author: Glass, J. Arthur H. Healey, J., with whom Callahan, J., joins,

text:
    Jules Staples v. Paul M. Palten et al.
    (13647)
    Peters, C. J., Healey, Shea, Callahan and Glass, Js.
    Argued December 12, 1989
    decision released March 13, 1990

      Michael S. Wagner, special public defender, for the appellant (petitioner).

      Mitchell S. Brody, assistant state’s attorney, for the appellees (respondents).
   Glass, J.

On April 14,1988, the petitioner, Jules Staples, pursuant to a substitute information, pleaded guilty to assault on a police officer, in violation of General Statutes § 53a-167c, and admitted he had violated his parole. No agreement as to sentencing, however, existed between the state and the petitioner. On June 27,1988, the court, Steinberg, J., imposed a total effective sentence of ten years, execution suspended after six years, and five years probation. Pursuant to General Statutes § 51-195, the petitioner filed an application for review of his sentence before the Sentence Review Division of the Superior Court. On January 24, 1989, the Sentence Review Division dismissed the petitioner’s application on the ground that he had entered a “plea agreement” within the meaning of § 51-195, and, therefore, the Sentence Review Division lacked jurisdiction to hear his application.

The petitioner has brought this writ of error claiming that the Sentence Review Division erred in declaring that the definition of a “plea agreement,” for the purposes of § 51-195, includes a plea of guilty that is entered with no agreement as to a specific sentence. The petitioner, therefore, maintains that this court should set aside the Sentence Review Division’s judgment of dismissal, and order it to rehear his application for review.

Section 51-195 mandates that sentence review shall be available to any person receiving a sentence of confinement of three years or more, “except in any case in which a different sentence could not have been imposed or in any case in which the sentence or commitment imposed resulted from the court’s acceptance of a plea agreement or in any case in which the sentence imposed was for a lesser term than was proposed in a plea agreement.” (Emphasis added.) The petitioner argues that his agreement simply to plead guilty, absent an agreement as to a specific sentence, does not fall within the “plea agreement” exception of § 51-195. We agree.

The state argues, however, that the petitioner did enter into a “plea agreement” for the purposes of § 51-195. Specifically, the state contends that the petitioner entered a plea agreement whereby he received a reduction in the charges against him in consideration of his agreeing to be sentenced to a particular range of years. Section 51-195 mandates, however, that the sentence that is imposed must result from the court’s acceptance of a plea agreement, and we discern no such causal connection between the specific sentence received by the petitioner and his agreement simply to plead guilty.

Although “plea agreement” is not defined in § 51-195, the principles of statutory construction dictate that “plea agreement,” as used in § 51-195, means an agreement entailing a sentence of a specific term of years. First, “ ‘[w]hen a statute creates an exception to a general rule, it is to be construed strictly and its language is not to be extended beyond its evident intent.’ Bickart v. Sanditz, 105 Conn. 766, 772, 136 A. 580 [1927]; Willoughby v. New Haven, 123 Conn. 446, 454, 197 A. 85 [1937].” Kulis v. Moll, 172 Conn. 104, 110, 374 A.2d 133 (1976); see Conservation Commission v. Price, 193 Conn. 414, 424, 479 A.2d 187 (1984); Aaron v. Conservation Commission, 183 Conn. 532, 549, 441 A.2d 30 (1981). Second, a “ ‘remedial’ statute is to be construed in favor of those whom it was intended to protect.” Wagner Seed Co. v. Bush, 709 F. Sup. 249, 252 (D.D.C. 1989); see E.E.O.C. v. Pattin-Marion, A Div. of Eastern Co., 588 F. Sup. 41, 45 (S.D.Ill. 1984); State v. Avcollie, 174 Conn. 100, 110-11, 384 A.2d 315 (1977); Hartford Fire Ins. Co. v. Brown, 164 Conn. 497, 503, 325 A.2d 228 (1973).

In addition, under the maxim of “noscitur a sociis,” the meaning of a particular word or phrase in a statute is ascertained by reference to those words or phrases with which it is associated. See Schreiber v. Burlington Northern, Inc., 472 U.S. 1, 8, 105 S. Ct. 2458, 86 L. Ed. 2d 1 (1985); General Electric Co. v. Occupational Safety & Health Review Commission, 583 F.2d 61, 65 (2d Cir. 1978); United States v. LaBrecque, 419 F. Sup. 430, 434 (D.N.J. 1976). In Owen of Georgia, Inc. v. Shelby County, 648 F.2d 1084, 1092 (1981), the Sixth Circuit Court of Appeals further elucidated this principle stating that “ ‘noscitur a sociis’ . . . acknowledges that general and specific words are associated with and take color from each other, restricting general words to a sense . . . less general.” Therefore, in ascertaining the meaning of “plea agreement” in § 51-195, we must look to the other two listed exceptions. In particular, § 51-195 also excepts “any case in which a different sentence could not have been imposed” or “any case in which the sentence imposed was for a lesser term than was proposed in a plea agreement.” It is clear that these two exceptions contemplate sentences of specific terms of years, and not sentences that simply entail a range of years.

Therefore, given the result of the application of “noscitur a sociis,” and given the fact that the “plea agreement” exception is to be construed liberally in favor of its intended beneficiary, we hold that “plea agreement” for the purposes of § 51-195 means an agreement encompassing a sentence of a specific term of years. Thus, even if the state is correct in asserting that the petitioner received a reduction in the charges against him in consideration of his agreeing to be sentenced to a particular range of years, this would still not constitute a “plea agreement” for the purposes of § 51-195 because the petitioner would still not have agreed to a sentence of a specific term of years.

There is error and the case is remanded to the Sentence Review Division for further proceedings.

In this opinion Peters, C. J., and Shea, J., concurred.

Arthur H. Healey, J., with whom Callahan, J., joins,

dissenting. I respectfully disagree with the majority that the term “plea agreement” for the purposes of General Statutes § 51-195 “means an agreement encompassing a sentence of a specific term of years.”

I first note that the majority, after observing that “plea agreement” is not defined in § 51-195, states that principles of statutory construction “dictate” that that term as used in § 51-195 “means an agreement entailing a sentence of a specific term of years.” Accepted and applicable principles of statutory construction do not, I submit, dictate the result reached by the majority.

Initially, the sentence review division’s (division) argument that the petitioner entered a plea agreement whereby he received a reduction in the charges against him, in consideration for his agreeing to be sentenced for a particular range of years, has not persuaded the majority. The record shows that at the time the petitioner appeared before the division Hon. Francis J. Quinn said: “Well, serious charges against [the petitioner] were dropped and he was allowed to plead to a lesser offense. That, along with the agreement of no specific recommendation, is a plea agreement.” The record before us also shows that the original information was in three counts: assault in the first degree in violation of General Statutes § 53a-59 (a class B felony); reckless endangerment in the first degree in violation of General Statutes § 53a-63 (a class A misdemeanor); and interfering with a police officer in violation of General Statutes § 53a-167a (a class A misdemeanor).

Counsel for the petitioner who argued his appeal before this court also represented the petitioner not only on the original three count information in the trial court but also at the sentencing for which sentence review was requested. At oral argument before this court, questions from the bench elicited further information from petitioner’s counsel. The following,- which we may properly consider, developed from that questioning. At the time of the petitioner’s arrest, he was also on probation following his adjudication as a youthful offender. There were, admittedly, discussions and negotiations concerning a disposition. As a result, the petitioner agreed to and did plead guilty to a substitute information charging him with assault on a police officer in violation of General Statutes § 53a-167c (a class C felony), as well as pleading guilty to two counts of violation of his probation. In return, the state agreed to and did nolle the original class B felony count and the two class A misdemeanor counts. In addition, the state and the petitioner agreed that no specific sentence would be recommended to the sentencing judge. At sentencing, however, the state did argue for incarceration and the petitioner argued for a lesser sentence than what was in fact imposed. On the assault count, the petitioner was sentenced to a term of ten years imprisonment, the execution of which was suspended after five years and five years probation. In addition, he was given a sentence of six months imprisonment on each of two counts of violation of his probation under General Statutes § 53a-32 to be served consecutively. The sentences on the violation of probation were then ordered to be served consecutively to the sentence on the assault count.

It is this disposition that the majority has concluded is not a “plea agreement” under § 51-195 because that term “means an agreement encompassing a sentence of a specific term of years.” In a word, because this disposition package did not include a recommendation for a specific sentence, it was not a “plea agreement” under § 51-195 and, accordingly, the division erroneously dismissed his petition.

The majority explicitly sets out certain principles of statutory construction upon which it bases its analysis. The first is that “ ‘ “[w]hen a statute creates an exception to a general rule, it is to be construed strictly and its language is not to be extended beyond its evident intent.” . . .’ ” I have no problem with this as a statement of one of a number of rules of statutory construction even where, as in this case, the statute is remedial. See State v. Nardini, 187 Conn. 109, 118-19, 445 A.2d 304 (1982). Another statutory rule of construction used by the majority is the invocation and application of the rule of “noscitur a sociis.”

It is suggested, however, that the use of other rules of construction is appropriate here. One court aptly observed that “while [it was] not unmindful of the general rule that exceptions to remedial statutes are to be construed narrowly, they should also be construed sensibly, and to give effect to statutory purposes.” Brennan v. Valley Towing Co., 515 F.2d 100, 110 (9th Cir. 1975). We have even said that “[a] proviso [in a statute] should be ‘so interpreted as not to destroy the remedial processes intended to be accomplished by the enactment.’ Shilkret v. Musicraft Records, Inc., 131 F.2d 929, 931 (2d Cir. 1942), cert. denied, 319 U.S. 742, 63 S. Ct. 1030, 87 L. Ed. 1699 [1943]; see also 73 Am. Jur. 2d, Statutes, § 321.” State v. Avcollie, 174 Conn. 100, 110-11, 384 A.2d 315 (1977); see Spokane & Inland Empire R.R. Co. v. United States, 241 U.S. 344, 350, 36 S. Ct. 668, 60 L. Ed. 1037 (1916). Moreover, in construing a statute, common sense must be used, and courts will assume that the legislature intended to accomplish a reasonable and rational result. King v. Board of Education, 203 Conn. 324, 332-33, 524 A.2d 1131 (1987); State v. Roque, 190 Conn. 143, 151, 460 A.2d 26 (1983); Stoni v. Wasicki, 179 Conn. 372, 376-77, 426 A.2d 774 (1979). In ascertaining legislative intent, we look to the history of the statute, the policy underlying it and the circumstances which brought about its enactment. Gentry v. Norwalk, 196 Conn. 596, 606, 494 A.2d 1206 (1985); see State v. Nardini, supra. “It is a cardinal rule of statutory construction that a statute is not to be construed so as to thwart its purpose.” Narel v. Liburdi, 185 Conn. 562, 571, 441 A.2d 177 (1981), cert. denied, 456 U.S. 928, 102 S. Ct. 1974, 72 L. Ed. 2d 443 (1982); State v. Roque, supra, 151; Evening Sentinel v. National Organization for Women, 168 Conn. 26, 31, 357 A.2d 498 (1975).

In speaking to the rule of “noscitur a sociis,” the United States Supreme Court has said: “That a word may be known by the company it keeps is, however, not an invariable rule, for the word may have a character of its own not to be submerged by its association. Rules of statutory construction are to be invoked as aids to the ascertainment of the meaning or application of words otherwise obscure or doubtful.” Russell Motor Car Co. v. United States, 261 U.S. 514, 519, 43 S. Ct. 428, 67 L. Ed. 778 (1923); International Salt Co. v. Geostow, 697 F. Sup. 1258 (W.D.N.Y. 1988), aff'd, 878 F.2d 570 (2d Cir. 1989). The formalistic application of this rule should be avoided. Russell Motor Car Co. v. United States, supra; 2A J. Sutherland, Statutory Construction (4th Ed. Sands. 1984) § 47.16.

From the circumstances surrounding the petitioner’s decision to plead guilty, it is evident to me that he did so as the result of a “plea agreement” as that term is used in § 51-195. The majority correctly observes that “plea agreement” is not defined in § 51-195 and says that to do so, it must look to the other two exceptions listed in that statute. Then, “given” the application of “noscitur a sociis” and the requirement of strict construction, it concludes that “plea agreement” in § 51-195 “means an agreement encompassing a sentence of a specific term of years.” This result is flawed by the analysis, the application of rules of statutory construction and common sense. Moreover, it thwarts the statutory purpose, especially that of the 1978 amendment to § 51-195, Public Acts 1978, No. 78-191.

It is useful, in arriving at the construction of § 51-195, to consider certain aspects of plea agreements. The terms “plea agreement,” as well as “plea bargain,” are familiar and not undefined terms in the administration of criminal justice in this country. The United States Supreme Court has pragmatically observed: “Whatever might be the situation in an ideal world, the fact is that the guilty plea and the often concomitant plea bargain are important components of this country’s criminal justice system. Properly administered, they can benefit all concerned.” Blackledge v. Allison, 431 U.S. 63, 71, 97 S. Ct. 1621, 52 L. Ed. 2d 136 (1977); see Bordenkircher v. Hayes, 434 U.S. 357, 361, 98 S. Ct. 663, 54 L. Ed. 2d 604, reh. denied, 435 U.S. 918, 98 S. Ct. 1477, 55 L. Ed. 2d 511 (1978). Bordenkircher also states that “[p]lea bargaining flows from 'the mutuality of advantage’ to defendants and prosecutors, each with his own reasons for wanting to avoid trial. ... [In plea bargaining] the plea may have been induced by promises of a recommendation of a lenient sentence or a reduction of charges and thus by fear of the possibility of a greater penalty upon conviction after trial.” Bordenkircher v. Hayes, supra, 363. A threat of a heavier sentence after conviction at trial is essential to plea bargaining. United States v. Allen, 668 F. Sup. 969, 976 (W.D. Pa. 1987), aff’d, 845 F.2d 1016 (3d Cir. 1988). A “plea agreement” comes about when the prosecutor and the accused exchange promises to do or refrain from doing certain acts. People v. Davis, 94 Ill. App. 3d 809, 811, 419 N.E.2d 724 (1981); see Gray v. State, 38 Md. App. 343, 356, 380 A.2d 1071 (1977). Such an agreement or plea bargain ordinarily contemplates that the accused will plead guilty as a quid pro quo for a reduction of the charge against him. State v. Andrews, 282 Minn. 386, 391 n.4, 165 N.W.2d 528 (1969); State v. Stroh, 91 Wash. 2d 580, 586, 588 P.2d 1182 (1979). There is no requirement that a plea arrangement include a specific sentencing recommendation. People v. Clark, 141 Mich. App. 1, 8-9, 366 N.W.2d 62 (1985); Howard v. Texas, 690 S.W.2d 252, 255 (Tex. Crim. App. 1985). It is crucial to remember that when a guilty plea rests in a significant part upon promises of the prosecuting attorney made to the accused, these promises must be fulfilled. Santobello v. New York, 404 U.S. 257, 267, 92 S. Ct. 495, 30 L. Ed. 2d 427 (1971).

The obvious intent and dominant purpose of § 51-195 is to grant sentence review except in the three situations set out in the statute. The addition of the two exceptions by the 1978 legislature was made after the constitutional legitimacy of plea bargaining had been recognized by the United States Supreme Court — a significant circumstance that had not existed when the statute originally had been enacted twenty years earlier. From the common sense reading of § 51-195 after the 1978 amendment, tenets of statutory construction need not be invoked to demonstrate that the evident intent was to deny sentence review to defendants who had bargained and negotiated with the prosecutors for the most beneficial arrangement they could obtain in disposition of criminal charges against them in return for their plea of guilty. Such an agreement or “deal” could have a number of components, as it did here. In this case, the petitioner’s exposure to prison time was greatly reduced, his plea was to a lower charge, other charges were nolled and it was agreed that no specific sentence was to be recommended and that both the state and the petitioner were to be allowed to argue the issue of the extent of the sentence. By pleading guilty, after assessing the benefits of the agreement, the petitioner cannot now maintain that, absent a specific sentence recommendation, he did not understand that he was going before the sentencing court and subjecting himself to a sentence within the statutory range of the reduced exposure the plea agreement conferred upon him. That was how the matter of sentencing was presented to the trial court and how it obviously accepted it. Actually, the petitioner only received a five year sentence on the substitute felony charge; the maximum on that charge was ten years. See General Statutes §§ 53a-35a, 53a-167c. The sentence imposed upon the petitioner “resulted from the court’s acceptance of [the] plea agreement.” General Statutes § 51-195. To borrow a metaphor, “[a]fter you have brushed the foam off the beer”; Horton v. Meskill, 172 Conn. 615, 658, 376 A.2d 359 (1977) (Loiselle, J., dissenting); the conclusion reached would permit the petitioner to keep the substantial benefit he had already obtained from the state on the way in to his sentencing by the court and still have an opportunity to contest his sentence afterward before the sentence review division.

The rule of strict construction of exceptions and “noscitur a soeiis,” as explicated and applied by the majority, do not dictate the result reached. It does not follow that, because the other two exceptions under § 51-195 contemplate sentences of specific terms of years, the exception at issue requires that “plea agreement,” as used there, must mean “an agreement encompassing a sentence of a specific term of years.” If it did, it would mean that the plea agreement in this case, as well as in others that had also conferred benefits on an accused, would let them keep the benefit of that agreement, to the detriment of the state, and would also let them thereafter obtain the benefit of sentence review. This view thwarts the purpose of § 51-195 and allows those whom the legislature believed should not be permitted sentence review to gain its benefit. I respectfully suggest that this does not make for the reasonable and rational result that the legislature intended by amending the statute in 1978. Stoni v. Wasicki, supra, 376-77. The result reached suggests as deserving of repetition the observation of Judge (later Justice) Cardozo in In re Rouss, 221 N.Y. 81, 91, 116 N.E. 782 (1917), cert. denied, 246 U.S. 661, 38 S. Ct. 332, 62 L. Ed. 927 (1918), where he said: “Consequences cannot alter statutes, but may help to fix their meaning. Statutes must be construed, if possible, that absurdity and mischief may be avoided.”

Therefore, I respectfully dissent.

       “[General Statutes] See. 51-195. application for review of sentence. Any person sentenced on one or more counts of an information to a term of imprisonment for which the total sentence of all such counts amounts to confinement for three years or more, may, within thirty days from the date such sentence was imposed or if the offender received a suspended sentence with a maximum confinement of three years or more, within thirty days of revocation of such suspended sentence, except in any case in which a different sentence could not have been imposed or in any case in which the sentence or commitment imposed resulted from the court’s acceptance of a plea agreement or in any case in which the sentence imposed was for a lesser term than was proposed in a plea agreement, file with the clerk of the court for the judicial district in which the judgment was rendered an application for review of the sentence by the review division. Upon imposition of sentence or at the time of revocation of such suspended sentence, the clerk shall give written notice to the person sentenced of his right to make such a request. Such notice shall include a statement that review of the sentence may result in decrease or increase of the term within the limits fixed by law. A form for making such application shall accompany the notice. The clerk shall forthwith transmit such application to the review division and shall notify the judge who imposed the sentence. Such judge may transmit to the review division a statement of his reasons for imposing the sentence, and shall transmit such a statement within seven days if requested to do so by the review division. The filing of an application for review shall not stay the execution of the sentence.”

       The named respondent, Paul M. Paiten, is executive secretary of the Sentence Review Division of the Superior Court of the judicial district of Hartford. The three judge panel of the Sentence Review Division consisted of Hon. Francis R. Quinn, Hon. Joseph J. Purtill and Hon. Anne C. Dranginis.

       The Sentence Review Division of the Superior Court was created by statute in 1957 pursuant to the recommendation of a special committee appointed by the Governor to study causes of prison unrest. The committee reported that the morale of many inmates, and consequently their desire for rehabilitation, is compromised by the belief that there is statewide inequality in the sentences imposed by different judges for the same crime. First Interim Report of the Governor’s Prison Study Committee (Nov. 19, 1956), Conn. Joint Standing Committee Hearings, Judiciary and Governmental Functions, Pt. 2, 1957 Sess., p. 377, on House Bill No. 276. The committee concluded that “[a]s long as a prisoner feels that he has been denied review of a sentence which he deems unfair or unduly harsh he remains a source of trouble in the prison system and efforts toward rehabilitation are seriously impeded.” Id.
      The duties of the Sentence Review Division are set forth in General Statutes § 51-196, which reads as follows: “review, decision. The review division shall, in each case in which an application for review is filed in accordance with section 51-195, review the judgment so far as it relates to the sentence or commitment imposed, either increasing or decreasing the penalty, and any other sentence imposed on the person at the same time, and may order such different sentence or sentences to be imposed as could have been imposed at the time of the imposition of the sentence under review, or may, in the case of a reformatory commitment, modify the conditions of commitment by ordering its suspension for such terms and upon such conditions as said division may in its discretion order, or may decide that the sentence or commitment under review should stand. In reviewing any judgment, said division may require the production of presentence or precommitment reports and any other records, documents or exhibits connected with such review proceedings. If the review division orders a different sentence or disposition of the case, the court sitting in any convenient county or circuit shall resentence the defendant or make any other disposition of the case ordered by the review division. Time served on the sentence reviewed shall be deemed to have been served on the sentence substituted. The decision of the review division in each case shall be final and the reasons for such decision shall be stated therein. The secretary of the review division shall act as its clerk or, if there is no such secretary, the clerk of the superior court for the judicial district in which the review division is meeting shall act as the clerk of the division. The acting clerk of the review division shall send the original of each decision to the clerk of the court for the judicial district where the judgment was rendered and a copy thereof to the chief justice, the judge who imposed the sentence or commitment reviewed, the person sentenced or committed, the principal officer of the correctional institution in which he is confined and the reporter of judicial decisions, who shall select therefrom for publication such decisions as he deems will be useful as precedents or will serve the public interest and shall prepare them for publication in the manner in which decisions of the supreme court are prepared. Decisions thus prepared for publication shall be published in the Connecticut Law Journal and, if the reporter of judicial decisions so directs, in the Connecticut Supplement.”

       Furthermore, the “plea agreement” exception was added to General Statutes § 51-195 by No. 78-191 of the 1978 Public Acts. During the House floor debate on the amendment, Representative Ernest N. Abate explained: “What we don’t want to do, we don’t want to allow for review of sentence and change of sentence by the Sentence Review Commission after the sentence was negotiated as part of a plea. ” (Emphasis added.) 21 H.R. Proc., Pt. 5,1978 Sess., pp. 1944-45. Again, there is nothing in the record before this court that supports the assertion that the actual sentence that the petitioner received was the result of a negotiated plea.
      Furthermore, given that the expressed purpose of the Sentence Review Division is to prevent prison unrest that arises from inmates’ beliefs that there is statewide inequality in the sentences imposed by different judges for the same crime, it is apparent that this purpose is not furthered by denying review to petitioners who simply have pleaded guilty without an agreement as to sentence. See footnote 3, supra; State v. Nardini, 187 Conn. 109, 118-19, 445 A.2d 304 (1982). In other words, if two inmates have pleaded guilty to the same crime and have received widely disparate sentences, then the same potential for unrest exists as if the inmates were sentenced after conviction.

       Oral concessions developed during oral argument before this court may properly be used even where the trial record is silent. Hirsch v. Braceland, 144 Conn. 464, 469, 133 A.2d 898 (1957); see W. Moller & W. Horton, Connecticut Practice-Practice Book Annotated, Supreme Court and Appellate Court Rules and Forms (1989) p. 184, § 4107, comment.
      In addition, not infrequently, we have utilized concessions of counsel made in oral argument before this court. See, e.g., Sanchez v. Warden, 214 Conn. 23, 570 A.2d 673 (1990); State v. Stange, 212 Conn. 612, 624, 563 A.2d 681 (1989); Champagne v. Raybestos-Manhattan, Inc., 212 Conn. 509, 540 n.22, 562 A.2d 1100 (1989); Ruskewich v. Commissioner of Revenue Services, 213 Conn. 19, 21 n.3, 566 A.2d 658 (1989).

       The Connecticut Practice Book § 691 et seq. involve possible plea agreements. Section 692, which discusses such possible agreements “[u]pon plea of guilty or nolo contendere,” provides: “The parties may agree that the defendant will plead guilty or nolo contendere on one or more of the following conditions:
      “(1) That the prosecuting authority will amend the information to charge a particular offense;

        “(2) That the prosecuting authority will nolle, recommend dismissal of, or not bring certain other charges against the defendant; or
      “(3) That the sentence or other disposition will not exceed specified terms or that the prosecuting authority will recommend a specific sentence, not oppose a particular sentence, or make no specific recommendation.” Section 692 is drawn from the Uniform Rules of Criminal Procedure, the American Bar Association Standards and the Federal Rules of Criminal Procedure (see Fed. R. Crim. P. 11 [e] [1]). L. Orland, Connecticut Criminal Practice (1981).
      The petitioner does not consider the Practice Book provisions as anything more than guidelines as to what may be plea agreements, and, in any event, he maintains that they do not affect the statute. It is interesting, however, to note that the disposition of the criminal charges in this case involves elements of each of the three subdivisions of § 692.

       In addition, at oral argument, petitioner’s counsel “suggested” that the fact that the petitioner filed an affidavit with the state that he had enrolled in a drug treatment program and admitted that he was drug dependent “played a part” in the prosecuting attorney’s decision to let the petitioner plead to lesser charges.


source: Caselaw Access Project

author: Covello, J. Shea, J., with whom Callahan, J., joins,

license: Public Domain

text:
    The Continental Insurance Company v. Edward Cebe-Habersky
    (13756)
    Healey, Shea, Callahan, Covello and F. Hennessy, Js.

      Argued December 8, 1989
    decision released March 20, 1990

      Jack D. Garamella, with whom, on the brief, was Eva M. DeFranco, for the appellant (defendant).

      Frederick J. Trotta, with whom were Joseph F. Trotta and, on the brief, Eileen M. Condon, for the appellee (plaintiff).
   Covello, J.

This is an appeal from a judgment of the trial court vacating a $40,000 underinsured motorist arbitration award. The sole issue is whether a claimant’s access to underinsured motorist insurance first requires the payment of the limits of the liability policy insuring the person responsible for the accident. We conclude that such payments are required.

On November 30,1985, the plaintiff, The Continental Insurance Company (Continental), had in force an automobile liability policy insuring the defendant, Edward Cebe-Habersky. The policy contained an endorsement providing uninsured and underinsured motorist coverage in the amount of $300,000.

On November 30,1985, Cebe-Habersky was injured while riding as a passenger in an automobile owned and operated by Troy Knapp. The accident occurred when Knapp fell asleep at the wheel and the auto swerved off the road. The defendant, a thirty year old married electrician, fractured his nose and severely lacerated his face. He incurred medical expenses of $12,357.70, lost wages of $2260, and was left with four residual scars, two on his forehead, one on his cheek and one on his chin.

On June 4, 1987, Progressive Insurance Company (Progressive), the insurer of the Knapp vehicle, paid the defendant $17,000. The $17,000 payment was $3000 less than the $20,000 limits of the Progressive policy.

On September 15, 1987, the defendant made a demand for arbitration against Continental claiming that he had been injured by the negligent acts of an underinsured motorist. The matters submitted to the arbitrators were: (1) whether full payment on the tortfeasor’s (Progressive’s) policy was a condition precedent to Continental’s obligation to pay; and (2) the value of the defendant’s damages.

On December 14, 1988, the arbitration panel found that the defendant’s damages were $60,000. It then ordered Continental to pay the defendant $40,000, stating that this sum was “the value of the damages sustained by the claimant in excess of the $20,000 coverage on the vehicle of the underinsured tortfeasor.”

The plaintiff filed an application in Superior Court to set aside the arbitration award. The trial court, W. Sullivan, J., vacated the award, concluding that the "limits of the primary policy had not been ‘exhausted’ [as required by] General Statutes § 38-175c (b) (1).” The defendant appealed to the Appellate Court. We thereafter transferred the matter to ourselves pursuant to Practice Book § 4023.

General Statutes § 38-175c (b) (1) obligates insurance companies to pay on a policy’s uninsured motorist coverage only after "the limits of liability under all bodily injury liability bonds or insurance policies applicable at the time of the accident have been exhausted by payment of judgments or settlements . . . .” (Emphasis added.) Despite the straightforward language of the statute requiring “exhaust[ion] by payment,” the defendant argues that by crediting Continental with the full policy limits of the tortfeasor’s policy through subtraction of $20,000 from the $60,000 damages, the limits of liability of the bodily injury liability policy applicable at the time of the accident have been exhausted.

"Exhaust” means “to draw off or let out completely: to use up; [or] wholly expend. ” (Emphasis added.) Webster’s Seventh New Collegiate Dictionary. There is nothing in the common meaning of “exhaust” to suggest that partial use of what is available amounts to its exhaustion.

The defendant points to a definition of “exhaust” in Webster’s Third New International Dictionary, that reads: “to make use of or try out or otherwise account for the whole number of.” (Emphasis added.) This definition constitutes less than two lines of a thirty-one line definition of “exhaust” found in the Third New International Dictionary. In analyzing a statute, it is required that “words and phrases shall be construed according to the commonly approved usage of the language.” (Emphasis added.) General Statutes § 1-1 (a). We conclude that the definition posited by the defendant does not constitute a commonly approved usage of the word “exhaustion.” Our definition, moreover, accords with the intent of § 38-175c (b) (1), which seems to equate “exhaustion” with the “limits of liability,” i.e., $20,000.

Even were this definitional obstacle somehow overcome, the defendant simply does not address the further requirement of § 38-175c (b) (1) that the other policies must be “exhausted by payment of judgments or settlements.” (Emphasis added.) Here there was no “payment” to the claimant, but rather a credit was issued to his uninsured motorist carrier.

We are entitled to presume that if the legislature intended that a tortfeasor’s policies were to be accounted for by means other than “exhaustion] by payment,” language to that effect would appear in the statute. “[W]hen the language of a statute is plain and unambiguous, we need look no further than the words themselves because we assume that the language expresses the legislature’s intent. State v. White, 204 Conn. 410, 421, 528 A.2d 811 (1987); Beloff v. Progressive Casualty Ins. Co., 203 Conn. 45, 54-55, 523 A.2d 477 (1987); State v. Blasko, 202 Conn. 541, 553, 522 A. 2d 753 (1987).” American Universal Ins. Co. v. DelGreco, 205 Conn. 178, 193, 530 A.2d 171 (1987).

There is no error.

In this opinion Healey and F. Hennessy, Js., concurred.

Shea, J., with whom Callahan, J., joins,

dissenting. I disagree with the majority that General Statutes § 38-175c (b) (1), by providing that an uninsured motorist insurance carrier becomes obligated to pay after the applicable liability coverage has been “exhausted by payment of judgments or settlements,” was intended to work a forfeiture of uninsured motorist coverage for an insured accident victim, like the defendant, who has settled his claim against the tortfeasor for less than the limit of the applicable liability insurance. The effect of the majority’s holding is to require a victim who has uninsured motorist coverage exceeding the limit of the tortfeasor’s liability insurance to obtain the last dollar of that insurance under the penalty of losing the entire benefit of his uninsured motorist coverage. By requiring the victim to obtain the full amount of the tortfeasor’s liability coverage before proceeding against the uninsured motorist carrier, the majority has erected a barrier to the settlement of liability claims that is likely to have a serious impact upon our overburdened jury trial docket.

In Longworth v. Van Houten, 538 A.2d 414, 423-24 (N.J. Super. App. Div. 1988), the court, recognizing the harmful effects that would otherwise result with respect to the insured’s net recovery, the delay in the litigation of claims and the increased burden cast upon the court system, construed the New Jersey statute defining an underinsured motor vehicle, which is virtually identical to § 38-175c (b) (1), to require by the phrase “exhausted by payment of judgments or settlements” only that the underinsured motorist insurer be credited with the full amount of the liability insurance available. “The requirement that the insured obtain the tortfeasor’s entire policy limits as a condition of prosecuting his right to [underinsured motorist] benefits is so antithetical to the policies underlying the statute that we are constrained to conclude that the Legislature could not have so intended.” Id. In Schmidt v. Clothier, 338 N.W.2d 256, 261 (Minn. 1983), the court held that a similar exhaustion provision contained in an underinsured motorist insurance policy was contrary to public policy and void because of its effect in diminishing by litigation expenses the net recovery of the insured and in creating a barrier to settlement that would result in overburdening the courts. Other courts have ruled similarly with respect to such policy provisions. Weinstein v. American Mutual Ins. Co. of Boston, 376 So. 2d 1219, 1220 (Fla. App. 1979); Liberty Mutual Ins. Co. v. Reyer, 362 So. 2d 390, 391-92 (Fla. App. 1978).

I do not believe that the legislature, in defining the obligation of an insurer for the purpose of underinsured motorist coverage, intended to impose on the courts as well as the insured the burden of litigating each claim to an ultimate judgment unless the liability carrier pays the full amount of its coverage by way of settlement. The majority opinion does not suggest any possible benefit that can flow from such a requirement. In all probability, the legislature intended simply to limit the insurer’s obligation by allowing a deduction from the value of the underinsured motorist claim for the amount of liability insurance available.

Nor do I believe that the phrase “exhausted by payment of judgments or settlements” compels us to adopt an interpretation that produces results having no reasonable justification. The word “exhaust” does not invariably mean drained to the last drop, as the majority assumes. The definition advanced by the defendant, “to make use of or try out or otherwise account for the whole number of,” is acceptable according to common usage. Webster’s Third New International Dictionary. In this case the liability insurance has been accounted for and the insurer has received the full benefit thereof by the arbitrators’ award subtracting from the $60,000 of damages sustained by the defendant the $20,000 of coverage on the tortfeasor's vehicle. I would affirm the award.

Accordingly, I dissent.

       The Continental policy provided: “If we cannot agree with a covered person on either: (a) the amount of damages; or (b) whether such person is legally entitled to recover damages from the owner or operator of an uninsured motor vehicle; then the covered person may make a written demand for arbitration. ...”

       General Statutes § 52-418 provides: “(a) Upon the application of any party to an arbitration, the superior court for the judicial district in which one of the parties resides . . . shall make an order vacating the award if it finds any one of the following defects . . . (4) if the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made.”

       General Statutes § 38-175e (b) (1) provides: “An insurance company shall be obligated to make payment to its insured up to the limits of the policy’s uninsured motorist coverage after the limits of liability under all bodily injury liability bonds or insurance policies applicable at the time of the accident have been exhausted by payment of judgments or settlements, but in no event shall the total amount of recovery from all policies, including any amount recovered under the insured’s uninsured motorist coverage, exceed the limits of the insured’s uninsured motorist coverage.”

       While we see no ambiguity in this portion of General Statutes § 38-175c (b) (1) that would require such an examination, portions of the legislative history surrounding this enactment may be found in American Universal Ins. Co. v. DelGreco, 205 Conn. 178, 195, 530 A.2d 171 (1987).


author: Covello, J.

text:
    Holy Trinity Church of God in Christ et al. v. Aetna Casualty and Surety Company et al.
    (13847)
    Shea, Callahan, Glass, Covello and Hull, Js.
    Argued January 11
    decision released March 20, 1990

      William F. Gallagher, with whom, on the brief, was Roger B. Calistro and Gwen B. Weltman, for the appellants (plaintiffs).

      Ronald D. Williams, with whom was Ronald D. Williams, Jr., for the appellee (named defendant).

      Paul C. Fassler, for the appellee (defendant Connecticut Insurance Placement Facility).
   Covello, J.

This is an appeal from the judgment of the trial court that concluded that the defendants, Aetna Casualty and Surety Company (Aetna) and Connecticut Insurance Placement Facility (CIPF), had no duty to defend and indemnify the plaintiffs, Holy Trinity Church of God in Christ (Holy Trinity) and the Reverend Alton Barnes in a pending personal injury action. The dispositive issue is whether the trial court erred in finding that the plaintiffs’ building was in the process of being demolished when an injury to Craig Green, the third party claimant in the underlying personal injury action, occurred, and that therefore, due to the exclusionary provisions in the defendants’ policies, the defendants owed no duty to defend or indemnify the plaintiffs. Because the findings of the trial court were clearly supported by the evidence, we find no error.

The following facts are undisputed. On March 5, 1987, Craig and Terri Green commenced a personal injury action against Holy Trinity and its pastor, Barnes. Green v. Holy Trinity Church of God in Christ, Superior Court, judicial district of New Haven, Docket No. CV-87-256068. In their complaint they alleged that Craig Green was seriously injured when a garage door fell onto a container of caustic alkali, causing the substance to splash onto his face and body. The complaint further alleged that Craig Green was injured while performing “repairs, improvements and/or renovations on the garage” located at 135 Winthrop Avenue in New Haven. The garage was owned by Barnes and used by Holy Trinity. In their complaint, the Greens alleged negligence and recklessness on the part of Holy Trinity and also Barnes, both individually and as agent of Holy Trinity.

At the time of the alleged incident, Holy Trinity was insured by Aetna under a comprehensive insurance policy specifically designed for churches, with limits of liability in the amount of $1,000,000 for bodily injury and property damage. Aetna initially refused to defend or indemnify Holy Trinity for any liability arising out of Green v. Holy Trinity Church of God in Christ, supra. Aetna based its refusal upon a policy provision that excluded “bodily injury and property damage arising out of demolition operations performed by or on behalf of the insured.” On August 18,1987, however, Aetna notified Barnes that it would defend the claim of Craig and Terri Green under a reservation of rights.

At the time of the alleged incident, Barnes also maintained a comprehensive dwelling insurance policy with CIPF, covering the premises at 135 Winthrop Avenue, with limits of liability for bodily injury in the amount of $50,000. On May 13, 1987, CIPF agreed to defend Barnes in Green v. Holy Trinity Church of God in Christ, supra, under a reservation of rights, on the basis of a policy provision that excluded coverage for “bodily injury or property damage arising out of structural alterations which involve changing the size of or moving buildings or other structures, new construction or demolition operations performed by or on behalf of the named insured.”

On February 1, 1988, Holy Trinity and Barnes brought a declaratory judgment action against Aetna and CIPF, seeking a finding that the insurers had the duty to defend and indemnify Holy Trinity and Barnes in Green v. Holy Trinity Church of God in Christ, supra, and to pay costs and attorney’s fees. On March 3,1988, Aetna filed an answer and special defense, alleging that the claims asserted by the Greens against the insured, Holy Trinity, were excluded by the “demolition operations” provision. On August 16, 1988, CIPF filed its answer and a special defense, alleging, inter alia, that the claims asserted by the Greens against Holy Trinity were excluded by the “structural alterations” policy provision in Barnes’ dwelling policy.

On May 2, 1989, the trial court, Dunnell, J., concluded that Aetna’s demolition exclusion and CIPF’s structural alterations exclusion applied and that neither insurer had a duty to defend or indemnify Holy Trinity or Barnes against the claims brought by the Greens. On May 12, 1989, Holy Trinity and Barnes filed this appeal with the Appellate Court. We thereafter transferred this appeal to ourselves, pursuant to Practice Book § 4023.

On appeal the plaintiffs claim that the trial court erred: (1) in considering postinjury events, i.e., the overall project, to conclude that Green was engaged in demolition operations or structural alterations; and (2) in failing to consider the actions of the injured party only on the date of the accident in determining that the plaintiffs were engaged in the excluded activity. We do not agree.

The trial court found that Barnes was the pastor of Holy Trinity, that had been located at 85 Greenwood Street for over ten years. In September, 1986, Holy Trinity was forced to vacate those premises when the property was taken for a new road. Because Holy Trinity was unable to find an appropriate new facility within its budget, the congregation was forced to share space with Mt. Calvary Holy Church while seeking a suitable location.

Barnes personally owned property located at 135 Winthrop Avenue, where there was a two family house and a five car garage. In September, 1986, Barnes told the congregation that they could use the garage, without cost, as a temporary church and storage facility. Around this time, Barnes solicited volunteers to work on the roof. Craig Green was among those who volunteered.

On September 27,1986, Craig Green worked on the roof of the garage, removing old shingles. On September 30, 1986, he returned with wire cutters in order to cut the cables securing the overhead garage doors and thus ensure they could not be opened easily. Green cut the wires to the first two sets of doors without incident. When he cut the wires securing the third set of doors, however, the doors fell and struck a container of caustic alkali, which splashed onto his face and body, severely injuring him.

The threshold question presented to the trial court was whether, at the time of Green’s injury, the garage was being demolished or structurally altered. In making this factual determination, the trial court looked to events occurring before, on and after September 30, 1986. On the basis of the evidence before it, the trial court found that on August 11, 1986, Barnes had applied for a zoning variance to convert the existing garage into a temporary two story church, with overall dimensions of thirty feet by forty-five feet. The existing garage consisted of a one story structure with dimensions of twenty feet by forty-five feet. The application for the variance sought approval to “erect a new two story masonry structure on existing foundations.” (Emphasis added.) On that portion of the application where “use at present” must be signified, the word “garage” was crossed out and “vacant land w/exst. foundations” was substituted. On September 24,1986, the zoning variance was granted.

The trial court chose to credit the written statement of one of the volunteers working on the garage, Leroy Grant, that the work being done was the “tearing down [of] the garage which had begun in the early part of August, to be exact August 2, 1986.” The trial court also credited the testimony of Green that, on September 21,1986, Barnes told him that the “whole garage had to be taken down.” The trial court further found that previously, on October 22,1986, Barnes had given a statement that “[t]he garage is in the process of being demolished. I am in the process of demolishing the garage for the purpose of building a church there. . . . A group of men . . . [have] agreed to demolish the garage ....’’

The trial court also found that the plans submitted by the plaintiffs to secure the zoning variance fully corresponded to the structure that was eventually built on the site of the garage. These plans were drawn up long before the accident that injured Green occurred. Photographs submitted at trial clearly revealed that very little remained of the garage when construction began on the temporary church structure. The only portions of the garage that were visible above ground were portions of a cinder block wall. The trial court concluded that to an observer it would have been impossible to identify the former structure. Quoting Lorenzen v. Mustard’s Last Stand, Inc., 196 Colo. 265, 267, 586 P.2d 12 (1978), which involved a factual situation analogous to the one before it, the trial court noted that “ ‘[t]he question is whether for all practical purposes the building was torn down, not whether every part of the building had been demolished.’ ” (Emphasis in original.) The trial court specifically found that less remained of the garage at 135 Winthrop Avenue than remained of the building in Lorenzen. The plaintiffs’ argument, that the garage merely was being “renovated,” cannot prevail in light of the overwhelming evidence to the contrary in the record.

The plaintiffs’ claim, that the trial court committed error in considering the subsequent physical condition of the garage relevant to determining whether the plaintiffs were demolishing or structurally altering the garage at the time of Green’s injury, is not persuasive. Whether the plaintiffs were engaged in activities excluded by the policies is a factual question, to which the ordinary rules of appellate review apply. This court has consistently held that trial courts are vested with broad discretion in rulings on relevancy and every reasonable presumption must be given in favor of the court’s ruling. See, e.g., State v. Fritz, 204 Conn. 156, 167-68, 527 A.2d 1157 (1987); State v. Boucino, 199 Conn. 207, 225, 506 A.2d 125 (1986). Evidence is relevant if it tends to establish a fact in issue or corroborates other direct evidence. State v. Fritz, supra, 168; Pitt v. Kent, 149 Conn. 351, 357, 179 A.2d 626 (1962). “Rulings on such matters will be disturbed on appeal only upon a showing of a clear abuse of discretion.” State v. Fritz, supra.

The plaintiff’s additional argument, that the trial court did not properly consider the actions of Craig Green at the time of the accident in determining whether the plaintiffs were demolishing or structurally altering the garage, also fails. The trial court specifically found that Green was injured while performing work that Barnes had informed him was necessary because the “whole garage had to be taken down.” The inescapable conclusion is that, when viewed in conjunction with all the evidence before the trial court, the garage was being demolished and/or structurally altered at the time Craig Green suffered his injury, and that he was performing work designed to facilitate the demolition and/or structural alteration of the garage.

The factual findings of a trial court on any issue are reversible only if they are clearly erroneous. See Practice Book § 4061; Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-23, 435 A.2d 24 (1980); see also Sportsmen’s Boating Corporation v. Hensley, 192 Conn. 747, 751, 474 A.2d 780 (1984); Garrison v. Garrison, 190 Conn. 173, 176, 460 A.2d 945 (1983); Kaplan v. Kaplan, 186 Conn. 387, 391-92, 441 A.2d 629 (1982). This court cannot retry the facts or pass upon the credibility of the witnesses. See State v. Crump, 201 Conn. 489, 491, 518 A.2d 378 (1986); Kaplan v. Kaplan, supra; Vesce v. Lee, 185 Conn. 328, 335, 441 A.2d 556 (1981). Nor will this court make material corrections in the subordinate facts. See Whitney v. Turmel, 180 Conn. 147, 148, 429 A.2d 826 (1980); Bent v. Torell, 139 Conn. 744, 748, 97 A.2d 270 (1953). Here, the facts set out in the trial court’s memorandum of decision are overwhelmingly supported by the evidence in the whole record, and therefore, are not clearly erroneous. Pandolphe’s Auto Parts, Inc. v. Manchester, supra, 221-22; see also McGaffin v. Roberts, 193 Conn. 393, 409-10, 479 A.2d 176 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1747, 84 L. Ed. 2d 813 (1985).

There is no error.

In this opinion the other justices concurred.

       Additionally, Terri Green claimed loss of consortium.

       To date Aetna continues to provide a defense in that case.

       Craig and Terri Green were also named defendants, as interested parties. They answered the complaint and their counsel was present during trial, but maintained a passive role at trial. They are not participating in this appeal.

       The trial court also found that the evidence clearly established that Green was working on the garage as a volunteer, not an employee, and that therefore the employee exclusion in CIPF’s policy did not apply. The trial court further held that neither Holy Trinity nor Barnes hada right to an award of attorney’s fees or costs arising from either the prejudgment remedy hearing incident to Green v. Holy Trinity Church of God in Christ, Superior Court, judicial district of New Haven, Docket No. CV-87-256068, or the present action. These issues are not involved in this appeal.

       The plaintiffs also claim that the trial court gave an overly expansive interpretation to the exclusion language in the Aetna policy. Specifically, they assert that the trial court broadly construed the phrase “arising out of” in favor of the defendant Aetna, in contravention of the accepted principles of insurance contract construction. The exclusion in question provided that coverage did not apply to “bodily injury and property damage arising out of demolition operations performed by or on behalf of the insured.”
      It is well settled that “an insurance policy, like any other contract, must be given a reasonable interpretation and the words used are to be given their common, ordinary and customary meaning. . . . Although ambiguities are to be construed against the insurer, when the language is plain, no such construction is to be applied.” (Citations omitted.) Izzo v. Colonial Penn Ins. Co., 203 Conn. 305, 309-10, 524 A.2d 641 (1987). Here, the language of the exclusion is manifestly unambiguous and signifies that a causal relationship between the injury and the excluded activity, as defined therein, removes the injury from the ambit of the policy’s coverage. The trial court, having found that the garage was being demolished, and that Green was assisting in that demolition when he was injured, was justified in concluding that the injury arose out of the demolition process. The trial court’s conclusion was “legally and logically correct.” McGaffin v. Roberts, 193 Conn. 393, 409, 479 A.2d 176 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1747, 84 L. Ed. 2d 813 (1985); see also Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221, 435 A.2d 24 (1980).
      The plaintiffs also claim that the trial court erred in its interpretation of “demolish” when it relied upon Lorenzen v. Mustard’s Last Stand, Inc., 196 Colo. 265, 586 P.2d 12 (1978), in which the court utilized (p. 267) the dictionary definition of that word: “Webster’s Third New International Dictionary defines ‘demolish’ to mean to tear down when it is used in reference to a building, and ‘tear down’ to mean take apart or disassemble.” Connecticut courts have consistently referred to dictionary definitions to interpret words used in insurance contracts. See Continental Ins. Co. v. Cebe-Habersky, 214 Conn. 209, 212, 571 A.2d 104 (1990); see also Smedley Co. v. Employers Mutual Liability Ins. Co., 143 Conn. 510, 514-15, 123 A.2d 755 (1956); Lyon v. Aetna Casualty & Surety Co., 140 Conn. 304, 308, 99 A.2d 141 (1953). “It is a basic principle of insurance law that policy language will be construed as laymen would understand it .... ” Cody v. Remington Electric Shavers, 179 Conn. 494, 497, 427 A.2d 810 (1980). The trial court’s conclusion, that the garage was being demolished, i.e., taken apart or disassembled, is fully supported by the evidence and comports with the common understanding of the word. This conclusion is underscored by the finding of the trial court that Barnes expressly stated that the garage was “in the process of being demolished” at the time of Green’s injury.


author: Santaniello, J.

text:
    Frank J. Mongillo, Jr. v. Commissioner of Transportation
    (13817)
    Peters, C. J., Shea, Covello, Hull and Santaniello, Js.
    Argued December 13, 1989
    decision released March 20, 1990

      Michael P. Kamp, with whom, on the brief, was William D. Hart III, for the appellant (plaintiff).

      Lawrence G. Widem, assistant attorney general, with whom, on the brief, was Clarine Nardi Riddle, attorney general, for the appellee (defendant).
   Santaniello, J.

In this action the defendant commissioner of transportation (commissioner) filed an assessment of damages pursuant to General Statutes 13a-73 in taking two and four-tenths acres of property owned by the plaintiff, Frank J. Mongillo, by eminent domain. The property was needed to create artificial wetlands that would replace natural wetlands destroyed during the construction of a highway. The parties had previously agreed, in a prior inverse condemnation action; Mongillo v. Burns, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV-82-0274966S (May 24, 1983); to a stipulated judgment that set the price for future acquisitions of the plaintiff’s property under special circumstances. Thereafter, the defendant instituted a new condemnation proceeding with a subsequent assessment of damages based on the alleged acquisition price specified in the stipulated judgment.

The plaintiff appealed the assessment to the Superior Court pursuant to General Statutes § 13a-76. The appeal was referred to Hon. Louis Shapiro, state trial referee, and was dismissed on the ground that the prior stipulated judgment gave the defendant the right to acquire the plaintiff’s property at $14,537 per acre if the state needed additional land because of a change in the design of the highway. From that judgment the plaintiff appealed to the Appellate Court, and the appeal was transferred to this court pursuant to Practice Book § 4023. The issue before this court is whether the trial referee erred in concluding that the stipulated judgment is applicable to this transaction.

The underlying facts are as follows. In 1976, the plaintiff inherited fifty-six acres of land in central Connecticut. A highway construction map filed by the state under General Statutes § 13a-57 had indicated that a portion of the plaintiffs property was intended to be acquired for use in constructing a proposed highway known as the Central Connecticut Expressway. The plaintiff, who was obliged to pay a substantial estate tax on the inherited property, sought an advance acquisition by the state. He brought an inverse condemnation action against the state, alleging that the proposed highway constituted a taking without just compensation. The Superior Court, Hale, J., rendered judgment dismissing the action on April 13, 1982. The plaintiff subsequently brought an inverse condemnation action in federal court. After dismissal of the federal court action, the plaintiff brought a second inverse condemnation action in the Superior Court. While this action was pending, negotiations were conducted between the plaintiff and Donald Leavitt, director of rights of way for the department of transportation. An agreement was reached between the parties and a stipulated judgment was rendered by the Superior Court on May 24, 1983. The stipulated judgment provided for the acquisition of approximately twenty acres of the plaintiffs property by the defendant at the appraised value of $14,537 an acre for use in the construction of a highway. The following clause was contained in the stipulated judgment: “In the event it become [sic] necessary due to a shift in the highway to take additional land the plaintiff agrees to allow the Department of Transportation to take said additional land at the price of $14,537.00 per acre.” (Emphasis added.)

Pursuant to the stipulated judgment, the plaintiff executed a deed dated October 12, 1983, that conveyed twenty-one and one-half acres of land at the agreed price to the state and also contained the following: “together with the right of the State of Connecticut to acquire additional land from the grantor herein, his heirs and assigns, due to a change in the design of the Central Connecticut Expressway, this right to terminate upon completion of said expressway.” (Emphasis added.) This clause was inserted at the request of Leavitt. The deed was properly executed and signed by the plaintiff.

The department of transportation subsequently sought a wetlands permit from the United States army corps of engineers. The corps required the department in designing the highway to create wetlands in replacement of the wetlands that would be destroyed during construction. The commissioner then instituted a new condemnation proceeding on October 9, 1987, for an additional two and four-tenths acres of the plaintiff’s property, assessing damages at $14,537 per. acre in accordance with the value stated in the stipulated judgment. The plaintiff appealed the assessment, and the commissioner raised two special defenses, asserting that the plaintiff was bound by the stipulated judgment and that the commissioner had not waived any contractual rights in bringing the condemnation action.

At the hearing before the trial referee, Leavitt testified that during the negotiations prior to the stipulated judgment, the plaintiff’s concern had been that no additional land be taken by the state for a service station, restaurant, or other commercial use. He further testified that the plaintiff had been aware that the highway design was subject to change and that an advance acquisition by the state is unusual because highway construction projects often require significant design changes. According to Leavitt, the agreement expressed in the stipulated judgment was an attempt to accommodate the plaintiff because of his federal tax obligations.

The plaintiff testified that during the negotiations on further acquisition of land Leavitt had referred to a shift in the “center line” of the highway. Under the plaintiffs interpretation, the phrase “shift in the highway” that was used in the stipulated judgment required conveyance of additional land at $14,537 per acre only when there was a shift in the center of the path of the highway. Leavitt denied making any reference to the “center line.”

In his memorandum of decision, the trial referee found that the concept of a shift in the “center line” had no foundation in the case. After considering the language of the deed and the testimony, the trial referee concluded that the acquisition of land in the present case was within the scope of the stipulated judgment. We agree.

A person is entitled to just compensation when property is taken by eminent domain. Conn. Const., art. I, § 11. What constitutes just compensation, however, may be determined by a prior agreement. See Bradley Facilities, Inc. v. Burns, 209 Conn. 480, 551 A.2d 746 (1988); Colaluca v. Ives, 150 Conn. 521, 191 A.2d 340 (1963). A judgment by the consent of the parties constitutes an agreement between the parties entered upon the record with the sanction and approval of the court. Schurr v. Austin Galleries of Illinois, Inc., 719 F.2d 571, 574 (2d Cir. 1983); Owsiejko v. American Hardware Corporation, 137 Conn. 185, 187, 75 A.2d 404 (1950).

When there are multiple writings regarding the same transaction, the writings should be considered together to determine the intent of the parties. Schubert v. Ivey, 158 Conn. 583, 587, 264 A.2d 562 (1969); Cooper v. Malavese, 24 Conn. Sup. 168, 188 A.2d 266, cert. denied, 150 Conn. 717, 197 A.2d 928 (1962). The initial agreement in the present case, entered as a stipulated judgment, provided for future acquisition of property at $14,537 an acre if needed by the defendant due to a “shift in the highway.” The plaintiff asserts that he understood the phrase “shift in the highway” to mean that only a shift in the actual course of the proposed highway would require him to convey property at $14,537 an acre. This assertion is not supported by the language in the deed. The opaque language of the stipulated judgment is given illumination by the provision in the deed for acquisition due to any “change in the design” of the highway. We find the broader language in the deed to be a clarification of the terms used in the stipulated judgment. When the documents are read together, it is evident that the parties intended that the commissioner would have the right to acquire land from the plaintiff at the stated price if the commissioner needed more land due to design changes in the proposed highway. The state’s subsequent need for wetlands mitigation required a change in the design of the highway, thereby giving the defendant the right to acquire property at the agreed price.

The circumstances surrounding this transaction support the conclusion that the deed was a clarification of the stipulated judgment. There was testimony that prior to the stipulated judgment the plaintiff’s concern was that no additional land be taken for commercial use. There is no indication that the parties’ position concerning future acquisition had changed at the time the deed was executed. The deed was between the same parties, as part of the same transaction. The deed refers to rights of future acquisition without any indication that it is modifying a prior agreement. The plaintiff, an attorney, signed the deed and thus gave his full assent to the language therein. The language used in the deed removed any ambiguity in the provisions of the stipulated judgment. See Tepfer v. Deerfield Sav ings & Loan Assn., 118 Ill. App. 3d 77, 80, 454 N.E.2d 676 (1983); Prater v. Rush, 228 Mo. App. 922, 927, 74 S.W.2d 875 (1934). It is our conclusion under these facts that the deed did not create new rights and obligations, but instead clarified the existing rights under the stipulated judgment.

The plaintiff contends that the court should construe any ambiguity in the contract against the commissioner because the language in both instruments was drafted by him. It is a general rule of construction that whenever two interpretations of a contract seem equally possible, the language will be construed against the party responsible for its inclusion. Ravitch v. Stollman Poultry Farms, Inc., 165 Conn. 135, 145-46, 328 A.2d 711 (1973); Cooper v. Malavese, supra, 171. The shortcoming in the plaintiff’s argument is that in this case there is no ambiguity in the agreement. The clarifying terms in the deed provided a definitive interpretation that obviates the need to rely on rules of construction for ambiguous terms.

The plaintiff further argues that the deed improperly modified the stipulated judgment without any additional consideration. We are not persuaded by this argument. In this case the deed provided explanation, not modification, of existing rights and obligations. Even if the deed had differed from the stipulated judgment, however, under the principle of merger by deed, the terms of the deed would automatically replace and supersede the terms of the underlying contract, absent a reservation of collateral rights. See Knight v. Breckheimer, 3 Conn. App. 487, 490-91, 489 A.2d 1066 (1985).

There is no error.

In this opinion the other justices concurred.

       The trial referee heard testimony from the current director of rights of way that wetlands mitigation required a change in the design of the highway. The plaintiff did not dispute this contention.


author: Peters, C. J. Shea, J.,

text:
    Rosalind Lehrer et al. v. Phillip Davis et al.
    (13752)
    Peters, C. J., Healey, Shea, Glass and Hull, Js.
    Argued January 3
    decision released March 20, 1990

      William H. Narwold, with whom was Karen L. Goldthwaite, for the appellants (defendants).

      Bruce A. Chamberlain, for the appellees (plaintiffs).
   Peters, C. J.

This appeal comes to us, by way of reservation, as a challenge to the constitutionality of our visitation statute, General Statutes § 46b-59. The plaintiffs, Rosalind and Irving Lehrer, brought this action seeking a court order to permit them to visit Rosalind Lehrer’s grandchildren, who are the minor children of the defendants, Phillip and Penny Davis. The defendants moved to strike the plaintiffs’ cause of action on two related grounds, that the common law afforded them no authority for such relief and that the visitation statute was unconstitutional. At the request of all the parties, the trial court granted a motion for reservation upon stipulated facts to have this court resolve the question of the constitutional validity of § 46b-59. Because we conclude that the question was improvidently reserved, we remand the case for trial.

Although the question reserved for our advice asks us to determine the constitutionality of § 46b-59 as applied to the facts of this case, the facts to which the parties have stipulated are extremely sparse. As background information, the stipulation acknowledges that the plaintiff Rosalind Lehrer is the natural paternal grandmother of the defendants’ children, and that the plaintiff Irving Lehrer is their step-paternal grandfather. The stipulation notes the status of the children as minors, their respective dates of birth being March 16,1977, and April 23,1981. The stipulation also lists the domicile of each of the parties. Only two paragraphs of the stipulation, however, touch on the merits of the issue of visitation: “[t]he defendants and their children are an intact family, living together; no separation or dissolution of the marriage is contemplated”; Paragraph 8; and “[t]he defendants’ children have never lived with the plaintiffs and have had virtually no face-to-face or telephone contact with the plaintiffs for over one year.” Paragraph 9.

This stipulation is noteworthy for what it does not reveal. Without intending to be exhaustive, we observe the absence of any stipulated facts about: the extent of the earlier relationship between the plaintiffs and the children; the reasons for the defendants’ termination of face-to-face or telephone contact between the plaintiffs and the children; the presence or absence of reason to believe that one or both of the plaintiffs may abuse the children or act in some other way inconsistent with their best interest; the presence or absence of reason to believe that one or both of the defendants may be abusing the children or may be acting in some other way inconsistent with their best interest; or the opinions of the children themselves with respect to the proposed visitation. For all practical purposes, this stipulation is a request for advice about the facial validity of our visitation statute.

Several recent cases in this court counsel against the adjudication of constitutional questions in a factual vacuum. Motor Vehicle Manufacturers Assn. of the United States, Inc. v. O’Neill, 203 Conn. 63, 75, 523 A.2d 486 (1987); State v. Zach, 198 Conn. 168, 176-78, 502 A.2d 896 (1985). “A party mounting a constitutional challenge to the validity of a statute must provide an adequate factual record in order to meet its burden of demonstrating the statute’s adverse impact on some protected interest of its own, in its own particular case, and not merely under some hypothetical set of facts as yet unproven. Whether a case comes to us by way of reservation or after a final judgment, the rule is the same. We do not give advisory opinions, nor do we sit as roving commissions assigned to pass judgment on the validity of legislative enactments. ‘Determination of the scope and constitutionality of legislation in advance of its immediate adverse effect in the context of a concrete case involves too remote and abstract an inquiry for the proper exercise of the judicial function.’ International Longshoremen’s & Warehousemen’s Union, Local 37 v. Boyd, 347 U.S. 222, 224, 74 S. Ct. 447, 98 L. Ed. 650 (1954). In the absence of weighty countervailing circumstances, facial invalidation of a statute is improvident. Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 501-502, 105 S. Ct. 2794, 86 L. Ed. 2d 394 (1985).” Motor Vehicle Manufacturers Assn. of the United States, Inc. v. O’Neill, supra.

Without an adequate factual record, we are confronted with severe obstacles in undertaking a constitutional review of § 46b-59. The problem we face is illustrated by the parties’ disparate view of the underlying events that precipitated this litigation. The defendants, who are the moving parties on the constitutional claim, take issue with the plaintiffs’ factual assertions in their brief to this court about their prior relationship with the children and their communication difficulties with the defendants. The defendants maintain, in their reply brief, that we should disregard the plaintiffs’ assertions because their accuracy is disputed and because they are irrelevant, since “these ‘facts’ are not part of the record . . . . ” The defendants apparently would have us rely on the record despite its failure to resolve a factual controversy that obviously bears on the determination of the best interest of the children, the only statutory criterion for the exercise of judicial discretion provided by § 46b-59. Temple v. Meyer, 208 Conn. 404, 410, 544 A.2d 629 (1988). If we were to subscribe to such an approach, we would be turning the well established principles that govern due process jurisprudence on their head. Until the defendants establish a factual basis for the alleged violation of their constitutional rights, they have not established the predicate conditions for the adjudication of their constitutional claim. Motor Vehicle Manufacturers Assn. of the United States, Inc. v. O’Neill, supra; Weil v. Miller, 185 Conn. 495, 501-502, 441 A.2d 142 (1981); Hardware Mutual Casualty Co. v. Premo, 153 Conn. 465, 471, 217 A.2d 698 (1966).

The fact-bound nature of the defendants’ constitutional challenge to § 46b-59 permeates every aspect of their due process claim. Neither their general parental rights to raise their children without unwarranted state interference nor their stipulated status as an intact family provides a basis for us to consider their constitutional claims, on the present record, as a matter of law.

“It is, of course, true that ‘freedom of personal choice in matters of . . . family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment.’ Cleveland Board of Education v. LaFleur, [414 U.S. 632, 639-40, 94 S. Ct. 791, 39 L. Ed. 2d 52 (1974)].” Smith v. O.F.F.E.R., 431 U.S. 816, 842, 97 S. Ct. 2094, 53 L. Ed. 2d 14 (1977); Nye v. Marcus, 198 Conn. 138, 144, 502 A.2d 869 (1985). Our law “recognizes that parents have significant constitutionally protected rights to the companionship, care, custody and management of their children. See Quilloin v. Walcott, 434 U.S. 246, 255, 98 S. Ct. 549, 54 L. Ed. 2d 511, reh. denied, 435 U.S. 918, 98 S. Ct. 1477, 55 L. Ed. 2d 511 (1978); Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972); McGaffin v. Roberts, 193 Conn. 393, 400-401, 479 A.2d 176 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1747, 84 L. Ed. 2d 813 (1985).” Cappetta v. Cappetta, 196 Conn. 10, 14, 490 A.2d 996 (1985); see also Wisconsin v. Yoder, 406 U.S. 205, 232-33, 92 S. Ct. 1526, 32 L. Ed. 2d 15 (1972); Ginsberg v. New York, 390 U.S. 629, 639, 88 S. Ct. 1274, 20 L. Ed. 2d 195, reh. denied, 391 U.S. 971, 88 S. Ct. 2029, 20 L. Ed. 2d 887 (1968); Pierce v. Society of Sisters, 268 U.S. 510, 534-35, 45 S. Ct. 571, 69 L. Ed. 1070 (1925); Meyer v. Nebraska, 262 U.S. 390, 399, 43 S. Ct. 625, 67 L. Ed. 1042 (1923). “This right to family integrity includes ‘the most essential and basic aspect of familial privacy — the right of the family to remain together without the coercive interference of the awesome power of the state.’ Duchesne v. Sugarman, [566 F.2d 817, 825 (2d Cir. 1977)].” In re Juvenile Appeal (83-CD), 189 Conn. 276, 284, 455 A.2d 1313 (1983).

The family is not, however, beyond regulation in the public interest, and the rights of parenthood are not beyond limitation. Prince v. Massachusetts, 321 U.S. 158, 166, 64 S. Ct. 438, 88 L. Ed. 645 (1944); McGaffin v. Roberts, supra, 401. The state’s countervailing interest in the welfare of a child justifies appropriately bounded state intervention; In re Juvenile Appeal (83-CD), supra, 285; State v. Anonymous, 179 Conn. 155, 165, 425 A.2d 939 (1979); In re Juvenile Appeal (Anonymous), 177 Conn. 648, 661-62, 420 A.2d 875 (1979); as long as the state acts in accordance with the requirements of procedural due process. What process is due depends upon the intrusiveness of the competing state concern. Santosky v. Kramer, 455 U.S. 745, 758, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982); Lavertue v. Niman, 196 Conn. 403, 408, 493 A.2d 213 (1985); In re Juvenile Appeal (83-CD), supra, 297; see also Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976). Significantly, even when the contemplated state intrusion is most severe, as in an action for termination of parental rights, the state is required only to provide an appropriately demanding standard of proof so as to guarantee “fundamentally fair procedures.” (Emphasis added.) Santosky v. Kramer, supra, 754. Lesser intrusions, such as custody orders, represent a “difference in kind and not in degree”; McGaffin v. Roberts, supra, 406; from termination proceedings, and thus permit intervention on a lesser standard of proof. The constitutional requirement of procedural due process thus invokes a balancing process that cannot take place in a factual vacuum. Lassiter v. Department of Social Services, 452 U.S. 18, 25, 101 S. Ct. 2153, 68 L. Ed. 2d 640, reh. denied, 453 U.S. 927, 102 S. Ct. 889, 69 L. Ed. 2d 1023 (1981); Morrisey v. Brewer, 408 U.S. 471, 481, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972); Cafeteria Workers v. McElroy, 367 U.S. 886, 895, 81 S. Ct. 1743, 6 L. Ed. 2d 1230 (1961); McGaffin v. Roberts, supra, 412.

The defendants’ status as an intact family, while arguably heightening their claim to procedural due process; Van Cleve v. Hemminger, 141 Wis. 2d 543, 549, 415 N.W.2d 571 (1987); cannot fill this factual vacuum. The fact that a family is intact does not guarantee the absence of child abuse. Even absent child abuse, there is no compelling constitutional requirement that the legislature must defer, in every instance, to the child-rearing preferences of the nuclear family. “To assert that, as a matter of law, a widowed, divorced, remarried, or unmarried parent is subject to greater [sjtate interference than a married parent would be to assert that the former is less fit than the latter to raise his or her own child. ’ ’ In the Matter of Frances E. v. Peter E., 125 Misc. 2d 164, 167, 479 N.Y.S.2d 319 (Fam. Ct. 1984). Finally, the legislature may choose to recognize a public interest in affording a child access to those outside the nuclear family who manifest a deep concern for his or her growth and development. “Ours is by no means a tradition limited to respect for the bonds uniting the members of the nuclear family.” Moore v. East Cleveland, 431 U.S. 494, 504, 97 S. Ct. 1932, 52 L. Ed. 2d 531 (1977); and see Michaud v. Wawruck, 209 Conn. 407, 415, 551 A.2d 738 (1988); In re Theresa S., 196 Conn. 18, 31, 491 A.2d 355 (1985).

The legislative determination to allow grandparents, and others with a special interest in a child’s well-being, the opportunity to demonstrate that they may significantly contribute to the best interest of the child finds constitutional support, furthermore, in the recognition that “[t]he constitutional concerns are not entirely parental because the preservation of family integrity ‘encompasses the reciprocal rights of both parent[s] and children.’ Duchesne v. Sugarman, [supra, 825.]” McGaffin v. Roberts, supra, 407; Smith v. Fontana, 818 F. 2d 1411, 1418 (9th Cir. 1987); Lavertue v. Niman, supra, 409. “[T]he children themselves have constitutionally protectible interests.” Wisconsin v. Yoder, supra, 243 (Douglas, J., dissenting in part); see In re Manuel R., 207 Conn. 725, 739, 543 A.2d 719 (1988). “The importance to children of stability and continuity in their close relationships is well recognized. ‘Psychiatrists and psychologists . . . unanimously counsel that children should maintain and retain meaningful relationships and that to deny them continuing contacts is a deprivation. . . . Stability, continuity, and opportunity, of and for meaningful associations are said to build a healthy psyche.’ Foster and Freed, The Child's Right to Visit Grandparents, Trial, March 1984, at 38 . . . .” Roberts v. Ward, 126 N.H. 388, 392-93, 493 A.2d 478 (1985); see Mimkon v. Ford, 66 N.J. 426, 332 A.2d 199 (1975).

As with the defendants’ general claim, reciprocal rights to due process call for a flexible and fact-specific balancing of interests that cannot be accomplished without an inquiry into the particular circumstances of the case. We conclude, therefore, that the custodial rights of an intact family do not automatically preclude the visitation rights of grandparents, and, accordingly, that the constitutional validity of § 46b-59 is not ripe for adjudication on the present record.

We do not answer the reserved question; the case is remanded for further proceedings not inconsistent with this opinion.

In this opinion Healey, Glass and Hull, Js., concurred.

Shea, J.,

concurring. I agree that the reserved question of the constitutionality of General Statutes § 46b-59 “as applied to the facts of this case” cannot be answered at this time because the facts contained in the record are inadequate. The majority, however, after reaching this conclusion, embarks upon a discussion by way of obiter dicta concerning constitutional issues that have not been reserved, without any explanation of the need to address those issues.

Apparently the purpose of this gratuitous dissertation is to express the view of the majority that the application of § 46b-59 to the defendants is not constitutionally precluded simply because they constitute an intact “nuclear” family. The significance of the defendants’ status as a traditional family unit in the determination of the constitutionality of a visitation order under the statute as well as in the decision of whether the best interests of children, when there is no claim of abuse or mistreatment as in the present case, may warrant interference with parental control over minor children is a matter best left to another day when we have all the facts before us.

“The best teaching of this Court’s experience admonishes us not to entertain constitutional questions in advance of the strictest necessity.” Parker v. Los Angeles, 338 U.S. 327, 333, 70 S. Ct. 161, 94 L. Ed. 144 (1949); see State v. Madera, 198 Conn. 92, 105, 503 A.2d 136 (1985). The majority disregards this principle of constitutional adjudication as well as the restriction upon our authority to render advisory opinions contained in Practice Book § 4147: “The court will not entertain a reservation for its advice upon questions of law arising in any action unless the question or questions presented are such as are, in the opinion of the court, reasonably certain to enter into the decision of the case, and it appears that their present determination would be in the interest of simplicity, directness and economy of judicial action.” Since the issues discussed by the majority have not been included in the reservation and the case is being remanded for a further presentation of the relevant facts, it is difficult to perceive how judicial economy will be enhanced by considering those issues at this time.

Accordingly, I concur only in the result.

       General Statutes § 46b-59 provides: “court may grant right of visitation to ANY person. The superior court may grant the right of visitation with respect to any minor child or children to any person, upon an application of such person. Such order shall be according to the court’s best judgment upon the facts of the case and subject to such conditions and limitations as it deems equitable, provided the grant of such visitation rights shall not be contingent upon any order of financial support by the court. In making, modifying or terminating such an order, the court shall be guided by the best interest of the child, giving consideration to the wishes of such child if he is of sufficient age and capable of forming an intelligent opinion. Visitation rights granted in accordance with this section shall not be deemed to have created parental rights in the person or persons to whom such visitation rights are granted. The grant of such visitation rights shall not prevent any court of competent jurisdiction from thereafter acting upon the custody of such child, the parental rights with respect to such child or the adoption of such child and any such court may include in its decree an order terminating such visitation rights.”

       The parties reserved the following question of law for the advice of this court: “Is Conn. Gen. Stat. § 46b-59 in violation of the Due Process Clause of the Fourteenth Amendment of the United States Constitution and article first, § 8 of the Connecticut Constitution, as applied to the facts of this case, in that the statute impermissibly infringes on the defendants’ fundamental constitutional right to rear their children as they choose?”

       Indeed, state intervention to order third party visitation under General Statutes § 46b-59 is entirely premised on the “best interest of the child” standard.

       The placement of the burden of proof on the party seeking visitation; Temple v. Meyer, 208 Conn. 404, 408, 544 A.2d 629 (1988); and the court’s judicial discretion to review the facts may provide the parents on remand with at least some of the constitutional safeguards to which they are entitled. In re Juvenile Appeal (83-CD), 189 Conn. 276, 297, 455 A.2d 1313 (1983). On remand, the trial court may wish to consider other procedural devices designed to minimize premature intrusions into the family, such as a show cause hearing with the burden of proof on the plaintiffs, the appointment of an attorney for the children, and pretrial conciliation sessions with the Family Support Services.

       “In today’s society, there are increasingly large numbers of single parent homes with varying degrees of success. It is better to have a single parent home based upon love, care and attention than to have the two parent home that existed in these circumstances.” In re Theresa S., 196 Conn. 18, 31, 491 A.2d 355 (1985).