author: Covello, J.

text:
    Ray Nicolletta, Administrator (Estate of Kristi Nicolletta), et al. v. Nationwide Insurance Company Steven J. Putnam v. Nationwide Insurance Company
    (13602)
    (13603)
    Peters, C. J., Shea, Glass, Covello and Hull, Js.
    Argued March 9
    decision released June 27, 1989

      Carl E. Celia, for the appellant (defendant in both cases).

      John F. Wynne, Jr., for the appellees (plaintiffs in the first case).

      Susan M. Cormier, with whom was Alexandra Davis, for the appellee (plaintiff in the second case).
   Covello, J.

The dispositive issue in these consolidated cases is whether General Statutes § 38-175c (a) (2) furnishes a statutory basis for imposing a limitation on the aggregation (stacking) of uninsured and underinsured motorist coverage in an automobile liability insurance policy. We agree with the trial court’s conclusion that it does not and, therefore, find no error.

The facts in both cases are not in dispute and were presented to the trial court as stipulations by the parties.

The Nicolletta action: On November 16,1986, Kristi Nicolletta was killed while riding as a passenger in an automobile owned and operated by Charlene Ives. The Ives vehicle had liability insurance coverage of $20,000 which was paid to Nicolletta’s estate.

At the time of the accident there was a Nationwide Insurance Company automobile liability insurance policy in force insuring two vehicles owned by Carol Nicoletta, Kristi Nicoletta’s mother. Kristi Nicolletta qualified for coverage under this policy. Each of the insured vehicles was separately described in the policy. Further, each vehicle’s insurance coverage was individually listed and a separate premium was shown for the type of coverage on each vehicle.

Each vehicle had uninsured motorist coverage in the amount of $50,000 per person. The uninsured motorist coverage, however, was subject to a limitation as to the amount of money that would be paid by reason of the coverage on a second vehicle. This limitation was contained in a separate policy endorsement that provided: “[T]he insuring of more than one person or vehicle under this policy does not increase our Uninsured Motorists payment limits; in no event will any insured be entitled to more than the highest limit applicable to any one motor vehicle under this or any other policy issued by us. This condition, as it applies to the insuring of more than one vehicle under this policy or the insuring of'vehicles under other policies issued by us, does not apply to the extent the limits of liability do not exceed the limits equal to the minimum limits required by Section 38-175[c] of the Connecticut Insurance Law. ” (Emphasis added.)

Nicolletta’s estate filed an underinsured motorist claim against the defendant. The defendant paid the Nieolletta estate $70,000 (less credits which are not in dispute) which it contended represented the aggregate “stacked” uninsured motorist coverage on the two vehicles insured under the Nationwide policy. The defendant conceded that there was $50,000 due by reason of the uninsured motorist coverage on one of the two Nieolletta vehicles, but maintained that the language of the endorsement limited the amount it was required to pay by reason of the uninsured motorist coverage on the second vehicle to the statutory minimum of $20,000 contained in § 38-175c by reason of its reference to General Statutes § 14-112. Nicolletta’s estate, on the other hand, contended that “stacking” entitled it to the full $50,000 in uninsured motorist coverage on each of the two insured vehicles, for a total of $100,000.

The parties submitted their dispute to arbitration, an option available under the policy. The arbitrators ruled in favor of Nicolletta’s estate and concluded that the aggregate uninsured motorist coverage under the policy was $100,000. The defendant thereafter filed the present action in the Superior Court seeking to vacate the arbitration award. See General Statutes § 52-418. Nicolletta’s estate filed a counter application to confirm the award. See General Statutes § 52-417. The trial court affirmed the award.

The Putnam action: On April 8,1986, Steven J. Putnam was injured while a passenger in an uninsured automobile. His damages were $200,000. At the time of the accident there was a Nationwide automobile liability insurance policy in force insuring two vehicles owned by Wallace Putnam and Jean Putnam, Steven Putnam’s parents. Steven Putnam qualified for coverage under this policy as a resident relative of the Putnams. Each of the insured vehicles was separately described in the policy. Each vehicle’s insurance coverage was individually listed and a separate premium was shown for the type of coverage on each vehicle.

Each vehicle had uninsured motorist coverage in the amount of $100,000 per person. The uninsured motorist coverage, however, was subject to the same limitation as to the amount of payment that would be due because of coverage on the second vehicle by reason of the identical policy endorsement which had existed in the Nicolletta action.

Steven Putnam filed an uninsured motorist claim against the defendant. The defendant paid him $120,000 which it contended represented the aggregate “stacked” uninsured motorist coverage on the two vehicles insured under its policy. Again, the defendant conceded that there was $100,000 due by reason of the uninsured motorist coverage on one of the two Putnam vehicles, but maintained that the language of the endorsement limited the amount it was required to pay by reason of the uninsured motorist coverage on the second vehicle to the statutory minimum of $20,000 contained in § 38-175c by reason of its reference to § 14-112. Steven Putnam advanced the same argument as had Nicolletta and contended that “stacking” entitled him to the full $100,000 in uninsured motorist coverage per vehicle, for a total of $200,000.

The parties submitted their dispute to arbitration in accordance with the policy. This time, the arbitrators ruled that the endorsement did limit the amount due and concluded that the aggregate uninsured motorist coverage under the policy was $120,000. The plaintiff Steven Putnam thereafter filed an application in the Superior Court seeking to vacate the arbitration award. See § 52-418. The trial court vacated the award.

“This court has, on a number of occasions, considered the ‘stacking’ of uninsured and underinsured automobile insurance coverage for two passenger cars. Three principles of law emerge from our cases. First, we have noted that the issue of aggregation of coverage for multiple vehicles can arise with regard either to ‘interpolicy stacking’ under separate and distinct insurance policies, or to single policy, ‘intra-policy stacking.’ Regardless of this difference in form, we have repeatedly held that General Statutes § 38-175c permits an injured claimant to‘stack’coverages. . . . Second, in the context of Cases involving ‘intra-policy stacking,’ such as the one presently before us, we have held that such stacking is particularly appropriate when, as here, ‘ “each of the insured vehicles is separately described, the coverage granted under the policy is separately listed for each vehicle and a separate premium is charged for the coverage afforded to each of the described vehicles.” ’ Safeco Ins. Co. v. Vetre, [174 Conn. 329, 334, 387 A.2d 539 (1978)]; Nationwide Ins. Co. v. Gode, [187 Conn. 386,395, 446 A.2d 1059 (1982)]. Third, relying on regulations enacted pursuant to General Statutes §§ 38-175a and 38-175c, we have concluded that an insurer may not, by contract, reduce its liability for such uninsured or underinsured motorist coverage except as § 38-175a-6 of the Regulations of Connecticut State Agencies expressly authorizes. . . . That regulation permits an insurer to limit its liability to the extent that damages have been paid by or on behalf of any person responsible for the injury, have been paid or are payable under any workers’ compensation or disability benefits law, have been paid under the policy in settlement of a liability claim, or have been paid or are payable under any provisions of the policy for direct indemnity for medical expense or basic reparations benefits. The regulation nowhere authorizes an insurer contractually to interdict ‘stacking. ’ Accordingly, we have held that uninsured and underinsured motorist coverage can be ‘stacked’ despite language in the relevant insurance policy that purports explicitly to prohibit ‘stacking’ of such coverage in the event that two automobiles are insured under the same policy.” (Emphasis added.) Allstate Ins. Co. v. Ferrante, 201 Conn. 478, 481-84, 518 A.2d 373 (1986).

Despite these frequently articulated principles, the defendant argues that they are, in effect, not applicable to the present situation because § 38-175c (a) (2) impliedly provides that the uninsured motorist coverage, at either the insured’s or the carrier’s option, need be no more than the minimum required by General Statutes § 14-112, i.e., $20,000. This is not the case.

The defendant would have us read § 38-175c (a) (2) as follows: “[Ejvery . . . policy . . . shall provide uninsured motorist coverage with limits . . . equal to those purchased [by the insured] to protect against loss resulting from the liability imposed by law . . . but not less than the limits specified in subsection (a) of section 14-112 [i.e., $20,000].” Thus, argues the defendant, it may issue a policy providing uninsured motorist coverage in an amount prescribed by the insured as to one automobile, but limit the aggregation of coverages in the event that two vehicles are insured, to no more than an additional $20,000. Such a construction overlooks critical language in the statute.

Section 38-175c (a) (2) actually reads in relevant part: “[E]very . . . policy . . . shall provide uninsured motorist coverage with limits . . . equal to those purchased [by the insured] to protect against loss resulting from the liability imposed by law unless the insured requests in writing a lesser amount, but not less than the limits specified in subsection (a) of section 14-112 [i.e., $20,000].” (Emphasis added.) The phrase “but not less than the limits specified in subsection (a) of section 14-112 [i.e., $20,000]” refers to and limits the amount to which the insured may request a reduction in uninsured motorist coverage. When read in its totality, it is clear that the statute does not give an insurance carrier a similar option to reduce the coverage.

The history of Public Acts 1983, No. 83-461 (creating § 38-175c [a] [2]) makes it clear that this was the legislature’s intention: “Under sub-section 2, it would require each insured who purchases more than the legally required amount of liability insurance would [sic] receive the same amount of uninsured motorist coverage. The insured would have an opportunity to waive in writing the additional uninsured motorist coverage. This change would increase the consumer’s awareness of the value of low-cost uninsured motorist coverage which protects the insured and his family members. Apparently many drivers purchase $100,000.00 or more of liability coverage but leave their uninsured motorist coverage at the minimum of $20,000.00-$40,000.00. Sub-section 2 which gives such a driver an increased amount of uninsured motorist coverage, unless he makes a conscious decision not to purchase it. ” (Emphasis added.) 26 S. Proc., Pt. 9,1983 Sess., p. 3055, remarks of Senator Wayne A. Baker.

We conclude that § 38-175c (a) (2) does not provide a statutory basis for the payment limitation contained in these policies. Since the defendant does not claim any regulatory basis for the reduction in its liability for the uninsured coverage here in issue; Allstate Ins. Co. v. Ferrante, supra, 483; we further conclude that the trial court correctly ruled upon both arbitration awards in sustaining the claims advanced by the respective plaintiffs.

There is no error.

In this opinion the other justices concurred.

       General Statutes § 38-175c (a) (2) provides: “Notwithstanding any provision of this section to the contrary, every such policy issued or renewed on and after July 1,1984, shall provide uninsured motorist coverage with limits for bodily injury and death equal to those purchased to protect against loss resulting from the liability imposed by law unless the insured requests in writing a lesser amount, but not less than the limits specified in subsection (a) of section 14-112. Such written request shall apply to all subsequent renewals of coverage and to all policies or endorsements which extend, change, supersede or replace an existing policy issued to the named insured, unless changed in writing by the insured.”
      General Statutes § 14-112 provides in part: “To entitle any person to receive or retain a motor vehicle operator’s license or a certificate of registration of any motor vehicle when, in the opinion of the commissioner, such person has violated any of the provisions of section 14-222, section 14-224 or subsection (a) of section 14-227a . . . the commissioner shall require from such person proof of financial responsiblility to satisfy any claim for damages by reason of personal injury to, or the death of, any one person, of twenty thousand dollars . . . .”

       The policy provided: “An uninsured motor vehicle is . . . one which is underinsured. This is a motor vehicle for which bodily injury liability coverage or bonds are in effect; however, their total amount is less than the limits of this coverage.”

       Where a policy contains a provision for binding arbitration it must include a provision for final determination of the insurance coverage in the arbitration proceedings. General Statutes § 38-175c. For this reason the coverage issues in this arbitration proceeding are reviewable because we have treated such proceedings as compulsory arbitration. American Universal Ins. Co. v. DelGreco, 205 Conn. 178, 187-88, 530 A.2d 171 (1987).


source: Caselaw Access Project

license: Public Domain

text:
    Edward J. O’Leary et al. v. Industrial Park Corporation
    (13632)
    Peters, C. J., Shea, Callahan, Glass and Covello, Js.
    Argued March 28
    decision released June 27, 1989

      Philip L. Steele, for the appellants (plaintiffs).

      Elliot G. Macht, for the appellee (defendant).
   Covello, J.

The dispositive issue in this appeal is whether a trial court has the authority to modify a jury award to include attorney’s fees incurred in defending an appeal. We conclude that the trial court has no such authority.

The relevant facts are not in dispute. On March 29, 1983, the plaintiffs, Edward J. O’Leary and Raymond M. Yincunas, commenced an action against the defendant, the Industrial Park Corporation, for breach of contract, misrepresentation and violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq. The case was tried to a jury and prior to deliberations, the trial court instructed the jury that “if the plaintiffs have proven [that the defendant committed a fraud] they are entitled to have you add to the damages given in compensation for their losses and injury an additional sum as exemplary damages. The measure of these damages is a reasonable expense which the plaintiffs have incurred, including counsel fees in prosecuting this action . . . . ” On June 26, 1986, the jury returned a verdict in favor of the plaintiffs and awarded them $32,128 in damages. The parties agree that as part of the damages awarded, the jury included attorney’s fees to date. The trial court rendered judgment in accordance with the verdict and on August 19,1986, the defendant appealed this judg-. ment to the Appellate Court,

On October 14,1986, while the appeal was pending, the plaintiffs filed a motion for a supplemental judgment seeking interest and attorney’s fees pursuant to General Statutes § 52-192a (b). The trial court “deferred] action on plaintiffs’ motion for supplemental judgment until after pending appeal matters are concluded. The motion should be reclaimed by plaintiffs if it is to be preserved.” On May 17, 1988, the Appellate Court affirmed the trial court’s actions in connection with the underlying case in all respects.O’Leary v. Industrial Park Corporation, 14 Conn. App. 425, 542 A.2d 333 (1988).

On June 10, 1988, the plaintiffs reclaimed their earlier motion for interest and attorney’s fees as prescribed by § 52-192a (b) and also filed a “motion for supplemental judgment to recover the legal costs incurred in defendant’s appeal and the legal costs not considered by the jury.” After a hearing on the motion the trial court awarded the plaintiffs $350 as attorney’s fees and $6622.78 in interest. The court, however, denied the plaintiffs’ request for the additional attorney’s fees they incurred in opposing the defendant’s appeal in the Appellate Court. The plaintiffs appealed this decision to the Appellate Court and we thereafter transferred the matter to ourselves pursuant to Practice Book § 4023.

I

On appeal, the plaintiffs claim that the trial court erred in denying their motion for supplemental judgment for the amount of attorney’s fees incurred in defending the appeal. We do not agree. The trial court properly concluded that it was without authority to award such costs.

“ ‘[Ajbsent contractual or statutory authorization, there can be no recovery, either as costs or damages ... for counsel fees by a party opponent from his opponent.’ ” Gionfriddo v. Avis Rent A Car System, Inc., 192 Conn. 280, 297, 472 A.2d 306 (1984). An exception to this general rule is that attorney’s fees may be awarded as a component of punitive damages. Markey v. Santangelo, 195 Conn. 76, 80, 485 A.2d 1305 (1985). Punitive damages may be awarded upon a showing of fraud. Id., 77; Manning v. Michael, 188 Conn. 607, 619, 452 A.2d 1157 (1982).

In this case the trial court properly instructed the jury that if the defendant had committed a fraud the plaintiffs could be awarded punitive damages. Both parties agree that part of the damages awarded included an amount for punitive damages. Now, however, the plaintiffs seek as additional damages, the attorney’s fees incurred in defending the appeal. There is no authority to support the plaintiffs’ contention that the common law rule providing for the recovery of punitive damages in actions of fraud includes recovery for the costs incurred in defending a subsequent appeal. While the legislature has enacted numerous statutes permitting the award of attorney’s fees; see, e.g., General Statutes § 31-72 (actions to collect wage claims); General Statutes § 36-449 (violations of the home mortgage disclosure act); General Statutes § 46b-62 (actions for dissolution of marriage, legal separation and annulment); General Statutes § 52-192a (offer of judgment statute); General Statutes § 52-484 (action in inter-pleader); there is no statutory authority to award attorney’s fees incurred in defending a subsequent appeal in a fraud action.

II

The plaintiffs further argue that because the trial court deferred judgment on their October 14, 1986 motion for attorney’s fees pursuant to General Statutes § 52-192a (b), it had continuing jurisdiction over the entire case and, therefore, had the authority to award costs incurred in defending the appeal in the Appellate Court. We do not agree. Not only did the trial court’s action fail to confer upon it continuing jurisdiction, but it was unnecessary for the trial court to defer the rendering of judgment on the § 52-192a motion.

We have recently discussed at length the nature of the damages allowable under the offer of judgment statute. Gionfriddo v. Avis Rent A Car System, Inc., supra. The rules of § 52-192a determine prejudgment interest, the interest from the date when the offer of judgment was filed until the date of judgment. “Thereafter, [the plaintiffs are] entitled to interest at the rate of [10] percent on whatever amounts remain unpaid on the judgment rendered in [their] favor.” Id., 308. This post-judgment interest is authorized by General Statutes § 37-3a.* * Although the amount awarded in this case accurately reflects the proper computation of interest, it was unneccessary for the court to defer its decision on this issue. The interest accrues whether an appeal has been taken and until such time as the amount duly owed has been paid. There was, therefore, no need for a judicial determination of the amount due following the appeal.

Finally, in Hewitt v. Wheeler School & Library, 82 Conn. 188, 194-95, 72 A. 935 (1909), the trial court entered the following order as part of its judgment: “ Tt is further ordered and adjudged that, in case an appeal to the Supreme Court of Errors shall be taken from this judgment . . . this court retains jurisdiction of the case for the sole purpose, and only to the extent, of adjudging what allowances, if any, shall be made to the parties, or any of them, for expenses and counsel fees so incurred.’ ” In reviewing this order, we stated that “[t]his clause must be regarded as mere surplusage. The judgment rendered was a final one, and no further action in the cause . . . can be had in the Superior Court. Horton v. Upham, 72 Conn. 29, 32, 43 Atl. 492 [1899].” Id., 195. See also Hartford National Bank & Trust Co. v. VonZiegesar, 154 Conn. 352, 362, 225 A.2d 811 (1966).

The trial court did not err in holding that it was without jurisdiction to entertain the plaintiffs’ motion for supplemental attorney’s fees.

There is no error.

In this opinion the other justices concurred.

       General Statutes § 52-192a (b) provides: “After trial the court shall examine the record to determine whether the plaintiff made an ‘offer of judgment’ which the defendant failed to accept. If the court ascertains from the record that the plaintiff has recovered an amount equal to or greater than the sum certain stated in his ‘offer of judgment,’ the court shall add to the amount so recovered twelve per cent annual interest on said amount, computed from the date such offer was filed in actions commenced before October 1,1981. In those actions commenced on or after October 1,1981, the interest shall be computed from the date the complaint in the civil action was filed with the court if the ‘offer of judgment’ was filed not later than eighteen months from the filing of such complaint. If such offer was filed later than eighteen months from the date of filing of the complaint, the interest shall be computed from the date the ‘offer of judgment’ was filed. The court may award reasonable attorney’s fees in an amount not to exceed three hundred fifty dollars, and shall render judgment accordingly. This section shall not be interpreted to abrogate the contractual rights of any party concerning the recovery of attorney’s fees in accordance with the provisions of any written contract between the parties to the action.”

       A trial court has only limited authority to modify its judgments. Practice Book § 326 provides in part that “[u]nless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, any civil judgment or decree rendered in the superior court may not be opened or set aside unless a motion to open or set aside is filed within four months succeeding the date on which it was rendered or passed.” (Emphasis added.) See General Statutes § 52-212a.
      Contrary to the plaintiffs’ assertion, the trial court’s authority was not “otherwise provided by law.” This is not a case in which the legislature has provided the trial court with the statutory authority to modify its previous judgment even after the four month period provided for in Practice Book § 326. See, e.g., General Statutes § 46b-86 (the modification of alimony or support orders and judgments can be made “at any time”). Nor is this a situation in which the common law has provided the trial court with continuing jurisidiction. See, e.g., Adams v. Vaill, 158 Conn 478, 482, 262 A.2d 169 (1969) (“[i]t cannot be doubted that courts have inherent power to change or modify their own injunctions where circumstances or pertinent law have so changed as to make it equitable to do so”). This is also not a situation in which the plaintiffs filed a motion to open the judgment or to set aside the judgment pursuant to § 326. “ ‘Absent waiver, consent or other submission to jurisdiction ... a court is without jurisdiction to modify or correct a judgment, in other than clerical respects, after the expiration of the [period] provided in Practice Book... § 326.’ Bunche v. Bunche, 180 Conn. 285, 287-88, 429 A.2d 874 (1980).” Misinonile v. Misinonile, 190 Conn. 132, 134, 459 A.2d 518 (1983).
      Nor is this a case to which we should apply the rule that a judgment rendered by the court may be opened even after the four month limitation if it is shown that the judgment was obtained by fraud, in the actual absence of consent, or because of mutual mistake. See Celanese Fiber v. Pic Yarns, Inc., 184 Conn. 461, 466, 440 A.2d 159 (1981); Kenworthy v. Kenworthy, 180 Conn. 129, 131, 429 A.2d 837 (1980); Sparaco v. Tenney, 175 Conn. 436, 437-38, 399 A.2d 1261 (1978).

       General Statutes § 37-3a provides: “rate recoverable as damages. Except as provided in sections 37-3b, 37-3c and 52-192a, interest at the rate of ten per cent a year, and no more, may be recovered and allowed in civil actions or arbitration proceedings under chapter 909, including actions to recover money loaned at a greater rate, as damages for the detention of money after it becomes payable except as otherwise provided with respect to demand obligations in section 42a-3-122 (4) (a). Judgment may be given for the recovery of taxes assessed and paid upon the loan, and the insurance upon the estate mortgaged to secure the loan, whenever the borrower has agreed in writing to pay such taxes or insurance or both. Whenever the maker of any contract is a resident of another state or the mortgage security is located in another state, any obligee or holder of such contract, residing in this state, may lawfully recover any agreed rate of interest or damages on such contract until it is fully performed, not exceeding the legal rate of interest in the state where such contract purports to have been made or such mortgage security is located.”


author: Callahan, J.

text:
    Enthone, Incorporated v. Timothy F. Bannon, Commissioner of Revenue Services
    (13594)
    Peteks, C. J., Shea, Callahan, Glass and Covello, Js.
    Argued May 9
    decision released June 27, 1989

      W. Richard Smith, Jr., with whom, on the brief, was Frank F. Coulom, for the appellant (plaintiff).

      PaulM. Scimonelli, assistant attorney general, with whom, on the brief, was Clarine Nardi Riddle, acting attorney general, for the appellee (defendant).
   Callahan, J.

This is an appeal by the plaintiff, Enthone, Incorporated (Enthone), from a hazardous waste assessment imposed by the defendant commissioner of revenue services (commissioner) pursuant to General Statutes § 22a-132.

On or about October 1,1987, the commissioner issued a billing notice to Enthone for $5726.32, reflecting the commissioner’s assessment on hazardous waste material shipped by Enthone from its plant in West Haven during the period March 31, 1984, through December 31, 1986. Enthone disputed the assessment and, after an unfavorable final decision by the commissioner, appealed to the Superior Court. The Superior Court heard the matter on a stipulation of facts and the briefs of counsel and rendered a decision upholding the commissioner’s assessment. Enthone appealed to the Appellate Court and we transferred the matter to this court pursuant to Practice Book § 4023. We find error.

Enthone is a manufacturer of specialty chemicals. Among other things, it manufactures products that are not hazardous waste when they leave Enthone’s facilities and are shipped to its customers. Once the products are utilized by Enthone’s customers, however, the resulting material is classified as hazardous waste. Some of Enthone’s customers return this hazardous waste material to Enthone’s West Haven facility for recycling. The hazardous waste material returned to Enthone by its customers is shipped under a hazardous waste manifest and Enthone’s customers returning such material are assessed by the commissioner for their shipments under § 22a-132.

Once Enthone receives the hazardous waste material it makes a decision whether to recycle the material itself or to ship it on to a hazardous waste treatment facility for processing. The commissioner claims that the hazardous waste material not recycled by Enthone itself, but transshipped for treatment elsewhere, subjects Enthone to a hazardous waste assessment for the material shipped. Enthone, on the other hand, contends that because it does not generate the hazardous waste in question it is not subject to a hazardous waste assessment under the applicable statutes and regulations.

The statutory authority for the imposition of a hazardous waste assessment by the commissioner is General Statutes § 22a-132 (a), which provides, in pertinent part, for the payment of a hazardous waste assessment by three categories of taxpayers: “(1) a generator of hazardous waste required to file a manifest pursuant to the Resource Conservation and Recovery Act of 1976 (42 U.S.C. 6901 et seq.), as from time to time amended and regulations adopted by the department of environmental protection, (2) a treatment facility required to file a manifest for hazardous wastes resulting from their treatment process, and (3) a generator of hazardous waste shipping hazardous waste to treatment or disposal facilitites located in the state . . . .’’(Emphasis added.)

Enthone obviously does not fall under subdivision (2) of § 22a-132 (a) because the hazardous waste at issue in the instant appeal did not “[result] from [Enthone’s] treatment process.” Nor does the commissioner claim that Enthone is liable for a hazardous waste assessment under subdivision (3) of § 22a-132 (a). The commissioner argues, rather, that Enthone is liable for a hazardous waste assessment under § 22a-132 (a) (1) because it must file the uniform hazardous waste manifest required by the Resource Conservation and Recovery Act of 1976 and is subject to state and federal environmental regulations applicable to generators of hazardous waste when it transships such waste to other facilities for treatment. See, e.g., Regs., Conn. State Agencies § 22a-449 (c)-5 (d) (3); 40 C.F.R. § 262.10 (f); 40 C.F.R. § 264.71 (c).

Enthone does not dispute the fact that federal and state regulations require that it comply with the standards applicable to “generators]” of hazardous waste when it transships such material from its West Haven facility to other destinations. Nor does it contest that such regulations require it, when transshipping such material, to file a uniform hazardous waste manifest and to adhere to the same rigid state and federal requirements concerning packaging, labeling, marking, managing and disposing of hazardous wastes that apply to “generator[sj” of hazardous waste. It argues, however, that neither the statutes nor the regulations authorize the imposition of an assessment on hazardous waste that is not generated by the shipper. We agree.

General Statutes § 22a-132 (a) (1), the statutory authority cited by the commissioner for imposition of the hazardous waste assessment upon Enthone, states that the “generator” of hazardous waste is subject to a hazardous waste assessment. The statute does not state that an entity treated as a “generator” of hazardous waste for certain regulatory purposes is subject to a hazardous waste assessment. The term “generator” is not defined in the statutes. State and federal environmental regulations, however, both define a “generator” of hazardous waste as one “whose act or process produces hazardous waste ... or whose act first causes a hazardous waste to become subject to regulation.” (Emphasis added.) Regs., Conn. State Agencies § 22a-449 (c)-(1) (c);* **** 40 CFR § 260.10. The activities of Enthone that are the subject of this appeal do not fit within either prong of that definition. The material in question was not produced by Enthone but only transshipped by Enthone for treatment. Further, the hazardous material in question was first subject to regulation, not when it was transshipped by Enthone, but when it was shipped to Enthone by the customer that produced it.

It is true that Enthone did identify itself in the space labeled “Generator” on the uniform hazardous waste manifest form. That form was adapted from the federal environmental form, 40 C.F.R. part 262, and was designed to standardize industry practices and to eliminate multiple state manifests for interstate shipments of hazardous waste. Federal law prohibits any modification of the standardized form by state regulatory agencies. See D. Stever, Law of Chemical Regulation and Hazardous Waste (1986) § 5.03[4]. The form does, however, contain instructions and space allowing the entity labeled the “Generator” of hazardous waste on the form to cite and explain any reason for exemption from the assessment provisions of § 22a-132. It is undisputed that Enthone did avail itself of that opportunity to identify its shipments of the hazardous waste materials in question as “transshipments.”

Under the circumstances stipulated to by the parties, the insertion of “Enthone, Incorporated” in the blank provided for the “Generator” on the uniform hazardous waste manifest when Enthone does not, in fact, fit the description of a “generator” of hazardous waste under the applicable regulations is insufficient to subject it to the assessment authorized by § 22a-132 (a) (1). The best that can be said for the commissioner’s position is that § 22a-132 (a) (1) is ambiguous as it relates to the hazardous waste transshipped by Enthone. A taxing statute that is ambiguous must be construed in favor of the taxpayer and against the commissioner. Hartford Parkview Associates Limited Partnership v. Groppo, 211 Conn. 246, 249-50, 558 A.2d 993 (1989); Zachs v. Groppo, 207 Conn. 683, 689, 542 A.2d 1145 (1988); Schlumberger Technology Corporation v. Dubno, 202 Conn. 412, 423, 521 A.2d 569 (1987); AMAX, Inc. v. Groppo, 17 Conn. App. 82, 86, 550 A.2d 13 (1988).

There is error, the judgment is set aside and the case is remanded to the trial court with direction to render judgment sustaining the plaintiffs appeal.

In this opinion the other justices concurred.

       Enthone, Incorporated, is a New York corporation having its principal place of business in West Haven. Enthone, Incorporated, was at all relevant times authorized to do business in Connecticut.

       “[General Statutes] Sec. 22a-132. hazardous waste assessment, (a) There shall be paid to the commissioner of revenue services by (1) a generator of hazardous waste required to file a manifest pursuant to the Resource Conservation and Recovery Act of 1976 (42 U.S.C. 6901 et seq.), as from time to time amended, and regulations adopted by the department of environmental protection, (2) a treatment facility required to file a manifest for hazardous wastes resulting from their treatment process and (3) a generator of hazardous waste shipping hazardous waste to treatment or disposal facilities located in the state, an assessment of (A) five cents per gallon of metal hydroxide sludge from wastewater treatment of electroplating or metal finishing operations and six cents per gallon of any other hazardous waste entered on a manifest in gallons, (B) one-half of one cent per pound of metal hydroxide sludge from wastewater treatment of electroplating or metal finishing operations and three-quarters of one cent per pound of any other hazardous waste entered on a manifest in pounds or (C) ten dollars per cubic yard of metal hydroxide sludge from waste water treatment of electroplating or metal finishing operations and twelve dollars for any other hazardous waste entered on a manifest in cubic yards. Any residue resulting from the processing or treatment of a hazardous waste at a facility approved in accordance with the Resource Conservation and Recovery Act of 1976 (42 U.S.C. 6901 et seq.), as from time to time amended, shall not be subject to assessment, provided such residue is derived from hazardous waste received at the facility under a manifest. All assessments shall be due and payable to the commissioner of revenue services quarterly on or before the last day of the month immediately following the end of each calendar quarter. If the total assessment payable by any such generator or treatment facility for any calendar quarter is less than five dollars, such generator or treatment facility shall not be required to pay an assessment for such quarter. A generator who or treatment facility which pays an assessment for hazardous waste pursuant to this section shall not be further assessed for such hazardous waste provided such hazardous waste is stored or reshipped without change or treatment in the container in which the amount of the assessment is determined. The generator or treatment facility shall note reshipment on a manifest in such manner as the commissioner deems necessary.
      “(b) Each generator or treatment facility of hazardous waste subject to the assessment as provided by this section shall submit a return quarterly to the commissioner of revenue services, applicable with respect to the calendar quarter beginning October 1, 1982, and each calendar quarter thereafter, on or before the last day of the month immediately following the end of each such calendar quarter, on a form prescribed by the commissioner, together with payment of the quarterly assessment determined and payable in accordance with the provisions of subsection (a) of this section.
      “(c) Whenever such assessment is not paid when due, a penalty of ten per cent of the amount due or fifty dollars, whichever is greater, shall be added to the amount due and such penalty shall immediately accrue, and thereafter such assessment shall bear interest at the rate of one and one-half per cent per month until the same is paid. The commissioner of revenue services shall cause copies of a form prescribed for submitting returns as required under this section to be distributed throughout the state. Failure to receive such form shall not be construed to relieve anyone subject to assessment under this section from the obligations of submitting a return, together with payment of such assessment within the time required.
      “(d) The revenue collected in accordance with this section shall be deposited in the emergency spill response fund established under section 22a-451. The commissioner of environmental protection is authorized to make expenditures from such revenue collected as necessary to cover expenses related to the collection of such assessment including, but not limited to, expenses for recording hazardous waste manifest data and for administration, except that the amount expended in any fiscal year for such purpose shall not exceed five per cent of the amount collected in such year. The assessment imposed by this section shall not apply to any state agency or any political subdivision or agency thereof.
      “(e) The imposition and collection of the assessment shall terminate on June 30, 1990.”

       This figure of $5726.32 includes interest and penalities.

       The hazardous waste assessment that is the subject of this appeal concerns only the hazardous waste that is returned to Enthone from its customers and transshipped elsewhere. Enthone does generate hazardous waste from some of its own manufacturing processes on which it pays a hazardous waste assessment.

       Section 22a-449 (c)-5 (d) (3) of the Regulations of Connecticut State Agencies provides: “Whenever a shipment of hazardous waste is initiated from a facility, the owner or operator of that facility must comply with the requirements of Parts I, II, III, and IV of these regulations.”

       40 C.F.R. § 262.10 (f) provides: “An owner or operator who initiates a shipment of hazardous waste from a treatment, storage, or disposal facility must comply with the generator standards established in this part.”

       40 C.F.R. § 264. 71 (c) provides: “Whenever a shipment of hazardous waste is initiated from a facility, the owner or operator of that facility must comply with the requirements of Part 262 of this chapter.”

       Section 22a-449 (c)-(1) (c) of the Regulations of Connecticut State Agencies provides: “ ‘Generator’ means any person or municipality, by site whose act or process produces hazardous waste identified or listed in accordance with Part I of these regulations or whose act first causes a hazardous waste to become subject to regulation.”

       40 C.F.R. § 260.10 provides: “ ‘Generator’ means any person, by site, whose act or process produces hazardous waste identified or listed in Part 261 of this chapter or whose act first causes a hazardous waste to become subject to regulation.”

       Enthone also claims that § 22a-132 (a) (1), as interpreted by the commissioner, is unconstitutional. In view of our holding, it is unnecessary to reach the constitutional question. Moore v. McNamara, 201 Conn. 16,20-21, 513 A.2d 660 (1986); State v. Williams, 200 Conn. 310, 322, 511 A.2d 1000 (1986); State v. Onofrio, 179 Conn. 23, 37-38, 425 A.2d 560 (1979).


author: Hull, J. Shea, J.,

text:
    John Caltabiano et al. v. Planning and Zoning Commission of the Town of Salem et al.
    (13604)
    Peters, C. J., Shea, Glass, Covello and Hull, Js.
    Argued May 3
    decision released June 27, 1989

      Laurence V. Parnoff, with whom were Alfred J. Onorato and, on the brief, Mary Ann Barile, for the appellants (plaintiffs).

      Thomas P. Byrne, for the appellee (named defendant).

      Thomas J. Londregan, with whom, on the brief, was Peter M. O’Connor, for the appellee (defendant Roger L. Phillips).
   Hull, J.

This case involves the narrow issue of whether the term “land involved” in General Statutes § 8-8 (a), which establishes statutory aggrievement to appeal the decision of a zoning agency to the Superior Court, refers to the overall parcel of land owned by the applicant before that agency or the particular piece of that land that was the subject of the agency decision. We conclude that the “land involved” in such a decision concerns the complete tract of land owned by the applicant rather than the discrete part of it containing the activity considered in the decision of the agency. Accordingly, we find error in the trial court’s conclusion to the contrary.

On September 14, 1987, the defendant, Roger L. Phillips, filed an application with the defendant Salem planning and zoning commission (commission) for a special exception to allow for excavation on Phillips’ 110 acre piece of land located on Witch Meadow Road in Salem. On November 17, 1987, the commission approved the applicátion covering a 3.8 acre parcel located deep within the 110 acre parcel. The commission granted an “excavation” permit to excavate down to bedrock. The plaintiffs appealed that decision to the Superior Court claiming that “[t]he Plaintiffs John Caltabiano and Debra Cadwell are owners of property which abuts within 500 feet of the Phillips’ parcel and [are] aggrieved by such decision of said Board.” Count one alleged certain procedural irregularities in the granting of the application. Count two claimed that the authorized excavation would result in the removal of substances known as pyrites and pyrite ore and cause environmental and health hazards in the areas surrounding the excavation site.

The trial court found that the chemical makeup of the bedrock was the concern of those at the public hearing on the application and of the plaintiffs in the appeal. As a result of this concern the commission did not grant an unrestricted special exception to level the entire 3.8 acre parcel by excavation as requested, but instead conditioned the special exception to the soil above the bedrock.

The court construed the allegations of paragraph two of the complaint as claiming both statutory aggrievement under General Statutes § 8-8 (a) and classical aggrievement. The court found that the property of Caltabiano abutted the 110 acre parcel of Phillips, and that the property of Cadwell was “across the street from the Phillips property.” We treat this latter finding, as have the parties in this appeal, as an implicit finding that Cadwell’s property was “within a radius of one hundred feet” of Phillips’ property. The court then stated: “The plaintiff Debra Cadwell did introduce evidence of some activity directly across the street from her property in the nature of a driveway. The plaintiff Cadwell has not established nor does the Court find that such activity is upon the ‘land involved in (the) decision of said Board.’ The 3.8 acres of land, the location of the permitted excavation, is removed over 1,000 feet from the land of . . . John Caltabiano and [that ofj Debra Cadwell. Neither plaintiff is statutorily aggrieved.” The court also concluded that neither plaintiff had established classical aggrievement and therefore dismissed the plaintiffs’ appeal.

The plaintiffs claim that the court erred in: (1) finding, in contravention of § 8-8 (a), that an abutting landowner is not statutorily aggrieved; (2) failing to find classical aggrievement when the commission’s approval contained restrictions that must be violated; (3) amending the record in contravention of both § 8-8 (e) and the rules of evidence; and (4) failing to find that classical aggrievement is established by a landowner upon evidence that action was taken by the zoning authority without necessary, proper and adequate public notice. At oral argument the plaintiffs abandoned any claim of error in the court’s failure to find classical aggrievement. Further, in view of our disposition of the case we do not consider the plaintiffs’ third claim of error.

We turn now to the question of statutory construction that is dispositive of this case. We repeat the exact wording of § 8-8 (a) that is involved in this case. “[A]ny person owning land which abuts or is within a radius of one hundred feet of any portion of the land involved in any decision of said board” may appeal the decision to the Superior Court. For our analysis we make no distinction between those who abut or are within 100 feet of the land involved. The interpretation of this requirement is a matter of first impression. Counsel has not cited any case or treatise concerning the matter nor has our research uncovered such authority.

We review the trial court’s construction of § 8-8 (a) “in light of well established principles that require us to ascertain and give effect to the apparent intent of the legislature. Norwich v. Silverberg, 200 Conn. 367, 370-71, 511 A.2d 336 (1986); State v. Kozlowski, 199 Conn. 667, 673, 509 A.2d 20 (1986); Hayes v. Smith, 194 Conn. 52, 57, 480 A.2d 425 (1984); State v. Delafose, 185 Conn. 517, 521, 441 A.2d 158 (1981); 2A Sutherland, Statutory Construction (4th Ed. 1984) § 45.05. When the words of a statute are plain and unambiguous, we need look no further for interpretive guidance because we assume that the words themselves express the intention of the legislature. Johnson v. Manson, 196 Conn. 309, 316, 493 A.2d 846 (1985), cert. denied, 474 U.S. 1063, 106 S. Ct. 813, 88 L. Ed. 2d 787 (1986); Mazur v. Blum, 184 Conn. 116,118-19, 441 A.2d 65 (1981). When we are confronted, however, with ambiguity in a statute, we seek to ascertain the actual intent by looking to the words of the statute itself; State v. Kozlowski, supra, 673; Dukes v. Durante, 192 Conn. 207, 214, 471 A.2d 1368 (1984); the legislative history and circumstances surrounding the enactment of the statute; State v. Kozlowski, supra, 673; DeFonce Construction Corporation v. State, 198 Conn. 185,187, 501 A.2d 745 (1985); State v. Parmalee, 197 Conn. 158,161, 496 A.2d 186 (1985); State v. Delafose, supra, 522; and the purpose the statute is to serve. Peck v. Jacquemin, 196 Conn. 53, 64, 491 A.2d 1043 (1985); Verrastro v. Sivertsen, 188 Conn. 213, 221, 448 A.2d 1344 (1982); Robinson v. Unemployment Security Board of Review, 181 Conn. 1, 8, 434 A.2d 293 (1980).” Rhodes v. Hartford, 201 Conn. 89, 93, 513 A.2d 124 (1986). We note also that “[a] statute should not be interpreted in any way to thwart its purpose”; Evening Sentinel v. National Organization for Women, 168 Conn. 26, 31, 357 A.2d 498 (1975); and that “[i]n construing a statute, common sense must be used and courts will assume that [the legislature intended to accomplish] a reasonable and rational result . . . .” Norwich Land Co. v. Public Utilities Commission, 170 Conn. 1, 4, 363 A.2d 1386 (1975). We observe, finally, that “[t]his court traditionally eschews construction of statutory language which leads to absurd consequences and bizarre results.” State v. Rodgers, 198 Conn. 53, 61, 502 A.2d 360 (1985), and cases cited therein.

None of the parties to this case presented any analytical reasons either in their briefs or oral argument to sustain their interpretation of the statute. We are thus faced with a clear-cut issue devoid of other authority or strong arguments tending to favor one position or the other. We start our analysis, as always, with the statutory words themselves. The phrase “any portion of the land involved in any decision of said board” may appear on the surface to be very simple to interpret. The core of the issue, however, is an exceptionally slippery concept. The “land involved in any decision” may just as reasonably be construed to mean the larger piece of land, of which the affected piece is a part, or to mean the piece carved out of the larger piece, upon which the requested activity is to occur. This ambiguity in the statute impels us to look at the intent of the legislature by inquiring into the legislative history and circumstances surrounding the enactment of the statute and the purpose the statute is to serve.

The right of an abutter or any person owning land that is within a radius of 100 feet of any portion of the land involved in a decision of the zoning agency to appeal was provided by Public Acts 1967, No. 712, and Public Acts 1977, No. 77-470, respectively. The legislative history of each of these statutory changes sheds no light on our quest. We therefore look to the effect of the changes in and of themselves to indicate legislative intent. Both forms of statutory aggrievement reveal a significant liberalization of the law of aggrievement concerning those who can appeal to court from a decision of a zoning agency. Before the addition of these statutory appellate rights, a person appealing from such a decision had, then as now, an arduous burden to allege and prove so-called classical aggrievement. In order to prove classical aggrievement appellants from a zoning decision “are required to establish . . . that they had a specific, personal and legal interest in the subject matter of the decision as distinguished from a general interest such as is the concern of all members of the community and that they were specially and injuriously affected in their property or other legal rights. Tucker v. Zoning Board of Appeals, 151 Conn. 510, 514,199 A.2d 685 [1964]; Tyler v. Board of Zoning Appeals, 145 Conn. 655, 662, 145 A.2d 832 [1958].” Krejpcio v. Zoning Board of Appeals, 152 Conn. 657, 660, 211 A.2d 687 (1965). Mere generalizations and fears do not prove that an appellant is an aggrieved person. Tucker v. Zoning Board of Appeals, supra; Joyce v. Zoning Board of Appeals, 150 Conn. 696, 698, 187 A.2d 239 (1962). “Upon appeal, [a zoning appellant] must establish his aggrievement, and the court must decide whether he has sustained the burden of proving that fact.” I. R. Stick Associates, Inc. v. Town Council, 155 Conn. 1, 3, 229 A.2d 545 (1967).

It Is in light of the formidable barriers to access to the courts for a zoning appeal that we ascertain the legislative intent in granting certain persons statutory aggrievement. We conclude that the legislature presumed as a matter of common knowledge that persons owning property within close proximity to a projected zoning action would be sufficiently affected by the decision of a zoning agency to be entitled to appeal that decision to court. Giving such a right to the narrow class of abutters and those owning property within 100 feet of the land involved would not unduly enlarge the class of those entitled to appeal such a decision. On the other hand, the delay, difficulty and expense of proving classical aggrievement would be eliminated. This propinquity argument, however, cuts both ways. For unless we construe the statute so as to require propinquity to the actual site of the zoning activity itself, the rationale we have adduced for such statutory aggrievement is obviously lessened. The counterthrust of this aspect of legislative intent is, nonetheless, at least balanced by the fact, as Cadwell’s testimony indicates in this case, that it is highly likely that a changed activity within a larger piece will necessarily result in some changes of activity concerning that larger piece that will affect the statutory grievants.

Our decision comes down to a consideration of the bizarre results that would obtain if we were to accept the trial court’s decision. Let us consider the owner of a 200 foot residential lot who applied for a zone change on the 100 feet of the lot farther away from an abutting neighbor or from a property owner who claimed to be within 100 feet of the proposed use. To follow the defendants’ rationale, neither class of claimed statutory grievant could appeal a decision, where their propinquity to the changed zoning activity would obviously create the presumed effect that we have earlier described. To push the example to the absurd, only a person abutting or within 100 feet of the particular carved-out piece of a larger, but still very close, piece of property would receive the remedial remedy of statutory aggrievement. To apply § 8-8 (a) in such a narrow fashion would be to nullify its effect of opening up the courts to litigants with a presumptively legitimate right to challenge such zoning decisions. We note that a somewhat equally bizarre result may be considered on the other side of the scale. This would occur, as we com strue the statute, if such a statute applied to-the King Ranch in Texas where an abutter wished to appeal a zoning decision concerning the construction of a ranch-house twenty miles away. We need not be seriously concerned with this hypothetical suggestion because of the very small nature of our state. It is helpful, however, to focus attention on the wide variety of bizarre results that can be conjured up in interpreting the language of statutory aggrievement.

We resolve the conundrum in this case by stressing the importance in our free society of the right of access to our courts. Only a bright line construction of § 8-8 (a) can avoid the uncertainties of its application to various factual patterns involving proposed zoning decisions affecting only a part of a larger piece of property. We conclude that each of the plaintiffs in this case was statutorily aggrieved—Caltabiano as an abutter, and Cadwell as the owner of land within 100 feet of the land involved—by the decision of the Salem planning and zoning commission. We reach this conclusion being mindful of article first, § 10, of the Connecticut constitution which provides that “[a]ll courts shall be open, and every person, for an injury done to him in his person, property or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay.”

There is error, the judgment dismissing the plaintiffs’ appeal is set aside and the matter is remanded for further proceedings.

In this opinion Peters , C. J., Glass and Covello, Js., concurred.

Shea, J.,

dissenting. The majority purports to find ambiguity in the phrase, “land involved in any decision,” contained in General Statutes § 8-8 (a), and proceeds to resolve that supposed ambiguity by effectively substituting the phrase, “land of the applicant.” Thus any person owning land abutting or within 100 feet of the applicant’s land becomes statutorily aggrieved, however distant the “land involved in any decision” may be. I disagree with this interpretation of § 8-8 (a) because it virtually rewrites the statute.

I see no reason to expand the category of statutorily aggrieved persons who may appeal a zoning board decision without showing actual aggrievement beyond the limit that a plain reading of the statute would permit. Since a statutorily aggrieved person may appeal, even though he has suffered no detriment from a zoning decision, it is difficult to perceive what public policy the majority is seeking to advance by construing § 8-8 (a) so broadly as to create the King Ranch absurdity made possible by its interpretation, as the opinion acknowledges. The reliance upon article first, § 10, of our state constitution, which declares that “every person, for an injury done to him in his person, property or reputation, shall have remedy by due course of law,” is wholly misplaced, because a statutorily aggrieved person need not have sustained any injury but, nevertheless, may appeal.

When the legislature opened our courts to this class of litigants, it must have concluded that persons within 100 feet of the land, involved in a decision of a zoning board were so likely to be affected by the decision that they should not be required to prove aggrievement by standard methods. The majority, by holding that the prescribed distance is to be measured from the boundary of the entire tract of land within which the “land involved in any decision of said board” is situated, rather than from the portion affected, has gone far beyond the legislative purpose in establishing the concept of statutory aggrievement. Inevitably this enlargement of the class of persons qualified to appeal without proof of actual aggrievement is bound to result in more zoning appeals by persons who have suffered no actual harm. Scarce judicial resources ought not to be so prodigally expended that they are allocated to those who have not been injured.

       “General Statutes § 8-8. appeal from board to court, review by appellate COURT, (a) Any person or persons severally or jointly aggrieved by any decision of said board, or any person owning land which abuts or is within a radius of one hundred feet of any portion of the land involved in any decision of said board, or any officer, department, board or bureau of any municipality, charged with the enforcement of any order, requirement or decision of said board, may, within fifteen days from the date when notice of such decision was published in a newspaper pursuant to the provisions of section 8-3 or 8-7, as the case may be, take an appeal to the superior court for the judicial district in which such municipality is located, which appeal shall be made returnable to said court in the same manner as that prescribed for civil actions brought to said court.”

       We follow the designation of the agency used by all of the parties, although we note that in the memorandum of decision the court referred to the more formal title of the “Planning and Zoning Commission of the Town of Salem.”


text:
    State of Connecticut v. Joseph Paolella
    (13445)
    Peters, C. J., Shea, Callahan, Glass and Hull, Js.
    Argued April 5
    decision released June 27, 1989

      Temmy Ann Pieszak, assistant public defender, for the appellant (defendant).

      Judith Rossi, assistant state’s attorney, with whom, on the brief, was Michael Dearington, state’s attorney, for the appellee (state).
   Callahan, J.

The defendant, Joseph Paolella, was convicted after a trial to the court of kidnapping in the second degree with a firearm in violation of General Statutes § 53a-94a and assault in the third degree in violation of General Statutes § 53a-61 (a) (1). The trial court sentenced the defendant to fifteen years imprisonment on the kidnapping charge, suspended after eight years and five years probation. The defendant was also sentenced to one year on the assault charge to run concurrently with the kidnapping sentence. On appeal, the defendant claims that there was insufficient evidence to support a conviction of kidnapping in the second degree with a firearm. He also argues that the trial court erred when it: (1) exempted the complaining witness from its sequestration order thereby denying him his constitutional right to a fair trial; and (2) concluded that his eight year old son had been given an oath and was competent to testify, thereby denying him due process and his right to a fair trial. We find no error.

The facts found by the trial court are as follows. The defendant and the complainant were married in May, 1978. Three children were born to them during their marriage. In April, 1986, the couple agreed to be divorced because of marital difficulties. During that same month, the complainant moved herself, her children, and a niece who had been living with the family, out of the couple’s marital home in North Haven. Shortly thereafter, the defendant filed a divorce action, notice of which was served on the complainant while she was staying with a friend in Meriden.

After a few weeks, the complainant moved back into the marital home based on her belief that the defendant would move out. At this time the defendant expressed his desire to drop the divorce action. The complainant, still desiring to terminate the marriage, filed a cross complaint for divorce. After the defendant refused to leave the marital home, the complainant left again, this time taking the children to a battered women’s shelter in New London. In May, 1986, the complainant obtained several restraining orders against the defendant prohibiting him, inter alia, from entering the marital home. Thereafter, when the defendant moved out, she moved back in with the children.

On May 24, 1986, the complainant allowed the defendant to stay at the house with the children while she went out for the night with her boyfriend. When she returned home the following day, the defendant left the house amicably. Shortly thereafter, however, he returned carrying a rifle and forced his way inside. When the complainant ordered him to leave, the defendant forced their son, J, out of the house and into the garage. The complainant tried to call her boyfriend, but was unable to do so because the defendant had disconnected the phone. She then went and retrieved J from the garage, whereupon the defendant followed her into the house and the two engaged in a loud argument. During the course of the argument, the complainant tried to escape from the house through both the doors and windows; however, the defendant forcibly prevented her from doing so. When she attempted to use the phone again, the defendant hit her with it. Still holding his rifle, the defendant then grabbed the complainant, hit her, and pushed her against a wall with such force that her head and heel went through the wall. J, who had been observing the fight between his parents, attempted to take the rifle away from his father and stop the fight; the defendant, however, retained control of the weapon and ordered the child to go upstairs.

Carrying the rifle, the defendant dragged the complainant by her hair down the stairs to the basement, where he pointed the rifle at her head and threatened to kill her. He then tied her wrists and legs to his weightlifting bench with a telephone cord while he berated her and called her names. When the defendant began to fondle her breasts, the complainant yelled, at which point the defendant gagged her with a sock. After a struggle, the complainant was able to loosen the bonds around her wrists, only to have the defendant tighten them again. The defendant then untied the complainant’s legs, removed her pants, retied her legs above her head to the bar over the weight bench, and had sexual intercourse with her. During this incident, J had crept downstairs into the basement. Although he did not see his father sexually assaulting his mother, he did see her tied to the bench, half-naked, crying, with a gag in her mouth.

After further berating the complainant, the defendant untied her, removed her gag, and dressed her. The defendant then told the complainant that he would go to a local mental health center to avoid going to jail for his actions. Carrying his rifle, the defendant took the complainant by the arm, back up the stairs and ordered her to sit at the kitchen table, where she eventually fell asleep. The complainant awoke the next morning at the kitchen table to find the defendant sitting across from her still holding the rifle. Immediately after she awoke the defendant began arguing with the complainant and when she attempted to escape from the house he pushed her to the floor. The complainant, while on the floor, yelled to her five year old daughter to run to a neighbor’s house and tell the neighbor that “her Daddy [was] hitting [her Mom].” The daughter apparently went to the neighbor’s house, but, finding no one there, she returned home. Later in the morning, the defendant sent J to the store for cigarettes while he held the rest of the family at gunpoint in the corner of the living room. The defendant told the boy that “if he said anything [while he was at the store about what was going on at the house, the defendant] would shoot [his mother].”

Eventually the defendant repaired the telephone and called his mother to ask her to come and get the children. While the children were getting into their grandmother’s car, the defendant forced the complainant at gunpoint into her own car, which he then drove to the parking lot of the Connecticut Mental Health Center where he freed her. Upon her release, the complainant went to the emergency room of a nearby hospital where she told medical personnel that she had been raped by the defendant. An examination of the complainant revealed multiple injuries, including bilateral circumferential abrasions on her wrists and ankles, and fresh bruises on her head, legs and right hip. The defendant surrendered himself at the mental health center and was later taken into custody by the police.

On appeal, the defendant argues that the trial court’s judgment of guilty of kidnapping in the second degree with a firearm, in violation of § 53a-94a, was error because the evidence presented by the state at trial did not demonstrate that the complainant was “abducted” as is required by that statute. He claims that at best the evidence supports a conviction of the lesser offense of unlawful restraint, in violation of § 53a-96, which merely requires the state to prove that he “restrained” the complainant.

“Abduct” and “restrain” are defined in General Statutes § 53a-91. Section 53a-91 (1) states, in relevant part, that “ ‘[Restrain’ means to restrict a person’s movements intentionally and unlawfully in such a manner as to interfere substantially with his liberty by moving him from one place to another, or by confining him either in the place where restriction commences or in a place to which he has been moved, without consent.” “Abduct” is defined in § 53a-91 (2) as “restraining] a person with intent to prevent his liberation by either (a) secreting or holding him in a place where he is not likely to be found, or (b) using or threatening to use physical force or intimidation.” Relying on the definition of restraint in § 53a-91a (1) which reads “interfere substantially with his liberty,” the defendant claims that one can be found to have restrained another person if he prevents that person from freeing himself Because the definition of abduction in § 53a-91 (2) requires in addition that the accused “prevent [the victim’s] liberation,” the defendant claims that one can be found to abduct another person only if he prevents third parties from rescuing the victim. Accordingly, the defendant contends that in order for the court to conclude that he abducted the complainant and thereby find him guilty of kidnapping under § 53a-94a, it was necessary for the state to prove beyond a reasonable doubt that he intended to prevent both the complainant’s self-liberation and her liberation by third parties.

Even if we were to adopt the defendant’s somewhat strained interpretation of the definition of “abduct,” we conclude that the evidence on the record reveals that the defendant intended both to restrain the complainant and to prevent her liberation by outside forces and, therefore, his conviction of kidnapping in the second degree with a firearm in violation of § 53a-94a was not error. According to the testimony at trial, the defendant intended to prevent the complainant from freeing herself when he repeatedly stopped her from leaving the house when she attempted to do so; tied her up, so that she could not escape, prior to sexually assaulting her; and held her at gunpoint on several occasions and threatened to kill her. The evidence shows further that the defendant prevented the complainant’s liberation by third parties when he disconnected the telephone, thereby obviating the possibility of incoming and outgoing calls; prevented the complainant from screaming out the window for help from neighbors; told the complainant that he would kill her if the police arrived; stated that he knew the complainant would report him to the police so he “would have to tie [her] up”; told the complainant, after tying her up and sexually assaulting her, that he intended to leave her tied up until he went “far enough away”; gagged the complainant to keep her from yelling for help while he sexually assaulted her; and told J, when he sent him for cigarettes at a nearby store, not to say anything to anyone about what was going on at home or he would shoot the boy’s mother. The evidence being clear that the defendant “abducted” as well as “restrained” the complainant, his conviction by the trial court, under § 53a-94a, was not error.

We next address the defendant’s claim that he was denied a fair trial by the action of the trial court in violating its own sequestration order. At the commencement of the trial, the defendant motioned the court for the sequestration of witnesses. The state did not object and the court granted the motion. After the complainant had testified as a state’s witness, the state called her daughter, S, to the stand to testify as to what she had witnessed in May, 1986. Before the state began its direct examination of S, however, the defendant objected to the presence of the complainant in the courtroom, arguing that although the complainant had already testified, the sequestration order prohibited her from being in the courtroom during her daughter’s testimony. A similar objection was made to the complainant’s presence diming J’s testimony. The state, pointing out that S was only six years old and that J was only eight, requested that the complainant be exempted from the order during their testimony as the event was likely to be an upsetting experience for the children. The trial court ruled that the complainant could remain in the courtroom during the children’s testimony because she had already testified and, therefore, her exclusion was not warranted to fulfill the purposes of its sequestration ruling. The court also stated that her presence was necessary to provide the children with “somebody [whom] they have been living with regularly ... in the courtroom for whatever comfort that [it would] give [them].”

Practice Book § 876, which governs the sequestration of witnesses, states that “[t]he judicial authority upon motion of the prosecuting authority or of the defendant shall cause any witness to be sequestered during the hearing on any issue or motion or during any part of the trial in which he is not testifying.” See also General Statutes § 54-85a. “The purpose of a sequestration order is to prevent a witness from fashioning his testimony to correspond to the statements of others in the courtroom”; State v. Stovall, 199 Conn. 62, 67, 505 A.2d 708 (1986); Geders v. United States, 425 U.S. 80, 87, 96 S. Ct. 1330, 47 L. Ed. 2d 592 (1976); State v. Williams, 169 Conn. 322, 331, 363 A.2d 72 (1975); State v. Pikul, 150 Conn. 195, 200,187 A.2d 442 (1962); C. Tait & J. LaPlante, Handbook of Connecticut Evidence (2d Ed. 1988) § 7.29; thereby ensuring that a defendant receives a fair trial. If the trial court fails to observe its own sequestration order, the burden is on the party requesting sequestration to show prejudice. State v. Stovall, supra, 69; State v. Silveira, 198 Conn. 454, 479, 503 A.2d 599 (1986); State v. Brown, 187 Conn. 602, 611, 447 A.2d 734 (1982); State v. Ruth, 181 Conn. 187, 196-97, 435 A.2d 3 (1980).

Although § 876 is not discretionary and the complainant, as a witness, technically should have been sequestered, we conclude that the trial court did not commit reversible error in exempting her from its order and thereby allowing her to remain in the courtroom while the children were testifying. Our holding is based on the fact that, at the time the children took the stand, the complainant had already testified and, therefore, she was unable to tailor her testimony to correspond to that of her children. Since the purpose of the sequestration order was not undermined by the complainant’s presence in the courtroom during the children’s testimony, the trial court’s decision to exempt her from its order was not in any way prejudicial to the defendant in that regard.

We must next determine whether the complainant’s presence in the courtroom as a spectator* ***** violated the defendant’s right to a fair trial. The defendant maintains that the trial court erred when it allowed the complainant to be in the courtroom during her children’s testimony as her presence allegedly inhibited them from testifying with total candor.

The trial court has the authority “ ‘to exclude spectators [from the courtroom] whose presence intimidates the witness [testifying].’ Commonwealth v. Bohmer, [374 Mass. 368, 380, 372 N.E.2d 1381 (1978)]. See United States ex rel. Orlando v. Fay, 350 F.2d 967, 971 (2d Cir. 1965), cert. denied sub nom. Orlando v. Follette, [384 U.S. 1008,86 S. Ct. 1961,16 L. Ed. 2d 1021 (1966)] . . . United States ex rel. Laws v. Yeager, 448 F.2d 74, 81 (3d Cir. 1971), cert. denied. [405 U.S. 976, 92 S. Ct. 1201, 31 L. Ed. 2d 251 (1972)] . . . . ” Commonwealth v. Stetson, 384 Mass. 545, 550, 472 N.E.2d 926 (1981); cf. State v. Sheppard, 182 Conn. 412, 416, 438 A.2d 125 (1980) (trial court may exclude spectators to “foster full and truthful testimony”). Excluding spectators, however, is a matter that is within the discretion of the trial court; United States ex rel. Bruno v. Herold, 408 F.2d 125, 127 (2d Cir. 1969); see Practice Book § 895 (trial court “may, when constitutionally permissible, order that the public ... be excluded from any portion of a proceeding when there is a substantial likelihood that the presence of the public . . . would unduly inhibit any testimony, or endanger the safety of any witness, or interfere with the defendant’s right to a fair trial ...” [emphasis added]); and the court’s decision one way or the other will not be disturbed on appeal unless the court has abused its discretion. State v. Woolcock, 201 Conn. 605, 618, 518 A.2d 1377 (1986) (trial court’s decision to allow uniformed state troopers to be present at trial was not an abuse of discretion). On the present record, we conclude that the trial court did not abuse its discretion by allowing the complainant to remain in the courtroom while her children were testifying.

After ruling that the complainant could remain in the courtroom during S’s testimony, the trial court noted that it would watch to see if she were influencing S’s testimony, stating: “I assure you [the complainant] will be in full view of this Court and I am sure that [the state’s attorney] will advise her that she is to do nothing by any motions, signs, whatever or however sometimes people in the audience frequently do to attempt to influence anything these children are saying.” The defendant points to no evidence that the complainant attempted to influence S’s testimony, and, in fact, the trial court stated after she had finished testifying that “the child never even looked in her mother’s direction as far as I could see and the mother did nothing, absolutely showed no reaction of any type to any respect of that child’s testimony.” Because the complainant had not influenced S’s testimony, the court ruled that she could remain in the courtroom while J was testifying. As with S’s testimony, there is nothing in the record to indicate that the complainant influenced J’s testimony. Although the complainant was present when J testified, his version of the incident in question was not totally favorable to her as he indicated that he was upset that the complainant was going to call the police on the defendant. Further, while there is evidence that J looked at his mother during cross-examination when he was being questioned about his attempt to write a note to the police, the defendant later took the stand and verified that the boy had written such a note. The fact that J looked at his mother while he was testifying about this incident, therefore, is no indication that she influenced him to falsify his testimony. Moreover, immediately after J looked at the complainant, the trial court reprimanded him. After that incident the defendant made no other objections claiming that J was looking at the complainant or that the complainant was attempting to influence him in any way.

Despite the lack of evidence that the complainant influenced S’s or J’s testimony at trial, the defendant argues that, as the custodial parent, her presence had an indirect inhibiting effect on the children. According to the defendant, the children colored their testimony to favor the complainant because they were fearful that if she heard them support the defendant they would be punished when they got home. The defendant, however, failed to articulate any such claim in the trial court. Further, the record fails to support such a claim as the defendant did not question the children during their competency examinations or during cross-examination, about their relationship with the complainant or ask whether she had persuaded them to lie about the incident or had influenced them in any way. Moreover, while the defendant suggested to the court that he would rather have a guardian appointed to sit in during the children’s testimony or have both himself and the complainant removed from the courtroom as alternatives to the complainant remaining in the courtroom, he never requested an evidentiary hearing or a voir dire of the children concerning any possible influence the presence of their mother might have on them. Accordingly, the record provided to us by the defendant is inadequate to support this claim. See State v. Woolcock, supra.

The defendant’s final contention is that J’s testimony should not have been used against him because it was not given under oath, as provided by General Statutes § 1-25, and even if it had been, the court erred in finding him competent to testify. Stating that J’s testimony was essential to corroborate that of the complainant’s, the defendant maintains that he is entitled to a new trial.

Prior to J’s testimony, the following colloquy took place:

“The court: [J], [the clerk] wants you to stand up and put your hand up in the air like that. You listen to what he says. He is going to ask you, are you going to tell the truth, and [if] you are going to tell the truth, you should say, yes. All right, do you understand?

“The Witness: Yes.

“The Court: All right, go ahead.

“The Clerk: You solemnly swear that the evidence you shall give concerning the case now in question shall be the truth, the whole truth and nothing but the truth so help you God?

“The Witness: Do I say it?

“The Court: If you are going to tell the truth when you answer these questions.

“The Witness: I am.

“The Court: You are going to tell the truth?

“The Witness: Yes.

“The Court: Thank you, [J], you can sit down.”

The above cited colloquy makes clear that J was under oath when he testified. The administration of an oath need not be formal in nature. See General Statutes § 1-22; State v. Spigarolo, 210 Conn. 359, 393, 556 A.2d 112 (1989). As long as the witness “signifies the undertaking of an obligation ‘to speak the truth at a time when. . . testimony may deeply affect the rights and the character of individuals’; Chapman v. Gillet, 2 Conn. 40, 44 [1816]”; State v. Grant, 176 Conn. 17, 24, 404 A.2d 873 (1978); he will be deemed to be under oath. In the present case, J made a “solemn commitment [to] speak the truth”; State v. Zamorsky, 159 N.J. Super. 273, 283, 387 A.2d 1227 (1978); and, therefore, we are satisfied that he was duly sworn.

Even if we were to find that no oath had been administered, we note that the defendant failed to object to J’s testimony on these grounds at trial. In Bassett v. Mechanics Bank of New Haven, 116 Conn. 730,166 A. 385 (1933), we concluded that where the defendants had failed to object at trial to the testimony of a witness who had not been sworn they could not raise the issue on appeal. In so holding, we stated, “counsel must have known [that unsworn testimony was being received by the court] and if they wished to raise any objection based upon it they should have called it to the attention of the trial court at the time, when any defect of this nature could have been remedied; not having done so they waived any such defect. Cady v. Norton, 31 Mass. (14 Pick.) 236 [1833] [in absence of waiver rule counsel might deliberately avoid objecting to a witness being unsworn in order to have a ground of appeal]; People ex rel. Niebuhr v. McAdoo, 184 N.Y. 304, 317, 77 N.E. 260 [1906]; Slauter v. Whitelock, 12 Ind. 338, 340 [1859]; State v. Hope, 100 Mo. 347, 355, 13 S.W. 490 [1890]; Moore v. State, 96 Tenn. 209, 33 S.W. 1046 [1896]; 3 Wigmore, Evidence (2d Ed.) § 1819 (b).” Id., 730-31; cf. State v. Spigarolo, supra; State v. Miller, 202 Conn. 463, 469, 522 A.2d 249 (1987) (the irregular administration of an oath must be objected to at trial in order to present the issue on appeal). The rule enunciated in Bassett v. Mechanics Bank, supra, is considered the general rule. See, e.g., United States v. Odom, 736 F.2d 104,114-16 (4th Cir. 1984); United States v. Perez, 65J F.2d 268, 273 (5th Cir. 1981) (“It has long been the general rule that even a failure to swear a witness may be waived. This may occur either by knowing silence and an attempt to raise objection after verdict or by the mere failure of counsel to notice the omission before completion of the trial”); Wilcoxon v. United States, 231 F.2d 384, 386-87 (10th Cir.), cert. denied, 351 U.S. 943, 76 S. Ct. 834, 100 L. Ed. 1469 (1956); Saxton v. State, 389 So. 2d 541, 543 (Ala. Crim. App. 1980); State v. Navarro, 132 Ariz. 340, 342, 645 P.2d 1254 (1982); Sewall v. Spinney Creek Oyster Co:, 421 A.2d 36, 39 (Me. 1980); State v. Embrey, 62 N.M. 107, 109, 305 P.2d 723 (1957); Brown v. Ristich, 36 N.Y.2d 183, 189, 325 N.E.2d 533, 366 N.Y.S.2d 116 (1975); State ex rel. Tucker v. Alvis, 55 Ohio L. Abs. 285, 286, 89 N.E.2d 328 (1949); Thomas v. Dad’s Root Beer, Etc., 225 Or. 166, 357 P.2d 418 (1960); Bowling Club v. Toronto, 17 Utah 2d 5, 8, 403 P.2d 651 (1965); In re Simmons Children, 154 W. Va. 491, 496, 177 S.E.2d 19 (1970); 58 Am. Jur. 2d, New Trial § 35; 81 Am. Jur. 2d, Witnesses § 414. Accordingly, by failing to object to J’s allegedly unsworn testimony at trial, the defendant has waived his right to raise the issue on appeal.

In addressing the defendant’s claim that the trial court erred in finding J competent to testify, we note that “[t]he testimonial capacity of a child witness is a matter for the court to determine upon inquiry. State v. Segerberg, 131 Conn. 546, 547, 41 A.2d 101 (1945). In Connecticut, the examination to determine the competency of a witness is usually conducted by counsel under direction of the court, except insofar as the court may find it advisable to intervene. See State v. Orlando, 115 Conn. 672, 676, 163 A. 256 (1932). Because the competency of a witness is a matter peculiarly within the discretion of the trial court, its ruling will be disturbed only in a clear case of abuse or some error in law. State v. Siberon, 166 Conn. 455,457, 352 A.2d 285 (1974); State v. Orlando, supra, 675; Kuczon v. Tomkievicz, 100 Conn. 560, 572-73,124 A. 226 (1924).” State v. Rodriguez, 180 Conn. 382, 388-89, 429 A.2d 919 (1980); State v. Valeriano, 191 Conn. 659, 665, 468 A.2d 936 (1983) cert. denied, 466 U.S. 974,104 S. Ct. 2351, 80 L. Ed. 2d 824 (1984); State v. Manning, 162 Conn. 112, 115, 291 A.2d 750 (1971); C. Tait & J. LaPlante, supra, §§ 7.1, 7.2. The considerations that should govern the determination of competency, whether the witness is an adult or a child, are “ ‘the proposed witness’ maturity to receive correct impressions by his senses, ability to recollect and narrate intelligently, and ability to appreciate the moral duty to tell the truth. State v. Segerberg, [supra, 547]; Kuczon v. Tomkievicz, [supra, 570].’ State v. Manning, [supra]; see McCormick, Evidence (2d. Ed.) § 62; cf. note, 81 A.L.R.2d 386.” State v. Siberon, supra, 458. “ ‘ “[Judicial determination^] of the question of whether a witness should be heard at all [however,] should be abrogated in favor of hearing the testimony for what it is worth.” ’ ” State v. James, 211 Conn. 555, 564, 560 A.2d 426 (1989). Reviewing the record as a whole, we conclude that the trial court did not abuse its discretion in finding that J was competent to testify.

There is no error.

In this opinion the other justices concurred.

       The defendant waived his right to a trial by jury.

       “[General Statutes] Sec. 53a-94a. kidnapping in the second degree with a firearm: class b felony: one year not suspendable. (a) A person is guilty of kidnapping in the second degree with a firearm when he kidnaps in the second degree, as provided in section 53a-94, and in the commission of such offense he uses or is armed with and threatens the use of or uses or displays or represents by his words or conduct that he possesses a pistol, revolver, machine gun, shotgun, rifle or other firearm. No person shall be convicted of kidnapping in the second degree and kidnapping in the second degree with a firearm upon the same transaction but such person may be charged and prosecuted for both such offenses upon the same information.
      “(b) Kidnapping in the second degree with a firearm is a class B felony for which one year of the sentence imposed may not be suspended or reduced by the court.”
      “[General Statutes] Sec. 53a-94. kidnapping in the second degree: class B felony, (a) A person is guilty of kidnapping in the second degree when he abducts another person.”
      “(b) Kidnapping in the second degree is a class B felony.”
      The defendant was originally charged with kidnapping in the first degree, in violation of General Statutes § 53a-92, and kidnapping in the first degree with a firearm, in violation of General Statutes § 53a-92a. At the close of all the evidence, the trial court found the defendant not guilty of kidnapping in the first degree, but convicted him on the lesser included offense of kidnapping in the second degree with a firearm, in violation of § 53a-94a.

       General Statutes § 53a-61 (a) provides: “assault in the third degree: class a misdemeanor, (a) A person is guilty of assault in the third degree when: (1) With intent to cause physical injury to another person, he causes such injury to such person or to a third person; or (2) he recklessly causes serious physical injury to another person; or (3) with criminal negligence, he causes physical injury to another person by means of a deadly weapon, a dangerous instrument or an electronic defense weapon.”
      In addition to assault in the third degree and the kidnapping charges, the substitute information also charged the defendant with sexual assault in the first degree, in violation of General Statutes § 53a-70; sexual assault in the first degree with a deadly weapon, in violation of General Statutes § 53a-70a; and carrying a deadly weapon, in violation of General Statutes § 53-206. At the close of the state’s case the trial court granted the defendant’s motion for judgment of acquittal on the sexual assault counts and on the carrying a dangerous weapon charge, and subsequently dismissed those charges. The state appealed from the court’s dismissal of the sexiial assault counts, and in State v. Paolella, 210 Conn. 110, 554 A. 2d 110 (1989), we dismissed the appeal holding that principles of double jeopardy barred our consideration of it. The sexual assault charges and the weapons charge are not in question in the present appeal.

       “[General Statutes] See. 53a-96. unlawful restraint in the second degree: class a misdemeanor: (a) A person is guilty of unlawful restraint in the second degree when he restrains another person.
      “(b) Unlawful restraint in the second degree is a class A misdemeanor.”

       The state maintains that this issue was not raised in the trial court and, therefore, is not reviewable on appeal. We will address it, however, because the record is complete and the question is essentially one of law. Cochran v. McLaughlin, 128 Conn. 638, 644, 24 A.2d 836 (1942).

       The trial court, in excluding the complainant from the sequestration order and allowing her to remain in the courtroom while her children were on the stand, stated: “[A]s I read [§ 54-85a] and [§ 876 of] the Practice Book . . . with respect to sequestration of witnesses . . . the purpose is to prevent a witness from sitting in, listening to prior witnesses testify and then tailoring his or her testimony to fit in with the version the earlier witness has given. Now this lady has testified she is finished. So obviously she can’t tailor her testimony to fit with anything these two children would say.” Although the complainant was not called back onto the stand for rebuttal testimony, the trial court noted that “if she should attempt to tailor her testimony to fit with different testimony given by either of the two children [on rebuttal], I think this Court is in a position to notice that and evaluate her testimony across the board accordingly. This isn’t a jury case. It is a court case. . . .”

       The defendant relies on the fact that the complainant was a witness subject to a sequestration order. He argues that the purpose of a sequestration order is broader then merely preventing one witness from tailoring his testimony to that of another witness in that it is generally meant to provide for the removal of all witnesses from a courtroom where they will influence the witness testifying. Based on this contention, the defendant maintains that the complainant should not have been permitted to remain in the courtroom during the children’s testimony. We decline to adopt the defendant’s broad view of the purpose of a sequestration order and conclude that, on the present facts, where a sequestration order existed and a witness who has testified sought to remain in a courtroom, the witness’ status changed to that of a spectator and his presence was governed by principles of due process discussed, infra.

       The defendant also attempts to characterize this issue as a violation of his state and federal constitutional rights to confrontation. He maintains that the complainant’s presence in the courtroom somehow “diluted” his ability to confront S and J. We reject this claim as the confrontation clause involves the defendant’s face-to-face contact with witnesses who are testifying and does not involve the presence of third parties. The defendant in this case was in the courtroom and had a full view of the children while they were testifying. He also had an opportunity to cross-examine the children without limitation. Accordingly, the defendant’s confrontation rights were fully protected. State v. Jarzbek, 204 Conn. 683, 529 A.2d 1245 (1987), cert. denied, U.S. , 108 S. Ct. 1017, 98 L. Ed. 2d 932 (1988).
      It is curious that the defendant makes a confrontation clause claim on appeal when he suggested to the trial court that both he and the complainant leave the courtroom while the children testified. The right of face-to-face confrontation is waived if the defendant is voluntarily absent from the courtroom. Taylor v. United States, 414 U.S. 17, 19-20, 94 S. Ct. 194, 38 L. Ed. 2d 174 (1973).

       General Statutes § 1-25 provides in pertinent part: “forms of oaths. The forms of oaths shall be as follows, to wit:
      * ** *
      “for witnesses.
      “You solemnly swear that the evidence you shall give, concerning the case now in question, shall be the truth, the whole truth and nothing but the truth; so help you God.”

       The defendant claims that review is warranted under State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973), as the admission of unsworn testimony “deprived [him] of a fundamental constitutional right and a fair trial.” It is well settled, however, that no constitutional provision is violated when unsworn testimony is received. Broadhead v. Arizona Board of Pardons, 151 Ariz. 37, 41, 725 P.2d 744 (1986); State v. Doud, 190 Or. 218, 236, 225 P.2d 400 (1950); 81 Am. Jur. 2d, Witnesses § 44; cf. State v. Lizzi, 199 Conn. 453, 462, 508 A.2d 11 (1986) (no constitutional violation in the admission of inadmissible hearsay without exception).