text:
    State of Connecticut et al. v. Commission on Human Rights and Opportunities et al.
    (13600)
    Peters, C. J., Shea, Callahan, Glass and Covello, Js.
    Argued February 28
    decision released June 13, 1989

      Judith M. Hecker, assistant attorney general, with whom, on the brief, were Clarine Nardi Riddle, acting attorney general, Joseph I. Lieberman, former attorney general, and Charles A. Overend, assistant attorney general, for the appellants (plaintiffs).

      Philip A. Murphy, Jr., commission counsel, with whom was Charles A. Krich, staff attorney, for the appellee (named defendant).
   Glass, J.

The plaintiffs, the state of Connecticut and the state teachers retirement board (board), appealed to the Appellate Court from a judgment of the Superior Court upholding an order of the defendant commission on human rights and opportunities (CHRO) awarding the defendant Paul B. Kirkland an increase in his future pension benefits. We transferred the case to ourselves pursuant to Practice Book § 4023. We find error in part and remand the case to the trial court to modify the judgment in accordance with this opinion.

The facts are not disputed. Kirkland retired from his teaching position in the West Hartford school system on February 1,1975. Chapter 167 of the General Statutes required public school teachers to participate in a retirement benefits program, the state teachers’ retirement system (system). See General Statutes (Rev. to 1975) § 10-160 et seq. The board administers retirement benefits under the system. General Statutes (Rev. to 1975) § 10-163 (currently § 10-183Q. The system is a “defined” retirement benefit plan, under which a certain benefit is determined in part by the retiree’s average annual salary. At the time of Kirkland’s retirement, the board funded the system by a “terminal” funding method, by which both the state and the system member contributed a sum of money to pay the defined retirement benefits. The state’s contributions comprised approximately 75 percent of the funding. After Kirkland had retired, the legislature authorized automatic annual cost of living increases for all retired teachers. See General Statutes § 10-183g (j). In addition, in 1982, the legislature provided “catch-up” adjustments which increased retirement benefits in proportion to the length of retirement. The “catch-up” adjustments have been funded by amortizing the cost over a thirty year period.

Kirkland received his first retirement benefit check in February, 1975. As an early retiree, Kirkland’s benefits were actuarially reduced. General Statutes (Rev. to 1975) § 10-166. The board calculated appropriate reductions for early retirees by use of sex-based actuarial tables. Because of the board’s use of these tables, female early retirees received monthly retirement benefits based on a larger percentage of their average salary than similarly situated males. Thus, Kirkland received, and continues to receive, a lesser amount in his monthly pension check than similarly situated females. On July 1, 1976, however, the board discontinued use of the gender-based tables and adopted a “unisex” table for computing the benefits of early retirees retiring after that date. Retirement benefits for early retiring males computed by the unisex table are equivalent to benefits for similarly situated females. Pension benefits for teachers who retire at regular retirement age have never varied according to sex.

On June 29,1977, Kirkland filed a complaint with the CHRO, alleging that the board had discriminated against him on the basis of sex. General Statutes (Rev. to 1975) § 31-126 (a). In October, 1979, Kirkland asked the board for a recalculation of his benefits based on the unisex table. The board denied his request in November, 1979, in part because he had filed a complaint with the CHRO. In February, 1980, Kirkland filed an amended complaint with the CHRO, adding the state of Connecticut as a respondent. In the amended complaint, Kirkland sought relief for himself and all similarly situated male retirees. The remedy sought was the difference between what he and the other male retirees had received in benefits since their retirements and what they would have received had their benefits been determined by the unisex actuarial table adopted by the board in 1976. The amended complaint also sought a future adjustment of benefits to equal that which would have been received had the benefits been computed by the unisex table.

Ultimately, in January, 1986, a CHRO hearing officer found that the board’s use of gender-based tables to calculate retirement benefits discriminated against Kirkland and similarly situated men on the basis of sex. The hearing officer ordered the board to compensate the “class” for the difference between the benefits received since their retirements and the benefits received by early retiring females who had retired before July 1,1976. She also ordered the board to equalize the class’s future benefits with the benefits of similarly situated females.

The plaintiffs appealed the CHRO’s decision to the Superior Court. General Statutes (Rev. to 1987) § 46a-95 (j); General Statutes § 4-183. They argued that Kirkland’s complaint was untimely under General Statutes (Rev. to 1975) § 31-127 because he had failed to file it with the CHRO within 180 days of the alleged act of discrimination. They also claimed that the CHRO hearing officer exceeded her authority in awarding Kirkland and similarly situated male retirees both retroactive and future compensation. The trial court agreed with the CHRO hearing officer that because each pension check Kirkland received constituted a “new act of discrimination” under General Statutes (Rev. to 1975) § 31-126 (a), Kirkland’s complaint was not untimely. The trial court sustained the plaintiffs’ appeal in part, however, ruling that the hearing officer had no authority to fashion relief for anyone but Kirkland. The trial court also ruled that the CHRO’s retroactive adjustment was improper. See Arizona Governing Committee v. Norris, 463 U.S. 1073,1106, 103 S. Ct. 3492, 77 L. Ed. 2d 1236 (1983); Los Angeles Department of Water & Power v. Manhart, 435 U.S. 702, 98 S. Ct. 1370, 55 L. Ed. 2d 657 (1978). The trial court, however, did not address the plaintiffs’ appeal of the order equalizing Kirkland’s future benefits. Thereafter, the plaintiffs moved to open the judgment and for reconsideration in light of the United States Supreme Court’s recent decision in Florida v. Long, 487 U.S. 223,108 S. Ct. 2354,101 L. Ed. 2d 206 (1988). In a subsequent memorandum of decision, the trial court opened the judgment, rejected the plaintiffs’ reliance on Florida v. Long, supra, and sustained the CHRO’s order requiring future equalization of Kirkland’s benefits.

On appeal from the trial court’s judgment, the plaintiffs do not dispute the finding that the board’s use of gender-based actuarial tables to compute retirement benefits violated General Statutes (Rev. to 1975) § 31-126 (a). They claim, however, that the trial court erred in concluding that (1) Kirkland’s complaint was not untimely, and (2) the CHRO hearing officer did not exceed her authority or abuse her discretion in awarding Kirkland future equalization of benefits. The trial court’s invalidation of the hearing officer’s class-wide relief and the retroactive relief afforded Kirkland are not at issue in this appeal. We find error in the trial court’s affirmation of the amount of the future benefit increase to which Kirkland is entitled, and remand the case with direction to modify the judgment in accordance with this opinion.

I

Because the plaintiffs generally rely on federal case law to support their claims, it is useful to recognize the scope of our past reliance on federal law concerning discriminatory employment practices. “Although the language of [Title VII of the Civil Rights Act of 1964, § 703 (a) (1); 42 U.S.C. § 2000e-2 (a)] and that of the Connecticut statute differ slightly, it is clear that the intent of the legislature in adopting 1967 Public Acts, No. 426 (which extended the provisions of the Fair Employment Practices Act . . . to prohibit discrimination on the basis of sex) was to make the Connecticut statute coextensive with the federal.” Pik-Kwik Stores, Inc. v. Commission on Human Rights & Opportunities, 170 Conn. 327, 331, 365 A.2d 1210 (1976); Wroblewski v. Lexington Gardens, Inc., 188 Conn. 44, 53, 448 A.2d 801 (1982). Although we are not bound by federal interpretation of Title VII provisions, “[w]e have often looked to federal employment discrimination law for guidance in enforcing our own antidiscrimination statute.” Department of Health Services v. Commission on Human Rights & Opportunities, 198 Conn. 479, 489, 503 A.2d 1151 (1986). Nevertheless, we have also recognized that, under certain circumstances, federal law defines “the beginning and not the end of our approach to the subject.” Evening Sentinel v. National Organization for Women, 168 Conn. 26, 34-35 n.5, 357 A.2d 498 (1975).

The plaintiffs first claim that the trial court erred in affirming the CHRO hearing officer’s conclusion that the complaint Kirkland filed with the CHRO on June 29, 1977, was timely. General Statutes (Rev. to 1975) § 31-127 provides in relevant part that “[a]ny complaint filed pursuant to [the fair employment practices act] must be so filed within one hundred and eighty days after the alleged act of discrimination.” According to the plaintiffs, the “alleged act of discrimination” occurred no later than March, 1975, when Kirkland received written notice that his pension benefits had been formally approved. They assert that each monthly pension check represented the “present effects” of a past violation of General Statutes (Rev. to 1975) § 31-126 (a), rather than a new violation. United Air Lines, Inc. v. Evans, 431 U.S. 553, 97 S. Ct. 1885, 52 L. Ed. 2d 571 (1977). They therefore assert that Kirkland’s complaint, filed more than two years after he had received notice of his benefits, was untimely. We disagree.

The plaintiffs’ first claim of error is largely controlled by our decision in Veeder-Root Co. v. Commission on Human Rights & Opportunities, 165 Conn. 318, 334 A.2d 443 (1973). In that case, we addressed the limitation period of General Statutes (1969 Sup.) § 31-127, which at that time was ninety days. Id., 330; see Public Acts 1974, No. 74-54 (changing period to 180 days). The complainant had filed a complaint with the CHRO on February 26,1969, alleging that the employer had discriminated against her by paying her lower wages than it was paying men who were performing the same job. The complaint also indicated that the complainant had first confronted her employer about inequality in pay “ ‘[a]fter July 7, 1965 when the Civil Rights Law of 1964 went into effect.’ ” Id., 321-22 n.2. After finding that the employer had discriminated against the complainant because of her sex, the CHRO hearing officer awarded the complainant back pay dating from October 1, 1967, the effective date of the inclusion of the prohibition against sex discrimination in the former § 31-126 (a). The trial court sustained the plaintiff’s appeal in part, however, ruling that the complainant was entitled only to back pay dating from January 22, 1969, the date she had most recently complained to her employer, to the date of payment. Id., 319-24.

Upon the CHRO’s appeal, we held that the complainant was entitled to back pay dating from ninety days prior to the filing of her complaint on February 26, 1969. “There can be no doubt that the legislature intended the ninety-day limitation to serve as a bar to recovery of back pay beyond ninety days prior to the complaint.” Id., 332. “By limiting the time of redress to the act of discrimination which occurred within ninety days of the complaint, the incentive for bringing . . . spurious actions is substantially reduced, and we think this was the intent of the legislature in establishing the ninety-day limit.” (Emphasis added.) Id., 331. Veeder-Root Co. therefore established that the limitation period of General Statutes (Rev. to 1975) § 31-127 acted as a limitation on the remedy rather than a limitation on the time one can bring a cause of action. Thus, under General Statutes (Rev. to 1975) § 31-127, the maximum period for which one can recover for past acts of discrimination is 180 days preceding the filing of the complaint. Naturally, where the only past discriminatory act within the limitation period occurred less than 180 days before the complaint, the period of recovery is shortened to the time following the date that act occurred.

Our holding in Veeder-Root Co. clearly contemplated a “continuing violation” theory in the context of discriminatory employment practices. The employer in that case committed acts of sex discrimination preceding the effective date of the inclusion of the prohibition against sex discrimination in our antidiscrimination statute in October, 1967. The complainant, however, filed her complaint some sixteen months after that date. Nevertheless, we concluded that, rather than acting as a complete bar to the complaint, the limitation period served as a “bar to recovery of back pay” before the ninety day period prior to the complaint. Id., 332. Indeed, we implicitly acknowledged the continuing violation principle by stating that the statutory period limited the time of redress to “the act of discrimination which occurred within ninety days of the complaint . . . . ” Id., 331.

The tacit recognition of the continuing violation principle in Veeder-Root Co. became express in Board of Education v. Commission on Human Rights & Opportunities, 177 Conn. 75, 411 A.2d 40 (1979). In that case, the trial court upheld the CHRO’s order granting relief to a female complainant who had alleged continuing acts of discrimination based on the plaintiff board’s refusal to pay female custodians the same rate of pay as male custodians. Id., 76. The board claimed on appeal that the complaint lacked specificity by, inter alia, failing to disclose the precise date of the alleged act of discrimination. Id., 77. We held that “[t]he complaint adequately informed the plaintiff of an allegation of continued discrimination against all of its female custodians .... [T]here was no one single violation whose specific date should have been disclosed.” (Emphasis added.) Id., 77-78. Thus, in Board of Education, we expressly recognized that discrete incidents occurring during a continuum of discriminatory employment practices may constitute fresh violations of General Statutes (Rev. to 1975) § 31-126 (a). Cf. Scovill Mfg. Co. v. Commission on Civil Rights, 153 Conn. 170, 175, 215 A.2d 130 (1965) (where job applicant denied employment on specific date, limitations period on complaint began to run on that date).

We reject the plaintiffs’ argument that the payment of retirement benefits pursuant to a discriminatory pension plan simply reflects the “present effect of a past act of discrimination.” Many of the cases the plaintiffs cite as authority concerned past acts of discrimination wholly unrelated to the benefit schemes at issue. Indeed, the courts found that the benefit plans themselves were “sex neutral” or “race neutral.” The language of these decisions strongly suggests, in fact, that the courts would have found a continuing violation in each benefit payment had the benefit plans themselves not been “neutral.” See, e.g., United Air Lines, Inc. v. Evans, supra, 558 (under Title VII, past act of discrimination was forcing female to retire as stewardess upon her marriage; failure of employer to recognize her past employment upon her rehire for purpose of computing seniority credits not a continuing violation where seniority scheme itself neutral); Alston v. Allegheny Ludlum Steel Corporation, 449 F. Sup. 553, 557 (W.D. Pa. 1978) (under Title VII, where complainant denied promotion because of race, lesser pension benefits available to complainant is not continuing violation since pension system itself is “neutral in operation”); Freude v. Bell Telephone Co. of Pennsylvania, 438 F. Sup. 1059,1061 (E.D. Pa. 1977) (under Title VII, no continuing violation where pension system itself is “fair and sex neutral”); Devericks v. John Morrell & Co., 297 N.W.2d 325, 327-28 (S.D. 1980) (under state statute, where complainant forced to retire because of pregnancy, no continuing violation where pension system is neutral).

The plaintiffs’ reliance on Florida v. Long, supra, is unsound. They argue that because this is a “pension” case and not a “wages” case, like Board of Education and Veeder-Root Co., the continuing violation theory does not apply in determining whether Kirkland’s complaint was timely. While the court in Long found that it is “incorrect” to consider discriminatory pension benefits as a continuing violation, its analysis was confined to the issue whether, under Title VII, an award of future increases in pension benefits was an appropriate remedy. Id., 2363. The court reasoned that a future adjustment of benefits was not a permissible Title VII remedy because such a remedy would jeopardize the solvency of state pension funds by rendering “employers liable for all past conduct.” Id., 2364. Long’s logic is manifestly irrelevant to the issue of the effect of the limitation period in this case. If, under General Statutes (Rev. to 1975) § 31-127, Kirkland would not have been entitled to any relief unless he had filed a complaint with the CHRO within 180 days from the date of notice of his pension benefits, he would have been entitled to relief, including a future equalization of benefits, had he filed his complaint within those 180 days. The state retired teachers’ pension fund therefore would have remained vulnerable in theory to the fiscal problems envisioned in Long. As we have already indicated, however, General Statutes (Rev. to 1975) § 31-127 limits a successful complainant’s relief to a period not exceeding 180 days prior to the filing of the complaint. Veeder-Root Co. v. Commission on Human Rights & Opportunities, supra.

While the rationale of Veeder-Root Co. and Board of Education disposes of the plaintiffs’ first claim, we note here that the principle of the “equitable tolling” of limitations periods based on an employer’s continuing acts of discrimination is well established in the federal courts. See, e.g., Wingfield v. United Technologies Corporation, 678 F. Sup. 973, 979 (D. Conn. 1988) (tolling of period in federal age discrimination action). The federal courts have expressly recognized the applicability of equitable tolling in Title VII sex discrimination employment cases. DiMaggio v. United States Postal Service, 643 F. Sup. 1, 7 (D. Conn. 1984). The doctrine has also been applied to the limitation period applicable to pension benefit claims under the Employee Retirement Income Security Act (ERISA). 29 U.S.C. § 1113 (1982); Meagher v. IAM Pension Plan, 856 F.2d 1418,1423 (9th Cir. 1988), cert. denied, U.S. ,

S. Ct. , 104 L. Ed. 2d 414 (1989) (where amendment eliminating position-tied pension increases was wrongful, each check issued to pensioner constituted “fresh breach” of trustees’ duty under ERISA). Indeed, in an analysis similar to that in Veeder-Root Co., the court in Meagher construed the ERISA limitation period as establishing the maximum time preceding the complaint for which the claimant could recover. Id.

In the present case, we are persuaded that the rationale of Board of Education and Veeder-Root Co. applies to the payment of Kirkland’s discriminatory retirement benefits. We hold that each separate payment of retirement benefits to Kirkland constituted a violation of General Statutes (Rev. to 1975) § 31-126 (a). Cf. Meagher v. IAM Pension Plan, supra; DiMaggio v. United States Postal Service, supra; Board of Education v. Commission on Human Rights & Opportunities, supra. Under General Statutes (Rev. to 1975) § 31-127, therefore, the time period for which Kirkland may have recovered began with the first pension benefit payment within 180 days prior to June 29, 1977, the date he filed his complaint. Veeder-Root Co. v. Commission on Human Rights & Opportunities, supra. Consequently, the trial court did not err in affirming the CHRO hearing officer’s conclusion that Kirkland’s complaint was timely under General Statutes (Rev. to 1975) § 31-127. We decline to follow other cases cited by the plaintiffs holding that discriminatory pension benefit payments are the “present effects” of a past violation and therefore cannot be considered a “discriminatory act” in determining whether a complaint is timely. See, e.g., Hannahs v. New York State TeachersRetirement System, 26 Empl. Prac. Dec. (CCH) ¶ 32,037 (S.D.N.Y. 1981); McCarty v. Boeing Co., 321 F. Sup. 260 (W.D. Wash. 1970); Clissuras v. New York, 131 App. Div. 2d 717, 517 N.Y.S.2d 39, appeal dismissed, 70 N.Y.2d 795, 516 N.E.2d 1224, 522, N.Y.S.2d 111 (1987), cert. denied, U.S. , 108 S. Ct. 1003, 98 L. Ed. 2d 970 (1988).

II

The plaintiffs next claim that the trial court erred in failing to find that the CHRO hearing officer abused her discretion. They argue that an increase in Kirkland’s future retirement benefits is unfair because at the time Kirkland retired, the case law had not established the impermissibility of gender-based actuarial computations of such benefits. See Florida v. Long, supra, 2363 (holding that 1983 decision in Norris established that unequal payments in retirement benefits based on gender-based actuarial tables is Title VII violation). The resources in the pension system reflect the presumed legality of the board’s computation method, they argue, and to impose on the system an unexpected new liability may infringe on the statutory pension rights of other system members. We are not persuaded.

A

Review of an appeal taken from the order of an administrative agency such as the CHRO is limited to determining whether the agency’s findings are supported by substantial and competent evidence and whether the agency’s decision exceeds its statutory authority or constitutes an abuse of discretion. General Statutes § 4-183 (g); Board of Education v. Commission on Human Rights & Opportunities, 176 Conn. 533, 538,409 A.2d 1013 (1979); Pik-Kwik Stares v. Commission on Human Rights & Opportunities, supra, 329.

We first reject any suggestion that the variety of relief ordered by the CHRO hearing officer is not authorized by statute. General Statutes (Rev. to 1975) § 31-127 provides in relevant part that “[i]f . . . the tribunal finds that a respondent has engaged in any unfair employment practice, it shall . . . issue . . . an order requiring such respondent to cease and desist from such unfair employment practice and further requiring such respondent to take such affirmative action ... as in the judgment of the tribunal will effectuate the purpose of this chapter.” This language is broad enough to cover the type of relief ordered by the CHRO hearing officer in the present case. As we observed in Civil Service Commission v. Commission on Human Rights & Opportunities, 195 Conn. 226, 230-31, 487 A.2d 201 (1985), “the victim of a discriminatory practice is to be accorded his rightful place in the employment scheme, that is, he has a right to be restored to the position he would have attained absent the unlawful discrimination. Spagnuolo v. Whirlpool Corporation, 717 F.2d 114, 121 (4th Cir. 1983). . . . Such an order [for relief] may include retroactive and prospective monetary relief. . . . ‘Where prohibited discrimination is involved, the hearing officer has not merely the power but the duty to render a decree which will, so far as possible, eliminate the discriminatory effects of the past as well as bar like discrimination in the future.’ Wroblewski v. Lexington Gardens, Inc., supra, 66-67 (Parskey, J., dissenting); Albemarle Paper Co. v. Moody, 422 U.S. 405, 418, 95 S. Ct. 2362, 45 L. Ed. 2d 280 (1975).”

The plaintiffs rely exclusively on the United States Supreme Court’s Title VIÍ decisions in Manhart, Norris and Long, decisions not binding on this court’s interpretation of Connecticut antidiscrimination statutes, in arguing that the type of relief accorded Kirkland was improper. In each of those cases, the court ruled that although the use of gender-based actuarial tables to compute retirement benefits is impermissible under Title VII, retroactive relief was unnecessary to ensure compliance with Title VII. Of critical significance to the court was the fact that the employers may well have assumed that the method employed in computing retirement benefits was legal. Florida v. Long, supra, 2362; Arizona Governing Committee v. Norris, supra, 1110 (O’Connor, J., concurring); Los Angeles Department of Water & Power v. Manhart, supra, 720-21. As the court reasoned in Long, “[t]he effect of ‘drastic changes in the legal rules governing pension and insurance funds’ on the provision of reserves for unexpected benefits . . . the potential instability in pension and retirement programs and the resulting harm to other retirees as innocent third parties; and the absence of any reason to believe that ‘the threat of a backpay award’ was necessary to effect pension fund compliance with our decision, [compels] our conclusion . . . that ‘the rules that apply to these funds should not be applied retroactively unless the legislature has plainly commanded that result.’ [Los Angeles Department of Water & Power v.] Manhart, supra, [720-23].” Florida v. Long, supra, 2362.

We find several defects in the plaintiffs’ application of the United States Supreme Court’s Title VII cases to the present case. First, their argument overlooks the difference between General Statutes (Rev. to 1975) § 31-127 and its federal counterpart, 42 U.S.C. § 2000e-5 (g). As noted above, General Statutes (Rev. to 1975) § 31-127 provides that “[i]f . . . the tribunal finds . . . any unfair employment practice, it shall . . . issue ... an order requiring such respondent to cease and desist from such unfair employment practice and ... to take such affirmative action ... as . . . will effectuate the purpose of this chapter.” (Emphasis added.) While the Connecticut statute thus mandates relief, however, its federal counterpart pro- • vides that “[i]f the court finds [an intentional discriminatory practice], the court may . . . order such affirmative action as maybe appropriate.” (Emphasis added.) 42 U.S.C. § 2000e-5 (g); see Florida v. Long, supra, 2358 and 2359 n.3; Arizona Governing Committee v. Norris, supra, 1091-92; Los Angeles Department of Water & Power v. Manhart, supra, 718-19. The United States Supreme Court has interpreted Title VII as creating a presumption in favor of retroactive relief that may be rebutted “for reasons which, if applied generally, would not frustrate the central statutory purposes of eradicating discrimination throughout the economy and making persons whole for injuries suffered through past discrimination.” Albemarle Paper Co. v. Moody, supra, 421; Arizona Governing Committee v. Norris, supra, 1091; Los Angeles Department of Water & Power v. Manhart, supra, 719. The plaintiffs have not directed our attention to any Connecticut cases adopting this limitation, and we decline to adopt it here. We therefore agree with the CHRO that the mandatory language of General Statutes (Rev. to 1975) § 31-127 “plainly commands” the variety of relief ordered in this case.

Second, we also agree with the CHRO that the District Court for the District of Connecticut’s decision of September 14, 1974, in Fitzpatrick v. Bitzer, 390 F. Sup. 278 (D. Conn. 1974), rev’d in part on other grounds, 519 F.2d 559 (2d Cir. 1975), rev’d on other grounds, 427 U.S. 445, 96 S. Ct. 2666, 49 L. Ed. 2d 614 (1976), gave the plaintiffs fair warning that the board’s use of gender-based tables to compute retirement benefits constituted a violation of Title VII and, by implication, the Connecticut antidiscrimination statute. In Bitzer, the court ruled that Connecticut’s state employees’ retirement system impermissibly discriminated against men on the basis of sex by providing lesser retirement benefits for men as compared to women. Id., 281-83. “The Connecticut retirement plan constitutes an unlawful employment practice, because it discriminates between men and women with regard to employment fringe benefits and is therefore . . . illegal and in violation of [Title VII].” Id. The state in that case did not appeal from the substantive finding respecting the Title VII violation. While the plaintiffs seek to distinguish Bitzer, we are persuaded that the decision sufficiently alerted the board to the illegality of its gender-based pension computation method.

Third, the hearing officer found as a matter of fact that the imposition of a retroactive remedy and future equalization of benefits to the entire class represented by Kirkland would not unduly burden the retirement benefits system. The plaintiffs have not challenged the hearing officer’s finding that the “funding [of cost of living increases and ‘catch-up’ allowances] is subject to adjustment by the [plaintiffs] in accordance with public policy as well as actuarial principles.” In light of this finding, the plaintiffs have not substantiated their claim that imposition of an order requiring only the future equalization of Kirkland’s benefits alone “inequitably” threatens the system’s ability to meet existing and expected obligations to other retirees.

Fourth, there are great practical differences between the present case and Long, Norris and Manhart. The three United States Supreme Court decisions involved class actions seeking Title VII remedies. This case involves one complainant seeking a remedy under General Statutes (Rev. to 1975) § 31-127. The factors underlying the United States Supreme Court’s apparent concern for state pension programs are not present in this case. Our decision does not raise the spectre of insolvent pension plans throughout the fifty states, a factor clearly given significant consideration by the United States Supreme Court in the Title VII cases.

Fifth, we are persuaded that a greater “inequity” may be done in applying the “retroactivity” analysis of the Manhart, Norris and Long Title VII decisions to remedies available under General Statutes (Rev. to 1975) § 31-127, insofar as those decisions treat future equalization of pension benefits as a nonrecoverable “retroactive” remedy. The elimination of such a remedy may very well deter individuals currently suffering ongoing forms of impermissible employment discrimination in similar contexts from bringing actions to enforce their rights. Cf. Association Against Discrimination in Employment, Inc. v. Bridgeport, 647 F.2d 256, 279 (2d Cir. 1981), cert. denied, 455 U.S. 988, 102 S. Ct. 1611, 71 L. Ed. 2d 847 (1982) (in fashioning Title VII relief under 42 U.S.C. § 2000e-5 [g], consideration should be given to complainants and those similarly situated). Whatever progress Long may betoken for Title VII law, elimination of the type of relief ordered in the present case would not enhance the remedial purposes of our discriminatory employment practices legislation.

Finally, the conclusion we reach today is not without federal precedent. In Rosen v. Public Service Electric & Gas Co., 477 F.2d 90 (3d Cir. 1973), the defendant’s pension plans discriminated on the basis of sex by providing greater benefits to women taking early retirement than similarly situated men. The Court of Appeals reversed the District Court’s failure to award “compensatory damages” to males who retired early. Id., 93, 95. The court held that “[m]en who have retired . . . with annuities reduced below those which they would have received had they been women must be compensated for the losses they sustained and are sustaining due to the discriminatory reduction in the amount of pensions . . . . ” (Emphasis added.) Id., 96. “The relief is intended to restore those wronged to their rightful economic status absent the effects of the unlawful discrimination. . . . We are under a duty to render relief which will eliminate the ‘discriminatory effects of the past as well as bar like discrimination in the future.’ Louisiana v. United States, 380 U.S. 145, 154, 85 S. Ct. 817, 822,13 L. Ed. 2d 709 (1965) (Citations omitted.) Id. While its exegesis of Title VII remedies may be in doubt after Long, we find Rosen much more congenial to the remedial objectives of the Connecticut legislation than the Manhart and Long cases.

B

We do agree with the plaintiffs’ claim, however, that the CHRO hearing officer exceeded her statutory authority in shaping the specific contours of Kirkland’s remedy. As noted above, the hearing officer determined that Kirkland’s future benefits should be equalized with the benefits received by similarly situated females, rather than recomputed by the unisex table. The CHRO in this case did not file its own complaint against the board but acted solely on Kirkland’s complaint. General Statutes (Rev. to 1975) § 31-127; General Statutes § 46a-82 (b) and (c). Further, the record discloses that the remedy Kirkland sought was the recalculation of his benefits based on the unisex table implemented by the board on July 1,1976. “If the [CHRO] prosecutes an alleged unfair employment practice upon the complaint of an individual without initiating its own, separate complaint, and absent a proper amendment authorizing broader relief, the tribunal may fashion a remedy only within the confines of the complaint and afford relief only to the individual complainant.” Groton v. Commission on Human Rights & Opportunities, 169 Conn. 89, 100, 362 A.2d 1359 (1975).

We conclude that the trial court did not err in finding that Kirkland’s complaint was not untimely under General Statutes (Rev. to 1975) § 31-127. We hold, however, that the trial court erred in affirming the hearing officer’s order requiring the board to make Kirkland’s future retirement benefits equal to those of similarly situated females. Kirkland is entitled to the difference between the amount received pursuant to the board’s calculation of his benefits and the amount he would have received had his benefits been calculated according to the unisex actuarial table adopted by the board on July 1, 1976. The period for which the differential must be allowed is from June 29,1977, the date he filed his complaint, and thereafter.

There is error only with respect to the amount of the future retirement benefit increase to which Kirkland is entitled, and the case is remanded with direction to correct the judgment in that respect in accordance with this opinion.

In this opinion the other justices concurred.

       The teachers’ retirement system currently is codified in General Statutes § 10-183b et seq.

       General Statutes (Rev. to 1975) § 31-126 (a) provides: “It shall be an unfair employment practice (a) For an employer, by himself or his agent, except in the case of a bona fide occupational qualification or need, because of the race, color, religious creed, age, sex, national origin, ancestry or physical disability, including, but not limited to, blindness of any individual, to refuse to hire or employ or to bar or to discharge from employment such individual or to discriminate against him in compensation or in terms, conditions or privileges of employment.” See General Statutes § 46a-60 (a) (1) (codifying former General Statutes [Rev. to 1975] § 31-126 [a] as amended).
      In 1980, the legislature substituted the phrase “discriminatory practice” for “unfair employment practice.” Public Acts 1980, No. 80-422, § 9. In 1981, the pertinent provisions of the Fair Employment Practices Act, General Statutes (Rev. to 1975) c. 563, § 31-122 et seq., were transferred to General Statutes c. 814c, entitled Human Rights and Opportunities. See General Statutes § 46a-51 et seq.
      In the present case, the CHRO hearing officer, the trial court and the parties on appeal have intermingled references to the present statutory sections with references to those sections as they existed on February 1, 1975, the date Kirkland retired. The parties on appeal have not raised any arguments concerning retroactive application of any amendments to the statutes pertinent to this case. Further, the record does not indicate that the parties raised such an issue below. Consequently, for the purpose of this appeal, our analysis is confined to the statutory scheme extant on February 1, 1975.

       General Statutes (Rev. to 1975) § 31-127 provides in relevant part: “Any complaint filed pursuant to this section must be so filed within one hundred and eighty days after the alleged act of discrimination.” See General Statutes § 46a-82 (e) (codifying time provisions of former General Statutes [Rev. to 1975] § 31-127 as amended).

       In its original memorandum of decision, the trial court made a finding that Kirkland was deceased. One-time Hartford storyteller Samuel L. Clemens would have appreciated this finding, however, since rumors of Kirkland’s death had been greatly exaggerated. On January 9,1989, after the plaintiffs had filed their appeal, the parties stipulated to open the judgment to correct the finding that Kirkland was deceased. The trial court did so. Although the opening of a judgment after an appeal has been filed usually moots the appeal; State v. Phillips, 166 Conn. 642, 646, 353 A.2d 706 (1974); we treat the parties’ stipulation as a motion to correct the judgment. Practice Book § 4051.

       Title 42 of the United States Code, § 2000e-2 (a) provides: “It shall be an unlawful employment practice for an employer—(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.”

       As noted above, the CHRO has not appealed from the trial court’s judgment invalidating the hearing officer’s order providing Kirkland with relief for the period preceding the filing of the complaint.

       The full text of the remedy section of General Statutes (Rev. to 1975) § 31-127 provides: “If, upon all the evidence, the tribunal finds that a respondent has engaged in any unfair employment practice, it shall state its findings of fact and shall issue and file with the commission and cause to be served on such respondent an order requiring such respondent to cease and desist from such unfair employment practice and further requiring such respondent to take such affirmative action, including, but not limited to, hiring or reinstatement of employees, with or without back pay, or restoration to membership in any respondent labor organization, as in the judgment of the tribunal will effectuate the purpose of this chapter.” See General Statutes § 46a-86 (codifying remedy provisions of former General Statutes [Rev. to 1975] § 31-127 as amended). Public Acts 1980, No. 80-422, § 30 substituted the phrase “discriminatory practice” for the phrase “unfair employment practice.”

       Title 42 of the United States Code, § 2000e-5 (g) provides: “If the court finds that the respondent has intentionally engaged in or is intentionally engaging in an unlawful employment practice charged in the complaint, the court may enjoin the respondent from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement or hiring of employees, with or without back pay (payable by the employer,employment agency, or labor organization, as the case may be, responsible for the unlawful employment practice), or any other equitable relief as the court deems appropriate. Back pay liability shall not accrue from a date more than two years prior to the filing of a charge with the Commission. Interim earnings or amounts earnable with reasonable diligence by the person or persons discriminated against shall operate to reduce the back pay otherwise allowable. No order of the court shall require the admission or reinstatement of an individual as a member of a union, or the hiring, reinstatement, or promotion of an individual as an employee, or the payment to him of any back pay, if such individual was refused admission, suspended, or expelled, or was refused employment or advancement or was suspended or discharged for any reason other than discrimination on account of race, color, religion, sex, or national origin or in violation of § 2000e-3 (a) of this title.”

       The current version of the remedies provision at issue in this case retains the mandatory language respecting orders of affirmative relief. “If, upon all the evidence presented at the hearing . . . the hearing officer finds that a respondent has engaged in any discriminatory practice, the hearing officer shall state his findings of fact and shall issue and file with the commission and cause to be served on the respondent an order requiring the respondent to cease and desist from the discriminatory practice and further requiring the respondent to take such affirmative action as in the judgment of the hearing officer will effectuate the purpose of this chapter.” General Statutes § 46a-86 (a).

       Despite its ruling that the retirement plan violated Title VII, the District Court held that the eleventh amendment barred the plaintiffs’ request for retroactive relief and attorney’s fees against the state. Fitzpatrick v. Bitzer, 390 F. Sup. 278 (D. Conn. 1974). Upon the plaintiffs’ appeal, the Court of Appeals for the Second Circuit affirmed the District Court’s ruling respecting retroactive relief, but held that the plaintiffs were entitled to attorney’s fees. Fitzpatrick v. Bitzer, 519 F.2d 559 (2d Cir. 1975). The United States Supreme Court reversed, holding that the eleventh amendment did not bar either retroactive relief or the recovery of attorney’s fees. Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S. Ct. 2666, 49 L. Ed. 2d 614 (1976); see Fitzpatrick v. Bitzer, 455 F. Sup. 1338 (D. Conn. 1978) (determination of attorney’s fees on remand).


source: Caselaw Access Project

author: Hull, J.

license: Public Domain

text:
    Theresa B. Blake v. Benson P. Blake
    (13596)
    Peters, C. J., Shea, Callahan, Glass and Hull, Js.

      Argued March 2
    decision released June 20, 1989

      Wesley W. Horton, with whom were Susan M. Cormier and, on the brief, Jeffrey A. Hoberman, legal intern, for the appellant (defendant).

      Arnold H. Klau, for the appellee (plaintiff).
   Hull, J.

The defendant appeals from postdissolution orders of the court awarding the plaintiff $10,000 attorney’s fees for the defense of the defendant’s earlier appeal to this court, Blake v. Blake, 207 Conn. 217, 541 A.2d 1201 (1988), and interest on a delayed payment by the defendant of a portion of a $1,200,000 payment to the plaintiff ordered in the underlying dissolution judgment. The defendant framed the issues as follows:

“1. Did the Court abuse its discretion in awarding counsel fees to the Plaintiff to defend the appeal when she admitted having liquid assets of about $630,000 and a net worth of about $1,535,000 at the time of the hearing?

“2. As a matter of law, was there an accord and satisfaction when the Plaintiff cashed the Defendant’s check for $525,000 marked ‘final payment’?

“3. Did the Court improperly invoke the adverse inference rule against the Defendant concerning the accord and satisfaction issue?

“4. Did the Court in September 1988 have the power over the Defendant’s objection to state that the judgment in July 1987 for lump sum alimony was really a division of property award?

“5. If not, does [General Statutes] § 52-350f provide for interest on lump sum alimony?”

We find error in the award of attorney’s fees and no error in the award of interest on the delayed payment of part of the financial order.

On May 19,1988, after we affirmed the trial court’s decision in Blake v. Blake, supra, the court awarded to the plaintiff attorney’s fees of $10,000 plus expenses of $4974.63. The plaintiff had requested an award of attorney’s fees and costs in the amount of $25,297.13. At the hearing on attorney’s fees the parties submitted current financial affidavits. The plaintiffs affidavit showed a net worth of about $1,535,000. The parties stipulated that her liquid assets were approximately $630,000. The defendant’s net assets on his affidavit were $5,503,000. The defendant has not attacked the reasonableness of the requested fees.

The defendant did, however, object to any award of attorney’s fees, on the ground that the plaintiff had ample liquid funds to pay her own fees. The court responded to this objection by stating that if it had known that the defendant was going to appeal its decision in the dissolution case it would have made different orders originally. The court also stated “that part of the appeal was a pressure technique by Mr. Blake, particularly,” and “frivolous.” We found nothing frivolous in the appeal to this court. Punishment of a litigant should play no role in the determination of the issue of awarding attorney’s fees.

The starting point of our analysis is Koizim v. Koizim, 181 Conn. 492, 435 A.2d 1030 (1980). In Koizim, the defendant wife was awarded $60,000 per year lump sum alimony for a period of ten years, periodic alimony of $4000 per month and an allowance for counsel fees in the approximate amount of $55,000. Id., 494. We said: “The plaintiff quite properly challenges the trial court’s award of counsel fees and expenses. Counsel fees are not to be awarded merely because the obligor has demonstrated an ability to pay. ‘Courts ordinarily award counsel fees in divorce cases so that a party (usually the wife) may not be deprived of her rights because of lack of funds. Krasnow v. Krasnow, 140 Conn. 254, 265, 99 A.2d 104 (1953); Steinmann v. Steinmann, 121 Conn. 498, 504, 186 A. 501 (1936).’ Ridolfi v. Ridolfi, 178 Conn; 377, 380, 423 A.2d 85 (1979). In making its determination regarding attorney’s fees the court is directed by General Statutes § 46b-62 to consider the respective financial abilities of the parties. Murphy v. Murphy, 180 Conn. 376, 380, 429 A.2d 897 (1980). Where, because of other orders, both parties are financially able to pay their own counsel fees they should be permitted to do so. Because the defendant has ample liquid funds as a result of the other orders in this case, there was no justification for an allowance of counsel fees.” Koizim v. Koizim, supra, 500-501.

In Fitzgerald v. Fitzgerald, 190 Conn. 26, 29-30,459 A.2d 498 (1983), we relied on Koizim in upholding the trial court’s denial of attorney’s fees. The plaintiff in Fitzgerald claimed that the court had abused its discretion in denying attorney’s fees. We noted that the availability of “sufficient cash” to pay one’s attorney’s fees is not an absolute litmus test for making an award pursuant to General Statutes § 46b-62. Id., 33. “This is because a trial court’s discretion should be guided so that its decision regarding attorney’s fees does not undermine its purpose in making any other financial award.” Id., 34. “ ‘Whether a spouse has “ample liquid funds” with which to pay counsel fees . . . can only be determined by examining the total financial resources of the parties in light of the statutory criteria.’ ” (Citation omitted.) Id., quoting Venuti v. Venuti, 185 Conn. 156, 163, 446 A.2d 878 (1981).

In the light of the plaintiff’s net assets of over $1,500,000 and her liquid assets of $630,000, it cannot reasonably be claimed that the failure to award $14,947.63 for attorney’s fees and expenses would undermine or skew the substantial financial awards granted to her in the dissolution judgment. To award counsel fees under these circumstances is gilding the lily. The court abused its discretion in making such an order.

The defendant’s issues two through five are all facets of his claim that the trial court erred in awarding the plaintiff interest on the delayed payment of part of an award of $1,200,000 to her in the dissolution decree. The background of these claims is as follows: In its oral memorandum of decision in the Blake dissolution case on July 27,1987, the court stated: “I’m going to order the sum—that he pay her the sum of $1,200,000 as a payment in lump-sum alimony.” The judgment file did not label the $1,200,000 payment in any way. It merely stated: “5. The defendant shall pay the plaintiff $1,200,000.” During the pendency of the Blake appeal, the plaintiff moved to terminate the stay of execution on the $1,200,000 order. At the hearing on this motion the court purported to clarify its order by calling it a property division. The court terminated the stay on $675,000 of the award. On May 13,1988, after the original appeal had been resolved against the defendant, the defendant’s counsel hand-delivered a check for $525,000—the balance of the $1,200,000 order—to the plaintiff’s attorney’s office. The check contained on the left-lower front thereof the notation “final payment.” It was accompanied by a letter from the defendant’s counsel to the plaintiff’s counsel in which the first sentence stated: “Enclosed is a check for $525,000 as the final payment of the lump sum alimony award.”

The plaintiff raised the issue of interest on the payment of $525,000 at the hearing on the plaintiff’s motion for attorney’s fees on May 19, 1988, followed up by a written motion dated May 20, 1988. At the hearing on the plaintiff’s motion for attorney’s fees, the defendant objected to the award of interest on the ground, among others, that the judge had characterized the $1,200,000 order as lump sum alimony when he orally rendered his decision. The trial court noted that no motion to articulate the oral decision on the dissolution had been filed. The court ruled as follows: (1) when the decision is read as a whole it is clear that the court considered it as a division of property; (2) under Niles v. Niles, 15 Conn. App. 718, 546 A.2d 329 (1988), interest is authorized; (3) the phrase “final payment” is ambiguous and, since the defendant did not testify “the court is entitled to draw some inference”; and (4) the defendant did not prove the defense of accord and satisfaction. The court then awarded interest to the plaintiff in the amount, as later corrected, of $59,095.91.

The defendant’s second claim of error is that, as a matter of law, there was an accord and satisfaction when the plaintiff cashed the defendant’s check for $525,000 marked “final payment.” “When there is a good faith dispute about the existence of a debt or about the amount that is owed, the common law authorizes the debtor and the creditor to negotiate a contract of accord to settle the outstanding claim. Such a contract is often initiated by the debtor, who offers an accord by tendering a check as ‘payment in full’ or ‘in full satisfaction.’ If the creditor knowingly cashes such a check, or otherwise exercises full dominion over it, the creditor is deemed to have assented to the offer of accord. Upon acceptance of the offer of accord, the creditor’s receipt of the promised payment discharges the underlying debt and bars any further claim relating thereto, if the contract of accord is supported by consideration. Kelly v. Kowalsky, 186 Conn. 618, 621, 442 A.2d 1355 (1982); W. H. McCune, Inc. v. Revzon, 151 Conn. 107, 109, 193 A.2d 601 (1963); Bull v. Bull, 43 Conn. 455, 462 (1876); 2 Restatement (Second), Contracts (1981) § 281; E. Farnsworth, Contracts (1982) § 4.23, p. 282.

“A contract of accord and satisfaction is sufficiently supported by consideration if it settles a monetary claim that is unliquidated in amount.” County Fire Door Corporation v. C. F. Wooding Co., 202 Conn. 277, 281-82, 520 A.2d 1028 (1987).

As the trial court found, the defendant’s claim founders on the lack of a factual foundation for an accord and satisfaction. It is very clear that there was no good faith dispute about the existence of the debt or the amount owed. The defendant claims that there was an issue in the case concerning the balance of the $1,200,000 payment in that the court had earlier, in a colloquy between court and counsel, left open the possibility that some or all of the $1,200,000 payment might be in the form of bonds. The defendant argues that this possibility was eliminated by the plaintiff’s acceptance of the $525,000 check, thus bestowing a benefit on the plaintiff to which she was not entitled. This claim represents a mere shadow of a claimed dispute sufficient to support an accord and satisfaction. The defendant points to no evidence in the record that he ever sought permission from the court to substitute bonds for the cash payment ordered by the court or even that he had any interest in pursuing such a goal. The question of interest on the $525,000 payment had never been disputed by the parties, up to the date of payment, but was only raised later by the plaintiff in a separate court proceeding. Further, consideration for a contract of accord and satisfaction was lacking since the $525,000 payment was not unliquidated in amount but was instead the precise amount payable under a judgment of the court enforceable by contempt proceedings. The court did not err in concluding that the defendant had not proved an accord and satisfaction.

The defendant next claims that he is entitled to a new trial because the court improperly relied on Secondino v. New Haven Gas Co., 147 Conn. 672, 165 A.2d 598 (1960), and its progeny to.draw an adverse inference from his failure to testify. The court stated that it was “entitled to draw some inference where the actual party to the litigation could have been here to testify as to what he intended.” The rule concerning inferences to be drawn from the failure of an available witness to testify is too well known in Connecticut trial and appellate proceedings to justify lengthy discussion of this claim.

“ ‘The failure of a party to produce a witness who is within his power to produce and who would naturally have been produced by him, permits the inference that the evidence of the witness would be unfavorable to the party’s cause.’ Ezzo v. Geremiah, 107 Conn. 670, 677, 142 A. 461 (1928). ‘There are two requirements for the operation of the rule: The witness must be available, and he must be a witness whom the party would naturally produce.’ Secondino v. New Haven Gas Co., 147 Conn. 672, 675, 165 A.2d 598 (1960); see D’Amico v. Manson, 193 Conn. 144, 153, 476 A.2d 543 (1984); Doran v. Wolk, 170 Conn. 226, 230, 365 A.2d 1190 (1976). ‘To have the jury charged on the rule, the party claiming the benefit of it must show that he is entitled to it. State v. Carrione, 188 Conn. 681, 688, 453 A.2d 1137 (1982), cert. denied, 460 U.S. 1084, 103 S. Ct. 1775, 76 L. Ed. 2d 347 (1983).’ State v. Amarillo, [198 Conn. 285, 307, 503 A.2d 146 (1986)].” State v. Hart, 198 Conn. 424, 426, 503 A.2d 588 (1986). The Secondino rule is applicable to court trials. D’Amico v. Manson, supra; Friedman v. Friedman, 180 Conn. 132, 135, 429 A.2d 823 (1980); Olin Corporation v. Castells, 180 Conn. 49, 53, 428 A.2d 319 (1980). The absence of the defendant as a witness met the second prong of the Secondino test in that he was a witness whom the party would naturally have produced. The rule, however, was inapplicable “for the reason that there is nothing in the record to indicate the ‘availability’ of the ‘missing’ witness, an essential prerequisite.” D’Amico v. Manson, supra, 153. The defendant has not shown that the court’s error in voicing a vague form of such an inference was prejudicial to him. The court’s conclusion that there was no accord and satisfaction proved by the defendant rests on such a solid factual and legal foundation concerning the absence of a dispute between the parties and the lack of consideration, that we would be compelled to conclude as a matter of law that the defendant did not sustain his burden of proof on that issue regardless of whether the trial court may have drawn an adverse inference from the failure of the defendant to testify.

The defendant’s next claim is that the order for payment of $1,200,000 was lump sum alimony and therefore no interest is allowable on the delayed payment of $525,000. He bases this argument on the court’s statement to that effect during its oral memorandum of decision in the dissolution action ordering the defendant to pay $1,200,000 “in lump sum alimony.” He claims that the court’s two attempts to relabel this order as a division of property were illegal attempts to change an order under the guise of clarifying or articulating it. We recently summed up the law on this subject in State v. Wilson, 199 Conn. 417, 436-37, 513 A.2d 620 (1986), as follows: “Practice Book § 3082 explicitly preserves our common law rule that a trial court possesses the inherent power to modify its own judgments during the term at which they were rendered. Steve Viglione Sheet Metal Co. v. Sakonchick, 190 Conn. 707, 710, 462 A.2d 1037 (1983); Tyler v. Aspinwall, 73 Conn. 493, 497, 47 A. 755 (1901). ‘During the continuance of a term of court the judge holding it has, in a sense, absolute control over judgments rendered; that is, he can declare and subsequently modify or annul them.’ Sturdevant v. Stanton, 47 Conn. 579, 580 (1880). Under the common law rule, a distinction is drawn between ‘matters of substance’ and ‘clerical errors’; the distinction being that mere clerical errors may be corrected at any time even after the end of the term. Morici v. Jarvie, 137 Conn. 97,104, 75 A.2d 47 (1950); Brown v. Clark, 81 Conn. 562, 566-67, 71 A. 727 (1909); Wilkie v. Hall, 15 Conn. 32, 37 (1842). But ‘[i]n the absence of waiver or consent of the parties, a court is without jurisdiction to modify or correct a judgment in other than clerical respects after the expiration of the term of the court in which it was rendered.’ Snow v. Calise, 174 Conn. 567, 571, 392 A.2d 440 (1978).” We further concluded, in reliance on the provision in Practice Book § 326 that any civil judgment may be opened or set aside “within four months succeeding the date on which it was rendered or passed,” that for purposes of the common law rule, a criminal judgment also may not be modified in matters of substance beyond a period of four months after the judgment has become final. State v. Wilson, supra, 437. We note that the judgment file, as previously discussed, did not affix any label to the $1,200,000 payment. And we further note that the purported clarifications of the judgment contained in the oral decision in the case occurred long after the four month period after the judgment had expired.

Whether the court’s changed characterization of its judgment granting “lump sum alimony” is a “matter of substance” requires a brief look at the precedent cited by the court in State v. Wilson, supra. Wilkie v. Hall, supra, 38, concerned the amendment by a former deputy sheriff of a return on a writ of execution nearly five years after the original was filed. In Brown v. Clark, supra, we held that a mistake in failing to include interest for a certain period in the judgment actually rendered was not a judicial error but a clerical mistake in not making the language of the judgment file conform to the decision actually announced by the memorandum, and was therefore correctable even at a later term. In Morici v. Jarvie, supra, 105, a motion to “amplify” an earlier judgment file was made after the expiration of the term in which the judgment was rendered. We held that the purported change in the original judgment file, which merely adjudicated the amount of the debt due from the defendant to the plaintiff, to a complete foreclosure judgment, was a matter of substance which could not be corrected after the term, in the absence of waiver. Id., 104.

It can readily be seen that the three cases cited do not clearly illuminate our task. Wilkie v. Hall, supra, did not concern the same issues; Brown v. Clark, supra, was quite evidently a clerical error involving a variance between the judgment as announced and that contained in the judgment files; and Morici v. Jarvie, supra, went to the other extreme where the court attempted to transform an order finding only the debt due into a foreclosure judgment in complete detail, thus involving an out-of-term attempt to correct a judicial error. The case of Goldreyer v. Cronan, 76 Conn. 113, 55 A. 594 (1903), is somewhat closer to the mark. In Goldreyer, the trial court filed a memorandum awarding the plaintiff $300 and a corresponding judgment file was entered. Id., 114. Over one year later the court “corrected” the judgment, on motion of the plaintiff, by adding interest in the amount of $100.50. We concluded that the later adding of interest was an attempt to correct a judicial error beyond the term of court involved and that the court thirteen months later had no power to correct, amend or change the original judgment. Id., 118.

Although it may appear to be a close issue under traditional analysis, we conclude that the change in nomenclature of the $1,200,000 order under the circumstances of this case was not a “matter of substance” that was beyond the power of the court to correct beyond the term in which it was rendered. Three reasons support this conclusion.

First and foremost, the one-time use of the term “lump sum alimony” in the oral memorandum of decision can be viewed as merely a matter of a label affixed to an order, despite the admittedly serious ramifications that may result from the distinction between a lump sum alimony award and a division of property. Next, the status of the financial order was not an issue in the dissolution case. Further, an analysis of the structure of the dissolution order is highly instructive. We stated in Dubicki v. Dubicki, 186 Conn. 709, 713-15, 443 A.2d 1268 (1982), that “[t]he requisite factors for the trial court’s determination of marital property division depend upon whether it is considered as lump sum alimony pursuant to General Statutes § 46b-82, or as a property assignment pursuant to General Statutes § 46b-81. 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-81 (c), 46b-82.’ McPhee v. McPhee, [186 Conn. 167, 171, 440 A.2d 274 (1982)]. In assigning marital property, however, ‘the trial court must also consider the liabilities of the parties, “the opportunity of each for future acquisition of capital assets and income . . . [and] the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates.” General Statutes § 46b-81 (c).’ McPhee v. McPhee, supra, 171; see, e.g., Pasquariello v. Pasquariello, 168 Conn. 579, 583, 362 A.2d 835 (1975).” We further stated that “[w]e have often distinguished between the assignment of property under § 46b-81 and alimony under § 46b-82; see, e.g., Beede v. Beede, 186 Conn. 191, 192, 440 A.2d 283 (1982); McPhee v. McPhee, [supra, 168]; Basile v. Basile, 185 Conn. 141,142-43, 440 A.2d 876 (1981); Gallo v. Gallo, 184 Conn. 36, 49-50, 440 A.2d 782 (1981). The difference between an assignment of a specific portion of an estate and alimony is in their purposes. Clark, Domestic Relations (1968) § 14.8. The purpose of property-assignment is equitably to divide the ownership of the parties’ property. McPhee v. McPhee, supra, 170. On the other hand, periodic and lump sum alimony is based primarily upon a continuing duty to support. Hotkowski v. Hotkowski, 165 Conn. 167,170, 328 A.2d 674 (1973); see Smith v. Smith, 185 Conn. 491, 493, 441 A.2d 140 (1981); Wood v. Wood, [165 Conn. 777, 784, 345 A.2d 5 (1974)]; 2 Nelson, Divorce and Annulment (2d Ed.) § 14.06.” Dubicki v. Dubicki, supra, 714 n.2. Finally, the precise issue we are considering was delineated in Dubicki as follows: “In its memorandum of decision, the trial court characterized the transfers of the plaintiff’s property interest to the defendant as lump sum alimony. In its rectification of the record, however, the trial court characterized the transfers as property distribution. The characterization which is later in time should control, and is more consistent with the trial court’s actions, and with the parties’ testimony.”. (Emphasis added.) Id., 715.

In light of the Dubicki criteria, the $1,200,000 order was a property assignment. This order was part of an equitable division of the ownership of the parties’ property. The court ordered the plaintiff to convey her interest in the family home in Avon to the defendant and the defendant to convey his interest in a lot in California to the plaintiff. Blake v. Blake, supra, 219. The continuing duty to support, on which a lump sum alimony award could have been based, was satisfied by the court’s award of $50,000 per year periodic alimony and $600 per week child support. The court’s later characterization of the award is “more consistent with the trial court’s actions.” Dubicki v. Dubicki, supra. Any doubt that may remain is dispelled by our frequent reference in Blake v. Blake, supra, to the order of $1,200,000 payment as a “division of property.”

We conclude, therefore, that the order of payment of $1,200,000 by the defendant to the plaintiff was a division of property and not lump sum alimony. The significance of this conclusion lies in the defendant’s claim that interest cannot be awarded on lump sum alimony under General Statutes § 52-350Í. His claim is as follows: General Statutes § 52-350Í allows interest on a money judgment. General Statutes § 52-350a (13) defines a money judgment so as to exclude a “family support judgment.” Lastly, General Statutes § 52-350a (7) defines a “family support judgment” as referring to a “payment of a legal obligation for support or alimony to a spouse, former spouse, or a child and includes any such order for periodic payments whether issued pendente lite or otherwise.” In view of our conclusion that the $1,200,000 payment was a division of property, we leave this issue for another day.

The precise issue of the award of interest on a “property settlement” was considered by the Appellate Court in Niles v. Niles, supra. The husband became entitled to his share of the proceeds of the parties’ marital home in accordance with the dissolution judgment. The wife had delayed payment to him and paid only in response to a motion to compel her to do so. The defendant then sought postjudgment interest on the delayed payment which the trial court awarded. In upholding the court’s judgment, the Appellate Court stated: “The plaintiff next claims that the trial court erred in holding that interest may be awarded on the marital home sale proceeds which the plaintiff contends derived from a ‘family judgment.’ We assume that the plaintiff, by the use of that term, intends to refer to ‘family support judgments.’ For purposes of postjudgment procedures, that term is defined in General Statutes § 52-350a (7) as ‘a judgment, order or decree of the superior court for payment of a legal obligation for support or alimony to a spouse, former spouse of child and includes any such order for periodic payments whether issued pendente lite or otherwise.’ There is no statutory definition of the term ‘family judgment’ used by the plaintiff.

“The defendant, on the other hand, argues that the judgment in question was not a family support judgment, but rather constituted a ‘money judgment,’ as defined in the pertinent part of § 52-350a (13) as ‘a judgment, order or decree of the court calling in whole or in part for the payment of a sum of money, other than a family support judgment.' We agree with the defendant.

“It is apparent that an order for the payment of money from the sale of real estate constitutes a ‘money judgment’ and not a ‘family support judgment,’ as those terms are defined, despite the judgment’s origin in an action on the family docket. One party cannot, at its whim, deprive another of monies due and owing simply by changing the characterization of the obligation owed. While similarities exist between support payments and property settlements, we recognize that each serves a distinct purpose. Support, which is generally modifiable, often serves to satisfy an ongoing obligation, whereas a property settlement constitutes a final resolution of a dispute, and as such, warrants the penalty of interest when satisfaction is not obtained. We therefore conclude that the trial court properly ordered that postjudgment interest be paid.” Id., 720.

We concur in the reasoning and decision of the Appellate Court. The trial court did not err in the award of postjudgment interest on the defendant’s payment of $525,000 to the plaintiff.

There is error in the award of attorney’s fees to the plaintiff, that portion of the judgment is set aside and the case is remanded with direction to render judgment denying the motion for attorney’s fees; there is no error in the award of interest on the payment of $525,000 to the plaintiff.

In this opinion the other justices concurred.

       “The defendant contends that the trial court abused its discretion to assign property of either spouse to the other under [General Statutes] § 46b-81 by awarding the plaintiff $1,200,000, as well as a lot in California, which had an undisputed value of $375,000.” (Emphasis added.) Blake v. Blake, 207 Conn. 217, 229, 541 A.2d 1201 (1988).


author: Covello, J.

text:
    Louise Evon, Administratrix (Estate of Michael Evon), et al. v. Horace Andrews et al.
    (13617)
    Peters, C. J., Shea, Callahan, Covello and Hull, Js.
    Argued April 6
    decision released June 20, 1989

      Charles E. Oman III, for the appellants (plaintiffs).

      James K. Robertson, Jr., with whom, on the brief, was Pamela J. Norley, for the appellees (defendant city of Waterbury et al.).
   Covello, J.

This is an appeal from a decision of the Superior Court that granted the defendants’ motion to strike the fifth count of the plaintiffs’ complaint that sought recovery from a municipality and various city officials based upon their negligence. We find no error.

The complaint alleged that on November 11, 1984, the plaintiffs’ decedents were killed when a fire destroyed their residence, a multifamily rental unit, located in Waterbury. The fifth count of the complaint was directed against the city of Waterbury and various city officials. The plaintiffs alleged that the city and its officers had been negligent in failing properly to enforce various statutes, regulations and codes concerning the maintenance of rental dwellings. The defendants moved to strike this count in its entirety claiming that the enactments cited in the complaint “do not impose a duty on the [municipal agents] or the city of Waterbury [and that] any duty to enforce said provisions is, as a matter of law, discretionary as. to the agents of the City of Waterbury or is owed to the public at large and not to the plaintiffs.” The trial court, J. Healey, J., granted the defendants’ motion, concluding that “[t]he allegations in the Fifth Count clearly spell out discretionary governmental duties and therefore cannot be the basis for recovery for individual injury.” The plaintiffs declined to plead over* *** and on September 20, 1988, the trial court, O’Brien, J., rendered judgment on the fifth count of the complaint in favor of the defendants. The plaintiffs thereafter appealed this decision to the Appellate Court and we transferred the matter to ourselves pursuant to Practice Book § 4023.

On appeal the plaintiffs claim that the trial court erred in granting the defendants’ motion to strike because the fifth count of the complaint alleged negligent acts that may be characterized as either (1) ministerial in nature, or (2) discretionary acts that subjected an identifiable person to imminent harm. In either event, the plaintiffs claim that a cause of action was stated pursuant to our recent holding in Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 544 A.2d 1185 (1988). We do not agree with the characterization that the plaintiffs assign to these allegations.

The gravamen of the fifth count is that the site of the fire contained numerous conditions that violated state regulations and state and local building codes and that the defendants were negligent in either failing properly to inspect the premises or to undertake remedial action to correct the deficiencies.

While “[a] municipality itself was generally immune from liability for its tortious acts at common law; Ryszkiewicz v. New Britain, 193 Conn. 589, 593, 479 A.2d 793 (1984) ... its employees faced the same personal tort liability as private individuals.” Gordon v. Bridgeport Housing Authority, supra, 165. “[A] municipal employee [however,] has a qualified immunity in the performance of a governmental duty, but he may be liable if he misperforms a ministerial act, as opposed to a discretionary act. . . . The word ‘ministerial’ ‘refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion.’ Wright v. Brown, 167 Conn. 464, 471, 356 A.2d 176 [1975].” Fraser v. Henninger, 173 Conn. 52, 60, 376 A.2d 406 (1977).

The immunity from liability for the performance of discretionary acts by a municipal employee is subject to three exceptions or circumstances under which liability may attach even though the act was discretionary: first, where the circumstances make it apparent to the public officer that his or her failure to act would be likely to subject an identifiable person to imminent harm; see, e.g., Sestito v. Groton, 178 Conn. 520, 528, 423 A.2d 165 (1979); second, where a statute specifically provides for a cause of action against a municipality or municipal official for failure to enforce certain laws; see, e.g., General Statutes § 7-108 creating municipal liability for damage done by mobs; and third, where the alleged acts involve malice, wantonness or intent to injure, rather than negligence. See, e.g., Stiebitz v. Mahoney, 144 Conn. 443, 448-49, 134 A.2d 71 (1957). We do not consider in this instance the parallel analysis of governmental immunity that involves the question of whether the duty imposed upon the municipal official is a public duty or a private duty because the parties here agree that the duty is a public one. See Shore v. Stonington, 187 Conn. 147, 444 A.2d 1379 (1982).

The plaintiffs first argue that the failure reasonably, properly and adequately to inspect the decedents’ dwelling or prescribe remedial action to be taken by the owners as alleged in their complaint involved acts that were ministerial in nature and therefore the defendants were not immune from liability. We conclude that this is not the case. The plaintiffs do not allege that the defendants failed to inspect the dwelling. They allege that the defendants failed “to make reasonable and proper inspections” of the premises. (Emphasis added.) They further claim that the defendants failed “to conduct adequate inspections.” (Emphasis added.) While an inspection by definition involves “a checking or testing of an individual against established standards”; Webster, Ninth New Collegiate Dictionary; what constitutes a reasonable, proper or adequate inspection involves the exercise of judgment. Further, no matter how objective the standard, an inspector’s decision as to whether a building falls below a standard and whether remedial orders are therefore required involves the exercise of his or her judgment. It is axiomatic that “ministerial acts [are those that] are performed in a prescribed manner without the exercise of judgment . . . . ” (Emphasis added.) Gauvin v. New Haven, 187 Conn. 180, 184, 445 A.2d 1 (1982). Since the acts alleged in the fifth count required in some measure the exercise of judgment by a municipal employee, we conclude that they were not ministerial and therefore the defendants were immune from liability.

The plaintiffs next claim that their complaint alleged breaches of discretionary duties owed to their decedents, a group that was discrete, readily identifiable, and subject to imminent harm. We do not agree.

The “discrete person/imminent harm” exception to the general rule of governmental immunity for employees engaged in discretionary activities has received very limited recognition in this state. In Shore v. Stoning-ton, supra, a police officer stopped a speeding automobile. Despite evidence of intoxication, the officer did not arrest the driver. Later that evening, the driver struck a vehicle being operated by the plaintiffs decedent, who died from the injuries she sustained in the collision. We upheld the trial court’s conclusion that the plaintiff had failed to show that the plaintiff’s decedent was an identifiable person subject to imminent harm. In Sestito v. Groton, supra, a police officer, while on duty, observed a group of men drinking, arguing and scuffling in a parking lot outside a bar. The officer did not intervene until he heard gunshots. The plaintiff’s decedent died as a result of being shot. This court concluded that the trial court erred in directing a verdict for the defendant town based upon governmental immunity. In resolving “conflicting testimony on the issue of imminence of harm in favor of the plaintiff, we held that the case should then have been submitted to the jury.” Shore v. Stonington, supra, 153. This case does not present a situation in which this narrow exception applies.

The gravamen of the plaintiffs’ allegations is that the defendants had not done enough to prevent the occurrence of a fire. The risk of fire implicates a wide range of factors that can occur, if at all, at some unspecified time in the future. The class of possible victims of an unspecified fire that may occur at some unspecified time in the future is by no means a group of “identifiable persons” within the meaning of Shore v. Stonington, supra. Furthermore, the plaintiffs’ decedents were not subject to “imminent harm.” This is clearly not the situation in which a police officer stood by and watched a public brawl that resulted in a person being shot. See Sestito v. Groton, supra. The present allegations do not even rise to the level of the imminence we rejected in Shore v. Stonington, supra, in which a police officer permitted a drunk driver to continue on his way, resulting in the death of the plaintiff’s decedent. In the present instance, the fire could have occurred at any future time or not at all. We cannot accept the proposition that the plaintiffs’ decedents in this case were readily identifiable victims subject to imminent harm. As we observed in Shore v. Stonington, supra, 157, “[t]he adoption of a rule of liability where some kind of harm may happen to someone would cramp the exercise of official discretion beyond the limits desirable in our society.”

There is no error.

In this opinion the other justices concurred.

       The decedents were John Martin, Sr., John Martin, Jr., Michael Evon, Mary Evon and Shirley Hammick.

       The first three counts of the five count complaint were directed against Horace Andrews, as owner of the building. The three counts allege that the decedents’ death was caused by Horace Andrews’ negligence, carelessness and/or recklessness, and his wanton and willful acts or omissions. The fourth count of the complaint alleges that Horace Andrews fraudulently transferred the property in question to codefendant Sharon Andrews.

       The complaint names the city of Waterbury’s fire marshall, fire chief, director of public health, city clerk and the fire marshall’s office.

       The fifth count of the plaintiffs’ complaint provides in part: “5. The fire safety laws of Connecticut, including but not limited to [General Statutes] §§ 29-292, 47a-7,47a-51,47a-52, 57a-53, 57a-54 (b), 57a-52c, 57a-55, 57a-58, 57a-59 (a) as well as the Connecticut Fire Safety Code, the Waterbury Fire Prevention Code, the Waterbury Housing Code and the Waterbury Health Code all serve to impose a duty on the aforesaid defendants, jointly and severally, to enforce said provisions of the law ....
      “7. On several occasions prior to November 11, 1984, present and/or former employees of the City of Waterbury . . . had inspected or caused said premises to be inspected in the course of their employment.
      “8. Pursuant to those inspections, [certain conditions] were identified as violations of [General Statutes] § 47a-53, the Connecticut Fire Safety Code, the Waterbury Health Code, the Waterbury Fire Prevention Code and the Waterbury Housing Code, or in the exercise of reasonable care and inspection should have been so identified.
      “9. On diverse occasions over a period of several years, said employees issued citations against the landlord/owner of the premises, ordering him to correct said violations or in the exercise of reasonable care and in the course of their duties should have done so.
      “10. The above-mentioned pain and suffering sustained by the aforesaid decedents was caused by the carelessness and negligence of said defendants in that:
      “a. they failed to make reasonable and proper inspections;
      “b. they failed to notify the landlord/owner, Horace Andrews, of conditions found in their inspections;
      “c. they failed to conduct adequate inspections to discover said conditions or discover if the landlord had remedied or repaired said conditions;
      “d. they failed to outline remedial action which, if taken, would effect compliance of the landlord as required by law;
      “e. they unreasonably or improperly failed in their ministerial duty to enforce the relevant laws and codes;
      “f. they unreasonably or improperly delayed and postponed the prosecution and enforcement of relevant laws and codes;
      “g. they unreasonably and/or improperly failed to hold hearings and/or failed to maintain a record of any hearings, all to the decedents’] and living plaintiffs’ detriment;
      “h. they failed to make, maintain or record specific findings of fact as are reasonable, thereby preventing or hindering the plaintiffs’ decedents and the public from evaluation and objection thereto, all to the decedents’ and plaintiffs’ detriment;
      “i. they unreasonably or improperly enforced or failed to enforce, compliance regarding orders to the landlord/owner of violations of the relevant laws and codes and/or condemn the aforesaid premises;
      “j. they unreasonably and improperly failed in their ministerial duty to follow the procedures prescribed by law in regard to hearings, appeals, delays, fact finding and/or enforcement all to the decedents’ detriment;
      “k. they unreasonably and/or improperly failed, neglected or delayed condemning the premises as unfit for human habitation because they were unsafe;
      “1. they negligently failed to undertake their discretionary duty to follow enforcement procedures to assure that the aforesaid violations were corrected or that the building be condemned as unsafe;
      “m. they failed to provide the standard of care then due and in particular as regard the care due once the violations were noted and compliance was not forthcoming; and

        “n. they failed in their supervising capacities to correct any of the above acts, omissions, regulations, statutes, and/or codes, violations, and/or said defendants who supervised or otherwise were responsible for the performance of inspections of the premises, negligently failed to undertake their ministerial duty to follow enforcement procedures to assure that the violations were corrected or that the building be condemned as unsafe. ...”
      On April 22,1988, the defendants named in the fifth count moved to strike that count pursuant to Practice Book § 151 et seq.

       [Practice Book] “Sec. 157. — substitute pleading: judgment “Within fifteen days after the granting of any motion to strike, the party whose pleading has been stricken may file a new pleading . . . .”

       In their complaint the plaintiffs cite General Statutes §§ 29-292, 47a-7, 47a-51, 47a-52, 57a-53, 57a-54 (b), 57a-52c, 57a-55, 57a-58 and 57a-59 (o). Title 57 does not exist in the Connecticut General Statutes, nor did it exist at the time of the alleged incident. The plaintiffs also allege that the defendants violated the Connecticut Fire Safety Code, the Waterbury Fire Prevention Code, the Waterbury Housing Code and the Waterbury Health Code.