.2d 948 (1975). We also declared that “[a]t the further proceedings in the trial court that we have ordered, evidence may be admitted that is material to the taking issue both as it relates to the plaintiffs’ financial detriment and as it relates to the advancement of the public interest.” Cioffoletti I, supra, 563.

The plaintiffs make no claim that any evidence offered by them on the taking issue was excluded. Their claim that the findings made by the court are inadequate apparently relates to the absence of any statement in the memorandum of decision quantifying the plaintiffs’ economic loss resulting from the refusal to grant their application fully. The court did refer to the “conflicting views of the evaluation of the property” given by the real estate appraisers testifying for the parties, but considered it unnecessary to resolve this dispute because the plaintiffs under the permit as granted could excavate the same amount of material that they had declared to the commission they intended to excavate. For the same reason, the court never attempted to employ the balancing test of weighing the plaintiffs’ financial loss against the public interest in accordance with the standard ordinarily used in addressing a taking issue.

Although this court in Cioffoletti I did refer to that standard, our mandate “for further proceedings in respect to the takings issue” was not so limited as to preclude other methods of resolving that issue. We have rejected efforts to construe our remand orders so narrowly as to prohibit a trial court from considering matters relevant to the issues upon which further proceedings are ordered that may not have been envisioned at the time of the remand. Blaker v. Planning & Zoning Commission, 219 Conn. 139, 592 A.2d 155 (1991). So long as these matters are not extraneous to the issues and purposes of the remand, they may be brought into the remand hearing. We conclude that the court did not exceed the scope of our remand by resolving the taking issue on grounds not mentioned in Cioffoletti I.

Ill

Finally, the plaintiffs contend that the application of the Inland Wetlands and Watercourses Act, General Statutes §§ 22a-36 through 22a-45, to their land constituted a taking because sand and gravel mining operations had been conducted there prior to zoning and were a nonconforming use. We agree with the trial court that no such taking claim can be based upon the action of the commission in granting permission to excavate the same amount of material from the 4.6 acres as the plaintiffs had declared they intended to excavate from the entire ten acre tract. Under the permit as granted, they may remove approximately 200,000 cubic yards of material, an undertaking that will not be completed for several years according to the schedule the plaintiffs proposed to the commission. Since the plaintiffs’ taking claim is predicated solely on the economic benefit to be derived from mining the additional 5.4 acres, the fact that they are able to remove the same amount of material as they sought to remove at the time of the hearing greatly undercuts any claim of financial loss at the present time.

“It follows from the nature of a regulatory takings claim that an essential prerequisite to its assertion is a final and authoritative determination of the type and intensity of development legally permitted on the subject property.” MacDonald, Sommer & Frates v. Yolo County, 477 U.S. 340, 348, 106 S. Ct. 2561, 91 L. Ed. 2d 285 (1986). Because the plaintiffs have received under the permit as granted by the commission all of the economic benefit that they had indicated they were seeking, it is unclear whether the commission has made a final determination as to the extent of the mining operations that may ultimately be allowed on the plaintiffs’ property. Whether or not the commission was aware of the consequences of its decision, its effect was to authorize the plaintiffs to remove as much material as they had requested.

Counsel for the commission does not maintain that the plaintiffs are forever barred by the commission’s action from applying for permission to excavate additional material from the remaining 5.4 acres at some later time. As he suggests, it is conceivable that such an application might be granted. After the commission has had the opportunity to evaluate the ecological effects of the excavation to be conducted on the 4.6 acre tract, the plaintiffs will be in a better position to submit a new application to excavate on their remaining land. “Until a property owner has ‘obtained a final decision regarding the application of the . . . regulations to its property,’ ‘it is impossible to tell whether the land retain[s] any reasonably beneficial use or whether [existing] expectation interests ha[ve] been destroyed.’ ” Id., 349, quoting Williamson Planning Commission v. Hamilton Bank, 473 U.S. 172, 186, 190 n.11, 105 S. Ct. 3108, 87 L. Ed. 2d 126 (1985); Gil v. Inland Wetlands & Watercourses Agency, 219 Conn. 404, 415, 593 A.2d 1368 (1991); Port Clinton Associates v. Board of Selectmen, 217 Conn. 588, 600-602, 587 A.2d 126 (1991).

Furthermore, the opponents of the application, as well as the commission members, were entitled to rely on the representations of the plaintiffs about the quantity of material to be excavated from the wetlands area. The testimony at the public hearing, even that offered by the plaintiffs, might have been quite different if it had been known that the plaintiffs sought to remove a substantially greater amount of material than indicated by their application. Because the plaintiffs will have an opportunity to apply at the appropriate time for permission to excavate on their remaining land, they have failed to satisfy the requirement that the decision of the regulatory agency be final, so that a reviewing court may properly consider whether an unconstitutional taking of property without just compensation has occurred.

The judgment is affirmed.

In this opinion the other justices concurred.

       The plaintiffs do not cite but presumably rely upon article five of our federal constitution, which provides in part: “No person shall ... be deprived of . . . property, without due process of law; nor shall private property be taken for public use, without just compensation.”

       The planning and zoning commission of the town of Ridgefield also serves as its inland wetlands board.

       General Statutes § 22a-43a (a) provides: “If upon appeal pursuant to section 22a-43, the court finds that the action appealed from constitutes the equivalent of a taking without compensation, it shall set aside the action or it may modify the action so that it does not constitute a taking. In both instances the court shall remand the order to the inland wetland agency for action not inconsistent with its decision.”

       The plaintiffs’ written application stated that they sought a permit for “[r]emoval of approximately 80,000 cubic yards of sand and gravel for use by the applicant.” After a question was raised at the December 18, 1984 public hearing about this quantity as inconsistent with the depth and area of the proposed excavation, counsel for the plaintiffs reported that revised calculations indicated that the total volume of material to be removed from the ten acre site would be between 180,000 and 200,000 cubic yards.

       The plaintiffs’ permit application indicated that approximately ten years would be required to complete the proposed excavation of the ten. acre tract.


text:
    Gabrielle F. Bartlett v. E. Lewis Bartlett IV
    (14275)
    Peters, C. J., Shea, Callahan, Glass and Borden, Js.
    Argued September 24
    decision released November 12, 1991

      Richard F. Paladino, for the appellant (plaintiff).

      James D. Reardon, for the appellee (defendant).
   Shea, J.

This is an appeal from the denial by the trial court of the plaintiffs motion to open a judgment of dissolution for the purpose of modifying the award of periodic alimony. We are asked to decide whether the court was bound to consider an inheritance received by the defendant several years after the original alimony award, the assets of which had vested in him but had not yet been distributed to him. We answer this question in the affirmative and, therefore, reverse the judgment and remand the case for further proceedings.

The relevant facts are undisputed. On June 26,1985, the trial court, D. Dorsey, J., rendered a judgment dissolving the twenty-one year marriage between Gabrielle F. Bartlett, the plaintiff, and E. Lewis Bartlett IV, the defendant. The court found that the marriage had broken down irretrievably and ordered the defendant to pay the plaintiff $7500 in attorney’s fees, $194,000 in lump sum alimony, and $1900 in monthly periodic alimony and also to maintain health insurance for her benefit until March 26,1986. The court awarded the defendant sole ownership of the house where the two had spent their married life.

During the trial of the marital dissolution action, the plaintiff had attempted to introduce evidence of a revocable trust created by the defendant’s mother, from which she claimed the defendant would benefit upon his mother’s death. She argued that evidence of the defendant’s contingent interest in the trust was relevant to his financial circumstances, a significant factor for the court to consider when dividing the marital property and fashioning an award of alimony. The court rejected this argument, stating that, because the defendant’s mother retained the power to revoke the trust at any time, the potential inheritance was a mere expectancy, not a vested property interest, and was thus properly excluded according to the rule announced in Krause v. Krause, 174 Conn. 361, 387 A.2d 548 (1978). No appeal was taken from the original judgment of dissolution.

On September 13,1990, the plaintiff filed a “Motion to Reopen and Modify Dissolution Judgment,” pursuant to General Statutes § 46^86, seeking an increase in the amount of periodic alimony originally awarded to her. She claimed that there had been a substantial change in circumstances since the dissolution in that (1) the defendant had finally acquired a sizable inheritance from his mother’s estate, and (2) her health had deteriorated since the original judgment, causing her to incur greater health care expenses. She sought an additional $1100 per month in alimony and also requested that the defendant be ordered to pay for her health insurance coverage once again.

Evidence presented at the hearing on the motion revealed that the defendant’s mother had died on July 28,1990, leaving a last will and testament and a trust agreement executed in conjunction with the will. The will named the defendant as the legatee of certain items of personal property of no great monetary value and also provided that the residuary estate be transferred to the trust created at the time the will was executed. The trust agreement directed the trustee to “set out two-thirds (2/3) of the Trust Estate” for the defendant upon his mother’s death. The estimated value of the whole trust estate, including the distribution to be received upon settlement of the probate estate, was between $2,000,000 and $3,000,000. A bank official testified, however, that it was likely to take approximately two years for the defendant to obtain actual possession of his inheritance because administrative matters, such as the payment of taxes, would delay the distribution. In addition, the marital home now owned solely by the defendant had appreciated in value from $300,000 at the time of the original judgment to $743,000 at the time the motion was being considered.

The trial court, Hon. Harry W. Edelberg, state trial referee, denied the motion for essentially two reasons. First, the court concluded that Judge Dorsey had already considered the possibility of the inheritance during the original dissolution proceeding when fashioning the award of alimony and the assignment of property. Second, the court interpreted our decision in Rubin v. Rubin, 204 Conn. 224, 527 A.2d 1184 (1987), to require exclusion of the evidence of the defendant’s inheritance because he had not yet received any assets from the estate or from the trust. The plaintiff argues that the court was mistaken with respect to both issues and seeks a reversal of the decision and a new hearing on the motion. We agree with this claim and grant the requested relief.

I

The first claim, that the trial court, Hon. Harry W. Edelberg, state trial referee, improperly concluded that Judge Dorsey had considered the possibility of the inheritance for purposes of the original property division and alimony award, is easily resolved. In rendering the dissolution judgment, Judge Dorsey stated, with respect to the property division and alimony award, that he had considered “the health, the station, the occupation of both parties, the sources of income, the vocational skills, and the employability, the estate, and the liabilities and the needs of each party—and the opportunity for—of each for the future acquisition of capital assets and income.” While this language itself is ambiguous in that the defendant’s then contingent interest in his mother’s estate could conceivably have been classified as an “opportunity for . . . the future acquisition of capital assets and income,” any doubt is dispelled by the court’s earlier exclusion of the evidence of the revocable trust. The record indicates that Judge Dorsey had an extended colloquy with counsel for both parties, consulted case law on the subject and ultimately excluded evidence of the potential inheritance because it was a mere expectancy that had not yet vested.

The defendant argues that although the court purported to exclude that evidence, the fact that the plaintiff was awarded $194,000 in lump sum alimony and $1900 per month in periodic alimony, amounts he considers disproportionately large, indicates that the court must have considered the potential inheritance in arriving at its decision. In support of his argument, he notes that the lump sum alimony payment represented more than one half the value of the equity in the marital home at the time of the dissolution, and that at the time the $1900 monthly alimony award was made, his income was shown to be only $1070 per week with expenses of $1448 per week. We are not persuaded by this argument.

No inference can be drawn from the terms of the marital dissolution judgment, which has become final and was never appealed, that its terms were influenced by improper consideration of a potential inheritance, especially when the court expressly excluded such evidence as irrelevant. A judgment that has become final must be presumed to have been based on the evidence adduced at trial and rendered in accordance with the law. Kelly v. New Haven Steamboat Co., 75 Conn. 42, 46-47, 52 A. 261 (1902). In arriving at an equitable division of property and award of alimony, the court was not limited to a mechanical halving of the equity in the marital home or a simple subtraction of the defendant’s expenses from his income. General Statutes §§ 46b-81 and 46b-82 set forth a host of factors to be considered, and the court was entitled to exercise wide latitude in varying the weight placed upon each factor in light of the particular circumstances of the case. Carpenter v. Carpenter, 188 Conn. 736, 741, 453 A.2d 1151 (1982); Volante v. Volante, 180 Conn. 528, 531, 429 A.2d 964 (1980). The claim that the award of alimony and the division of property in the original judgment were unduly favorable to the plaintiff unless the court considered the defendant’s potential inheritance is refuted by the many factors actually relied upon by Judge Dorsey in rendering his decision. Thus the inference the defendant seeks to draw from the terms of the judgment is unfounded.

II

The second claim advanced by the plaintiff is that the trial court, in entertaining her motion to modify the periodic alimony award, improperly excluded the evidence of the defendant’s inheritance. She argues that the inheritance vested in the defendant upon his mother’s death and that it therefore should have been considered by the court because it was no longer a mere expectancy, as it had been at the time of the original dissolution proceedings in 1985.

The defendant disagrees not only with the plaintiff’s view of which assets are properly considered on a motion to modify alimony but also with her assertion that the inheritance had “vested” in him at all. He claims that, when his mother died, the inheritance vested not in him but in the trust created by his mother. He argues that the inheritance will not vest in him until the trustee distributes the proceeds to him, and that only then may the assets be considered for purposes of modifying the award of periodic alimony. This argument reveals a misunderstanding of the difference between the vesting of a property right and the possession of property.

It is well settled that a person’s right of inheritance vests at the moment of the decedent’s death; Emanuelson v. Sullivan, 147 Conn. 406, 409, 161 A.2d 788 (1960); and that “although distribution occurs a considerable time thereafter, it relates back to the date of the death as the time when the right of the beneficiary became fixed.” Blodgett v. Bridgeport City Trust Co., 115 Conn. 127, 144, 161 A. 83 (1932). In this case, it was not necessary for the plaintiff to prove that the defendant had acquired actual possession of the assets of his mother’s estate in order to make the necessary showing of a substantial change in circumstances not contemplated at the time of dissolution. Proof of the vesting of the defendant’s right to his inheritance was sufficient to support the motion to modify the award of periodic alimony. It is of no moment that the assets to which the defendant was entitled were temporarily held in a trust, pending settlement of his mother’s estate. The trust was merely an administrative vehicle that could not alter in any way the defendant’s right to his inheritance, which vested in him at the moment of his mother’s death. Krause v. Krause, supra; Kingsbury v. Scovill, 26 Conn. 349, 352 (1857).

Having determined that the defendant’s inheritance did vest in him upon the death of his mother, we hold that the trial court was bound to consider that inheritance in ruling on the motion for an increase in alimony, despite the fact that the assets of the inheritance had not yet been distributed to him. The trial court, in ruling on the motion, misconstrued our decision in Rubin v. Rubin, supra, when it limited its inquiry to the defendant’s earnings. In Rubin, the trial court, after hearing evidence that the husband was a residuary beneficiary of a revocable inter vivos trust created by his mother and was one of two equal residuary legatees under his mother’s will, ordered the husband to pay to his wife “one third of the net estate that he may receive ‘from either the trust created by his mother and from her by way of a testamentary gift or other form of inheritance.’ ” Id., 227. The Appellate Court affirmed the trial court’s ruling, but we reversed, holding that such a contingent order could not be upheld as a valid assignment of property under § 46b-81 or as a valid award of alimony under § 46b-82, because it was based upon a mere expectancy on the part of the plaintiff husband, rather than on a vested property right. We determined that such an order was illusory because “[t]he expectancy may never be realized because of diminution of the donor’s wealth or a change in the planned disposition of his property.” Id., 235. We also pointed out that “[bjeeause periodic alimony orders are modifiable when changes in circumstances occur, the increase in the plaintiffs financial ability that may occur upon his mother’s death would constitute a change of circumstances ordinarily warranting an increase in the weekly alimony payment . . . .’’Id., 235-36.

In this case, the trial court in the dissolution action in 1985 properly excluded evidence of the defendant’s potential inheritance of his mother’s estate, because at that time, as was the case in Rubin, it was a mere expectancy, in that his mother retained the power to diminish the value of the estate or to revoke or reduce her son’s contingent interest in it at any time. See also Fattibene v. Fattibene, 183 Conn. 433, 443, 441 A.2d 3 (1981); Thompson v. Thompson, 183 Conn. 96, 98-99, 438 A.2d 839 (1981); Krause v. Krause, supra. Once the defendant’s mother died, however, precisely the situation contemplated in Rubin occurred: the defendant’s financial circumstances changed substantially upon the vesting of his inheritance, warranting the plaintiff’s motion to open the judgment to increase the award of periodic alimony. Accordingly, it was improper for the court not to consider the evidence of that vested interest.

The defendant further argues that, even if his inheritance vested upon his mother’s-death, the trial court was limited to evidence of liquid assets and income-producing real property for the purpose of modifying the alimony award. He admits, however, that a court may properly consider all assets, liquid and non-liquid alike, for the purpose of fashioning the original alimony award at the time of dissolution. We have stated in the past that “[tjhe same criteria that determine an initial award of alimony are relevant to the question of modification, and these require the court to consider, without limitation, the needs and financial resources of each of the parties, as well as such factors as health, age and station in life. General Statutes § 46b-82.” Cummock v. Cummock, 180 Conn. 218, 221-22, 429 A.2d 474 (1980). The defendant proffers, and we perceive, no logical reason to justify a departure from our decision in Cummock to draw the distinction he urges. On the contrary, logic and sound public policy dictate a rule that requires the consideration of all assets, because a contrary rule would encourage parties who acquire substantial amounts of nonliquid assets after the original judgment to insulate themselves from paying more alimony, despite their increased wealth, by simply delaying the liquidation of those assets. We therefore reject the argument that only liquid assets are relevant to alimony modification.

The final claim advanced by the defendant is that the trial court correctly excluded evidence of the inheritance because it was comprised of “property,” and although the court had authority to modify the alimony award, it had no such authority to modify the original assignment of “property.” See General Statutes § 46b-86, footnote 1, supra. In other words, he claims that the motion to modify alimony was nothing more than an artifice designed to effectuate a new distribution of the property inherited rather than to increase the alimony award. This argument is without merit. Although we agree that the court had no statutory authority to modify the original property assignment, that argument is irrelevant because the plaintiff did not seek to have a portion of the property inherited by the defendant assigned to her. She sought to increase the periodic alimony award because the defendant’s financial circumstances had changed substantially due to his inheritance of certain property. Whether the defendant inherited “property” or cash is of no consequence; a substantial increase in wealth of any sort may form an appropriate ground for a motion to modify alimony.

Our conclusion that the trial court should have considered the defendant’s vested inheritance for purposes of alimony modification comports with our recent decision in Eslami v. Eslami, 218 Conn. 801, 591 A.2d 411 (1991). In Eslami, the trial court failed to consider the plaintiff wife’s vested interest in her father’s estate, the assets of which she had not yet received, because the value of her interest could not be determined. Evidence at the trial showed that her brother had initiated a will contest which was still pending and that the value of her interest depended upon the resolution of that litigation. We affirmed the judgment of the trial court, noting that “[although the interest involved here had vested in the wife at the time of trial, the court could reasonably have concluded that uncertainty as to the amount she would eventually receive from her father’s estate militated against consideration of that interest for the purpose of financial awards.” Id., 807. We also indicated that modification of the alimony award would be appropriate when the value of her interest became ascertainable. Id., 808.

In the case now before us, the trial court never reached the issue of valuation of the inheritance, as the trial court in Eslami did, because it declined to consider the defendant’s inheritance at all in ruling on the motion to modify alimony. The court’s mistaken belief that the inheritance had not yet vested because the defendant had not yet received the proceeds prompted the court to deny the motion without attempting to ascertain the value of the inheritance. Had the court made the appropriate inquiry, it would have had discretion to resolve the question in any number of ways. For example, if the court had been able to ascertain the value of the defendant’s interest with reasonable certainty, it could have entered an order in which the increase in the award of periodic alimony would accrue until such time as he actually received the inheritance or was otherwise able to pay his obligation. Such an order would have extended the benefit of the modification to the plaintiff and would have simultaneously protected the defendant from the threat of being held in contempt for disobeying a modified alimony order that might have exceeded his current financial ability to meet it. See Rubin v. Rubin, supra, 237. If, on the other hand, the court had not been able to make a proper valuation of the inheritance, it could have done what the trial court in Eslami effectively did: postpone consideration of the inheritance until such time as its value could be ascertained with reasonable certainty. Because the court never reached the issue of valuation, however, we cannot uphold its decision to deny the motion.

We note finally that the plaintiff should not be penalized by the passage of time from the date she filed the motion to modify alimony to the date on which the new hearing will be held. If, on rehearing, the trial court should decide that she is entitled to an increase in her award of periodic alimony, the court’s order should be effective as of the date of service of notice of the motion upon the defendant so as to afford the plaintiff the benefit of the modification from the time when it was originally sought. General Statutes § 46b-86 (a).

The judgment is reversed and the case is remanded for further proceedings consistent with this opinion.

In this opinion the other justices concurred.

       General Statutes § 46b-86 provides in pertinent part: “(a) Unless and to the extent that the decree precludes modification, any final order for the periodic payment of permanent alimony or support or an order for alimony or support pendente lite may at any time thereafter be continued, set aside, altered or modified by said court upon a showing of a substantial change in the circumstances of either party .... This section shall not apply to assignments under section 46b-81 or to any assignment of the estate or a portion thereof of one party to the other under prior law. No order for periodic payment of permanent alimony or support may be subject to retroactive modification, except that the court may order modification with respect to any period during which there is a pending motion for modification of an alimony or support order from the date of service of such pending motion upon the opposing party pursuant to section 52-50.” (Emphasis added.)

       In the alternative the plaintiff requested an increase of $1600 per month in alimony if she were required to purchase the health insurance coverage herself.

       The plaintiff has advanced no specific claim of error with respect to the court’s failure to consider the appreciation in the value of the marital home in ruling on the motion. Consequently, we do not address that aspect of the court’s ruling.

       For the sake of convenience we use the term “inheritance” to refer to the defendant’s interest as beneficiary of both his mother’s will and the trust created by her.

       This was essentially a recitation of the factors set forth in General Statutes §§ 46b-81 and 46b-82. See footnote 8, infra.

       After counsel for the defendant stated his first objection to admission of evidence of the potential inheritance, Judge Dorsey consulted case law during a recess. Upon returning, he gave a lengthy synopsis of the facts of Krause v. Krause, 174 Conn. 361, 387 A.2d 548 (1978), and then noted that “the court [in Krause] went on to say the expectancy, that is, the inheritance, is speculative. . . . Expectancy is the bare hope of succession. It is an inchoate hope. It has no attribute of property, and the interest to which it relates is at the time nonexistent, and may never exist. Meaning that, of course, a testator has the absolute right to cut anybody off up to the very last moment he breathes. And then it went on to say the moment of the decedent’s death determines the right of inheritance. . . .” Thereafter, the following colloquy took place between Judge Dorsey and counsel for the plaintiff about admission of the potential inheritance:
      “Mr. Mikolitch: The primary beneficiary is—It’s a revocable trust. The primary beneficiary is the donor, and at her death there would be certain— the defendant would be the primary beneficiary.
      “The Court: It isn’t any different than a will, except she can revoke it at any time.
      “Mr. Mikolitch: Well, she can, but the point is that it’s been in effect all these years.
      “The Court: But she still has that power.
      “Mr. Mikolitch: She still has that power, but—
      “The Court: She could revoke it tomorrow.
      “Mr. Mikolitch: That’s true.
      “The Court: I could enter an order against it, and she still would have the power to revoke it.
      “Mr. Mikolitch: Well, she could. That’s true.
      “The Court: But I’m not going to let it in, based upon the Krause case. ” (Emphasis added.)

       Undisputed evidence indicated that the house had an appraised value of $300,000 with an outstanding mortgage of $60,000 resulting in a value for the equity of $240,000 or $120,000 for each party.

       Under the provisions of both statutes, the trial court “shall consider the length of the marriage, the causes for the . . . dissolution of the marriage ... the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties . . . .” General Statutes § 46b-82. General Statutes § 46b-81 (c) also provides for consideration of the “liabilities” of each of the parties. In assigning marital property, the trial court must also consider the opportunity for each party to acquire future capital assets and income, as well as the contribution of each of the parties toward the value of their respective estates. General Statutes § 46b-81 (c).

       Rendering his decision orally, Judge Dorsey expressly found that the plaintiff was fifty-six years old at the time of dissolution, that she had high blood pressure and a residual nervous condition, that she had made substantial financial contributions to the marriage and the marital home, that the couple had been married for twenty-one years, and that there was greater fault on the part of the defendant with respect to the cause of the breakdown of the marriage.

       The wife expected to receive about $180,000 from the estate if the will were upheld as opposed to $80,000 if it were not upheld. Eslami v. Eslami, 218 Conn. 801, 806, 591 A.2d 411 (1991).