author: CALLAHAN, C. J. BERDON, J.,

text:
    STATE OF CONNECTICUT v. JOHN PRESTON
    (SC 15814)
    Callahan, C. J., and Borden, Berdon, Norcott and Peters, Js.
    Argued December 1, 1998
    officially released April 27, 1999

      Susann E. Gill, senior assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, and John F. Blawie, assistant state’s attorney, for the appellant (state).

      Susan M. Hankins, assistant public defender, for the appellee (defendant).
   Opinion

CALLAHAN, C. J.

The defendant, John Preston, was charged in a substitute information with robbery in the first degree in violation of General Statutes § 53a-134. Following a jury trial, the defendant was convicted of the lesser included offense of robbery in the third degree in violation of General Statutes § 53a-136. Thereafter, he was sentenced to a term of imprisonment of five years.

The defendant subsequently appealed to the Appellate Court claiming, inter alia, that the trial court had failed to instruct the jury on the lesser included offense of larceny in the sixth degree as defined by General Statutes § 53a-125b. The Appellate Court concluded that “the issue of force was sufficiently in dispute to require the trial court to instruct on the lesser included offense of larceny in the sixth degree,” reversed the defendant’s conviction and ordered a new trial. State v. Preston, 46 Conn. App. 778, 785, 700 A.2d 1190 (1997). We granted certification limited to the following issue: “Did the Appellate Court properly conclude that, under the evidence in this case, the third and fourth prongs of State v. Whistnant, 179 Conn. 576, 588 [427 A.2d 414] (1980), were satisfied, in that the trial court was required to give a charge on the lesser included offense of larceny in the sixth degree?” State v. Preston, 243 Conn. 946, 704 A.2d 800 (1997).

The details of the incident that led to the defendant’s conviction are set forth in the opinion of the Appellate Court; State v. Preston, supra, 46 Conn. App. 779-80; and may be summarized as follows. On March 19,1994, the defendant entered Milk Plus, a convenience store located in Fairfield. A customer of the store noticed the defendant conceal several packs of cigarettes under his shirt. The customer alerted the cashier, Karem Sha-ham, to the defendant’s actions, at which point Shaham also observed the defendant’s conduct. When the defendant then attempted to leave the store without paying for the cigarettes, Shaham jumped over the counter and attempted to detain the defendant. A struggle ensued, during which Shaham ripped the defendant’s shirt, and several packs of cigarettes fell to the floor. When he tore the defendant’s shirt, Shaham noticed that the defendant also had three bottles of liquor concealed on his person. Suspecting that the liquor had been taken from an affiliated, neighboring store, Grasmere Liquor Store, Shaham seized one of the bottles and put it on the counter. Id.

The struggle between Shaham and the defendant continued into the parking lot. In the course of the struggle, Shaham attempted to recover another liquor bottle from the defendant. The defendant, however, wrested the bottle from Shaham and held it over Shaham’s head as if to strike him. The defendant then escaped into a car that was waiting for him in the parking lot. Thereafter, Shaham entered Grasmere Liquor Store and confirmed that three bottles of liquor, identical to those he had observed in the defendant’s possession, were missing from the liquor store. Id., 780.

At trial, the defendant’s primary theory of defense was that he had not been at Milk Plus when the crime was committed and, thus, was not the perpetrator of the crime. Nevertheless, he requested that the court instruct the jury on the lesser included crimes of robbery in the third degree and larceny in the sixth degree. In support of his contention that he was entitled to an instruction on larceny in the sixth degree, the defendant, in his request to charge, maintained for the first time that the jury reasonably could find that “no force was used and that no robbery took place but that items valued less than $100 were taken.” The trial court granted the defendant’s request with respect to robbery in the third degree but denied the defendant’s request for an instruction on larceny in the sixth degree.

The Appellate Court, however, concluded that the evidence entitled the defendant to an instruction on larceny and, therefore, reversed the trial court’s decision. Id., 785. In this appeal, the state maintains that the Appellate Court improperly reversed the trial court’s decision not to charge on larceny because there was insufficient controverted evidence to support the defendant’s request for that charge. We agree with the state.

We previously have articulated a four-pronged test for determining whether a defendant is entitled to an instruction on a lesser included offense. State v. Whistnant, supra, 179 Conn. 588. “A defendant is entitled to an instruction on a lesser offense if, and only if . . . (1) an appropriate instruction is requested by either the state or the defendant; (2) it is not possible to commit the greater offense, in the manner described in the information or bill of particulars, without having first committed the lesser; (3) there is some evidence, introduced by either the state or the defendant, or by a combination of their proofs, which justifies conviction of the lesser offense; and (4) the proof on the element or elements which differentiate the lesser offense from the offense charged is sufficiently in dispute to permit the jury consistently to find the defendant innocent of the greater offense but guilty of the lesser.” (Internal quotation marks omitted.) State v. Manley, 195 Conn. 567, 574, 489 A.2d 1024 (1985); State v. Whistnant, supra, 588.

“In considering whether the defendant has satisfied the requirements set forth in State v. Whistnant, supra, 179 Conn. 588, we view the evidence in the light most favorable to the defendant’s request for a charge on the lesser included offense.” (Internal quotation marks omitted.) State v. Tomasko, 238 Conn. 253, 260-61, 681 A.2d 922 (1996). “[T]he jury’s role as fact-finder is so central to our jurisprudence that, in close cases, the trial court should generally opt in favor of giving an instruction on a lesser included offense, if it is requested.” (Internal quotation marks omitted.) State v. Rasmussen, 225 Conn. 55, 68, 621 A.2d 728 (1993). “On appeal, an appellate court must reverse a trial court’s failure to give the requested instruction if we cannot as a matter of law exclude [the] possibility that the defendant is guilty only of the lesser offense.” (Internal quotation marks omitted.) State v. Arena, 235 Conn. 67, 74, 663 A.2d 972 (1995). “Otherwise the defendant would lose the right to have the jury pass upon every factual issue fairly presented by the evidence.” (Internal quotation marks omitted.) State v. Manley, supra, 195 Conn. 575; State v. Smith, 185 Conn. 63, 78, 441 A.2d 84 (1981). These principles do not mean, however, that the evidence must be unrealistically parsed in contravention of how it was presented to and reasonably could have been perceived by the jury.

The focal question raised by the defendant’s claim involves the fourth prong of the Whistnant test: whether the evidence of the element that differentiated the allegedly included offense of larceny from the greater offense of robbery was “sufficiently in dispute to permit the jury consistently to find the defendant innocent of the greater offense but guilty of the lesser.” State v. Whistnant, supra, 179 Conn. 588. We previously have stated that “[e]vidence [of the differentiating element] is ‘ “sufficiently in dispute” where it is of such a factual quality that would permit the finder of fact reasonably to find the defendant guilty on the lesser included offense. This requirement serves to prevent a jury from capriciously convicting on the lesser included offense when the evidence requires either conviction on the greater offense or acquittal.’ State v. Manley, [supra, 195 Conn. 579], quoting State v. Whist-nant, supra [588].” (Emphasis added.) State v. Mon-tanez, 219 Conn. 16, 23, 592 A.2d 149 (1991). Moreover, “the trial court, in making its determination whether the proof is ‘sufficiently in dispute,’ while it must carefully assess all the evidence whatever its source, is ‘not required to put the case to the jury on a basis [of a lesser included offense] that essentially indulges and even encourages speculations as to [a] bizarre reconstruction [of the evidence].’ United States v. Sinclair, 444 F.2d 888, 890 (D.C. Cir. 1971).” State v. Manley, supra, 579-80.

It is well established that the element differentiating robbery from larceny is the use or threatened immediate use of physical force. State v. Tinsley, 181 Conn. 388, 398, 435 A.2d 1002, cert. denied, 449 U.S. 1086, 101 S. Ct. 874, 66 L. Ed. 2d 811 (1981). Specifically, General Statutes § 53a-133, the statute that defines robbery, proscribes the use of physical force for: “(1) [preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking; or (2) compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the larceny.” We previously have stated that “under General Statutes § 53a-133, if the use of force occurs during the continuous sequence of events surrounding the taking or attempted taking, even though some time immediately before or after, it is considered to be ‘in the course of the robbery or the attempted robbery within the meaning of the statute.” State v. Ghere, 201 Conn. 289, 297, 513 A.2d 1226 (1986). In the present case, it is undisputed that the defendant used physical force upon Shaham during the continuous sequence of events immediately following his taking of cigarettes from Milk Plus. The defendant, however, argues that the jury reasonably could have determined that the defendant used force upon Shaham without the necessary intent to retain the stolen property because he was no longer in possession of the stolen property, but instead was acting in self-defense or to effectuate escape. Therefore, the dispositive question in this appeal is whether the evidence relating to the defendant’s intent in using force upon Shaham was “sufficiently in dispute,” as required by the fourth prong of Whistnant.

The record reveals the following related to the defendant’s use of force. The defendant entered Milk Plus and concealed several packs of cigarettes in his shirt. He then attempted to leave the store without paying for the cigarettes. Shaham confronted the defendant in front of the exit door, and the two men engaged in a struggle. It is undisputed that, at the time the two men began to struggle, the defendant was in possession of stolen cigarettes. In the course of the straggle, Shaham ripped the defendant’s shirt, causing several packs of cigarettes to fall to the floor. The struggle continued, unbroken, into the parking lot, at which point the men exchanged blows.

The defendant maintains, however, that he was entitled to an instruction on larceny in the sixth degree because the jury reasonably could have found that his use of force upon Shaham was not for a puipose proscribed by § 53a-133. Specifically, the defendant argues that the jury reasonably could have determined that he was no longer in possession of the stolen cigarettes when he used force upon Shaham in the parking lot. Moreover, the defendant contends that, from that determination, the jury reasonably could have drawn the inference that the defendant was aware that he no longer retained possession of the stolen cigarettes. Relying upon that inference, the defendant maintains that the jury reasonably could have drawn the further inference that, when the defendant fought with Shaham in the parking lot, the defendant’s sole intent was either to escape or to defend himself, two uses of force not proscribed by § 53a-133. See State v. Coston, 182 Conn. 430, 435-36, 438 A.2d 701 (1980) (defendant not guilty of attempted robbery where he voluntarily relinquished stolen property and then used force solely to effectuate escape).

We conclude, however, that the evidence presented at trial does not support the inferences suggested by the defendant. Specifically, the defendant concedes that the evidence established that he was in possession of stolen cigarettes when he was initially engaged by Sha-ham, and that at no point did he voluntarily relinquish possession of the stolen cigarettes. His argument, therefore, relies on the premise that the jury reasonably could have determined that he had been completely divested of the stolen cigarettes before he pushed and struck Shaham during the course of the struggle. Even viewed in the light most favorable to the defendant, however, the evidence does not support such a finding.

At trial, the only testimony regarding the defendant’s possession of stolen cigarettes during the course of the struggle was presented by Shaham. After Shaham unequivocally stated that the defendant was in possession of the stolen cigarettes when the defendant struck him outside the store, the prosecutor asked Shaham to identify several packages of cigarettes that the police had retrieved from the floor of the store, so that they could be admitted into evidence. At that point, the defendant’s attorney conducted a voir dire in order to challenge the admissibility of the cigarettes. During that voir dire, Shaham provided the following testimony:

“[Defense Counsel:] Where were these cigarettes obtained from — retrieved from?
“[Shaham:] From the side of the counter.
“Q. Were they on the counter or on the floor?
“A. When the police retrieved them or I retrieved them?
“Q. When the police retrieved them?
“A. On the floor.
“Q. All these packages of cigarettes—
“A. When I ripped his shirt, everything fell on the floor.
“Q. All these cigarettes came out — off the floor?
“A. Plus more cigarettes were in his shirt ....
“Q. All these cigarettes came off the floor; is what you’re saying?
“A. Yes.” (Emphasis added.)

Significantly, the defendant made no attempt to challenge Shaham’s testimony that additional cigarettes remained in the defendant’s shirt. In the context in which it was elicited, Shaham’s testimony clearly was to the effect that the cigarettes that the state sought to introduce had come from the floor of the store, but that additional cigarettes had remained in the defendant’s possession. Shaham’s testimony on voir dire reasonably could not have been interpreted to mean that, when the defendant’s shirt was ripped, he was completely divested of stolen cigarettes. See Decho v. Shutkin, 144 Conn. 102, 106, 127 A.2d 618 (1956) (jury cannot “ ‘cull statements from the testimony . . . which in and of themselves are not complete but are dependent upon other testimony’ ”); Snyder v. Pantaleo, 143 Conn. 290, 295, 122 A.2d 21 (1956) (same). Moreover, on cross-examination, Shaham further stated: “I ripped his shirt open, that’s how the cigarettes were all left on the floor. That’s how they all got on the floor. There were more cigarettes in his shirt, plus■ — ■” (Emphasis added.) Here, too, the defendant did not challenge Shaham’s testimony that “[t]here were more cigarettes in his shirt Shaham’s testimony, therefore, indicated that the cigarettes that had been introduced into evidence had been recovered from the floor of the store, but that the defendant remained in possession of stolen cigarettes.

Neither the state nor the defendant introduced any other evidence regarding the cigarettes. Consequently, the jury was not provided with any basis for concluding that the defendant possessed no stolen cigarettes when he fought with Shaham in the parking lot. The testimony that was introduced regarding the cigarettes, therefore, was not reasonably capable of supporting the inference that the defendant’s use of force in the parking lot was intended solely for purposes of escape or self-defense, and not intended, at least in part, for purposes of retaining possession of the stolen cigarettes.

Finally, the defendant argues that, even if he was in possession of stolen cigarettes when he fought with Shaham, the jury reasonably could have found that the defendant’s use of force was intended solely for purposes of escape or self-defense. “While this defendant, of course, was under no obligation to present evidence in his own behalf, we recognize as a practical matter that the defendant, for purposes of the Whistnant test, ought, in order to be entitled to a jury instruction on a lesser included offense, to endeavor to place a particular element of the crime ‘sufficiently in dispute’ under the fourth prong of Whistnant.” State v. Manley, supra, 195 Conn. 578.

In the present case, there was no evidence or testimony of any kind before the jury that indicated that the defendant’s use of force was intended solely for purposes of escape or self-defense. Consequently, the mere unsubstantiated possibility that the defendant’s use of force was intended solely for purposes of escape or self-defense did not entitle the defendant to an instruction on the lesser included offense of larceny in the sixth degree. See, e.g., id., 579; State v. Tinsley, supra, 181 Conn. 398. Although the defendant undoubtedly was attempting to escape when he fought with Shaham in the parking lot, the conclusion that his use of force was motivated solely by that desire would be a mere guess, not a reasonable inference drawn from the evidence presented. See State v. Manley, supra, 195 Conn. 579-80 (trial court not required to put case to jury on basis of lesser included offense that indulges or encourages speculation).

We conclude, therefore, that the issue of whether the defendant’s use of force was for a purpose proscribed by § 53a-133 was not “sufficiently in dispute,” as required by the fourth prong of Whistnant. As a result, an instruction to the jury on the lesser included offense of larceny in the sixth degree was not justified.

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

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

BERDON, J.,

dissenting. In my view, the trial court erred by declining to instruct the jury on the lesser included offense of larceny in the sixth degree. Accordingly, I believe that the Appellate Court was correct to order a new trial. State v. Preston, 46 Conn. App. 778, 788, 700 A.2d 1190 (1997).

In order to reach the contrary conclusion, the majority must ignore our well settled law pertaining to the accused’s right to have the jury instructed on a lesser included offense. “[W]e view the evidence in the light most favorable to the defendant’s request for a charge on the lesser included offense. State v. Montanez, 219 Conn. 16, 22-23, 592 A.2d 149 (1991); State v. Herring, 210 Conn. 78, 106, 554 A.2d 686, cert. denied, 492 U.S. 912,109 S. Ct. 3230,106 L. Ed. 2d 579 (1989). [T]he jury’s role as fact-finder is so central to our jurisprudence that, in close cases, the trial court should generally opt in favor of giving an instruction on a lesser included offense, if it is requested. . . . Otherwise the defendant would lose the right to have the jury pass upon every factual issue fairly presented by the evidence. . . . State v. Rasmussen, 225 Conn. 55, 68, 621 A.2d 728 (1993). On appeal, an appellate court must reverse a trial court’s failure to give the requested instruction if we cannot as a matter of law exclude [the] possibility that the defendant is guilty only of the lesser offense. State v. Falby, 187 Conn. 6, 30, 444 A.2d 213 (1982). State v. Arena, 235 Conn. 67, 73-74, 663 A.2d 972 (1995).” (Internal quotation marks omitted.) State v. Tomasko, 238 Conn. 253, 261, 681 A.2d 922 (1996). In short, a conviction that follows a trial court’s failure to deliver a lesser included offense charge must be reversed unless no rational jury, viewing the evidence in the light most favorable to the defendant, reasonably could have found that the defendant committed the lesser offense. This is perhaps the most lenient standard of review that exists in our law, and for good reason: the only consequence of a charge on a lesser included offense is that it permits the jury to resolve a factual issue, subject to all the procedural safeguards associated with verdicts based upon insufficient evidence. Although the majority quotes the same words that I have quoted, it does not appear to understand what they mean.

The dispositive question in this appeal is whether, considering the evidence in the light most favorable to the defendant, the jury reasonably could have determined that the defendant neither used nor threatened to use physical force “for the purpose of . . . overcoming resistance ... to the retention [of stolen property] immediately after the taking . . . .” General Statutes § 53a-133. The Appellate Court answered this question in the affirmative. State v. Preston, supra, 46 Conn. App. 785. When viewed through the lens supplied by our exceedingly lenient standard of review, this conclusion is clearly correct.

First of all, the jury reasonably could have concluded that the defendant did not possess any stolen property at the time that he used force. It is necessary to briefly summarize the relevant facts. The defendant entered a Milk Plus convenience store and stuffed several packs of cigarettes in his shirt. The clerk asked him if he had enough money to pay for the merchandise, and the defendant assured him that he did. Nevertheless, the clerk vaulted over the counter and ripped the defendant’s shirt open, spilling the cigarettes to the floor. Although the clerk claimed that a number of packs of cigarettes remained in the defendant’s shirt, this testimony was contradicted by that of William Revis, the person who drove the defendant to and from the Milk Plus. Moreover, no cigarettes were recovered either from Revis’ automobile or from the parking lot outside the Milk Plus, where the altercation relied upon by the state occurred. It was only after the cigarettes spilled to the floor that the defendant used any force. Viewing this evidence in the light most favorable to the defendant’s proposed jury instruction, the jury reasonably could have concluded that the defendant did not possess any stolen property at the time that he used force. Correlatively, the jury reasonably could have concluded that the defendant did not use force “for the purpose of . . . overcoming resistance ... to the retention [of stolen property] . . . .” (Emphasis added.) General Statutes § 53a-133.

Even if we were to assume arguendo that the defendant retained at least one pack of cigarettes in his shirt, the jury reasonably could have concluded that the defendant did not use force “for the purpose of’ overcoming the clerk’s resistance to this hypothetical theft. Significantly, it was the clerk who injected violence into the encounter by vaulting over the counter, attacking the defendant, and ripping open his shirt. Prior to this point, the defendant had employed no force; in fact, he had offered to pay for the cigarettes. Viewing the evidence in the light most favorable to the defendant, it is apparent that the jury reasonably could have concluded that the defendant’s use of force was motivated solely by his desire to avoid both physical harm and apprehension by the police.

The issues in the present case are irreducibly fact-bound. As such, they rest squarely within the province of the jury, the finder of fact in this case. Because I believe that the trial court usurped the role of the jury by refusing to allow it to consider a lesser included offense, I dissent.

       General Statutes § 53a-134 provides in relevant part: “(a) A person is guilty of robbery in the first degree when, in the course of the commission of the crime of robbery as defined in section 53a-133 or of immediate flight therefrom, he or another participant in the crime: (1) Causes serious physical injury to any person who is not a participant in the crime; or (2) is armed with a deadly weapon; or (3) uses or threatens the use of a dangerous instrument; or (4) displays or threatens the use of what he represents by his words or conduct to be a pistol, revolver, rifle, shotgun, machine gun or other firearm . . . . Nothing contained in this subdivision shall constitute a defense to a prosecution for, or preclude a conviction of, robbery in the second degree, robbery in the third degree or any other crime. . . .”
      General Statutes § 53a-133 provides: “A person commits robbery when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person for the purpose of: (1) Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking; or (2) compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the larceny.”

       General Statutes § 53a-136 (a) provides: “A person is guilty of robbery in the third degree when he commits robbery as defined in section 53a-133.”

       General Statutes § 53a-125b (a) provides: “A person is guilty of larceny in the sixth degree when he commits larceny as defined in section 53a-119 and the value of the property or service is two hundred fifty dollars or less.”
      General Statutes § 53a~119 provides in relevant part: “A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner. Larceny includes, but is not limited to ... .
      “(9) Shoplifting. A person is guilty of shoplifting who intentionally takes possession of any goods, wares or merchandise offered or exposed for sale by any store or other mercantile establishment with the intention of converting the same to his own use, without paying the purchase price thereof. A person intentionally concealing unpurchased goods or merchandise of any store or other mercantile establishment, either on the premises or outside the premises of such store, shall be prima facie presumed to have so concealed such article with the intention of converting the same to his own use without paying the purchase price thereof. . . .”

       Shaham’s father owned both Grasmere Liquor Store and Milk Plus.

       At trial, the defendant elicited evidence that the price sticker on a bottle of liquor taken from the defendant during the struggle was different from the price listed in the police report as the retail price charged by Grasmere Liquor Store for that particular liquor. Viewed in the light most favorable to the defendant, that evidence reasonably could have supported a finding that the bottle of liquor recovered from the defendant was not necessarily stolen from Grasmere Liquor Store. Consequently, the sole basis we will consider in determining whether the trial court properly denied the defendant’s request for an instruction on larceny in the sixth degree is whether the jury reasonably could have determined that the taking of the cigarettes from Milk Plus constituted a larceny rather than a robbery.

       See footnote 3 of the majority opinion for the text of the relevant larceny statutes at issue in the present case.

       See footnote 1 of the majority opinion for the complete text of § 53a-133.

       The defendant claimed mistaken identity, an issue that is not before us.

       Significantly, Revis testified against the defendant’s alibi and — according to the defendant — had a motive to harm the defendant through his testimony. More specifically, the defendant testified that Revis was suspicious of the defendant’s relationship with Revis’ girlfriend.

       According to the majority, “[i]t is undisputed that, at the time the two men began to struggle, the defendant was in possession of stolen cigarettes.” This is not a fair characterization of the evidence, let alone one that views the testimony adduced at trial in the light most favorable to the defendant. To begin with, it is undisputed that the two men were not equally culpable for the use of force: the clerk threw the first punch by vaulting over the counter, attacking the defendant, and ripping open his shirt. Moreover, for the reasons explained in the body of this dissent, the jury reasonably could have concluded that all the cigarettes spilled to the floor before the defendant had used any force.

       The majority makes the curious argument that “the jury was not provided with any basis for concluding that the defendant possessed no stolen cigarettes when he fought with [the clerk] in the parking lot.” (Emphasis added.) This statement betrays a misunderstanding of our standard of review. In fact, the more appropriate point to make is that the jury reasonably could have declined to credit the self-serving testimony of the clerk that the defendant possessed stolen property at the time that he used force.

       According to the majority, “it is undisputed that the defendant used physical force upon [the clerk] during the continuous sequence of events immediately following his taking of cigarettes from Milk Plus.” This is untrue. In my view, a jury reasonably could have concluded that the clerk’s intervening acts of violence disrupted the continuity of what was supposed to have been a surreptitious shoplifting.

       An eyewitness corroborated this interpretation of the evidence by “testifying] that she saw [the clerk] grab the defendant and that she thought the defendant pushed [the clerk] away.” State v. Preston, supra, 46 Conn. App. 784. Nevertheless, the majority claims that “there was no . . . testimony of any kind before the jury that indicated that the defendant’s use of force was intended solely for purposes of escape or self-defense.”


source: Caselaw Access Project

author: KATZ, J.

license: Public Domain

text:
    W. v. W.

    (SC 15956)
    Borden, Berdon, Norcott, Katz and Palmer, Js.

      Argued January 19
    officially released April 27, 1999

      James H. Lee, for the appellant (defendant).

      Stephen T. Kulig, for the appellee (plaintiff).

       Following oral argument in this court, we have ordered, sua sponte, the file to be sealed and have changed the name of the case to protect the privacy of the parties.

   Opinion

KATZ, J.

This appeal involves a pendente lite child support dispute concerning a minor child, who was bom to the plaintiff prior to her marriage to the defendant. Although the defendant is not the child’s biological father, the trial court estopped him from denying paternity and issued temporary child support orders against him. The issues to be decided in this appeal are whether: (1) the trial court, pursuant to General Statutes § 46b-56/ had jurisdiction to order temporary child support for a child when the defendant in the dissolution action is not the biological father of the child; (2) the trial court acted improperly when it equitably estopped the defendant from denying paternity of the child; and (3) the trial court, pursuant to General Statutes § 46b-84, acted improperly in failing to modify an earlier temporary child support order despite its finding of no substantial change in the defendant’s financial circumstances. We affirm the judgment of the trial court.

The trial court set forth the following relevant facts and underlying procedural history. Soon after the plaintiff and the defendant had begun to have sexual relations, the plaintiff informed the defendant that she might be pregnant. After the pregnancy was confirmed, but before the birth of the child, both parties recognized that the defendant might not be the child’s biological father. Following the child’s birth on June 15, 1986, the parties agreed that the child should bear the defendant’s last name.

Soon thereafter, the plaintiff moved to Rhode Island to live with the defendant. Following her arrival, the plaintiff applied for public assistance, naming her former boyfriend, D, as the father of the child. Before the plaintiff could complete the documents necessary to institute paternity proceedings, however, the defendant destroyed the documents. The trial court found that the defendant had persuaded the plaintiff not to seek blood tests to determine paternity, and, consequently, to forgo public assistance and child support from D. The trial court found further that the defendant had taken such actions because he did not want D to play any role in the life of the child.

The parties continued to live together for approximately the next three years. On March 11, 1989, they married after the plaintiff had become pregnant with the defendant’s child. Their child, whose paternity the defendant does not challenge, was bom on July 28,1989.

On January 21, 1997, the plaintiff commenced the dissolution action underlying the present appeal. The trial court, by agreement of the parties, issued a temporary child support order, which obligated the defendant to pay the plaintiff a total of $175 per week for both children. According to the defendant’s financial affidavit, in March, 1997, the defendant was earning $724 per week in gross income, with a net income of $493 per week.

One month later the defendant moved to modify the child support order. On May 5, 1997, the trial court granted a downward modification, ordering the defendant to pay $150 per week for both children. At that time, the defendant’s affidavit reflected a gross income of $507 per week, with a net income of $349 per week.

Subsequently, the plaintiff moved for an upward modification of the child support order. On September 29, 1997, the court granted the motion, increased the order to $201 per week and $40 per week against the $800 arrearage. The defendant’s financial affidavit indicated a net income of $403 per week at that time.

On November 17, 1997, the defendant moved for a blood test to establish the paternity of the older child, and for a downward modification of the child support order based on an alleged substantial decrease in his income. Prior to filing this motion the plaintiff had, on occasion, suggested paternity testing to establish conclusively the paternity of the older child, but the defendant had consistently refused to submit to such testing because, according to the trial court, he feared it would reveal that he was not the father of the child. Until the time of the motion for the blood test, the defendant consistently had treated the older child as his own daughter, despite her uncertain parentage. On November 17, 1997, the trial court granted the defendant’s motion for paternity testing. The test results excluded the defendant as the father of the child.

Despite the paternity test results, the trial court, relying on the doctrine of equitable estoppel, barred the defendant from disclaiming that he is the father of the older child. The court found that the defendant had acted consistently as the father of the older child, providing emotional and financial support throughout her entire life. The court found further that the parties had raised the child to believe that the defendant is her father, and that indeed, they had never told the child otherwise. Consequently, according to the court, discovering that the defendant is not her biological father as a consequence of this action would have an extremely deleterious emotional effect on her.

Additionally, on a financial level, the court found that the defendant had frustrated the plaintiffs earlier attempts to discern medically who was the child’s biological father as well as her efforts to collect public assistance from Rhode Island, and child support from the child’s natural father. The court found that, as a result, the plaintiff had failed to collect child support from D for nearly twelve years. According to the court’s findings, at the time of the hearing, the whereabouts and wherewithal of D were unknown. Therefore, the plaintiffs current ability to obtain child support from D is uncertain.

Finally, the trial court concluded that the defendant had failed to demonstrate, by a preponderance of the evidence, that his financial circumstances had changed substantially since the issuance of the most recent child support order of September 29, 1997. The trial court, therefore, denied the defendant’s motion for modification. The defendant appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 65-1 and General Statutes § 51-199 (c).

On appeal, the defendant argues that the trial court: (1) did not have jurisdiction, pursuant to § 46b-56, to order temporary child support for the child in question; (2) improperly estopped the defendant from denying paternity of the child; and (3) acted improperly when it refused to modify the child support order pursuant to § 46b-84. We disagree.

I

As a general matter of jurisprudence, we resolve issues concerning a court’s subject matter jurisdiction before turning to the merits of the parties’ claims. See, e.g., Hall v. Gilbert & Bennett Mfg. Co., 241 Conn. 282, 289, 695 A.2d 1051 (1997). In the present case, the defendant claims that the child is not a “child of the marriage” because he is not the child’s biological father. On that basis, the defendant contends that the trial court lacked subject matter jurisdiction to order temporary child support. We disagree.

Although it is well settled that trial courts have broad equitable remedial powers regarding marital dissolu-tions; Doe v. Doe, 244 Conn. 403, 423, 710 A.2d 1297 (1998); it is also undisputed that the trial court’s power to dissolve a marriage and to order custody, care and education of any minor children of the parties, incidental to the dissolution action, is statutorily based. Morrow v. Morrow, 165 Conn. 665, 668, 345 A.2d 561 (1974); Dunham v. Dunham, 97 Conn. 440, 443-44, 117 A. 504 (1922); Steele v. Steele, 35 Conn. 48, 54 (1868). Consequently, the issue of the trial court’s jurisdiction is one of statutory construction, over which our review is plenary. Morton Buildings, Inc. v. Bannon, 222 Conn. 49, 53, 607 A.2d 424 (1992); see Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221, 435 A.2d 24 (1980).

An extensive analysis of the pertinent statutes is unnecessary, however, in light of our recent decision in Doe v. Doe, supra, 244 Conn. 422, wherein we held that although the concept of a “child of the marriage” continues to define who is considered legally to be a parent, it no longer creates jurisdictional limitations. In Doe, this court verified a dissolution court’s jurisdiction, pursuant to § 46b-56, over the issue of the custody and support of a minor child who did not fit the statutory definition of a “child of the marriage.” Id., 439. Specifically, based upon the statutory scheme governing domestic disputes, this court concluded that, although “the concept of ‘child of the marriage,’ and its corresponding definition of parentage, [once] imposed jurisdictional limitations on the trial court’s power to enter custody [and support] orders in dissolution cases,” the definition of parenthood no longer imposes a jurisdictional limitation on a dissolution court with regard to custody and support determinations. Id.; see generally Kennedy v. Kennedy, 177 Conn. 47, 50, 411 A.2d 25 (1979) (jurisdiction to make and enforce orders for care, custody, and education of minor children is derived from court’s statutory jurisdiction over dissolution of marriage). Therefore, we conclude that, regardless of whether the child at issue in the present case is considered a “child of the marriage,” the trial court had subject matter jurisdiction to order pendente lite child support.

II

The second issue on appeal is whether the trial court acted improperly when it equitably estopped the defendant from denying that he is the father of the plaintiff s older child. We conclude that the trial court’s action was proper.

Before turning to the merits of the parties’ arguments, we first set forth principles that will assist us in resolving this issue. To begin, it is well settled that “judicial review of a trial court’s exercise of its broad discretion in domestic relations cases is limited to the questions of whether the court correctly applied the law and could reasonably have concluded as it did. E.g., Smith v. Smith, 185 Conn. 491, 494, 441 A.2d 140 (1981); Basile v. Basile, 185 Conn. 141, 144, 440 A.2d 876 (1981); McGuinness v. McGuinness, 185 Conn. 7, 13, 440 A.2d 804 (1981). ‘It is the sole province of the trial court to weigh and interpret the evidence before it and to pass upon the credibility of witnesses.’ Smith v. Smith, supra, 493.” Beede v. Beede, 186 Conn. 191, 194-95, 440 A.2d 283 (1982).

The party claiming estoppel — in this case, the plaintiff — has the burden of proof. Middlesex Mutual Assurance Co. v. Walsh, 218 Conn. 681, 699, 590 A.2d 957 (1991). Whether that burden has been met is a question of fact that will not be overturned unless it is clearly erroneous. Dornfried, v. October Twenty-Four, Inc., 230 Conn. 622, 636, 646 A.2d 772 (1994); Middlesex Mutual Assurance Co. v. Walsh, supra, 699. A court’s determination is clearly erroneous only in cases in which the record contains no evidence to support it, or in cases in which there is evidence, but the reviewing court is left with the definite and firm conviction that a mistake has been made. Dornfried v. October Twenty-Four, Inc., supra, 636; see also Barbara Weisman, Trustee v. Raspar, 233 Conn. 531, 541, 661 A.2d 530 (1995). The legal conclusions of the trial court will stand, however, only if they are legally and logically correct and are consistent with the facts of the case. Pandolphe’s Auto Parts, Inc. v. Manchester, supra, 181 Conn. 221-22. Accordingly, we will reverse the trial court’s legal conclusions regarding estoppel only if they involve an erroneous application of the law. See Deer Hill Arms II Ltd. Partnership v. Planning Commission, 239 Conn. 617, 628, 686 A.2d 974 (1996).

Strong public policies have long formed the basis of the doctrine of equitable estoppel. “The office of an equitable estoppel is to show what equity and good conscience require, under the particular circumstances of the case, irrespective of what might otherwise be the legal rights of the parties.” (Internal quotation marks omitted.) State ex rel. DeGregorio v. Woodruff, 135 Conn. 31, 36, 60 A.2d 653 (1948). “No one is ever estopped from asserting what would otherwise be his right, unless to allow its assertion would enable him to do a wrong.” Hartford v. Mechanics Savings Bank, 79 Conn. 38, 41, 63 A. 658 (1906).

“There are two essential elements to an estoppel: the party must do or say something which is intended or calculated to induce another to believe in the existence of certain facts and to act upon that belief; and the other party, influenced thereby, must actually change his position or do something to his injury which he otherwise would not have done. Estoppel rests on the misleading conduct of one party to the prejudice of the other. In the absence of prejudice, estoppel does not exist. Breen v. Aetna Casualty & Surety Co., 153 Conn. 633, 643, 220 A.2d 254 [1966]; Themper v. Themper, 132 Conn. 547, 550, 45 A.2d 826 [1946], Morrow v. Morrow, supra, [165 Conn.] 669.” (Internal quotation marks omitted.) Remkiewicz v. Remkiewicz, 180 Conn. 114, 119, 429 A.2d 833 (1980); see also Doe v. Doe, supra, 244 Conn. 445 (“estoppel requires proof of two facts: [1] misleading conduct by one party; and [2] detrimental reliance thereon by the other party”).

A

Although this court has considered the doctrine of equitable estoppel in dissolution proceedings, the record in those cases did not support a finding of estop-pel. See, e.g., Doe v. Doe, supra, 244 Conn. 445 (“[d] espite the plaintiffs claim in her brief that she did not pursue an adoption of the child because of the defendant’s assurance to her that she was the child’s mother, there is no such evidence in this record from which such an inference could be drawn”); Remkiewicz v. Remkiewicz, supra, 180 Conn. 119-20 (“[i]t appears from the evidence that neither the state nor [the child’s] mother changed position to the injury of either one in reliance on the affidavit of parentage”). Consequently, this court has not had the opportunity to explore fully the parameters of the doctrine in the context of a denial of parenthood and appurtenant child support obligations.

To provide the framework necessary for the resolution of the issue, therefore, we now analyze the doctrine and more fully set forth guidelines as to when a court may properly equitably estop a party in cases such as the present one. To begin, it is important to remember that when all of the elements of estoppel are met, its application prevents an injustice. Hartford v. Mechanics Savings Bank, supra, 79 Conn. 41. In the context of parental responsibilities, the duty to support the child is placed fairly on the nonparental party, not solely because of his voluntary assumption of a parental role, but, also because of the misleading course of conduct that induced the child, and the biological parent as the child’s guardian, to rely detrimentally on the nonparen-tal party’s emotional and financial support of the child. See Morrow v. Morrow, supra, 165 Conn. 669; contra Knill v. Knill, 306 Md. 527, 554, 510 A.2d 546 (1986) (Murphy, C. J., dissenting) (applying estoppel because stepparent’s “voluntary assumption of the parental role over such an extended period now precludes him [or her] from disavowing parental responsibility for child support”). Essentially, such a rule is designed, in part, to discourage misrepresentations by the nonbiological parent.

It should also be remembered that the party against whom the doctrine is invoked has typically benefited from his status as a parent. Clevenger v. Clevenger, 189 Cal. App. 2d 658, 671, 11 Cal. Rptr. 707 (1961). Generally, that party has been given the gift of love and affection by a child who considers and treats him as a parent, and has enjoyed the community’s recognition of him as a parent, which often entails prestige and fulfillment.

Estopping parties from denying parentage under appropriate circumstances promotes our “oft-expressed policy of supporting the integrity of the family unit and protecting the best interests of the child . . . [and the] child’s right to family identification . . . .” (Citations omitted.) Doe v. Doe, supra, 244 Conn. 469 (Katz, J., concurring and dissenting). Similarly, the doctrine furthers our public policy of favoring the establishment of legal parenthood with all of its accompanying responsibilities. Id., 484 (Katz, J., concurring and dissenting).

Before we fully delineate the contours of the doctrine of equitable estoppel in Connecticut, we find it instructive to examine how the courts in other jurisdictions have treated this issue. Although courts in many jurisdictions have stated theoretically that a trial court may equitably estop a party to a dissolution proceeding from denying parenthood and appurtenant child support obligations, traditionally, they are strict when it comes to enforcing the requirements of the doctrine. Nevertheless, under the appropriate circumstances, several courts have upheld the doctrine’s application to impose a continuing obligation of child support.

Almost four decades ago, in the seminal case of Clev-enger v. Clevenger, supra, 189 Cal. App. 2d 671, the California Court of Appeals created a rule allowing the doctrine to be successfully invoked when the facts showed “that the husband represented to the boy that he was his [natural] father, that the husband intended that his representation be accepted and acted upon by the child, that the child relied [detrimentally] upon the representation and treated the husband as his father and gave his love and affection to him, [and] that the child was ignorant of the true facts . . . .”

According to Clevenger, the child’s detrimental reliance in such a situation could take many forms: “(1) It would deprive the child of the potential action of the mother, as his guardian, at the time of the child’s birth, to hold the natural father liable for the support of the child. The child thus relies upon the husband’s representation and does not attempt to find the natural father. . . . This reliance works a definite detriment to the child. (2) It would induce the child to accept the husband as his natural father and render to him the affection and love of a son, with the son’s reasonable expectation of care, support and education until adulthood. The reversal of this representation, through the publication of the illegitimacy of the child, inflicts deep injury upon him. To be designated as an illegitimate child in preadolescence is an emotional trauma of lasting consequence. Having placed the cloak of legitimacy upon the child, having induced the child to rely upon its protection, the husband by abruptly removing it surely harms the child. The child has therefore relied on the conduct of the husband to his injury. (3) It would induce the child to hold himself out to the community as the natural son of the husband . . . only to suffer the abrupt removal of that status, and to undergo the subsequent social injury.” Id., 671-72. The court in Clevenger elaborated that the party’s representation must be of such a lengthy period that it frustrates any realistic opportunity of discovering the child’s natural parent and creating a parent-child relationship. Id., 675.

Since Clevenger was decided, courts in various jurisdictions have considered the doctrine, differing as to the circumstances under which a trial court may equitably estop a party from denying the legal obligations of a parent. Most significantly, they diverge as to the type of detrimental reliance that should be required, with the majority rule finding emotional detriment alone insufficient grounds for estoppel. Of the majority of cases imposing financial detriment as a requirement, Miller v. Miller, 97 N.J. 154, 167, 478 A.2d 351 (1984), perhaps most succinctly describes the three components to equitable estoppel — “representation, reliance and detriment” — cloaking all three in financial garb.

To begin, the New Jersey Supreme Court set forth its standard regarding misrepresentation. The Miller court did not require that the natural parent invoking the doctrine establish that the children believe that the stepparent is their natural parent, because it did not want to limit estoppel to cases in which the stepparent came into the family when the children were infants. Id., 167-68. The stepparent, however, must have made some representation of support to either the children or the natural parent. Id., 168.

Most significantly, the Miller court required that the natural parent invoking the doctrine establish that, if the stepparent is not estopped, the children will suffer future financial detriment as a result of the stepparent’s past active interference with the financial support by the child’s natural parent. Id., 168-69. It is imperative for the stepparent to have taken positive steps of interference with the natural parent’s support obligations in order for the court to bind the stepparent to support the children in the event of a divorce. Id., 170. Future economic detriment is established, for instance, whenever a custodial natural parent proves “that he or she (1) does not know the whereabouts of the natural parent; (2) cannot locate the other natural parent; or (3) cannot secure jurisdiction over the natural parent for valid legal reasons, and that the natural parent’s unavailability is due to the actions of the stepparent . . . .” (Emphasis added.) Id., 169.

Persuaded by the reasoning in Miller, we conclude that the equitable estoppel doctrine properly imposes a burden on the party seeking to invoke the doctrine to demonstrate representations of financial as well as emotional support. The concerns about misrepresentation and detrimental reliance are placed more appropriately on any promises of emotional and financial support, not on any misrepresentations and reliance regarding biological parentage. Requiring that children believe that the stepparent is their natural parent unjustly would deny support to some children who, nevertheless, have relied detrimentally on representations of emotional and financial support.

Furthermore, to permit estoppel when there is only emotional detriment would create enormous policy difficulties. Id., 168; see K.A.T. v. C.A.B., 645 A.2d 570, 572 (D.C. App. 1994). A requirement of emotional detriment alone would discourage parent-child bonding by rewarding stepparents who do not create a familial bond with their stepchildren, while punishing those who do, by requiring them to be responsible for them as a legal parent in the event of a divorce. K.A.T. v. C.A.B., supra, 572; Miller v. Miller, supra, 97 N.J. 168. In contrast to financial harm, the emotional harm outlined by the court in Clevenger v. Clevenger, supra, 189 Cal. App. 2d 671-72, while very real, cannot necessarily be prevented by equitable estoppel, which is naturally confined to a party’s legal obligations. Moreover, a rule requiring only emotional detriment could be very difficult for courts to apply. Hence, while emotional detriment should be a factor, it should not be the sole basis upon which to determine whether to apply the equitable estoppel doctrine.

We recognize that, as with other domestic issues, in deciding whether to apply the doctrine of equitable estoppel, courts must act judiciously and with sensitivity to the facts particular to each case. M.H.B. v. H.T.B, 100 N.J. 567, 572, 498 A.2d 775 (1985). We are also mindful that equitably estopping parties from denying parenthood is an extraordinary measure because it involves a judicially created imposition of parental status and attendant responsibility. K.A. T. v. C.A.B., supra, 645 A.2d 572. It is with such sensitivity and caution that we now turn to the facts of the present case.

B

Having set forth the doctrine of equitable estoppel in the context of a party attempting to disclaim parenthood and appurtenant child support responsibilities, we turn to the facts of the present case. It is undisputed that the defendant agreed to pay temporary child support as the father of the plaintiffs two children for the first ten months following the institution of the underlying dissolution, and that it was not until November, 1997, that the defendant moved for paternity testing regarding the older child. Subsequently, the trial court estopped the defendant from denying paternity.

As apart of that determination, the trial court reasonably found that the defendant’s actions had induced the child and her mother, the plaintiff, to believe that the defendant would always emotionally and financially support the child as his own and that the child and her mother had relied on such assurances to their present and future detriment. It is undisputed that the defendant acted as if he were the child’s father throughout the child’s life. Recognizing that the defendant might not be the child’s biological father, the parties nevertheless agreed, immediately after her birth, that the minor child would carry the defendant’s surname. The court found that, throughout the child’s life, the defendant consistently treated her as his daughter and provided her with financial and emotional support. There is little doubt that the child would suffer an enormous emotional trauma if she learned that the defendant is not her father, or that he was no longer responsible for her well-being. The court also concluded that the defendant’s actions helped to prevent the formation of a loving and nurturing relationship with her natural father.

Additionally, the court found abundant evidence of past, present and future financial detriment as a result of the defendant’s conduct. His actions frustrated the creation of the child’s right to any financial support from her natural father. By destroying the plaintiffs unprocessed paternity papers soon after the child’s birth, the defendant impeded the plaintiffs efforts to seek both child support from the biological father and public assistance from the state of Rhode Island. According to the trial court, the defendant purposefully engaged in such acts because he did not want the child’s natural father to play any role in the child’s life. Consequently, the defendant is the only father who has ever supported or nurtured the child. The trial court found that the whereabouts and wherewithal of D, the man it presumed to be the child’s natural father, were unknown at the time of the hearing. We conclude, therefore, on the basis of the facts as found by the trial court, that the court properly estopped the defendant from denying paternity.

Ill

The third and final issue the defendant has raised on appeal is whether the trial court improperly denied his November 17, 1997 motion to modify the temporary child support order. For the reasons set forth hereinafter, we decline to reach this issue. Thus, we affirm the trial court’s denial of the defendant’s motion.

It is well established that an appellate court is under no obligation to consider a claim that is not distinctly raised at the trial level. Practice Book § 60-5; Yale University v. Blumenthal, 225 Conn. 32, 36 n.4, 621 A.2d 1304 (1993) (issue not reviewed because not raised at trial). This court will review claims not raised at trial only in extraordinary circumstances. See Williamson v. Commissioner of Transportation, 209 Conn. 310, 317, 551 A.2d 704 (1988). “[B]ecause our review is limited to matters in the record, we [also] will not address issues not decided by the trial court. Practice Book § 4185, [now§ 60-5] (‘court on appeal shall not be bound to consider a claim unless it was distinctly raised at the trial’); Crest Pontiac Cadillac, Inc. v. Hadley, 239 Conn. 437, 444 n. 10, 685 A.2d 670 (1996) (claims ‘neither addressed nor decided’ by court below are not properly before appellate tribunal); State v. Miller, 186 Conn. 654, 658, 443 A.2d 906 (1982) (‘[o]nly in the most exceptional circumstances will this court consider even a constitutional claim not properly raised and decided in the trial court’).” Willow Springs Condominium Assn., Inc. v. Seventh BRT Development Corp., 245 Conn. 1, 52, 717 A.2d 77 (1998).

General Statutes § 46b-86 (a) sets forth the relevant law regarding this claim. That section provides in relevant part that “support pendente lite may at any time . . . [be] modified . . . upon a showing of a substantial change in the circumstances of either party or upon a showing that the final order for child support substantially deviates from the child support guidelines established pursuant to section 46b-215a, unless there was a specific finding on the record that the application of the guidelines would be inequitable or inappropriate. il

In the present case, in his motion to modify the support order, the defendant argued that since the last support order on September 29, 1997, the defendant’s income had substantially decreased and, therefore, the amount that he previously had been ordered to pay now significantly exceeded both his ability to pay and the amounts provided in the child support guidelines. The trial court denied the motion because the defendant had failed to demonstrate, by a preponderance of the evidence, that his financial circumstances had changed substantially since the time of the September, 1997 order.

On appeal, the defendant does not challenge the trial court’s finding that his financial circumstances had not changed subsequent to the September, 1997 order. Rather, he claims that when the trial court denied his November, 1997 motion to modify the September, 1997 order, it “abused its discretion in deviating from the child support guidelines without having made the necessary predicate findings, and in imputing available overtime work to his earning capacity without additional findings.” Although § 46b-86 authorizes the trial court to modify the prior order if the moving party proves that the prior order substantially deviated from the guidelines at the time of the prior order, the defendant never alerted the trial court to the issue of whether the September, 1997 order constituted an unjustified deviation from the guidelines. Consequently, the defendant is responsible for a decision that is silent as to whether the other ground authorized by § 46b-86 as a basis for modification had been satisfied. We decline to review the defendant’s claim regarding an unjustified deviation at the time of the September, 1997 motion as we deem it to have been waived in the trial court.

IV

In conclusion, we hold that the trial court had jurisdiction to determine the pendente lite child support order pursuant to this dissolution action. We also conclude that the trial court acted properly when it equitably estopped the defendant from denying his paternity. Finally, we decline to reach the defendant’s claim regarding the trial court’s denial of his motion to modify the trial court’s September, 1997 pendente lite child support order.

The judgment is affirmed.

In this opinion the other justices concurred.

       General Statutes § 46b-56 (a) provides: “In any controversy before the Superior Court as to the custody or care of minor children, and at any time after the return day of any complaint [seeking the dissolution of a marriage], the court may at any time make or modify any proper order regarding the education and support of the children and of care, custody and visitation if it has jurisdiction under the provisions of chapter 815o [the Uniform Child Custody Jurisdiction Act]. Subject to the provisions of section 46b-56a, the court may assign the custody of any child to the parents jointly, to either parent or to a third party, according to its best judgment upon the facts of the case and subject to such conditions and limitations as it deems equitable. The court may also make any order granting the right of visitation of any child to a third party, including but not limited to, grandparents.”
      General Statutes § 46b-83, which also permits support pendente lite, provides in relevant part: “At any time after the return day of a complaint [seeking the dissolution of a marriage], and after hearing . . . support pen-dente lite may be awarded to either of the parties from the date of the filing of an application therefor with the Superior Court. . . .”

       General Statutes § 46b-84 (a) provides in relevant part: “Upon or subsequent to the . . . dissolution of any marriage . . . the parents of a minor child of the marriage, shall maintain the child according to their respective abilities, if the child is in need of maintenance.”

       The arrearage had accumulated because the defendant had failed to pay his prior temporary child support obligations as ordered by the trial court.

       Because, for the reasons that follow hereinafter, we are affirming the trial court decision estopping the defendant from denying paternity, the results of the blood test are irrelevant to the dissolution action and the related proceedings. Freedman v. McCandless, 539 Pa. 584, 591, 654 A.2d 529 (1995) (blood test irrelevant where estoppel applied).

       See footnote 1 of this opinion for the text of § 46b-56.

       See footnote 2 of this opinion for the text of § 46b-84.

       This court held that, although § 46b-56 no longer includes the phrase “child of the marriage,” the concept “remains implicit in our entire statutory scheme governing marital dissolutions and retains viability by continuing to define who is a parent . . . .” Doe v. Doe, supra, 244 Conn. 422. The court continued: “[T]he meaning of [the concept of a ‘child of the marriage’], in the context of a martial dissolution case, is limited to a child conceived by both parties, a child adopted by both parties, a child bom to the wife and adopted by the husband, a child conceived by the husband and adopted by the wife, and a child bom to the wife and conceived through artificial insemination by a donor pursuant to [General Statutes] §§ 45a-771 through 45a-779.” Id., 435.

       In so concluding, we departed from our earlier holdings that were based upon a prior statutory scheme that denied the court jurisdiction to award custody and/or support of children who were not children of the marriage. See, e.g., Remkiewicz v. Remkiewicz, 180 Conn. 114, 116-17, 429 A.2d 833 (1980); Morrow v. Morrow, supra, 165 Conn. 668; LaBella v. LaBella, 134 Conn. 312, 316, 57 A.2d 627 (1948).

       The doctrine of equitable estoppel should not be confused with the “equitable parent” doctrine, rejected by this court, in which a court “allow[s] a nonparent to seek custody under the same criteria as would be applied to a biological or adoptive parent.” Doe v. Doe, supra, 244 Conn. 479 (Katz, J., concurring and dissenting).

       See, e.g., Clevenger v. Clevenger, supra, 189 Cal. App. 2d 670-71 (no estoppel applied because no misrepresentation to child); K.A.T. v. C.A.B., 645 A.2d 570, 573-74 (D.C. App. 1994) (no estoppel applied absent financial detriment); Knill v. Knill, supra, 306 Md. 537-38 (in four to three decision, no estoppel applied absent financial detriment); A.R. v. C.R., 411 Mass. 570, 573-74, 583 N.E.2d 840 (1992) (no estoppel applied where no evidence of detrimental reliance of any land); Berrisford v. Berrisford, 322 N.W.2d 742, 745 (Minn. 1982) (no estoppel applied where child too young to have detrimentally relied on defendant’s representations and defendant acted as child’s father for only fourteen months); Miller v. Miller, 97 N.J. 154, 170, 478 A.2d 351 (1984) (remand for further finding of facts regarding future detriment where natural parents married during conception and birth of children, children knew of true paternity, and stepfather actively had discouraged natural father from supporting children); Wiese v. Wiese, 699 P.2d 700, 702 (Utah 1985) (no estoppel applied where child conceived by prior husband during that marriage).

       See, e.g., In re Marriage of Johnson, 88 Cal. App. 3d 848, 852, 152 Cal. Rptr. 121 (1979) (applying estoppel doctrine where husband acted as father for six years); Watts v. Watts, 115 N.H. 186, 189, 337 A.2d 350 (1975) (estopping defendant where he acknowledged children as his own for fifteen years); M.H.B. v. H.T.B., 100 N.J. 567, 498 A.2d 775 (1985) (affirming appellate court judgment estopping defendant from disclaiming paternity in per curiam decision); Pietros v. Pietros, 638 A.2d 545, 547 (R.1.1994) (employing equitable estoppel where natural mother’s decision to bear child was direct result of husband’s assurances that he would serve as child’s father).

       In two subsequent cases, however, the California Court of Appeals estopped the denial of paternity without inquiring into the viability of an action to determine the identity of the nonparty natural father and for child support. See In re Marriage of Johnson, 88 Cal. App. 3d 848, 852, 152 Cal. Rptr. 121 (1979); In re Marriage of Valle, 53 Cal. App. 3d 837, 842, 126 Cal. Rptr. 38 (1975). Thus, the doctrine that has developed in California focuses on emotional harm, without any requisite economic detriment. Knill v. Knill, supra, 306 Md. 545-46 (Murphy, C. J., dissenting). As such, California has established a minority rule for equitable estoppel in the paternity context.

       See, e.g., In re Marriage of Johnson, 88 Cal. App. 3d 848, 852, 152 Cal. Rptr. 121 (1979) (estopping party regardless of monetary detriment); K.A.T. v. C.A.B., 645 A.2d 570, 573-74 (D.C. App. 1994) (requiring financial detriment in order to invoke equitable estoppel doctrine); Knill v. Knill, supra, 306 Md. 538 (same); A.R. v. C.R., 411 Mass. 570, 574-75, 583 N.E.2d 840 (1992) (finding no estoppel and declining to decide whether emotional detriment alone sufficient to uphold claim of equitable estoppel); Watts v. Watts, 115 N.H. 186, 188-89, 337 A.2d 350 (1975) (estopping husband from denying paternity without explicit equitable estoppel analysis); Miller v. Miller, 97 N.J. 154, 168-69, 478 A.2d 351 (1984) (estoppel only where party’s actions precluded child from obtaining future support from nonparty biological parent); Pietros v. Pietros, 638 A.2d 545, 547 (R.I.1994) (employing equitable estoppel to serve best needs of child on case-by-case basis); Wiese v. Wiese, 699 P.2d 700, 702 (Utah 1985) (adopting rule in Miller).

       The New Jersey Supreme Court also created a rule to soften the transition for the natural parent and the child. The court permits a natural parent to obtain pendente lite child support from a stepparent until the trial court has made a determination regarding permanent child support. Miller v. Miller, supra, 97 N.J. 167. A court can order such support if the natural parent demonstrates that the children are not receiving support from the nonparty natural parent and that “the stepparent’s conduct actively interfered with the children’s support by their [nonparty] natural parent, so that pendente lite support may not be obtained from the natural parent. . . .’’Id.

       Additionally, because such a requirement could encourage bad faith disclosures by the stepparent hoping to avoid any child support obligations, the requirement is to be avoided.

       For example, although a court can estop a party from legally denying paternity, and, therefore, require him to support a child financially, it cannot prevent a party from telling that child that he is not the child’s biological father or from ceasing to emotionally support the child.